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State v Kauken [2013] PGNC 316; N5552 (25 July 2013)

N5552

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR 1035 of 2011

THE STATE

V

VINDIN KAUKEN

Maprik: Geita AJ
2013: July 20, 25

CRIMINAL LAW – Plea of guilty - Causing grievous bodily harm – Intention to cause grievous bodily harm – Domestic setting – Underlying causes leading up to the commission of the crime considered -

CRIMINAL LAW – Sentence – Plea of Guilty – 4 Years imprisonment - Wholly suspended with conditions - K2500 compensation to be paid to the victim within four weeks -Criminal Code Section 319

Cases cited:

The State v Vero Jerry Cr 197 of 2013 July 19 (Unreported)
The State v Anna Eddie Cr 508 of 2011 July 3 (Unreported)

Counsel:
Mr. Francis Popeu, for the State
Mr. Francis Fingu, for the accused

DECISION ON SENTENCE

25 July, 2013

1. GEITA AJ: The prisoner pleaded guilty to a charge that he on 14 July 2011, at Visikum village North Wosera area, Maprik, East Sepik Province with intent caused grievous bodily harm to Joseph Wagindu, his brother in law. He was indicted under s.319 of the Criminal Code Act, as amended.

2. These are the brief facts. During a domestic argument a week earlier over K250 belonging to the victim's wife the victim chased her and her children out of their house and they ended up at the accused's house. The accused being his brother. When all else failed to convince his wife to return home he abducted their breast feeding child from her mother in order to compel his wife's return to their marital home. His next attempt ended up in an argument at the accused's house on 14 July 2011 around 7.00pm which ended up in his left wrist being severed by the accused in defence of his sister. Like most domestic arguments they are deep rooted from petty disagreements, remain unresolved and fester into serious criminal matter. For instance long outstanding demand for bride price payments for his sister, damaging of kitchen utensils of value to family members etc. This dispute is no different.

3. According to the victim the accused came running towards him, shouting obscene words: "You fucking bastard I will kill you" and swung the bush knife at him. When he lifted his arm to defend himself his writ was chopped in the process.

4. According to the accused the victim came into his premises looking for his wife and family in an aggressive manner. He threatened to assault the accused's wife who was preparing their evening meal in the kitchen and she ran out. He followed the accused's wife out and in his aggressive manner (sam sam igo kam) said: "I will not go until I find Maria and kill her then I will go". By than the accused had arrived from a cocoa fermentry business meeting and saw the victim arguing with his elder sister Tambakia and trying to fight her. Upon seeing his actions he said: "I didn't think of anything, I just picked up my bush knife and chopped his hand off. I never thought that I will chop his hand off-but I already did it." I quote the accused ending statements in pidgin as it explains clearly the dormant inner motive which triggered his action that night:

"Mi pinisim belhat blo mi long planti tok hambak long mipela ol brata taim em paitim Susa Maria. Na ol kain kain nogut e mi mekim long em wantaim pikinini planti yia kam inap nau. Emi no paem bride prais blo susa long 25 yias blo marit blo tupelo-behin long six pla pikinini."

5. The prisoner is about 37 years old and is married with four children. He has no formal education and is a subsistence farmer. In his allocutus, he told the Court that he was sorry for what he had done to the victim and asked for leniency: Saying that she has four small children. Mitigating factors favourable to the accused include the following:

1. Guilty plea
2. Early admission in his record of interview
3. Genuine remorse
4. First time offender
5. De-facto provocation
   

6. Mr Fingu submitted on behalf the prisoner that the court also take into account some underlying factors which triggered this crime: Victim married to his sister for 25 year with no bride price paid; wife beating many times; victim burnt down dwelling house and chased wife and children out of the house; took away their breast feeding baby from the mother; infant child used as a bargaining tool to lure the wife back to the house.

7. Defence counsel referred me to three cases in which I saw little relevance in them and will not comment on them. However I took note of the Anna Eddie case by Kirriwom J in particular his honours discussions on the need for courts to also address their minds to the surrounding or prevailing circumstances leading up to the event and not stick to the rigidity and the intend of the crime.

Mr. Fingu concedes that the nature of the injury was worse in that the victim had lost a limb with 100% loss. The case of Gimble v The State [1988-89] was referred to court in support of his submission that the accused actions were in defence of the privacy of his house. He invited court to consider a head sentence of 4 years with suspensions.

8. Mr Popeu for the State submitted that this crime was serious and called for a custodial sentence: the victim has suffered 100% loss of his left limb. He conceded to the suggested head sentence of 4 years but submitted that the sentence should reflect the seriousness of the crime. He said that the Gimble case was quite different to this case and should not be considered. I too agree with his submission. Gimble case involved an armed robbery and invasion of that home to commit the offence whereas in this case the victim's family were with the accused and so he had gone to fetch them.

9. In an earlier case I presided upon during this circuit, I adopted and applied the sentiments echoed by Kirriwon J in the case of Anna Eddie.
The State v Vero Jerry Cr 197 of 2013 July 19 (Unreported)

That case involves the prisoner have been told that her husband was having sexual intercourse with the victim armed herself with a bush knife and went looking for them. Having found them sitting on the victims veranda confronted the victim and cut her on the side of the neck and face, inflicting serious bodily wound.

The prisoner, a typical village man without the benefit of formal schooling, now abandoned by the husband with three small children was forced into what she did to the victim, although wrong in law. The unease and uncertainty of her future culminated into the prisoner cutting the victim's face in full view of the husband.

10. Notwithstanding the severity of the wounds and this crime bordering on the worst case of unlawful wounding His Honour in Anna Eddie had this to say in considering what the appropriate sentence should be and I quote:

"I look at this woman's predicament not purely from the perspective of her criminal or offending behaviour. Often courts jump quickly to the conclusion that an offender deserves punishment by just looking at the nature of the criminal act without appreciating the underlying causes that led to the commission of the offence complained off. And particularly so in domestic situations where one spouse is forced by unforeseen circumstances in the marriage that marginalized the offending spouse for years or decades of suffering when the other party chose not to honour their matrimonial vows."

11. In this case although the factual situations remain different the setting are akin to those in Anna Edde and Vero Jerry: domestic argument, uneducated villager; faced with threat of his sister being killed by the victim; Victim married to his sister for 25 years with no bride price paid; wife beating many times; victim burnt down dwelling house and chased wife and children out of the house; took away their breast feeding baby from the mother; infant child used as a bargaining tool to lure the wife back to the house. These panted up hidden anger is described by the accused in words quoted above in pidgin:

"Mi pinisim belhat blo mi long planti tok hambak long mipela ol brata taim em paitim susa Maria. Na ol kain kain nogut e mi mekim long em wantaim pikinini planti yia kam inap nau. Emi no paem bride prais blo susa long 25 yias blo marit blo tupelo-behin long six pla pikinini."

12. To my mind the sentiments expressed by Kirriwom J is applicable in this case and are adopted.

13. That maximum penalty is prescribed because the crime involves a deliberate intention to cause someone grievous bodily harm. However in this case there are exceptional circumstances, notable of which is the prisoner, an uneducated village man, forced in a situation to defend his family and his sister's family from aggression. The victims public defiance and utterances of causing harm to a close family, in this case his sister and children, in "their world" is trigger for attack or be harmed. In his own words: "I didn't think of anything, I just picked up my bush knife and chopped his hand off. The predicaments faced by the prisoner in this case are analogous to those in Anna Eddie and Vero Jerry case, despite differing factual situations.

14. Notwithstanding the seriousness of this crime I consider the surrounding circumstances leading up to the crime equally important hence do not consider the imposition of the maximum or a custodial sentence. Might I add here that extenuating circumstances and mitigating factors have the effect of reducing punishment? I am therefore satisfied that the extenuating circumstances relating to the circumstances of this case has the tendency to reduce the gravity of this crime. Taking into account the sentiments expressed above including all mitigating factors, I consider a mid range sentence to be appropriate under the circumstances.
.
15. In the exercise of my discretion under section 19 of the Criminal Code I sentence you to four years which is wholly suspended with the following condition: You must keep the peace and be of good behaviour towards the victim, failing which you will be arrested to serve the full term of the order. You are ordered to pay K2500 to the victim within four weeks. Your court bail of K1000 will be refunded to you.

Ordered accordingly
____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused