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State v Elliot [2014] PGNC 364; N6524 (9 July 2014)

N6524

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR 919 of 2013


THE STATE


V


STEVEN ELLIOT


Kimbe : Batari J
2014 : 17 June, 9 July


CRIMINAL LAW – sentence – grievous bodily harm – accused attacked adulterous spouse with bush knife severing her right forearm – seriousness of – plea – early plea – value of - mitigation – de facto provocation – domestic disharmony – extent of - compensation – offer and acceptance of – alternative to imprisonment considered - sentence of 4 years with probation orders appropriate – Criminal Code s. 319; Criminal Law (Compensation) Act, 1991 s.3 applied.


Cases Cited
No case cited
Texts
Principles of Sentencing, DA Thomas, 2nd Edition


Counsel:
A Bray, for the State
D. Kari, for the Accused

SENTENCE

9 July 2014

  1. BATARI J: Steve Elliot this is your sentence following your plea of guilty to charge that on 9 June 2011 at Morokea village in Kimbe, West New Britain Province, you unlawfully did grievous bodily harm to one, Anna Kaona in contravention of s. 319 of the Criminal Code Act.
  2. The maximum penalty for your offence is 7 years. That is the starting point against which the Court will assess the seriousness of your conduct and the appropriate punishment.
  3. The circumstances of your conviction in brief are these; the victim, Anna Kaona was your wife. Sometime in early 2010, she left the matrimonial home and moved to Lae to join someone with whom she was having extra marital affairs. Upon her return about a year later, the two of you had a domestic row I think, over her long absence from the matrimonial home and open infidelity. The altercation led to a fight in which you attacked her in retaliation with a bush knife, severing her right forearm.
  4. This type of offence is quite rife in this province from the number of cases I have dealt with involving one disgruntled person attacking another usually with a knife. People must surely know by now, the enormity of resorting to violence over disputes and disagreements. Christianity and government influences having permeated this province far and wide the serious consequences of unlawfully attacking another human being with a deadly weapon like a knife and to do so would lead to imprisonment must surely be a well-known fact by now.
  5. The gravity of your reckless and uncaring conduct is the use of a weapon and a permanent loss of limb to the victim. Added to that is the prevalence of the offence.
  6. In your favour, a commendably comprehensive presentence report from the Probation Officer, Ms Elizabeth Passingan is before the Court. I find the report fair and useful and likewise, the means assessment report.
  7. You are aged 42 years and separated from the victim. You have four children from her with one adopted and another child from your present partner. After completion of your higher education, you were usefully employed until the time of this offence when you had to leave employment in order to properly attend to your bail conditions. This is your first offence and you have pleaded guilty early which to some extent supports remorse.
  8. The fact that one pleads guilty may, in appropriate cases, mitigate a criminal conduct in a meaningful way. It may warrant a generous discount on the sentence as an incentive in itself to plead guilty. In your case, your plea of guilty supported by expression of remorse, prior good background and offer to pay compensation are significant factors in your favour.
  9. I also consider in your favour, elements of provocation falling short of the legal defence precipitated your offence. From 2010 to the time of the incident, you and the victim had been going through marital discord largely due to her infidelity. She subsequently left you and the children only to return after sometime to argue and fight you. You should have exercised restraint and self-control. Your resort to a weapon is unwarranted. I do however accept that your conduct is explained by the matter-of-fact provocation. You action was domestic related, uncalculated and that it did not involve a sustained attack with a weapon.
  10. The presentence reports are sufficiently detailed on the grounds for alternative sentencing and there has been no opposition for the recommended options for a release on probation and payment of compensation.
  11. The Criminal Law (Compensation) Act, 1991 authorizes the Court when considering punishment, to consider whether compensation should also be awarded.
  12. In a civil suit for damages, I am of the view that, the extent of the victim’s injuries described by the doctor would call for an award in the vicinity of K50, 000.00, inclusive of any assessment for continuing disabilities or loss of enjoyment of life. Under the Criminal Law (Compensation) Act, 1991 the Court can only award compensation up to K5, 000.00. Section 3 of the Act, sets out the following guidelines under which the Court may proceed to order compensation:
  13. I have considered your case in the light of those considerations.
  14. It is apparent from the presentence reports that both parties would embrace orders for compensation payment as part of the punishment. The victim’s demand is K50, 000.00. You have paid K5, 700.00 to the victim and have offered to pay a further K4, 300.00 to bring the total to K10, 000.00. The victim in accepting the initial payment does not admit that as compensation but a refund due to her. I do not intend to decide that fact. However, I will proceed on the basis that a Court sanctioned compensation Order to the limit of K5, 000.00 taking into account any out-of-court compensation payment is binding on the parties.
  15. The Means Assessment Report shows you are senior public servant with WNB Provincial Heath Authority on gross fortnightly income of K1, 100 and K800 net with some savings with Police Savings and Loans Society. You are on K500 cash bail which you would use towards compensation payment and would require time to meet the amount the court may order.
  16. I consider that compensation should be paid to the victim. The orders I propose to make takes into account on the one hand, your ability to pay compensation and on the other what might be the just and fair compensation in all circumstances of the case.
  17. It also addresses but does not necessary endorse the notion that those with means can simply “buy” their way out of court. This is because, the primary legislative structure under s. 19 of the Criminal Code creates two distinct system of sentencing to reflect the different penal objectives governed by different principles. This notion of sentencing is succinctly stated by the learned author of Principles of Sentencing, DA Thomas, 2nd Edition at p8:

“The options are to impose a sentence that may be loosely termed as “tariff sentence” or impost a sentence based on the needs of an offender as an individual”.


  1. It is for the sentencing authority to decide on the particular circumstances of the case before the Court, which of the two objectives should prevail over the other and apply the appropriate body of principles to determine the form of the sentence or measure to be adopted. In this case, the circumstance of the case taking into account, the gravity of the offence and the personal circumstances of the offender, is such that the individual measure option is warranted. Hence, the punishment imposed should include an order for payment of compensation.
  2. I have also considered all that was submitted by and on your behalf by your lawyer. Your early plea of guilty, expression of remorse and good background are most favourable factors which deserve appropriate discount on sentence. You have spent 21 days awaiting sentence. I do not propose sending you back to jail as I have reached the conclusion that a compensation award should be part of the sentence I am about to impose.
  3. I make the following Orders:
    1. You are convicted and sentenced to four (4) years imprisonment but to be released forthwith on probation for a period of four (4) years on the usual conditions and in addition that you –
      • (a) Shall within 48 hours, report to the Probation Officer;
      • (b) Shall reside at section 15 Bush Camp, Kimbe and nowhere else without leave of the National Court;
      • (c) Shall not leave Kimbe or WNB Province without leave of the Court;
      • (d) Shall pay the victim, Anna Kaona compensation;
      • (e) Shall attend church every weekend for service and worship and submit to counselling;
      • (f) Shall not consume, or deal with any form of liquor, alcohol or drug;
      • (g) Shall keep the peace and be of good behaviour;
      • (h) Shall have a satisfactory probation report as required;
      • (i) Shall appear before the National Court as and when required.
    2. The Probation Office shall file six monthly reports and whenever required on your responses and progress on probation until discharged.
    3. In the event that the conditions are not complied with, then your probation would have been breached and you will be liable to be imprisonment four (4) years or the balance thereof.
  4. As for compensation, I propose to award K5, 000.00. Pursuant to s 6 of the Act I make the following Orders:

_______________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Accused

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