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State v Kolape [2015] PGNC 93; N5929 (19 March 2015)

N5929

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1292 OF 2014

THE STATE

V

NANCY KOLAPE

Porgera: Kawi-iu, AJ.
2015: 10th, 19th March

CRIMINAL LAW – Sentence – Unlawful wounding – Knife wound on temporal region of the head – Plea – First time offender – Expression of remorse – Some compensation paid and offer for more – Parties reconciled – Element of non-legal provocation – Use of dangerous weapon –Sentence of 12 months – Wholly suspended – Probation with additional conditions – Criminal Code Ch. 262, s 322.

Cases Cited:

Goli Golu v The State [1979] PNG LR 653
The State v Kassman (2004) N2682
The State v Pangih (2004) N2676
Ure Hane v The State [1984] PNGLR 105

Counsel:

D. Mark, for the State
R. Bellie, for the prisoner

JUDGMENT ON SENTENCE

19th March, 2015

1. KAWI-IU AJ: On 10th of March the prisoner Nancy Kolape pleaded guilty to unlawful wounding one Ruth Embetaye on the 2nd day of September 2014 thereby contravening Section 322 of the Criminal Code Act Ch. 262. I confirmed your guilty plea and convicted you after reading the District Court depositions which was confirmed by your lawyer.
   
2. Nancy Kolape, the brief facts upon which I am about to sentence you are these. On the 2nd September 2014 between 12.00 and 1.00 pm you accosted the victim Ruth Embetaye at Paiam Bus Stop, Porgera. You are the second wife and attacked the victim who is the first wife of your common husband with a rock to her head. Victim sustained injury to her head. The Clinical Notes from Nurse Jerry Maku dated 2nd September 2014 noted cut to the scalp measuring 5 cm x 1 cm deep requiring 6 stiches. State alleged you have no lawful excuse to do so.
   
3. You are 24 years old, married with one child and come from Megi village Poroma, Southern Highland Province. You reside with your husband who has two other wives at Anawe village near the mine site. You are member of Apostolic Church at Porgera. Your parents are still alive. You are 2nd born in the family of 5. You were educated to Grade 4 at Mendi Primary School. You are an unemployed housewife at the time if the incident.
   

4. In your address to the court on sentence you said you hit her because she fought you in Magarima in 2013. Both of you fought and she bit your ear. Her sister got a stone and hit you on your head. You were admitted to the hospital and got 4 stiches. Time for payment had lapsed. You went to the police and police told them to pay you K600.00. Time given to pay you had lapsed. You came to Porgera and saw her at Pogera Bus Stop after 1 year 5 months. This was in retaliation for her failure to pay you compensation. You say sorry to the court. You have broken the law. You ask for mercy. You said you have settled your differences and your common husband pay each of you K200.00 and you accepted it.

4. Your lawyer Mr. Bellie submitted on your behalf that this is not a worst type of offence. The reason for you assaulting the other co-wife is that she had previously assaulted you in 2013. He submits that the maximum sentence for your offence is 3 years and your case is not the worse type. He submitted that the court should consider a sentence of 1 year and 6 months. The reason for you to assault is shown in question 19 of the ROI, this is the same reason that you gave in your allocutus. Your lawyer also submits that you and the victim have reconciled and living happily now. In these circumstances he is asking the court to impose 1 year 6 months imprisonment and asked the court to suspend the whole of the sentence.
   
5. Mr. Mark for the State on the other hand submitted that he has nothing further to say. What he wanted to say would be similar to submissions he gave in a related case of The State v Rebecca Peter No1241 of 2014, a case of GBH.
   
6. You are charged for unlawful wounding under Section 322(1) (a) of the Code which provides:
   

322. Wounding and similar acts.

(1) A person who—

(a) unlawfully wounds another person; or

(b) ...

is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years.

(2) . . .

7. While the maximum penalty is three (3) years, it is settled that the maximum is reserved for the worst category of offences. Goli Golu v. The State [1979] PNGLR 653; Ure Hane v. The State [1981] PNGLR 105. It is to be noted that this offence can be tried summarily in the District Court before a Principal Magistrate under Section 420 of the Code. But what has been the sentencing trend for this offence?
   
8. Neither counsel was able to assist the Court in this regard but the following cases come to mind.
   
9. The State v. Pangih (2004) N2676. In this case the prisoner pleaded guilty to one count of unlawfully wounding the victim with a fishing gun. The spear went through the victim's elbow and penetrated the abdomen. The victim recovered well and suffered no permanent or residual disability. There was an element of non-legal provocation. The prisoner was remorseful and was willing to pay compensation. He was sentenced to 2 years imprisonment which was then wholly suspended.
   
10. The State v. Kassman (2004) N2682. There the prisoner was sentenced on a plea to 3 years imprisonment for unlawfully wounding the victim around the neck area with a bush knife. He was a first time offender and had expressed remorse. Some customary compensation was made and the victim recovered well without any residual effects. The court suspended 2 years from the sentence.
    
11. The State v. Sekun (2006) N2360. There the prisoner pleaded guilty inflicting a superficial wound on his sister with a pocket knife. He was sentenced to 2 years.
    
12. For your case it is not a worse type that would justify imposition of the maximum penalty.
    
13. I take the following factors as mitigating the offence. You pleaded guilty thus saving time and costs for the State. In fact you made early admissions as evident from the Record of Interview and you co-operated fully with the police. You are a first time offender and you have expressed remorse. You have also mend you difference with the victim/co-wife and you are all living happily together again. Your common husband has brought peace and harmony between you and the victim/first wife.
    
14. The injury you caused to the victim is not life threatening. You used a stone to assault her with. There is no evidence to suggest that you hit her more than once. It is a one off incident and you acted alone.
    
15. Considering matters in your favour and those against you, I consider matters in your favour outweigh those against you. And reflecting on these considerations I am of the view that a reasonable starting point for you should be 1 year 6 months as proposed by your lawyer. I however, note that mitigating factors outweigh the aggravating factors. So in the circumstances I consider that a head sentence of 12 months would be appropriate for you.

16. You are now sentenced to 12 months, less the time spent in pre-trial custody which is 1 month 7 days. You are to serve the balance of 10 months and 23 days. Should the sentence of 10 months and 23 days be partially or fully suspended?

17. Yes I think that in the circumstances where good mitigating factors out weight aggravating factors such sentence should be suspended wholly.

18. I propose therefore to wholly suspend the sentence and place you on the following conditions:

1. You shall enter into recognizance with a cash surety of K500 to keep the peace and be of good behaviour for the period of the suspended sentence
   
2. You will pay K500.00 cash surety.
   
3. . If you breach condition of your recognizance you will be arrested and sentenced to serve the full term of your suspended sentence.
   

Orders accordingly
_____________________________________________________
The Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for Accused