The State v Darius Taulo (2001) N2034

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 10 January 2001
• Citation: (2001) N2034
• Court: National Court
• Year: 2001
• Judgement Number: N2034

Full Title: The State v Darius Taulo (2001) N2034

National Court: Kandakasi J

Judgment Delivered: 10 January 2001

N2034

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No 1147 of 2000

THE STATE

-v-

DARIUS TAULO

LAE : KANDAKASI, J.

2000: December 7, 15

2001: January 10

Criminal Law — Grievous Bodily Harm — Consistent pattern of wife beating over a period of years — Guilty Plea — Good mitigating factors — Suspended Sentence — Criminal Code Act (Ch. 262) s.319, 18, 19.

Criminal Law — Compensation — double compensation considered — cross-customary marriage — compensation only relevant for mitigation.

Criminal Law — Practice and Procedure — Need to call for pre-sentencing report — Community supervision.

Cases Cited:

The State v. Peter Kose Wena [1993] PNGLR 168

The State v. Nickson Pari (No. 2) (unreported and unnumbered) CR 1376/2000

The State v. Rex Lialu [1988-89] PNGLR 499

The State v. Isaac Wapuri [1994] PNGLR 271

The State v. Philip Susuve Raepa [1994] PNGLR 459

The State v. Monja [1987] PNGLR 447

Ure Hane v. The State [1984] PNGLR 105

The State v. Ngetto Rex Rongo (unreported and unnumbered judgement delivered in Lae on the 20th of December 2000) CR 1324 of 2000

Counsel

N. Miviri, for the State

M. Mumure, for the Defendant

10 January 2001

KANDAKASI, J : The prisoner pleaded guilty to one count of unlawfully causing grievous bodily harm to his wife Nancy Darius. The indictment charging him and on the basis of which he pleaded was presented on the 7th of December 2000.

Following the administration of the allocutus, Mr. Mumure, for the Defendant asked for an adjournment to enable him to prepare and present his client's address on sentence before sentence as he was just instructed. The State did not oppose that application and the matter was therefore adjourned to the 15th December, 2000.

Address on Sentence

On the 15th December 2000, Mr. Mumure presented his address on sentence going by a written submission filed on the same day. He submitted that any sentence the court may consider giving must be aimed at deterrence and rehabilitation. He also submitted that, compensation within the meaning of the Criminal Law (Compensation) Act 1991 must be considered, which he said was mandatory and referred to the case of The State v. Peter Kose Wena [1993] PNGLR 168. With those submissions I must agree.

I note from a number of affidavits filed and admitted into evidence with the State's consent, including an affidavit sworn on the 28th September 2000, by the victim the she is from Bukawa in the Morobe Province whilst the prisoner is from Gazelle Peninsula area of East New Britain Province. However, for the purposes of s.4(e) of the Customs Recognitions Act, Ch.19, I note that both of their customs recognize the custom of compensation although the form and amount may vary. The prisoner has paid a sum of K1,000 in compensation to the victim which was over and above the amount he is required to pay under his custom.

On the other hand, the victim's custom requires the killing of a pig and feasting over it. It is more of a peace ceremony. Through such a ceremony, the prisoner is required to and will promise not to repeat the wrong he has committed against the victim. The victim's people say that that custom must be followed to bring about lasting peace between the victim and the prisoner. His counsel argues for an order for payment of compensation in accordance with that custom as part of his penalty.

If there were a conflict of customs, then it would be the responsibility of the Court to decide which of the customs is appropriate and applicable and not offending against Schedule 2.1(2) of the Constitution in accordance with s. 7 of the Customs Recognizance Act Ch. 19 and for the purposes of s. 4(e) of that Act.

In the present case I find there is no conflict of custom. There is also no dispute as to the application of the custom of compensation as is practiced by the people of Apo village, Bukawa, Morobe Province. Indeed the prisoner is prepared to pay compensation in accordance with that custom. That is in addition to what he has already paid under his custom.

This raises the possibility of double punishment for the same offence. Customary compensation is recognized by the Criminal Law (Compensation) Act 1991 in addition to and or as part of criminal law sentencing.

The compensation that has already been paid was not out of any compulsion but voluntarily undertaken by the prisoner. He has now also volunteered to pay additional compensation pursuant to the Apo custom in the Bukawa area of Morobe Province. Besides the maximum compensation that can be ordered under the Criminal Law (Compensation) Act 1991 is K5,000.00. The combined effects of the volunteered compensations will not as a matter of fact exceed that limit.

I therefore, consider it appropriate that additional compensation in accordance with the Apo custom of Bukawa, Morobe Province, has to be ordered. As the prisoner is employed, I find that he will be able to find an appropriate size pig to kill and to hold a feast over. That I note will also serve to deter the prisoner from re-offending.

Ordering compensation will have to be in addition to or part of any sentence the case warrants with appropriate discounts for the compensation paid and to be paid.

In The State v. Nickson Pari (No. 2) (unreported and unnumbered) CR 1376/2000, I stated the view that only if an offender personally attends to paying compensation, he would be entitled to argue for that to be taken into account has a factor going in his favour and in his mitigation. But under no circumstances should compensation be a substitute to penalty. This is to avoid wealthy or well to do criminals from buying their way out of their criminal responsibilities and render the whole purpose and or functions of criminal law sentencing useless and or meaningless.

This is why I believe his Honour Amet, J. (As he then was) note in The State v. Rex Lialu [1988-89] PNGLR 499 said compensation is only a relevant factor in mitigation of an offender.

The court was then referred to two cases, The State v. Isaac Wapuri [1994] PNGLR 271 and The State v. Philip Susuve Raepa [1994] PNGLR 459 and it is was submitted that ordering compensation was a form of punishment within the meaning of s.2 of the Code.

The following factors were then advanced as factors mitigating the prisoner.

(a) he has no prior convictions;

(b) he pleaded guilty to the charge;

(c) he has expressed remorse;

(d) he has paid compensation according to his custom of people of Gazelle Peninsula and was prepared to pay compensation in accordance with his wife's peoples customs.

(e) Comparatively the injuries are not as serious as those inflicted to the victims in Philip Susuve Raepa, and Isaac Wapuri's.

(f) the victim prefers a non-custodial sentence on terms taking into account the interests and welfare of 3 children born out of the prisoner's marriage to the victim.

(g) the prisoner has changed his attitude.

It is argued for the prisoner that, his guilty plea should significantly reduce the sentence. The case of The State v. Monja [1987] PNGLR 447 was referred to and relied on. I accept that submission but add that, as to how much of a proposed sentence should be reduced on account of guilty plea is within a sentencer's discretion under s.19 of the Code. Over the exercise of such discretion, there may well be difference of opinions because, it is not a matter of mathematics so as to consistently arrive at a set figure. As long as there is a reduction in penalty because of a guilty plea that is what matters and not necessarily the mathematics of arriving at the...