The State v Fredinand Naka Penge (2002) N2244

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 24 May 2002
• Citation: (2002) N2244
• Court: National Court
• Year: 2002
• Judgement Number: N2244

Full Title: The State v Fredinand Naka Penge (2002) N2244

National Court: Kandakasi J

Judgment Delivered: 24 May 2002

N2244

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 55 of 2002

THE STATE

-V-

FREDINAND NAKA PENGE

WEWAK: KANDAKASI, J.

2002: 14th and 24th May

CRIMINAL LAW – Practice and Procedure – Need to hear victim of offence to determine appropriate sentence – Appropriate practice to do justice from the view point of a victim – The victim’s view can be obtained by hearing him or her in Court or through pre-sentencing reports – Means assessment and pre-sentencing report required before any compensation order and community based sentence can be made and imposed – Compensation not recommended but non-custodial sentence recommended by pre-sentencing report- .

CRIMINAL LAW – Compensation – Compensation only relevant for mitigation purposes and does not excuse criminal liability or penalty – Means assessment necessary before making any orders for compensation – No means assessment report favoring compensation – No compensation ordered.

CRIMINAL LAW - Sentence – Unlawful assault – Husband assaulting wife following reports of her having an affair with another man caused by the prisoner having an affair and marrying victim’s step sister – Assaults resulting in bruises and swellings only – Guilty plea – First time offender – Relationship with victim and prisoner restored – Victim prefers compensation and prisoner returning to the community to serve is sentence – Pre-sentencing report speaking against compensation and recommending non-custodial sentence - Custodial sentence imposed – Criminal Code ss.340 and 19.

Cases cited:

The State v. Rex Rongo (20/12/00) N 2035.

Ure Hane v The State [1984] PNGLR, 105.

Goli Golu –vs- The State [1979] PNGLR 653.

Gimble v. The State [1988-89] PNGLR 271.

The State v. Fabian Kenny (16/05/02) CR 281 of 2001.

Counsels;

Mr. M. Rarri for the State

Mr. D. Kari for the Prisoner

24th May 2002

KANDAKASI J: You pleaded guilty to a charge of unlawful assault of your wife Mary Therese Kiawau on 15th October 2001, at Kawanumbo, Wewak East Sepik Province, contrary to s. 340 of the Criminal Code. Upon reading the depositions, which was admitted into evidence with your consent, I accepted your guilty plea and convicted you on the charge presented as the evidence supported that course.

This was done after my raising with your lawyer the possible defence of provocation as there appeared to be a suggestion that you committed the offence because your wife was having an affair with another man. You lawyer informed me that you were not raising that defence because it could not be legally sustained because you acted on hearsay evidence and in any case what your wife may have done was caused by your first having an affair and marrying her step sister. After a careful perusal of the material in the depositions, I was satisfied that the defence of provocation could not be made out because you did not act in the heat of passion and in any event you set in motion what your wife did. Further, the assaults on the victim were repeatedly executed as opposed to a single blow.

Relevant facts

The relevant facts are straightforward. Sometime between April and May 2001, Zabeth a stepsister of your wife returned from Goroka. As their parents did not have a proper home she was permitted to stay with you and your wife in your house. She was allowed to stay in the kitchen.

Sometime in August 2001, around 8:00 p.m., your wife sat on the step or ladder to the house as she was hot. At that time, you returned from a walk and said you wanted some tea and went into the kitchen area. She then noticed some suspicious movements between you and Zabeth in the kitchen area. So she went into the kitchen pretending to ask for some lime to chew betel nuts. When she asked you for some lime, you became angry and forcefully took her out of the house onto the road and threatened her with a kitchen knife pointed to her throat and ordered her to keep her mouth shut.

Thereafter, she began to see a lot more things but kept her mouth shut. You brought Zabeth into the family bedroom and shared the bed with her while your wife stayed with your second born child in the same room. Although it is not expressly stated, it is clear from the evidence in the depositions that, there in the bedroom you proceed to have sexual intercourse with the Zabeth in full witness of your wife and children. Not long and your relationship between you and your wife as husband and wife became lesser and lesser while the relationship between you and Zabeth become more intimate. Your wife was relegated to a second wife.

Because of the threats you earlier made to your wife, she did not say a word to anyone about what you were doing. Eventually, it all became too much for her. She therefore, sought help from another man to do some magic to prevent you from marrying Zabeth. That man however exploited that opportunity and had sexual intercourse with him believing that, that he would do the required magic. Thereafter that she went to Wewak and stayed with her aunt and returned home on 13th October 2001.

You found out what she had been up to through a sister. You were not happy with that. So you chased her and threatened her with a bush knife and took her inside the house. You then tied both of her hands and a leg to the back of a chair while her small child was left outside with Zabeth crying. The next day being the 14th of October 2001, you questioned her about the sexual intercourse with the supposed magic man from around 12:30 midnight to around 5:00 a.m. At that time, you subjected your wife to a great deal of beating especially around her breast area and other parts until she was rendered unconscious or could not take it any more and she admitted her sexual affair with the supposed magic man. Later she was taken to the Boram Hospital with assistance and intervention of an aunt of your wife.

At the hospital, she was treated as an emergency patient for pain control due to your beatings. She was noted to have a very swollen and bruised face, with two heavy black eyes. She had an assortment of wheals and bruises in all parts of her body. There was much concentration in her breast area, which resulted in the breasts being tensed, swollen, bruised and very painful. The medical report concluded that the attack on your wife was calculated and vicious. She appears to have recovered well from those injuries.

In an affidavit purportedly deposed to by your wife on 12th December 2001, she speaks of not having had any intention of proceeding with the charge against you because she has forgiven you. But the original of that affidavit refers to her assailant as Kiawau Niaka. In a copy of that document, that name has been changed to Fedinan Naka Niaka. There is no dispute that the affidavit concerns the case against you.

I asked your wife as to whether she would accept compensation as part your punishment for the offence with community service orders. She said she would accept such a sentence. There is however, no evidence to show that no force was involved to secure that position from your wife.

I adopted that practice to ascertain the victim’s wishes in relation to the kind of punishments she would prefer see you receive. I consider doing that important in the interest of doing justice not only from an offender like you and the community perspective, which is traditionally the case, but also from the perspective of a victim of a crime. Of course, the down side to that might be that a victim may be driven by retaliation more than not, or that he or see may not necessarily have the confidence and or the security to give his or her true position. This can be taken care of by a careful assessment of what a victim may say as against the need to treat the offender fairly bearing in mind the purposes of criminal sentencing. That process can be assisted by a pre-sentencing report that has inputs from all of these perspectives.

Given the victim’s preference of a sentence that includes compensation and a non-custodial sentence, I requested a pre-sentencing report as well as a means assessment report in accordance with the requirement of the Criminal Law (Compensation) Act 1991. I have now received only a pre-sentencing report. That report is based on the author’s interview with you, your wife, an uncle of yours and your mother. No...