The State v Lucas Huliahwere (2004) N2544

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 23 October 2003
• Citation: (2004) N2544
• Court: National Court
• Year: 2004
• Judgement Number: N2544

Full Title: The State v Lucas Huliahwere (2004) N2544

National Court: Kandakasi J

Judgment Delivered: 23 April or 23 October 2003??

1 CRIMINAL LAW—Compensation—Compensation only relevant for mitigation purposes and does not excuse criminal responsibility—Evidence of compensation already paid—Where effect of ordering compensation or taking into account compensation paid adverse to deterrence, it should not be ordered or taken into account.

2 CRIMINAL LAW—Sentence—Grievous bodily harm to second wife—Victim suffering fracture arm injury—Guilty plea—No prior convictions—Prisoner has a habit of wife beating—Compensation paid—Expression of remorse—Victim stating compensation already paid and time spent in custody sufficient penalty—Probation report recommending community based order without a definite and clear arrangements for supervision—Sentence of 5 years imposed—Part suspended conditional on community based supervision being available and confirmed to Court's satisfaction within specified time—Criminal Code s19 and s319.

3 The State v Abel Airi (2000) N2007, The State v Isaac Wapuri [1994] PNGLR 271, The State v Philip Susuve Raipa [1994] PNGLR 458, The State v Apa Kuman (2000) N2047, The State v Nickson Pari (No 2) (2001) N2033, The State v Darius Taulo (2001) N2034, The State v Kenny Reuben Irowen (2002) N2239, The State v Henry Idab (2001) N2172, The State v Ngetto Rex Rongo (2000) N2035, The State v Joseph Ulakua (2002) N2240 referred to

___________________________

N2544

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1038 of 2003

THE STATE

-V-

LUCAS HULIAHWERE

WEWAK: KANDAKASI, J.

2003: 22nd and 23rd April

CRIMINAL LAW – Compensation – Compensation only relevant for mitigation purposes and does not excuse criminal responsibility – Evidence of compensation already paid – Where effect of ordering compensation or taking into account compensation paid adverse to deterrence, it should not be ordered or taken into account.

CRIMINAL LAW - Sentence – Grievous bodily harm to second wife - Victim suffering fracture arm injury - Guilty plea – No prior convictions – Prisoner has a habit of wife beating - Compensation paid – Expression of remorse – Victim stating compensation already paid and time spent in custody sufficient penalty - Probation report recommending community based order without a definite and clear arrangements for supervision - Sentence of 5 years imposed - Part suspended conditional on community based supervision being available and confirmed to Court’s satisfaction within specified time – Criminal Code ss. 19 and 319.

Cases cited:

The State v. Abel Airi (Unreported judgement delivered on 28/11/00) N2007.

The State v. Isaac Wapuri [1994] PNGLR 271.

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

The State v. Apa Kuman (unreported judgement delivered on 20/12/00) N2047.

The State v. Nickson Pari (N0.2) (unreported judgment delivered on 10/01/00) N2033.

The State v. Darius Taulo (unreported judgement delivered on 15/12/00) N2034.

The State v. Rueben Irowen (unreported judgement delivered on 24/05/02) N2239.

The State v Henry Idab (unreported judgement delivered 17/12/01) N2172.

The State v. Rex Rongo (unreported judgement delivered on 20/12/00) N2035.

The State v. Joseph Ulakua (unreported judgement delivered on 23/0502) N2240.

Counsels:

Mr. M. Ruari for the State

Ms. S. Maliaki for the Prisoner

23rd of October 2003

KANDAKASI J: Lucas Huliahwere, you pleaded guilty to one charge of causing grievous bodily harm to your second wife, Sabeth Huliahwere at Kwarabrie village in the Yangoru District of this Province on the 5th of December 2002 contrary to s.319 of the Criminal Code. On the basis of your guilty plea, and upon being satisfied as to the appropriateness of accepting your guilty plea, I had you convicted and administered your right to address the Court on sentence. You left it to your lawyer and she did that yesterday.

Based on your guilty plea, not having any prior convictions and having paid compensation for the injuries you caused to your wife together with your expression of remorse, you asked for a suspended sentence between 2 and 3 years. On the other hand, the State argues for a custodial sentence of 5 years, part of which, could be suspended if the Court is satisfied as to the basis for a suspension.

Which of these submissions I should accept is dependant on the particular facts of your case and the relevant law and practice together with the sentencing tariff in relation to the kind of offence you have pleaded guilty to. I therefore first deal with the facts. Then I will give consideration to the relevant law, its practice and the sentencing tariff, have that applied to the facts of your case and arrive at a sentence for you.

Relevant Facts

The relevant facts are short and simple. On the 5th of December 2002, between 7:00 and 8:00pm, your wife Sabeth, the victim was very sick and was laying down on the ground near a fire in your family’s newly built house. You were in the old dwelling house and called for Sabeth to come to you. She got up from where she was laying down. She then answered you and asked you to give her a few moments to get up and come over to you. She was just about to come to you when you suddenly appeared from her back hit her with a piece of wood on her left arm side, three times. She felt a lot pain and cried out in pain and you hit her again on her head causing her to bleed. She fell to ground with a lot of pain. Once she was on the ground, you proceeded to put one of your legs on the hand where you had hit three times, with your hands holding her around the wrist and gave it a very hard pull. She could feel her arm bones come apart and loose. By that time, she was in a lot more pain and she screamed. That is when you left her and surrendered yourself to the police at Yangoru police station.

Your victim and wife was taken to the Yangoru Health Center and from there she was referred to the Boram General. There, she was appropriately treated and later discharged. Medical report confirms that she suffered a fracture injury to her forearm. This required surgery for a fixation of the fracture. An intramedullary rod was inserted and the broken arm was placed in a cast at the elbow for six weeks.

The medical report also confirms that her medical history shows records of you previously beating her. The report states that, on the earlier occasion she sustained head injuries for which she was also hospitalized. Your victim and you confirm this.

The Offence and Sentencing Trend

The offence with which you have been charged is defined and its penalty prescribed by s. 319 of the Criminal Code. The maximum sentence prescribed is 7 years imprisonment.

There are a number of cases under this section where a variety of sentences have been imposed. I believe this has been the case because as I said in The State v. Abel Airi,

(Unreported judgement delivered on 28/11/00) N2007.

1 exercising the Court’s sentencing discretion is not a matter of mathematics. Instead, it requires an exercise of judicial discretion in such a way to do justice in the circumstances of a particular case. By reason of that, there might well be differences of sentences. I will discuss some of these cases to gather the kind of sentences that have been imposed.

I start with the case of The State v. Isaac Wapuri,

[1994] PNGLR 271.

2 where a sentence of 18 months in hard labour with 5 months deducted on account of time spent in custody was given. The balance of the sentence was suspended on condition of good...