The State v Vincent Naiwa (2004) N2710

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 22 June 2004
• Citation: (2004) N2710
• Court: National Court
• Year: 2004
• Judgement Number: N2710

Full Title: The State v Vincent Naiwa (2004) N2710

National Court: Kandakasi J

Judgment Delivered: 22 June 2004

1 CRIMINAL LAW—Compensation—No independent verification of means to pay—Relatives prepared to assist—No proposal by accused to repay contribution from relatives—Inappropriate to order compensation.

2 CRIMINAL LAW—Sentence—Grievous bodily harm to sister–in–law—Use of bush knife—No good reason for attack—Left hand of victim rendered useless—Guilty plea—First time offender—Prevalence of offence—No compensation paid and having no means to pay—Pre–sentence report not balanced—Custodial sentence appropriate—5 years sentence imposed—Criminal Code s319.

3 The State v Isaac Wapuri [1994] PNGLR 271, The State v Philip Susuve Raepa [1994] PNGLR 459, The State v Apa Kuman (20/12/00) N2047, The State v Nickson Pari (No 2) (10/01/00) N2033, The State v Darius Taulo (2001) N2034, The State v Rueben Irowen (24/05/02) N2239, The State v Henry Idab (17/12/01) N2172, The State v Eddie John Naopa (24/04/03) N2411, The State v Marety Ame Gaidi (26/0802) N2279, The State v Louise Paraka (2002) N2317 referred to

___________________________

N2710

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 461 of 2004

THE STATE

-V-

VINCENT NAIWA

WEWAK: KANDAKASI, J.

2004: 10th and 22nd June

CRIMINAL LAW - Compensation – No independent verification of means to pay – Relatives prepared to assist – No proposal by accused to repay contribution from relatives – Inappropriate to order compensation.

CRIMINAL LAW – Sentence - Grievous bodily harm to sister-in-law – Use of bush knife – No good reason for attack – Left hand of victim rendered useless – Guilty plea – First time offender – Prevalence of offence - No compensation paid and having no means to pay – Pre-sentence report not balanced - Custodial sentence appropriate – 5 years sentence imposed – Criminal Code s. 319.

Cases cited:

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

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

The State v. Apa Kuman (20/12/00) N2047.

The State v. Nickson Pari (N0.2) (10/01/00) N2033.

The State v. Darius Taulo (15/12/00) N2034.

The State v. Rueben Irowen (24/05/02) N2239.

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

The State v. Eddie John Naopa (24/04/03) N2411.

The State v. Marety Ame Gaidi (26/0802) N2279.

The State v. Louise Paraka (2002) N2317.

Counsel:

J. Wala for the State

L. Siminji for the Prisoner

22nd June 2004

KANDAKASI J: You pleaded guilty to one charge of causing grievous bodily harm to another person, Jelpina Winduo at Walemba, Kubalia area, here in the East Sepik Province on 22nd December 2003 contrary to s.319 of the Criminal Code.

Following your guilty plea, the State admitted into evidence, with your consent, the District Court depositions. I read the witness statements and your record of interview, which were in the depositions and notice that, you raised the possible defence of acting in self-defence. I raised that with your counsel and your counsel informed the Court that, you were not raising that defence. I was thus satisfied that, there was sufficient evidence supporting the charge and your eventual guilty plea. I therefore, accepted your guilty plea and had you convicted on the charge of grievous bodily harm as presented.

Before your address on your sentence, your lawyer applied for a pre-sentence report. I granted that application and directed that the report should be furnished by 17th June 2004. The Probation Services here in Wewak furnished a report on the date required. I perused that report and noted that, it had no input from the victim and her relatives. Similarly, I noted that, there was no input from the police and any impartial leader in the community indicating their position in relation to the kind of sentence they would want to see you receive. This is important because the Court needs to know, whether they would welcome a non-custodial sentence and if so, what part they would play in a fulfillment of any terms or conditions, the Court might impose as an alternative to of the prison system.

I adjourned your case to the next day, 18th June to see if the situation could improve. The Court then adjourned to yesterday for the administration of your allocatus and receipt of the parties’ submissions and see if the position in relation to your pre-sentence report could improve. The situation improved only a little in terms of an affidavit from a leader here in Wewak away from the village where the incident took place and where you are ordinary resident. That has not, in my view, assisted in overcoming the defects in your pre-sentence report.

Relevant Facts

Turning now to the relevant facts, I note that in the night of 21st of December 2003, you went and slept in a smaller house. Later around 1:00am you called for your son, Joshua to come out of the main house and sleep with you upon hearing him cry. You called out for quite a while. It seems no one opened the door to your family house. You therefore, broke the door and got your son out.

The next morning, on waking up and coming out, your wife found out that the door was damaged. She therefore asked as to who damaged it. Your sister-in-law, the victim of your offence who heard you in the night informed your wife that it was you. Thereupon, your wife came, woke you up from your sleep, and told you to go and fix the door. You responded by swearing at her saying “You hole, you vagina”. Then you got out from where you slept, you carried your son, took a bush knife from within the house, came out, put your son on the ground and then walked over to your wife and swung the bush knife at her. She avoided it by moving away from it. She stayed some distance away from you and told you that, you damaged the door according to the victim of your offence and invited you to go and examine the door. You did that.

After inspecting the door, you walked over to your sister-in-law and swore at her saying “You vagina, hole you.” Then you asked her, “What did you say about me?” After that, you went over to her, grabbed her neck and started to squeezed it and pushed her down to the ground. She managed to stand up and as she did, you started to attack her with your bush knife. By this time, she realized that you were attacking her with the bush knife so she ran to where her sister, your wife was and got a knife off from her. Then she saw you swinging your knife at her again and so she used the knife she took from your wife and blocked your bush knife from reaching her body.

You swung your bush knife at her again on the left side of her head. On seeing that, she lifted her left hand to avoid you reaching her head. As a result, you cut her left hand amputating the left pointer finger and reached her tall man and ring fingers from the palm. Then you grabbed her, pushed her against a stool, where upon she stumbled and fell to the ground. She got up and found that she was seriously injured and she ran away and returned a little later. At that time, she and her sister, your wife searched for the cut off finger, found it, and later went to the hospital.

Meanwhile, you ran away to Wewak town and surrendered to police the next day, whereupon your arrest came. In your record of interview, you claim that, the victim attacked you first and you attacked her without any intention of causing her such injuries. You have reconsidered that and have now decided to abandon that. Therefore, the facts remain as noted above, on the basis of which the Court accepted your guilty plea.

Allocutus and Submissions

In your address on sentence, you asked the Court to note and consider your guilty plea and being a first time offender. You also said sorry for what you have done. You then asked for probation so you could return to the village and settle the matter. In the pre-sentence report, you claim that the injury to the victim was an accident, but I find that the facts discredit you on that. Besides, the report was prepared entirely on your statement. There is no input from the victim or any of her relatives. There are also no character references or any input from community leaders in a balanced manner.

Your lawyer added by informing the Court that, you are 31 years old and are married with one child who is aged four years old as opposed to the pre-sentence report say two children age 1 year and 4 months respectively. Your wife and child are in the village. You have a brother and 4 sisters. You are the 6th born in your family and you come from Walemba village in the...