The State and Wan Minimbi

• Jurisdiction: Papua New Guinea
• Citation: (2013) N5367
• Date: 19 June 2013
• Court: National Court
• Year: 2013

Full : CR No.599 Of 2012; The State and Wan Minimbi (Prisoner) (2013) N5367

National Court: David, J

Judgment Delivered: 19 June 2013

CRIMINAL LAW—sentence—grievous bodily harm—prisoner first wife of victim—victim assaulted with bush knife—multiple wounds - fourth digit of the victim’s right hand amputated at the middle phalangeal joint and deep laceration across right hand palm through to third digit - deep laceration across the victim’s left hand palm through to first and second digits - left thumb immobile at initial diagnosis - deep laceration to left Achilles tendon - medical treatment administered over a period of about three months—mitigating and aggravating factors considered—guilty plea—offence committed in domestic setting—de facto provocation—factors in mitigation outweigh those in aggravation - sentence of 4 years in hard labour—pre-trial confinement period deducted—remaining term suspended—Criminal Code, s19 and s319.

Cases cited

Goli Golu v The State [1979] PNGLR 653

Avia Aihi v The State (No 3) [1982] PNGLR 92

Public Prosecutor v Thomas Vola [1981] PNGLR 412

The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424

Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91

The State v Frank Kagai [1987] PNGLR 320

Lawrence Simbe v The State [1994] PNGLR 38

Ivoro Kaumin Lupu v The State, SCRA No.2 of 1997, Unreported & Unnumbered Judgment dated 13 June 1997

Public Prosecutor v Don Hale (1998) SC564

The State v Henry Idab (2001) N2172

Edmund Gima and Siune Arnold v The State (2003) SC730

Richard Liri v The State (2007) SC883

The State v Steven Dua, CR. No.1525 of 2006, Unreported & Unnumbered Judgment of David, J delivered on 16 August 2007 at Mt. Hagen

The State v Sam Piapin (2009) N3585

The State v Ali Kawa Job, CR 1189 of 2006, Unreported & Unnumbered Judgment of David J delivered on 15 December 2009 at Kundiawa

The State v Michael Tangip (2012) N4782

SENTENCE

1. DAVID, J: On Friday, 17 May 2013, the prisoner, appearing before me from bail, was charged with one count of unlawfully doing grievous bodily harm contrary to Section 319 of the Criminal Code, the State alleging that on 20 September 2011 at Mt. Hagen, Western Highlands Province in Papua New Guinea, she unlawfully did grievous bodily harm to one Agua Waiya, (the victim). She pleaded guilty to the charge which I accepted, the Record of Interview containing admissions, and I convicted her accordingly.

2. Mr. Kos for the prisoner applied for a pre-sentence report to be compiled and filed by the Probation Service, Mt. Hagen branch which I granted and submissions on sentence were deferred pending the filing of the report. I fixed the matter to return before me on Monday, 10 June 2013 at 9:30 am for submissions on sentence. The report was duly compiled and filed and I am grateful to Ms. Theresa Puk, Probation Officer for her assistance.

3. The prisoner was granted bail after conviction with similar conditions as those applying before conviction.

4. The return date fell on the Queens Birthday public holiday so the case was brought before me on Wednesday, 12 June 2013 at 9:30 am. The prisoner did not appear so the matter was adjourned to Thursday, 13 June 2013 at 9:30 am. Still the prisoner did not appear so the case was further adjourned to Monday, 17 June 2013. The prisoner having again failed to appear, I directed that a bench warrant be issued to arrest her and bring her before the Court, but adjourned the case to Tuesday, 18 June 2013 at 9:30 am giving her another opportunity to present herself voluntarily to the Court before submissions on sentence were made. The prisoner still did not appear, so I proceeded to hear submissions on sentence in absentia and reserved to pass sentence on the prisoner this afternoon. This is the sentence of the Court.

5. I had proposed to invoke Section 571 of the Code to sentence the prisoner in absentia based on the legal proposition that she had by her conduct inferentially consented to the continuation of the proceedings in her absence, but the prisoner turned up before the Court convened to deliver sentence. As a consequence, I proceeded to direct that the bench warrant I had issued earlier this week be revoked.

6. The maximum penalty prescribed for this offence is, subject to Section 19 of the Code, imprisonment for a term not exceeding 7 years.

7. The maximum penalty is usually reserved for the worst sort of cases of unlawful doing grievous bodily harm: see Goli Golu v The State [1979] PNGLR 653 and Avia Aihi v The State (No 3) [1982] PNGLR 92.

8. It is also settled law that each case must be decided on its own facts: see Lawrence Simbe v The State [1994] PNGLR 38.

9. The short facts presented to the Court for purposes of arraignment to which the prisoner pleaded were these. She is forty six years old from Kuk village located within the Baisu area outside of Mt. Hagen in the Western Highlands Province. She is the first wife of the victim husband in a polygamous relationship. On Tuesday, 20 September 2011 at about 8:00 o’clock in the morning, the prisoner was at the Bank South Pacific, Mt. Hagen ATM. Whilst there, she saw the victim give her bank card to his second wife to withdraw cash from the bank. Angered by what she saw, she took out a bush knife from her bag and attacked the victim. The first swing struck the victim on his left leg severing the Achilles tendon. The second swing which was aimed at the victim’s head struck the victim on the head, but the force of the swing was reduced when the victim caught the blade with his hands amputating the victim’s fourth digit of his right hand as well as causing...