The State v Fredinand Naka Penge (2002) N2244

• Jurisdiction: Papua New Guinea
• Citation: (2002) N2244
• Date: 24 May 2002
• Court: National Court
• Year: 2002

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

National Court: Kandakasi J

Judgment Delivered: 24 May 2002

1 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—.

2 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.

3 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 s340 and s19.

4 The State v Ngetto Rex Rongo (2000) N2035, Ure Hane v The State [1984] PNGLR 105, Goli Golu v The State [1979] PNGLR 653, Gimble v The State [1988–89] PNGLR 271 and The State v Fabian Kenny (2002) N2237 referred to

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Kandakasi J: You pleaded guilty to a charge of unlawful assault of your wife Mary Therese Kiawau on 15 October 2001, at Kawanumbo, Wewak East Sepik Province, contrary to s340 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...