The State v Darius Taulo (2001) N2034

• Jurisdiction: Papua New Guinea
• Citation: (2001) N2034
• Date: 10 January 2001
• Court: National Court
• Year: 2001

Full Title: The State v Darius Taulo (2001) N2034

National Court: Kandakasi J

Judgment Delivered: 10 January 2001

1 Criminal Law—Grievous Bodily Harm—Consistent pattern of wife beating over a period of years—Guilty Plea—Good mitigating factors—Suspended Sentence—Criminal Code Act (Ch262) s319, s18, s19.

2 Criminal Law—Compensation—double compensation considered—cross–customary marriage—compensation only relevant for mitigation.

3 Criminal Law—Practice and Procedure—Need to call for presentencing report—Community supervision.

4 The State v Peter Kose Wena (1993] PNGLR 168, The State v Nickson Pari (No 2) (2001) N2033, The State v Rex Lialu (1988–89] PNGLR 449, The State v Isaac Wapuri (1994] PNGLR 271, The State v Philip Susuve Raipa (1994] PNGLR 458, The State v Albert Monja (1987] PNGLR 447, Ure Hane v The State (1984] PNGLR 105 and The State v Ngetto Rex Rongo (2000) N2035 referred to

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Kandakasi J: The prisoner pleaded guilty to one count of unlawfully causing grievous bodily harm to his wife Nancy Darius. The indictment charging him and on the basis of which he pleaded was presented on the 7 of December 2000.

Following the administration of the allocutus, Mr Mumure, for the Defendant asked for an adjournment to enable him to prepare and present his client's address on sentence before sentence as he was just instructed. The State did not oppose that application and the matter was therefore adjourned to the 15 December, 2000.

Address on Sentence

On the 15 December 2000, Mr Mumure presented his address on sentence going by a written submission filed on the same day. He submitted that any sentence the court may consider giving must be aimed at deterrence and rehabilitation. He also submitted that, compensation within the meaning of the Criminal Law (Compensation) Act 1991 must be considered, which he said was mandatory and referred to the case of The State v Peter Kose Wena (1993] PNGLR 168. With those submissions I must agree.

I note from a number of affidavits filed and admitted into evidence with the State's consent, including an affidavit sworn on 28 September 2000, by the victim the she is from Bukawa in the Morobe Province whilst the prisoner is from Gazelle Peninsula area of East New Britain Province. However, for the purposes of s4(e) of the Customs Recognition Act (Ch19), I note that both of their customs recognise the custom of compensation although the form and amount may vary. The prisoner has paid a sum of K1,000 in compensation to the victim which was over and above the amount he is required to pay under his custom.

On the other hand, the victim's custom requires the killing of a pig and feasting over it. It is more of a peace ceremony. Through such a ceremony, the prisoner is required to and will promise not to repeat the wrong he has committed against the victim. The victim's people say that that custom must be followed to bring about lasting peace between the victim and the prisoner. His counsel argues for an order for payment of compensation in accordance with that custom as part of his penalty.

If there were a conflict of customs, then it would be the responsibility of the Court to decide which of the customs is appropriate and applicable and not offending against Sch2.1(2) of the Constitution in accordance with s7 of the Customs Recognition Act (Ch19) and for the purposes of s4(e) of that Act.

In the present case I find there is no conflict of custom. There is also no dispute as to the application of the custom of compensation as is practiced by the people of Apo village, Bukawa, Morobe Province. Indeed the prisoner is prepared to pay compensation in accordance with that custom. That is in addition to what he has already paid under his custom.

This raises the possibility of double punishment for the...