The State and Wan Minimbi

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 19 June 2013
• Citation: (2013) N5367
• Court: National Court
• Year: 2013
• Judgement Number: N5367

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

National Court: David, J

Judgment Delivered: 19 June 2013

N5367

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No.599 of 2012

BETWEEN:

THE STATE

AND:

WAN MINIMBI

Prisoner

Mt. Hagen: David, J

2013: 17 May, 18 & 19 June

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, Sections 19 and 319.

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

Counsel:

Joe Kesan & Philip Tendui, for the State

Charles Kos, for the prisoner

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 deep lacerations to both his right and left palms and other fingers. Further attacks by the prisoner were stopped when a police unit parked nearby came to the victim’s rescue and the prisoner was taken to the Police Station for questioning. At the Police Station, the prisoner was questioned, arrested and charged. The victim was rushed to the Mt. Hagen General Hospital for treatment. He was later transferred to the St. Joseph Rural Hospital Mingende, Kundiawa in the Simbu Province for further treatment.

10. The Medical Report issued by Dr. Gabriel S. Yohang of the St. Joseph Rural Hospital Mingende dated 15 October 2011 reports that the victim aged about 50 years had multiple knife wounds including a deep laceration to his left Achilles tendon. The fourth digit of the victim’s right hand was amputated at the middle phalangeal joint and a deep laceration across the palm of his right hand through to his third digit. There was a deep laceration across the victim’s left palm which continued through to the first and second digits. The victim was unable to move his left thumb at the initial diagnosis. It appears from the Medical Report that medical treatment administered to the victim over a period of about three months included repairing of the Achilles tendon.

11. The prisoner has no prior convictions.

12. On her allocutus, the prisoner confirmed committing the offence. She said sorry to the State for breaking the law and to the victim who was now deceased. She asked the Court to consider the welfare or well-being of her three children mainly the two who are currently furthering their education in two institutions in the country. She said her daughter was currently doing her first year at the University of Papua New Guinea and her son was currently attending the Don Bosco Technical Institute at Barawagi in the Simbu Province doing Grade 11. The other child dropped out from school.

13. On her allocutus, the prisoner also described the events leading up to the incident. She said she married the victim in 1983 and have three children. The victim found employment with the LNG Project in 2009. Whilst away at work, he got a new wife and never visited her and the children or remitted money for their use. They had to fend for themselves in his absence. She found out about the victim’s new relationship in 2010. She went all the way to Tari and then to Komo in the Hela Province and managed to locate the victim with the assistance of police at Hides No.4, Nogoli. When she told the victim the difficulties she was facing including the upkeep and payment of school fees for the children, he told her to return to Mt. Hagen and assured her that he would visit her and the children during the next field-break on a date he confirmed. He did not keep his word, but went to his new wife’s village instead. She later got an order against the victim concerning payment of school fees and she went to Hides No. 4 and had it served on the victim with the assistance of police. The victim did not honour the order. When she heard that the victim was in town on a further field break and could go to the Bank South Pacific ATMs to withdraw funds, she went to the ATMs with her daughter and waited. That was when she saw the victim hand...