The State v Anita Timothy

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 06 March 2014
• Citation: (2014) N5593
• Court: National Court
• Year: 2014
• Judgement Number: N5593

Full : CR No.707 of 2013; The State v Anita Timothy (2014) N5593

National Court: David, J

Judgment Delivered: 6 March 2014

N5593

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No.707 of 2013

THE STATE

V

ANITA TIMOTHY

Prisoner

Minj : David, J

2013: 8 & 21 November 2013

2014: & 6 March 2014

CRIMINAL LAW – sentence – grievous bodily harm – prisoner is co-wife – multiple knife stab wounds to right upper arm, elbow and wrist – sentence of 3 years in hard labour – pre-trial confinement period deducted –remaining term suspended on terms – Crimianl Code, Section 319.

Cases cited:

Goli Golu v The State [1979] PNGLR 653

Public Prosecutor v Thomas Vola [1981] PNGLR 412

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

Ure Hane v the State [1984] PNGLR 105

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

The State v Albina Sinowi (2001) N2175

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

Richard Liri v The State (2007) SC883

The State v Lucy Rusa (2008) N3510

The State v Miriam John (2009) N4128

The State v Lucy Kar (2011) N4719

The State v Rada Mau (2012) N5081

Counsel:

David Kuvi, for the State

Philip Kapi, for the prisoner

SENTENCE

6th March, 2014

1. DAVID, J: The prisoner, Anita Timothy appearing before me from bail on 8 November 2013, pleaded guilty to one count of unlawfully doing grievous bodily harm to the victim, Margaret Gipma and was convicted of the offence under Section 319 of the Criminal Code. The incident occurred at Minj Rot Bung, Minj in the Jiwaka Province on 18 March 2013 at about 4:00 o’clock in the afternoon as a result of an ongoing domestic dispute between the prisoner and the victim who are co-wives to a common husband. On 18 March 2013 at about 09:00 am, the victim went with her 6 month old baby to the Minj Rot Bung market to sell her greens. After getting some money from the sale of her greens, she waited for a bus to go to the Health Centre as the baby was sick. Whilst waiting, the prisoner confronted her and an argument and scuffle eventuated between them. They were stopped by bystanders and both went their own ways. Sometime later during the day, the victim returned from the Health Centre to the Minj Rot Bung with the baby and went into a store. Whilst waiting to be served, the prisoner crept up behind her and stabbed her three times on her right arm with a kitchen knife. The victim fell to the floor and became unconscious. In the course, she dropped the baby and suffered injuries as well. She was later taken to the Minj Health Centre and received medical treatment to her wounds.

2. The Medical Report provided by one Fred Wumar, Health Extension Officer and Officer in Charge of the Anglimp South Waghi Heath Services dated 19 March 2013 reports that when the victim presented herself to the Minj Health Centre for treatment, she was suffering from multiple knife stab wounds to her right upper arm, elbow and wrist. She received three knife wounds; the upper arm wound measured 6cm long and 4cm deep; the wound on the elbow measured 9cm long and 10cm deep which indicated that the knife penetrated right through the elbow; and the wound to the wrist measured 5cm long and 3cm deep. Six stitches were inserted into the upper arm wound. Four stitches were inserted into the elbow wound with drainage. Three stitches were inserted into the wrist wound. The report further reports that the multiple stabbings caused a lot of damage to the victim’s arm’s inner tissues with preliminary prognosis of possibly developing some degree of permanent disability in the use of her right arm in future.

3. The Medical Report provided by one Fred Wumar, Health Extension Officer and Officer in Charge of the Anglimp South Waghi Heath Services dated 21 March 2013 reports that when observed, the baby was experiencing some form of convulsion and had a swelling on the back and bruises to the forehead. Initial diagnosis was that the convulsion may have been caused as a result of the baby being dropped.

4. The prisoner has no prior convictions.

5. On her allocutus, the prisoner pleaded with the Court for mercy and a lenient sentence. She asked the Court to consider in her favour that; she was 7 months pregnant; and she proposed to pay compensation to the victim.

6. The prisoner through his counsel applied for a pre-sentence report and means assessment 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. These reports were duly compiled and filed by the Probation Service and I thank Ms. Theresa Puk, Probation Officer for her assistance. I have considered both reports.

7. For the pre-sentence report, apart from the prisoner and the victim, a community leader from Kinjubanju village namely Henry Tapi and the common husband of the prisoner’s and the victim’s namely, Wener Pagna were also interviewed. It is reported, inter alia, that; the victim has demanded that the prisoner pay to her compensation comprising K50,000.00 in cash and twenty pigs and a further K2,870.00 as reimbursement for expenses, failing which the prisoner should be incarcerated; relatives and community members were willing to assist the prisoner pay compensation to the victim; and that the victim as a co-wife is equally to be blamed for ongoing arguments and fights she has had with the prisoner. The prisoner is recommended for probation.

8. For the means assessment report, apart from the prisoner, the prisoner’s mother namely, Margaret Timothy, the prisoner’s sister in-law namely, Nan Kumi, community leader from Kinjubanju village namely Henry Tapi and the common husband of the prisoner’s and the victim’s namely, Wener Pagna were also interviewed. It is reported that the prisoner is a subsistence farmer and depends very much on her husband for her daily needs. She does not have any bank account or other savings or valuable assets, but has K1,000.00 and a pig which she can contribute towards paying compensation to the victim. Immediate relatives, a community leader from Kinjubanju village and the prisoner’s husband are willing to assist with the payment of compensation comprising K4,700.00 and 3 pigs and particulars of contributions are; Wener Pagna K500.00; Margaret Timothy, K200.00; Nan Kumi, a pig and community members, K3,000.00 and a pig. It is recommended that compensation be paid within a period of three months to be supervised by the Mt. Hagen Probation Service.

9. A document entitled Victim’s Impact Statement was handed up to the Court by Mr. Kapi during the course of his submissions without serious objection from the prosecution. I have considered the matters raised in the document, most of which are covered by the pre-sentence report and means assessment report. Briefly, the document details how the victim’s life has been adversely affected physically, emotionally and financially since the prisoner assaulted her. The victim demands compensation comprising K5,000.00 cash and 10 pigs which is less than the total amount demanded by the victim as is reported in the pre-sentence report.

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

11. The maximum penalty is usually reserved for the worst sorts of cases of unlawful doing grievous bodily harm: see Goli Golu v The State [1979] PNGLR 653, Avia Aihi v The State (No 3) [1982] PNGLR 92 and Ure Hane v the State [1984] PNGLR 105.

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

13. The prisoner is originally from Kinjubanju village, Minj in the Jiwaka Province and is now aged 19 years and subsistence farmer. She currently resides at Kupral in the Minj District. She is the third wife of common husband Wener Pagna who is a Primary School teacher and they have 2 adopted children aged 12 and 14 years respectively. Both children are currently attending elementary school. She was 7 months pregnant at the time of conviction in November 2013 so I assume that she has already delivered her own biological child. The victim is the second wife of their common husband. Both of her parents are from Jiwaka Province and are still alive. She is the last born of six siblings in her family and they are all married with children. She has attained Grade 10 formal education from the Minj Secondary School. She is a member of the Seventh Day Adventist denomination. The prisoner voluntarily surrendered to the police on 19 March 2013 at Kinjubanju village and was arrested, detained and charged with the offence of intending to do grievous bodily harm under Section 315(a)(b) of the Code. She was admitted to bail in the first week of April 2013. I compute the prisoner’s period of pre-trial confinement to be about 14 days. She was committed to stand trial in the National Court on 26 June 2013.

14. In mitigation, it was submitted...