The State v Elvis Kos (2013) N5365

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 17 September 2013
• Citation: (2013) N5365
• Docket Number: CR No.472 of 2013
• Court: National Court
• Year: 2013
• Judgement Number: N5365

Full Title: CR No.472 of 2013; The State v Elvis Kos (2013) N5365

National Court: David, J

Judgment Delivered: 17 September 2013

N5365

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No.472 of 2013

BETWEEN:

THE STATE

AND:

ELVIS KOS

Prisoner

Minj & Mt. Hagen: David, J

2013: 18 July, 5 & 17 September

CRIMINAL LAW – sentence – grievous bodily harm – prisoner is husband of victim – victim assaulted with axe – prisoner suspecting victim of engaging in extra-marital affairs in his absence - multiple amputation of digits on victim’s left hand - fourth digit amputated at the level of the proximal and middle phalangeal joint - fifth digit amputated at the level of the proximal phalange and metacarpal joint – each finger chopped off separately when left hand placed on wooden bed – prisoner locked the victim in room despite her injuries – prevalence of offence – prisoner an educated person - guilty plea – prisoner sole attacker – first offender - de facto provocation – offence committed in domestic setting – prisoner’s good background prior to incident - mitigating and aggravating factors equal – aggravating factors however outweigh mitigating factors - sentence of 4 years in hard labour – pre-trial confinement period deducted – 3 years of remaining term suspended on terms – 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

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

The State v Darius Taulo (2001) N2034

The State v Vincent Naiwa (2004) N2710

The State v Julie Taupe Kuri, CR No.6 of 2006, Unreported & Unnumbered Judgment delivered in Kundiawa in March 2006

The State v Bob Ananias, CR.1413 of 2003 & CR.1414 of 2003, Unreported & Unnumbered Judgment of Cannings, J delivered on 20th April 2006

Richard Liri v The State (2007) SC883

The State v Nicodemus Badui (2007) N5055

The State v John Komep, CR.300 of 2006, Unreported & Unnumbered Judgment of David, J delivered on 13 November 2007 at Mendi

The State v Sam Piapin (2009) N3585

The State v Lucy Kar (2011) N4719

The State v Bill Simai, CR.No. 125 of 2007, Unreported & Unnumbered Judgment of David, J delivered on 18 June 2009 at Kundiawa

The State v Wan Minimbi, CR No.599 of 2012, Unreported & Unnumbered Judgment delivered by David, J on 19 June 2013 in Mt. Hagen

Treatise cited:

Chalmers, Weisbrot, Injia, Andrew & Nicol, Criminal Law and Practice in Papua New Guinea, 3rd edition, Lawbook Co

Counsel:

David Kuvi & Vasiti Mauta, for the State

Philip Kapi & Maryanne Job, for the prisoner

SENTENCE

1. DAVID, J: On Thursday, 18th July 2013, the prisoner, appearing before me from custody, was charged with one count of unlawfully doing grievous bodily harm contrary to Section 319 of the Criminal Code, the State alleging that on 31st December 2011 at Waghi Valley Block, Banz, Jiwaka Province in Papua New Guinea, he unlawfully did grievous bodily harm to his wife, Dorris Geku (the victim). He pleaded guilty to the charge which I accepted because the evidence contained in the depositions supported the charge. I convicted him accordingly.

2. The prisoner was arraigned with these short facts. The prisoner was working with a security firm in Tabubil, Western Province when he heard rumours about the victim having an extra-marital affair back home in Banz. He returned back to his home at Waghi Valley Block, Banz on 31st December 2011 at around 7.00pm in the evening and then questioned the victim regarding the rumours. Incensed, he assaulted the victim with an axe. The prisoner ordered the victim to place her left hand on a wooden bed and proceeded to chop off the fourth and fifth fingers with the axe. The prisoner then locked the victim in the room in the house, but she managed to escape and sought medical attention at the Kudjip Nazarene Hospital. The prisoner caused grievous bodily harm to the victim without any lawful justification or excuse.

3. The Medical Report provided by Dr. John McKup Jnr of the Mt. Hagen General Hospital dated 5th October 2012 reports that the victim’s fourth and fifth fingers on her left hand were amputated by a sharp object such as an axe applied with force. The fourth finger was amputated at the level of the proximal and middle phalangeal joint whilst the fifth finger was amputated at the level of the proximal phalange and metacarpal joint. The report further reports that the victim has full functional loss of those fingers. The report also reports that the victim was initially treated at the Kudjip Nazarene Hospital.

4. The prisoner has no prior convictions.

5. On his allocutus, the prisoner recounted events leading up to the commission of the offence. He left home on 7th March 2011 to work in Tabubil. Whilst in Tabubil, he heard about the victim having extra-marital affairs. When he returned home to Waghi Valley Block in Banz on 29th December 2011, he found in the victim’s possession flex cards worth over K300.00, condoms and about 42 phone numbers registered on her mobile phone. The victim fled to Sigmil where she stayed with relatives for a couple of days. On 30th December 2011, he went to Sigmil and spent the night with the victim. On 31st December 2011, they both returned to their home at Waghi Valley Block. At about 7:30 pm, he began questioning the victim about the flex cards, condoms and the numbers on her mobile phone. The victim admitted having an affair with an elementary school teacher, but he did not get angry preferring to take the matter to court for a resolution. Whilst they continued talking, 3 calls were received on the victim’s mobile phone. On each occasion, she pretended not to know the male caller. When asked by the third caller who she was with at the time, the victim told the caller that she was with an uncle denying his presence. He then heard the caller saying that her uncle was there to “dress her sore”. He asked the victim a number of times about what the phrase “dress her sore” meant, but getting nowhere, he was infuriated and fought with her. That occurred around 9:30 pm. The victim was bigger than him and as they struggled and fought each other they both fell on a bed. When he stood up, he saw an axe nearby so when the victim tried to grab him and get on top of him, he grabbed the axe and cut her two fingers off. The victim was taken to the hospital for medical treatment by her sisters.

6. On his allocutus, he also said that; he had been married to the victim for 14 years and until committing the offence, it was a happy marriage; he remitted money to the victim every fortnight for his family’s sustenance; and he had a 12 year old child from the marriage who was doing Grade 6 at the Sigmil Primary School. He was concerned about the welfare and education of his child as the victim had abandoned him with no means of support, left home and remarried. He asked for mercy and requested to be placed on probation so that he could look after his child and arrange for compensation to be paid to the victim.

7. Mr. Kapi 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. As the compilation and filing of the report was likely to be affected by the lack of time before the close of the circuit, I fixed the matter to return before me for mention and or submissions on sentence on Friday, 26th July 2013 at 9:30 am. The report was not ready as anticipated when the matter returned before me as scheduled on Friday, 26th July 2013 at 9:30 am so I adjourned the matter to the November 2013 circuit in Minj, subject to the compilation and filing of the report by the Probation Service in the meantime and the Court finding time to hear submissions on sentence in Mt. Hagen and the possibility of passing sentence before the commencement of the November 2013 circuit.

8. The pre-sentence report was duly compiled and filed by the Probation Service and I am grateful to Ms. Lilly Songoa, Probation Officer for her assistance. The report however does not have any input from the victim or her relatives basically because they failed to attend the Probation Service, Mt. Hagen for interviews when invited on a number of occasions. The Probation Service could not conduct interviews at the homes of the victim and her relatives because of transportation problems. I have considered the report basically because the victim and her relatives were given the opportunity to express their views on the most suitable method of dealing with the prisoner. The report essentially reports that the prisoner is a suitable candidate for probation supervision and therefore recommends that a non-custodial sentence under probation...