The State v Lucy Kar (2011) N4719

• Jurisdiction: Papua New Guinea
• Judge: David J
• Judgment Date: 11 February 2011
• Citation: (2011) N4719
• Docket Number: CR NO. 557 of 2010
• Court: National Court
• Year: 2011
• Judgement Number: N4719

Full Title: CR NO. 557 of 2010; The State v Lucy Kar (2011) N4719

National Court: David, J

Judgment Delivered: 11 February 2011

N4719

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 557 OF 2010

BETWEEN:

THE STATE

AND:

LUCY KAR

Prisoner

Mt. Hagen: David, J

2010: 15 October

2011: 10 & 11 February

CRIMINAL LAW – sentence – grievous bodily harm – guilty plea - prisoner and victim are co-wives – tip of nose bitten off - fight following altercation between victim and common husband over axe – permanent disfigurement – prevalence of crime – victim to be an object of ridicule – live with shame for life – prisoner not an unsophisticated subsistence villager – prisoner committed crime alone - genuine expression of remorse - first offender - co-operation with police - de facto provocation – compensation paid – effect of sentence on children of tender years – crime in domestic setting - sentence of three years wholly suspended on terms.

Cases cited:

The State v Isaac Wapuri [1994] PNGLR 271

The State v Darius Tulo (2001) N2034

The State v Salle Sorowi, CR. No.628 of 2007, Unreported Judgment of Kandakasi, J delivered on 15 June 2007

The State v Sam Piapin, CR. No.1291 of 2006, Unreported Judgment of David, J delivered on 18 February 2009

The State v Lucy Rusa (2008) N3510

The State v Miriam John (2009) N4128

Counsel:

Mr. J. Waine, for the State

Mr. P. L. Kapi, for the Prisoner

SENTENCE

11 February, 2011

1. DAVID, J: INTRODUCTION. On 15 October 2010, the prisoner pleaded guilty to one count of unlawfully doing grievous bodily harm to one Maria Kar at Nengel village, Mul District, Western Highlands Province on 17 October 2006 contrary to s.319 of the Criminal Code. Having been satisfied that the evidence contained in the depositions supported the charge, I accepted the prisoner’s guilty plea and convicted her of the charge.

2. Section 319 of the Code creates the offence and prescribes the penalty. The prisoner could be imprisoned for a term of up to seven years, subject to the exercise of the Court’s considerable discretion under s.19 of the Code.

3. To assist me in making a decision on the appropriate sentence for the prisoner, I directed the Probation Service here at the request of the prisoner’s counsel to compile and file a Pre-sentence Report by 21 October 2010. The Pre-sentence Report was duly compiled based on information received by the Probation Service from the prisoner and community leaders from the Ukuni One tribe, to which the prisoner’s husband is a member. I am grateful to Lilly Songoa, Probation Officer, Mt. Hagen for attending to the compilation and filing of the report. I heard submissions yesterday afternoon and adjourned to this afternoon for sentence. I have read the report and note the details there in particular the recommendation that the prisoner is a suitable candidate for probation supervision hence a non-custodial sentence be imposed.

4. The short facts presented for purposes of arraignment were that on 17 October 2006 at Nengel village, Mul District, Western Highlands Province, the prisoner’s husband, Kar Kuipa (the common husband) was involved in a fight with his first wife, Maria Kar. The prisoner is the second wife. For some reason, the prisoner stepped in and attacked the victim from the back. As the victim turned around to see who was attacking her, the prisoner bit her by the nose resulting in the nose being bitten off. The victim was rushed to the Tinsley District Hospital and treated. The victim suffered a permanent disfigurement to her nose. What she did was unlawful.

5. The evidence shows that the fight between the victim and the common husband was over an axe. The axe was in the possession of the common husband whilst staying with the prisoner. He had been residing with the prisoner for about a month before the incident. On the date of the crime between 8:00 and 9:00 o’clock, the victim had gone to ask the common husband to give her the axe to cut some firewood. The prisoner was with the common husband at the time. When the common husband refused, that angered the victim and she tried to pull the axe from him. A tussle ensued between them. The prisoner then joined in the affray.

6. The Medical Report of Dr. Mutan of the Tinsley District Hospital dated 6 February 2007 confirms that the victim was brought to the hospital on 17 October 2006 with the tip of the nose torn off completely and she was bleeding from the wound. Medical personnel there sutured the torn off piece of the nose back, but since circulation was not established, their efforts were in vain. The victim’s wound was examined again on review on 9 January 2007 which revealed that it was healing very well, but there was considerable disfigurement of the nose. They suggested that she consult Ear Nose & Throat doctors within the region for assistance. She was counselled to assist her with the “psychological” stigma she was going to be burdened by because of the disfigurement.

7. The dimensions of the injury are not reported so as to assess the true extent and gravity of the injury. This will go to lessening the gravity of the offence in the instant case.

8. The prisoner is now thirty one years old. She is married and has two children of tender years, one is a boy who is about four years old and the other a baby girl who is more than a month old. Notwithstanding that there is a subsisting marriage, she and the common husband are currently living separately and apart. The common husband who is from the Ukuni One tribe is currently residing at Ropnand village, Baiyer District. She is currently residing at Nengel village, Mul District with her parents as an ordinary subsistence villager. Her parents are alive. She has three other siblings, a brother and two sisters. She is the third born. She attained Grade 10 formal education from the Kombolopa High School in 2001. From 2002 to 2003, she did a course at the Commercial Training Centre, Lae. She spent one month on a job experience engagement with Morobe Loans Society as a receptionist. In 2003, she was employed by Pacific Industry at Lae as a sales person. She left her employment after marrying the common husband. She has a Christian background. She is a baptised member of the Lutheran Church. She does not have any prior conviction.

9. On allocutus, she said she was a young girl when she married the common husband. He has not paid bride price. They have a two and one half years old male child from the marriage and she was pregnant again. She confirmed biting the victim’s nose off during an altercation with her. The victim also bit her fingers. In 2007, she paid compensation to the victim consisting of K350.00 in cash and three pigs to the value of K1,000.00. She has been living separately from the common husband since 2009 for two reasons. First, it was because the common husband went to live with the victim. Second, it was because the victim reported the crime to the police. She spent six weeks in custody before being admitted to bail. She said sorry to the victim for what she had done to her. Finally, she asked the Court to have mercy on her.

10. In mitigation, it was submitted as follows. First, the prisoner pleaded guilty. Second, the prisoner was a first time offender having no prior conviction. Third, the prisoner paid some form of compensation to the victim to reconcile with her. Fourth, the prisoner expressed remorse. Fifth, there was de facto provocation. Sixth, the crime occurred in a domestic setting.

11. In aggravation, it was submitted as follows. First, the victim was left with a permanently disfigured nose which she has to live with for the rest of her life. Second, the prisoner was not an unsophisticated villager going by her level of education so as not to understand the consequences of her action. Third, there was no evidence that she paid compensation to the victim. Fourth, this serious crime was prevalent.

12. Mr. Kapi for the defence invited me to be guided by The State v Issac Wapuri (1994) PNGLR 271 and The State v Darius Taulo (2001) N2034 when suggesting a wholly suspended sentence of two to three years less six weeks for time spent in custody to be served on a good behaviour bond and if the Court considered that additional compensation should be paid, then bail moneys should be converted for that purpose.

13. In Issac Wapuri, the prisoner assaulted his cousin’s wife with a hand brake cable of a motor vehicle across her face which resulted in the victim suffering a permanent injury of ninety percent loss of vision to her left eye. This occurred after the prisoner, who was living with his cousin and his wife at the time of the offence, refused the victim’s advances towards him for sexual intercourse and the scattering of the prisoner’s clothes all over the place by the victim. The disruption of the prisoner’s clothes angered him and the assault ensued. On a guilty plea to a charge of grievous bodily harm, the prisoner was sentenced to eighteen months imprisonment in hard labour less five months for the time spent in custody. The Court having considered that the time spent by the prisoner in custody was sufficient punishment then suspended the balance of the term and...