The State v Lucy Rusa (2008) N3510

• Jurisdiction: Papua New Guinea
• Judge: Makail, AJ
• Judgment Date: 13 October 2008
• Citation: (2008) N3510
• Docket Number: CR NO 520 OF 2007
• Court: National Court
• Year: 2008
• Judgement Number: N3510

Full Title: CR NO 520 OF 2007; The State v Lucy Rusa (2008) N3510

National Court: Makail, AJ

Judgment Delivered: 13 October 2008

N3510

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 520 OF 2007

THE STATE

v

LUCY RUSA

Mendi: Makail, AJ

2008: 8 October

: 13 October

CRIMINAL LAW - sentence - grievous bodily harm - adult female - domestic setting - prisoner and victim are co wives - aggravating factors - use of weapon - complete severance of two toes - serious and permanent injuries - prevalence of offence - mitigating factors - first offender - presence of de facto provocation - victim instigated fight - maximum penalty is 7 years - Criminal Code - section 319 - call for stiffer penalty - penalty imposed must act as personal and public deterrence - 2 years imprisonment imposed - suspension of sentence inappropriate.

Cases Cited:

The State v. Thomas Waim [1998] PNGLR 360

The State -v- Peter Erne (1999) N1939

The State -v- Laken Alois Yamain: CR No 249 of 2000 (Unnumbered & Unreported Judgment of 4 September 2000)

The State -v- Ale Anesa: CR No 472 of 2001 (Unnumbered & Unreported Judgment of 13 July 2000)

The State -v- Nickson Pari (No 2)(2001) N2033

The State -v- Henry Idab (2001) N2172

The State -v- Darius Taulo (2001) N2034

The State -v- Albina Sinowi (2001) N2175

The State -v- Moma Robert: CR No 440 of 2002 (Unnumbered & Unreported Judgment of 7 May 2002)

The State -v- Tim Poko Wasa: CR No 628 of 2001 (Unnumbered & Unreported Judgment of 14 May 2002)

The State -v- Kenny Rueben Irowen (2002) N2239

The State -v- Eddie John Naopa (2003) N2411

The State -v- Malia Pes: CR No 749 of 2001 (Unnumbered & Unreported Judgment of 22 April 2003)

The State -v- Vincent Naiwo (2004) N2710

The State -v- Malia Pes: CR No 749 of 2001 (Unnumbered & Unreported Judgment of 22 April 2003)

The State -v- Roslyn Charlie: CR No 1028 of 2004 (Unnumbered & Unreported Judgment of 27 February 2008)

The State -v- Pal Binowi: CR No 539 of 2008 (Unnumbered & Unreported Judgment of 25 August 2008)

The State -v- Vero Gul: CR No 1047 of 2005 (Unnumbered & Unreported Judgment of 07 April 2008)

Counsel:

Mr J Kesan, for the State

Mr P Kumo, for the Prisoner

SENTENCE

13 October, 2008

1. MAKAIL AJ: On 8 October 2008, the prisoner pleaded guilty to a charge of unlawfully causing grievous bodily harm to another person by the name of Marty Kewa contrary to section 319 of the Criminal Code. After having satisfied myself from the court deposition presented by the State that the charge has been made out, I convicted the prisoner accordingly.

BRIEF FACTS

2. The facts put to the prisoner on arraignment were that the prisoner and the victim are co wives. On the morning of 12 July 2006 between 7 o’clock and 8’oclock, the prisoner and the victim were at their husband’s village called Kerebali in Pangia of the Southern Highlands Province. The victim was digging kaukau in her garden with two other women. The prisoner walked past them to go to the house when she met the victim and the other two women and an argument developed between the prisoner and the victim. It eventually ended up in a fight between the prisoner and the victim.

3. During the fight, the prisoner and the victim wrestled each other and the prisoner pulled out a knife and chopped off two of the victim’s toes on her left leg. The victim fell unconscious and was taken to the hospital for treatment. The injuries were serious and life threatening.

ALLOCUTUS

4. On her allocutus, the prisoner said sorry to God and to the Court for committing this offence. She also said sorry to the victim for causing serious bodily injuries to her.

5. Secondly, she said that she was in school at Pangia High School when her husband came and lured her away from school by promising her that he will pay for her further education if she married him. Upon this representation, she left school and followed him to his village where she lived with him and bore him a son. Then, her husband started seeing the victim and eventually brought the victim to their house to be his second wife. The prisoner was not happy about the idea and left the matrimonial home.

6. After sometimes, the husband sent word for her to return with his son and promised her that he will divorce the victim. Upon this representation, she returned to his village with her son. But as it turned out, the victim returned and that led to the fight where she wounded the victim. After the prisoner wounded the victim, she gave K400.00 to the victim to pay for her medical bills. She also wanted to give compensation but the victim refused and told her that she would bring the matter to Court. This is how she has ended up before this Court.

7. Further, she said that she is a first offender and pleads for leniency. Finally, she is willing to give compensation to the victim.

THE LAW

8. Section 319 of the Criminal Code makes it an offence for a person to unlawfully cause grievous bodily harm to another person and the penalty for committing this crime is imprisonment for a term not exceeding 7 years.

REASONS FOR DECISION

9. To begin the exercise to determine an appropriate sentence for the prisoner, I hate to repeat myself here as I have made the same comments in the past in similar cases as this one, but I must repeat it here for the prisoner’s sake and for the record that offences of unlawful wounding, assault and grievous bodily harm have been a common occurrence and which this Court has been inundated with from time to time.

10. For cases like this one where they arise from domestic settings, I said in the case of The State -v- Vero Gul: CR No 1047 of 2005 (Unnumbered & Unreported Judgment of 07 April 2008) at page 7:

“The most common cases of unlawful wounding, assault and grievous bodily harm arise from cases of extra marital affairs, polygamous marriages and de facto relationships where most often than not, two women either single or married get entangled and embroiled in the dispute over the right of ownership of one man.

I believe your case happened to be another one of those which regrettably had ended up in this Court. It shows that despite the Courts imposing hefty sentences to people responsible for committing this kind of offences, things have not changed drastically. This has left me to wonder whether or not the kind of sentences we the Judges have imposed has worked at all. That is, whether the sentences imposed by the Court in past similar cases have acted as public deterrence and reminder to people to change their way of behaving and thinking. I am not sure if this has worked and if people have changed!”.

11. In this case, I note that the root cause of the problem was that the prisoner’s former husband had decided to bring on board a second wife. Regrettably, the woman he brought on board was a relation of the prisoner. It is so unfortunate that this has happened. As I said in Vero Gul’s case (supra) at page 8:

“Perhaps there should be a law passed to also hold the “man” be it the husband or boy friend responsible or accountable for causing the problem. The man should also be punished for either causing or contributing to the problem. I really think that there should be one but at the moment there is none”.

12. For now, the prisoner admitted to wounding the victim with a knife. I accept that the prisoner acted in the way she did because she was upset, angry and frustrated that her former husband decided to get a second wife. In my view, polygamous marriage is one of the contributing factors to lawlessness in the country, especially in the Highlands. It is a practice that should be discouraged as it is unhealthy for the country. The effect of such practice is far worse than what one might think. What I have before me is an example of the kind of effect polygamous marriages may bring upon a family unit in our society. It is simply co wives fighting over the right of ownership of one man. In the end, one of the co wives ends up being victimized.

13. But in making these observations, I do not for one moment condone nor acquiesce what the prisoner did. For to my mind, there are better ways of solving this problem including taking the victim and the prisoner’s former husband to Court for adultery.

14. To my mind, the kind of offence the prisoner has committed is a common occurrence and prevalent in our society. There are many reported and published judgments by this Court on this kind of offence committed by the prisoner, especially from a domestic setting.

15. For some examples, in the case of The State -v- Kenny Rueben Irowen (2002) N2239, the prisoner, a husband of two wives pleaded guilty to unlawfully causing grievous bodily harm to his two wives. He used a bush knife to inflict wounds to them. As a result of the wounds, the victims fell unconscious and held them in confinement for a long time. The Court considered that it was a serious case of grievous bodily harm and imposed the maximum penalty of 7 years on the prisoner even though it was a guilty plea. This was because the prisoner committed the offence against two of his wives and was sentenced together.

16. The next case is The State -v- Eddie John Naopa (2003) N2411, where the prisoner pleaded guilty to the charge of unlawfully causing grievous bodily harm when he struck one of the eye of the victim with a sling shot. The Court sentenced the prisoner to 5...