The State v Peter Mol (2008) N3707

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 19 March 2008
• Citation: (2008) N3707
• Docket Number: CR. NO. 556 OF 2007
• Court: National Court
• Year: 2008
• Judgement Number: N3707

Full Title: CR. NO. 556 OF 2007; The State v Peter Mol (2008) N3707

National Court: David, J

Judgment Delivered: 19 March 2008

N3707

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 556 OF 2007

BETWEEN:

THE STATE

AND:

PETER MOL

Prisoner

Mt Hagen: David, J.

2008: 19th March

CRIMINAL LAW – sentence – grievous bodily harm – guilty plea – victim assaulted with bush knife – injury to right eye resulting in 25% loss of visibility - victim is prisoner’s wife – first offender – compensation paid – de facto provocation - prisoner had history of violence against the victim – partial custodial sentence of three (3) years IHL less time spent in custody – strict conditions applying whilst serving suspended sentence - ss.19 & 319 Criminal Code.

Cases cited:

The State v. Ngetto Rex Rongo (2000) N2035

The State v. Darius Taulo (2001) N2034

The State v. Kenny Reuben Irowen (2002) N2239

The State v. David Saun (2003) N2409

The State v. Eddie John Naopa (2003) N2411

The State v. Amos Kiap (2003) N2452

The State v. Anton Vail (2003) N2473

The State v. Lucas Huliahwere (2003) N2544

The State v. Larsen Talian, CR. 749 of 2001, 22 April 2003

The State v. Malya Pes, CR. 1241 of 2001, 16 May 2002

The State v. Tim Poko Wasa, CR. 628 of 2001, 14 May 2002

The State v. Steven Dua, CR.1525 of 2006, 16 August 2007

Counsel:

Mr. J. Waine, for the State

Mr. P. Kumo, for the Prisoner

SENTENCE

19 March, 2008

1. DAVID, J: INTRODUCTION: On 19th March 2008, I delivered a brief ex tempore judgment and I undertook to publish my full reasons later. This I now do.

2. The State presented an indictment charging Peter Mol, (the Prisoner) of Banz No. 1 village, North Waghi, Western Highlands Province with unlawfully causing grievous bodily harm to one Betty Pora (the victim) on 28 August 2006 at Banz in Papua New Guinea contrary to s.319 of the Criminal Code (the Code). The Prisoner pleaded guilty. The Court accepted the Prisoner’s guilty plea and convicted him of the charge after reading the depositions and having been satisfied that there was sufficient basis to support the charge.

3. The indictment was preferred as follows:

PETER MOL of Banz No. 1 village, North Waghi, Western Highlands Province, stands charged that on the 28th August 2006, at Banz in Papua New Guinea, he unlawfully did grievous bodily harm to one BETTY PORA.

FACTS

4. The Prisoner and the victim are married.

5. Prior to 28 August 2006, there had been some violence between them when the Prisoner would normally assault the victim. It came to a stage when the victim had to leave her home and went to her village. She was away for sometime.

6. On 28 August 2006, the Prisoner went to the victim’s village to bring her back to his home. At the time, the victim and another lady were picking coffee cherries in a garden. The Prisoner armed with a bush knife approached the victim and tried to assault her with it. He was not able to assault the victim directly because people had intervened. In the course of that, the Prisoner poked the victim with the bush knife on her right eye causing injury to it. The victim lost twenty five percent (25%) visibility as a result of the injury.

7. The Prisoner’s action was not excused by law.

LAW

8. Section 319 of the Criminal Code creates the offence and prescribes the penalty. This is a serious offence and the Prisoner could be jailed for up to seven (7) years, subject to the exercise of the Court’s discretion under s.19 of the Code. I set out the relevant provision as follows:

319. Grievous bodily harm.

A person who unlawfully does grievous bodily harm to another person is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

9. The offence is prevalent in our society and sentences that have been imposed vary. I will refer to some of the cases where the prisoners entered guilty pleas and those that have been cited by counsel in the latter part of this judgment in determining the appropriate sentence to impose in this instance.

10. In The State v. Issac Wapuri (1994) PNGLR 271, 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 (90%) 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.

11. The Prisoner was sentenced to eighteen (18) months imprisonment in hard labour less five (5) 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 placed the Prisoner on a good behaviour bond for twelve (12) months. In addition to that, the Court also ordered the Prisoner to pay compensation to the victim in accordance with the custom of the victim’s clan consisting of Five Hundred Kina (K500.00) in cash and five (5) pigs to the value of about Eight Hundred Kina (K800.00) and such to be paid within one (1) month and in default, two (2) months imprisonment.

12. In The State v. Darius Taulo (2001) N2034, the prisoner had a history of beating up his wife who was the victim over a number of years prior to being charged. Those beatings were very serious and near death experiences.

13. The prisoner was sentenced to three (3) years imprisonment in hard labour. However, the whole of the sentence was suspended with strict conditions applying including the prisoner; entering into a recognizance with a surety of Five Hundred Kina (K500.00) to be of good behaviour for the suspended period; abstaining from alcohol consumption; abstaining from assaulting his wife in any way and rendering free community service to a designated public institution. The Court considered that a non custodial sentence was appropriate because the prisoner pleaded guilty; he was a first time offender; he expressed genuine remorse and had already paid compensation; he was willing to pay further compensation in accordance with his wife’s custom; it was in the best interest of the children of the marriage; the victim preferred compensation supported by a pre-sentence report; the prisoner was not a danger to society and the society would help to rehabilitate him.

14. In The State v. Kenny Reuben Irowen (2002) N2239, the prisoner was convicted of two (2) charges of causing grievous bodily harm to two (2) of his three (3) wives by severely assaulting them with a bush knife after forcing them to strip naked. One received a deep cut on her left shoulder resulting in twenty five percent (25%) permanent loss of function of her left shoulder. The other received several cuts to her legs and her left ring and little fingers.

15. The Court considered the case to be of the worst type for the offence and imposed the maximum prescribed penalty of seven (7) years imprisonment in hard labour for each of the two (2) charges to be served cumulatively. Factors of aggravation including the prisoner not showing remorse and not showing any preparedness to change his ways towards the victims outweighed the prisoner’s plea of guilty and being a first offender.

16. In The State v. David Saun (2003) N2409, the prisoner was involved in a drunken brawl with the victim and another person when he was hit with a broken piece of exhaust pipe causing a deep wound to his left side. In retaliation, the prisoner picked up a piece of sawn timber and threw it at his attackers including the victim. The victim fell to the ground upon contact hurting his head. The victim was taken to the hospital and recovered, but with an estimated thirty percent (30 %) permanent loss of the use of one of his eyes.

17. A sentence of three (3) years was imposed wholly suspended with strict conditions applying. The Court considered in the prisoner’s favour factors such as his guilty plea with no priors, customary compensation was paid and his expression of remorse.

18. In The State v. Eddie John Naopa (2003) N2411, the victim was amongst a group of female students returning to their dormitory at a boarding high school after attending a Scripture Union fellowship between 09.00 pm and 09.30 pm when a group of boys including the prisoner grabbed hold of the victim. The victim struggled with her captors to free herself and in the process her left fingers were cut with a knife held by the person who grabbed her. As she tried to escape, she fell into a drain. She got up and tried to run away when the prisoner shot her with a stone using a sling shot. The stone landed in the victim’s right eye. She received treatment for her injuries, but this did not prevent the victim from completely losing the use of her eye. It was a One Hundred percent (100 %) permanent loss of her right eye. Means Assessment and Pre Sentence Reports were provided.

19. The Court imposed a sentence of five (5) years and had three (3) years of that suspended with strict conditions applying including compensation and community based work orders. The Court took into account factors such as the prisoner’s guilty plea with no priors; he was a relatively young offender and his expression of remorse....