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State v Dumui (No.2) [2009] PGNC 246; N3928 (15 July 2009)

N3928

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 14 OF 2006

THE STATE

V

ALPHONSE DUMUI (NO 2)

Madang: Cannings J
2009: 9 April, 8, 15 July

SENTENCE

CRIMINAL LAW – sentence – grievous bodily harm – Criminal Code, Section 319 – trial – offender cut his brother with bushknife, inflicting facial injuries – sentence of 3 years, 6 months.

A man was convicted after a trial of unlawfully doing grievous bodily harm to another man by shooting him in the neck with a home made spear gun, inflicting life-threatening injuries. It was a group altercation and there was substantial provocation.

Held:

(1) The maximum sentence under Section 319 of the Criminal Code is seven years imprisonment and an appropriate starting point is three and a half years.

(2) Assaults of this nature usually result in a sentence of three to five years.

(3) Mitigating factors are: expressed some remorse but not a lot; first-time offender; substantial provocation; co-operated with the police in their investigations.

(4) Aggravating factors are: took the matter to trial; use of lethal weapon; life-threatening injury to victim; no compensation, reconciliation or forgiveness.

(5) A sentence of three years was imposed. The pre-sentence period in custody was deducted and none of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

The State v Alphonse Dumui (2009) N3686
The State v Justin Ipa (2008) N3439

SENTENCE

This was a judgment on sentence for grievous bodily harm.

Counsel

M Ruarri, for the State
D Joseph, for the offender

15 July, 2009

1. CANNINGS J: Alphonse Dumui, a 33-year-old villager from the Bogia District of Madang Province, has been convicted after trial of an offence under Section 319 of the Criminal Code: unlawfully doing grievous bodily harm to another person. The victim was a fellow villager, Casper Bararang Jnr.

2. On the morning of Thursday 14 April 2005 he shot the victim in the neck with a home made spear gun, known as a 'rubber gun'. The iron rods from the rubber gun penetrated the victim's neck and jaw, inflicting life-threatening injuries. The offence was committed in the course of a group altercation. The victim and members of his family went to the offender's part of the village to confront him over problems that had arisen in the previous two days, including an alleged assault on a female relative of the victim by the offender. The offender did not appear so the victim and his people shouted and swore at the offender then staged an attack. It was determined at the trial that it was the victim and his people who were the aggressors but that the offender used more force than was necessary to defend himself. His response to the assault was vicious and opportunistic and therefore his defence of self-defence was rejected.

3. The offender was charged with intentionally doing grievous bodily harm under Section 315 but convicted of the lesser offence of unlawfully doing grievous bodily harm under Section 319.

4. Further details of the offence are in the written judgment on verdict in The State v Alphonse Dumui (2009) N3686.

ANTECEDENTS

5. The offender has no prior convictions.

ALLOCUTUS

6. The offender was given the opportunity to address the court. He said:

I thank the court for giving its time to deal with my case which has now being going on for more than four years. I did not provoke this incident. It was caused by the victim. If I had run away he would have injured my children and my uncles. The only thing I could do was face him. I felt that if I was killed or injured that would be OK. If I had not injured him I would be dead. I apologise for the injuries he received.

This is my first time to be before the court and I promise that I will not do such a thing again.

I am looking after my two children by myself. My wife ran away after I beat her for committing adultery. My parents are deceased and my brothers and sisters live outside the province. The victim has asked for a big amount of compensation which I cannot afford.

I ask for mercy. Please put me on probation so that I can look after my children.

PRE-SENTENCE REPORT

7. Alphonse Dumui is 33 years old. He separated from his wife nine years ago and has not remarried. He looks after his two sons, aged 12 and 14. He lives in his village, Sepa. He is educated to grade 6. He has recently been employed as a security guard at Holy Spirit High School. He also earns an income from the sale of cocoa. He is in good health.

8. The victim, Casper, was not interviewed but it is clear that he wants compensation of K25,000.00 from the offender.

9. The report concludes by saying that the offender is a low risk person. He is not considered a threat to the community.

SUBMISSIONS BY DEFENCE COUNSEL

10. Mr Joseph highlighted that Alphonse Dumui is a first time offender and that he was not the aggressor. There was substantial provocation and he was put in a very difficult position where he feared for his life and the welfare of his children. All but one of the elements of the defence of self-defence was present so this is a case that falls well outside the worst case category. The appropriate sentence is three years and all of it should be suspended, Mr Joseph submitted.

SUBMISSIONS BY THE STATE

11. Mr Ruarri did not push for a heavy sentence in light of the presence of provocation. He agreed with the defence counsel that this was a case where some part of the sentence should be suspended.

DECISION MAKING PROCESS

12. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

13. The maximum penalty under Section 319 (grievous bodily harm) is seven years imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

14. I will use the midpoint of three and a half years.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

15. Assaults of this nature, where the offender unlawfully does grievous bodily harm to another person as a result of a build-up of frustration or in the course of a group altercation, usually result in a sentence of three to five years imprisonment, depending on the circumstances. See, for example, the recent West New Britain cases summarised in The State v Justin Ipa (2008) N3439.

STEP 4: WHAT IS THE HEAD SENTENCE?

16. Mitigating factors are:

• expressed some remorse but not a lot;
• first-time offender;
• substantial provocation;
• co-operated with the police in their investigations.
  

17. Aggravating factors are:

• took the matter to trial;
• use of lethal weapon;
• life-threatening injury to victim;
• no compensation, reconciliation or forgiveness.
  

18. In weighing all these factors I place greatest weight on the two factors highlighted by defence counsel: Alphonse Dumui is a first time offender and there was substantial provocation. Because of the provocation, this is a less serious case than many other grievous bodily harm cases. I fix a sentence of three years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

19. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is eight months.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

20. The offender has made an impassioned plea for a suspended sentence as he is concerned about the welfare of his two sons. It appears that the offender has for some years been bringing them up as a single father. This is a factor weighing in favour of a suspended sentence. I also take into account that the pre-sentence report assesses him as low risk and that the State Prosecutor has not pushed for a custodial sentence.

21. Against those factors, however, is that this was a very serious incident in which a life was almost lost. The problems surrounding the incident have not been solved. To warrant a fully suspended sentenced there would need to be tangible progress towards reconciliation and forgiveness or at least some genuine effort by the offender and his people to negotiate compensation. This all happened in a village setting and the offender and his people have had a long time to sort all these things out. That opportunity has been wasted. I do not think it would be a good idea to send the offender back to his village while these matters remain unresolved.

Therefore I will not suspend any part of the sentence.

SENTENCE

22. Alphonse Dumui, having been convicted of one count of unlawfully doing grievous bodily harm contrary to Section 319 of the Criminal Code, is sentenced as follows:

Sentenced accordingly.
___________________________

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the offender