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State v Sheekiot [2011] PGNC 165; N4454 (22 November 2011)

N4454

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1542 0F 2010

THE STATE

V

RAY SHEEKIOT

Madang: Cannings J
2011: 22 August, 31 October, 17, 22 November

CRIMINAL LAW – sentence – grievous bodily harm – Criminal Code, Section 319 – guilty plea – offender cut his cousin-sister on neck with bushknife – sentence of 4 years.

A man pleaded guilty to unlawfully doing grievous bodily harm to his cousin-sister by cutting her on the neck and cheek with a bushknife.

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) Mitigating factors are: pleaded guilty; made early admissions; has paid compensation to and reconciled with victim.

(3) Aggravating factors are: use of lethal weapon; injury to vulnerable part of body; one prior conviction.

(4) A sentence of four years was imposed, which was fully suspended in view of a favourable pre-sentence report and payment of compensation and reconciliation.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
The State v Aaron Lahu (2005) N2798
The State v David Marcus (2006) N3158
The State v Justin Ipa (2008) N3439
The State v Martin Konos (2010) N4157

SENTENCE

This was a judgment on sentence for grievous bodily harm.

Counsel

A Kupmain, for the State
R C Pinggah, for the offender

22 November, 2011

1. CANNINGS J: Ray Sheekiot pleaded guilty to unlawfully doing grievous bodily harm to his cousin-sister, Rose Messange, and has been convicted of that offence under Section 319 of the Criminal Code. The incident occurred at Suaru village, Bogia District on 12 June 2010. He and the victim and a group of other people from their village, Samusamu, went to Suaru for a basket exchange and mediation in relation to a previous incident. The offender became angered by a young boy who was misbehaving and hit him with a bushknife that he was holding, on its flat side, to discipline him. The victim, Rose, did not approve of the offender's actions so she approached him and argued with him, which caused him to get angry with her and he cut her on the left neck and left cheek with the bushknife, on its sharp side, causing her to lose blood and suffer great distress. She was treated at Bogia Health Centre later that day. A comprehensive medical report, including photos of the victim's injuries, has been presented to the Court, and the OIC of Bogia Health Centre, Karoi Kamac, is commended for its quality. Local anaesthetic was applied and her wounds required three stitches to the neck and a butterfly dressing on the cheek and a course of painkillers and antibiotics.

ANTECEDENTS

2. The offender has one prior conviction, a break, enter and steal offence for which he received a 16-month prison sentence in 1985.

ALLOCUTUS

3. The offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:

I apologise to my sister and to the court for what happened. I did not mean to cut her. It was really an accident. This problem can be sorted out in accordance with custom in the village. I will not do such a thing again.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of reasonable doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). The offender maintains that what happened was an accident. He was holding the bushknife next to his face and the victim turned around suddenly and cut herself by brushing the bushknife. This is not a believable version of events and is rejected. An offender who pleads guilty is entitled to the benefit of reasonable doubt but this does not mean that the court is obliged to accept anything that is said in allocutus (The State v Aaron Lahu (2005) N2798).

PRE-SENTENCE REPORT

5. Ray Sheekiot is 42 years old and married with five children. He has a stable marriage and has lived in the village all his life. He has five brothers and two sisters and his parents are deceased. He is a subsistence farmer and faces occasional financial difficulties. He has a grade 6 education. He is spoken of highly by Sgt Daniel Yopu BEM, Bogia Police Station Commander, as he has in recent times been engaged as a voluntary auxiliary police officer and has assisted the regular police in their efforts to control homebrew and drug consumption in the district. Two mediations between him and the victim have been conducted, on 5 and 13 November 2011, supervised by Village Court Magistrates, Mr Marcus Songam and Mr Peter Kombe. He has paid compensation (K1,000.00 cash + K155.00 store goods + K182.00 garden produce + K500.00 pig = K1,837.00) and reconciled with her. A separate report by the Village Court Magistrates confirms the mediation, compensation and reconciliation.

SUBMISSIONS BY DEFENCE COUNSEL

6. Ms Pinggah highlighted the guilty plea and payment of compensation to and reconciliation with the victim. Though the offender has a prior conviction, it was a long time ago, 26 years, and the court should give credit to the offender for having led a good, straight life for such a long time (The State v David Marcus (2006) N3158). The use of the bushknife makes the case a serious one, but the sentence should be no more than four years imprisonment, all of which should be suspended.

SUBMISSIONS BY THE STATE

7. Mr Kupmain emphasised that the use of a bushknife and the wounds to vulnerable parts of the body were strong aggravating factors. The payment of compensation made a partial suspension of the sentence justified.

DECISION MAKING PROCESS

8. 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?

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

STEP 2: WHAT IS A PROPER STARTING POINT?

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

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

11. Attacks of this nature, where the offender pleads guilty to a Section 319 grievous bodily harm offence, and there is an identifiable cause and where the offence can be described as a crime of passion, usually result in a sentence of three to five years imprisonment, depending on the circumstances. See, for example, the cases summarised in The State v Justin Ipa (2008) N3439.

STEP 4: WHAT IS THE HEAD SENTENCE?

12. Mitigating factors are:

• pleaded guilty;
• the offender made early admissions to the police;
• expression of remorse;
• payment of compensation to and reconciliation with the victim.
  

13. Aggravating factors are:

• the use of a bushknife;
• wounds to the neck and face;
• one prior conviction (although it is accepted that it was a long time ago and does not weigh heavily against the offender).
  

14. I place great weight on the fact that the offender has pleaded guilty and paid compensation to and reconciled with the victim. However, any case in which a bushknife is used to wound another person, particularly when the wound is to the neck or face, is a very serious case, involving great distress to the victim as it puts them in a life threatening situation. The appropriate sentence is four years imprisonment.

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

15. No time has been spent in custody. There is nothing to deduct.

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

16. The favourable pre-sentence report, and proof of payment of compensation to and reconciliation with the victim, warrant a suspended sentence, subject to strict conditions. I will, as I did in the recent case of The State v Martin Konos (2010) N4157 (a GBH case in which the offender pleaded guilty to an assault on his nephew and the problem was largely resolved in accordance with local custom) suspend the entire sentence subject to these conditions:

(a) the offender must reside at his village and nowhere else except with the written approval of the National Court;

(b) must not leave Madang Province without the written approval of the National Court;

(c) must continue to assist and perform duties under the supervision of the Bogia Police Station Commander, as and when required;

(d) must attend his local Church every weekend for service and worship and submit to counselling;

(e) must report to the Probation Office at Madang every three months;

(f) must not consume alcohol or drugs;

(g) must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim and her family;

(h) must have a satisfactory probation report submitted to the National Court Registry at Madang every six months after the date of sentence;

(i) if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

SENTENCE

17. Ray Sheekiot, 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: Lawyers for the offender