Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Ako [2013] PGNC 231; N5405 (23 October 2013)

N5405

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO. 834 OF 2013

THE STATE

V

MARIA AKO

Mendi: Kassman, J
2013: 21, 22 & 23 October

CRIMINAL LAW – Sentence - Criminal Code Section 322(1)(a) – Unlawful wounding – plea of guilty –first offence – impeccable character and substantial service to community – no serious premeditation to cause serious injury – immediate remorse - sentence of two years - wholly suspended on conditions of good behavior and community service.

Cases cited

Maima v. Sma [1972] PNGLR 49
The State v Rubert Kassman [2004] N2682
The State v Marshall Western Pangih [2004] N2676

Legislations cited

Sections 322(1)(a) Criminal Code Act
Sections 19(1)(a), (1)(b), (1)(d), (1)(f), and (6) Criminal Code Act

Counsel:

Anthony Kupmain, for the State
Cecelia Koek, for the Offender

SENTENCE

23rd October, 2013

1. KASSMAN J: Introduction: Maria Ako pleaded guilty to the charge of unlawful wounding. This is the decision on sentence.

2. The brief facts on which Maria Ako was indicted on 21 October 2013, and which she conceded as being true, are:

"On Saturday 20 October 2012, at around 7pm to 8pm, the accused was at Army hill normally known as Military Heights at Longo in Mendi. The accused went to the victim Joseph Payawi's house and bumped the gate to his premises down with a vehicle. The accused entered the victim's home and broke down the door to the victim's bedroom and fought with the victim Joseph Payawi. In the course of the fight, the state alleges the accused stabbed the victim with a small knife on his left thigh. The victim received a stab wound to his left thigh as a result and was admitted to the hospital."

Allocutus

3. In allocutus, Maria Ako said in pigin language which was translated to English as:

"Firstly I would like to apologise to the victim. I also say sorry for the victim that he suffered during the incident and also say sorry to his family. Secondly I say sorry to this Honorable Court for taking its time and I also say sorry to the lawyers for taking their time and wasting their time. I would like to ask this Honorable Court to have mercy on me for what penalties this court has to impose upon me. Lastly I would like to ask god for forgiveness for what I have done. I also ask this court to have mercy on me."

Antecedents

4. The offender has no prior convictions.

5. Counsel for the Offender, on instructions, chose to proceed with submissions on sentence without reliance on a pre-sentence report.

6. The facts about the matter that are not in dispute are as follows:

1. Brief History – Maria Ako is thirty nine years old. She is from Hoiyabia Village in the Tari District of the Hela Province. She is a nursing officer employed for some nine years with the Mendi General Hospital.
   
2. Incident – Maria Ako admits she was in a de facto relationship with the victim for some three years. The relationship ended soon after the incident. Maria admits forcefully entering the victim's premises and home and in the course of a physical altercation with the victim, Maria stabbed the victim in his left thigh with a kitchen knife.
   

100. Events following the incident – on realizing the victim was injured, Maria then rushed him to the Mendi General Hospital where she took personal care of him with his treatment and eventual discharge the following day.
     

4. Other aspects – By a letter addressed to the Public Prosecutor dated 7 October 2013, the victim advised that he was withdrawing the case as he was no longer resident in Mendi and he had forgiven Maria Ako for her wrongdoing and they had reconciled. This is evidence that there is no subsisting animosity from the victim towards Maria Ako.
   

Relevant Law

2. Section 322(1)(a) of the Criminal Code Act provides "A person who unlawfully wounds another person is guilty of a misdemeanour." The prescribed penalty is "Imprisonment for term not exceeding three years".
   
3. The maximum penalty is imprisonment for a term not exceeding three years. "The general principle is that the maximum punishment should be awarded only in the worst cases." Maima v. Sma [1972] PNGLR 49.
   
4. The Court has considerable discretion whether to impose the maximum penalty or a lesser sentence and this power is provided under Section 19 of the Criminal Code. This section of the Criminal Code provides among others, a shorter term may be imposed [subsection (1)(a)], a fine not exceeding K2,000.00 in addition to, or instead of, imprisonment may be imposed [subsection (1)(b)], a good behavior bond in addition to, or instead of, imprisonment may be imposed [subsection (1)(d)], the offender can be discharged and the sentence postponed [subsection (1)(f)] or a part of or all of the sentence can be suspended subject to conditions [subsection (6)].
   
5. Submissions on sentence were heard and are summarized as follows.
   

Submissions by Defence Counsel

6. Counsel handed up written submissions. Maria Ako is thirty nine years old. She has no prior convictions. She takes sole responsibility for her four children who are all in school.
   
7. Maria pleaded guilty on presentation of the indictment and the brief facts thus saving the victim the trauma of having to relive the ordeal in open court. This plea also avoided time spent on a full trial process so time and expense was saved for both the court and the lawyers who travel in on circuit each month.
   
8. Maria has apologized and immediately took responsibility for the incident by taking personal care of the victim and attending to prompt treatment of his injuries and his eventual discharge from hospital and she also paid all his medical fees.
   
9. Against all of this, it is conceded the offence is a serious matter and Maria did not admit to police of her wrongful actions immediately after the incident.
   
10. Further, it is conceded a dangerous weapon was used and there was serious violence involved that resulted in injuries to the victim.
    
11. Counsel for the offender suggested a sentence of two years imprisonment wholly suspended on condition of a three months good behavior bond and community service.
    

Submissions by State Counsel

12. Counsel for the State made oral submissions saying this is a very serious offence. The offence is prevalent in the country. Further aggravating factors are the use of violence and the use of a kitchen knife which is a dangerous weapon.
    
13. The State conceded much of what counsel for the offender had submitted and stated them in the following sequence which I understood to represent the order of importance counsel attached to each. The offender is and has been faithfully serving the community as a nursing officer. She is the sole parent of four children who are all young and dependent on her for their upkeep and welfare. For some twelve months, she served in a voluntary capacity as a nurse with the World Health Organization providing basic health advice and assisting mothers in village birth deliveries all while on patrol in rural areas including the Tari – Pori and Koroba – Kopiago Districts in the Hela Province. She pleaded guilty to the charge. She has no prior convictions. She has expressed remorse and she assisted the victim to the hospital and took care of him until his discharge the following day.
    
14. The State also conceded despite the aggravating circumstances, the many mitigating factors made this an appropriate case for a non-custodial sentence.
    
15. Counsel for the State also suggested a sentence of two years imprisonment wholly suspended but on condition of a good behavior bond for one year and community service also for one year.
    

Comparable cases

16. Counsel for the offender referred to two judgments of the National Court delivered by His Honour Justice Kandakasi and from the year 2004 where both offenders pleaded guilty to charges of unlawful wounding.
    
17. In a case heard in Wewak in The State v Rubert Kassman [2004] N2682 the young offender was with two boys at a roadside at their village when the victim in a vehicle stopped nearby and the driver under the influence of alcohol engaged in an argument with the offender and his friends. As the victim attacked one of the boys, the offender stepped in to stop the fight. The victim then threw a bottle of beer at the offender who then retaliated grabbing a bush knife from his house and he struck the victim in his neck area. Fortunately, the cut to his neck was not deep and there was no permanent physical or neurological injury sustained by the victim. The head sentence was set at three years. Two years was deducted after finding the offender had no prior conviction, compensation was paid by the offender's mother to the victim and the offender pleaded guilty. After deducting time spent in remand awaiting trial, the balance of seven months and twenty days was suspended on conditions including the offender be of good behavior and perform community service for the term of the suspended sentence.
    
18. In a case heard in Lorengau in The State v Marshall Western Pangih [2004] N2676 the offender was a 28 years old man who was married with one child. While clearing an area in his village to plant vanilla, he was attacked by the victim, a fellow villager, who was holding a bush knife and timber pole with a sharp edge. The victim raised issue with ownership of the land that the offender was clearing. The offender escaped from the victim's attack and the victim then turned on the offender's dog cutting it with the bush knife. He also cut down some of the offender's vanilla plants. In retaliation, the offender armed himself with his fishing gun and shot him with the spear penetrating the victim's right elbow and his right lateral abdominal wall. The victim was hospitalized and recovered without any residual disability. As deterrence, a sentence of two years imprisonment was imposed. On account of the guilty plea, this being the offender's first offence and the offender being prepared to pay compensation to the victim, the sentence was wholly suspended on conditions including the offender be of good behavior and perform community service for the term of the suspended sentence.
    

Consideration of the arguments

19. I accept all the mitigating circumstances that have been raised by counsel for the offender. I also note counsel for the State did not take any serious issue with the submissions of counsel for the offender and I also agree the mitigating factors far outweigh the aggravating factors. These are all well canvassed above and I will not repeat them.
    
20. Maria is a respectable and hard working woman and, but for this one unfortunate incident, is an outstanding individual who has humbly served her people, the community and society generally with pride and dedication. A healthy, educated and well informed society is critical to the development of our country. Workers or public servants like Maria who are nurses, health extension officers and teachers to name a few, particularly those who serve in rural areas under difficult circumstances and with a basic wage, are critical to progress in all aspects of development of our country.
    
21. This unfortunate incident was a result of a personal relationship between two consenting adults that subsequently deteriorated and turned violent. Instead of turning to counselors or seeking guidance from church or appropriate leaders, Maria resorted to a physical confrontation in anger.
    
22. It could hardly be suggested, and neither did counsel for the State contend, that there was any serious premeditation to cause serious injury even though a kitchen knife was used and Maria was armed with a rock and did forcefully enter the victim's home.
    
23. In allocutus, Maria was sincerely remorseful and shed tears in open court when apologizing to the victim for his injuries and his pain. This was not an act seeking self preservation. This conduct was consistent with her actions in taking full responsibility for her wrongdoing when, after realizing the injury sustained by the victim, she then immediately rushed him to the hospital where she arranged prompt medical attention and treatment and she then took personal care of the victim until his discharge from hospital the following day. She also personally paid for all his medical costs.
    
24. I agree with counsel for the offender and the State that a sentence of two years imprisonment is appropriate in the circumstances of this case. A dangerous weapon was used in a violent encounter. There was no provocation and the victim was caught completely by surprise but managed to save himself from more serious injury.
    
25. On account of the many mitigating factors discussed above, I also agree with counsel for both the offender and the State that this is an appropriate case for a non-custodial sentence.
    
26. It is also agreed that the use of dangerous weapons like small and large knives including bush knives, rocks, rods or similar implements that are made of hard wood or steel particularly those with sharp and reinforced edges is still prevalent in violent confrontations in this country. As deterrence to the offender and the community from committing similar offences and also as a means of recognizing the seriousness of this conduct, this court must attach strict conditions to the suspended sentence.
    
27. The penalty imposed is a sentence of two years imprisonment wholly suspended but on conditions that the offender be of good behavior for one year and the offender must perform community service for a period of one year.
    
28. The formal orders of the Court are:
    
    1. A sentence of two years imprisonment is imposed.
       
    2. The sentence of two years is wholly suspended with conditions that:
       
       1. Maria Ako will be of good behaviour for one year from the date of this order; and
          
       2. For one year, Maria Ako will perform community service in:
          
          1. Working an extra three hours per week
             
          2. Unpaid
             
          3. At the Mendi General Hospital
             
          4. Under the direction of the CEO of the Mendi General Hospital or his nominee
             
       3. For the duration of one year:
          
          1. Maria Ako will not leave the Southern Highlands Province, except with the leave of the National Court
             
          2. Maria Ako will not consume alcohol
             
          3. Maria Ako will report to the Assistant Registrar, National Court, Mendi on the first Friday of every month between 8am and 9am.
             
          4. Maria Ako must have a satisfactory probation report submitted by the Community Based Corrections Officer to the National Court Assistant Registrar once every three months
             
    100. Maria Ako's bail monies of K300 shall be refunded by Maria Ako and given to the Assistant Registrar, National Court Mendi who will deposit such funds in a trust account opened for the purpose with Bank South Pacific, Mendi Branch. Such funds shall be used solely for the purposes of the community service identified above and at the discretion of the Community Based Corrections Officer.
         
    4. The CEO of the Mendi General Hospital is directed to provide all necessary assistance to the Community Based Corrections Officer in the conduct and supervision of community service as described above.
       
    5. If Maria Ako breaches any one or more of the above conditions, she shall be brought before the National Court to show cause why she should not be detained to serve the rest of her sentence in custody.
       

Judgment accordingly
____________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused