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State v Joseph [2014] PGNC 178; N5800 (23 August 2014)

N5800

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 603 OF 2014

THE STATE

V

YANI JOSEPH

Kimbe: Cannings J
2014: 7, 19, 23 August

CRIMINAL LAW – sentence – grievous bodily harm – Criminal Code, Section 319 – guilty plea – offender cut two victims with a bushknife.

A man pleaded guilty to unlawfully doing grievous bodily harm to two other men. He attacked them with a bushknife: one victim was cut around the eye; the other victim was cut on the back, a 20 cm-long wound. This is the judgment on sentence.

Held:

(1) The maximum sentence for doing grievous bodily harm under Criminal Code, Section 319 is seven years imprisonment.

(2) Mitigating factors are: pleaded guilty; made very early admissions to and cooperated with Police; cooperated with the Court; no prior convictions; offender's preparedness to reconcile.

(3) Aggravating factors are: use of lethal weapon; the victims were unarmed; an element of planning was involved.

(4) A sentence of three and a half years was imposed for each offence. The sentences are to be served cumulatively and there was no reduction under the totality principle. The pre-sentence period in custody was deducted and no part of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Public Prosecutor v Kerua [1985] PNGLR 85
Saperus Yalibakut v The State (2006) SC890
The State v Justin Ipa (2008) N3439
The State v Ray Sheekiot (2011) N4454
The State v Ria Bernard (2008) N5461

SENTENCE

This was a judgment on sentence for grievous bodily harm.

Counsel

F K Popeu, for the State
D Kari, for the offender

23rd August, 2014

1. CANNINGS J: Yani Joseph pleaded guilty to two counts of unlawfully doing grievous bodily harm, contrary to Section 319 of the Criminal Code. The offences were committed at Buvussi on 4 February 2013. The offender received a message from his father, Giul Joseph, to come and assist him in an argument he was having with Yani Domini and Ande Domini. The offender came with his brother, Kaula Joseph, armed with bushknives and they attacked the two victims. Yani Dominic was cut around the eye; Ande Dominic was cut on the back, a 20 cm-long wound being inflicted.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. The offender said:

I ask for the mercy of the court.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty, he is entitled to benefit of the doubt on mitigating factors that are apparent from the depositions, the allocutus (or plea) or matters raised by his defence counsel that are not contested by the prosecutor (Saperus Yalibakut v The State (2006) SC890). It goes in his favour that he made admissions when interviewed by the Police on 18 February 2014.

PRE-SENTENCE REPORT

5. The court was presented with a report prepared by the Kimbe office of the Community Based Corrections Service.

Personal details of Yani Joseph

6. The offender is prepared to pay compensation; he is confident that his family will assist him. However the victims prefer to see the offender punished and do not want compensation. They say that the underlying dispute has been going on for many years.

SUBMISSIONS BY DEFENCE COUNSEL

7. Mr Kari asked me to place a lot of weight on the guilty plea and the expression of genuine remorse. The two sentences should be served concurrently and the total sentence should be in the range of three years, he submitted.

SUBMISSIONS BY THE STATE

8. Mr Popeu disagreed and cited The State v Ria Bernard (2008) N5461 where the offender inflicted grievous bodily harm in a bushknife attack on two victims and received a total sentence of eight years.

DECISION MAKING PROCESS

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

• step 1: what is the maximum penalty for each offence?
• 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 for each offence?
• step 5: should the sentences be served concurrently or cumulatively?
• step 6: what is the effect of the totality principle?
• step 7: should the pre-sentence period in custody be deducted?
• step 8: should all or part of the sentence be suspended?
• step 9: what should the place of detention be?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

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

STEP 2: WHAT IS A PROPER STARTING POINT?

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

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

12. 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?

13. Mitigating factors are:

• pleaded guilty;
• made very early admissions to and cooperated with Police;
• cooperated with the Court;
• no prior convictions;
• offender's preparedness to reconcile.
  

14. Aggravating factors are:

• use of lethal weapon;
• the victims were unarmed;
• an element of planning was involved.
  

15. Any grievous bodily harm case in which a bushknife is used is a very serious case, involving great distress to the victim as it puts them in a life threatening situation (The State v Ray Sheekiot (2011) N4454). However, I place great weight on the fact that the offender has made very early admissions and cooperated fully with the Police and the Court. He has pleaded guilty. Because of the strong mitigating factors I will in the special circumstances of this case impose a sentence at the starting point: three years, six months imprisonment for each offence.

The total potential sentence the offender is facing is:

3.5 years + 3.5 years = 7 years.

STEP 5: SENTENCES CONCURRENT OR CUMULATIVE?

16. The question is whether the head sentences should be served concurrently (at the same time) or cumulatively (the sentences are added together). As there are two different victims then even though they were injured in one incident, the sentences should be served cumulatively (Public Prosecutor v Kerua [1985] PNGLR 85).

STEP 6: WHAT IS THE EFFECT OF THE TOTALITY PRINCIPLE?

17. I now look at the total sentence the offender is facing, to see if it is appropriate having regard to the totality of the criminal behaviour involved. The court needs to guard against imposing a crushing sentence. I consider that seven years would not be excessive. These were very serious offences and seven years is not out of proportion to the gravity of the crimes or the length of sentences that have been imposed in other cases.

STEP 7: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

18. 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 six months, one week, three days.

STEP 8: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

19. No. The pre-sentence report does not warrant suspension as the victims are not interested in receiving compensation.

ORDER

20. Yani Joseph, having been convicted of two counts 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
Public Solicitor: Lawyer for the offender