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State v Gendi [2015] PGNC 258; N6149 (10 December 2015)

N6149

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 742 OF 2014

THE STATE

V

ABRAHAM GENDI

Madang: Cannings J
2015: 3, 10 December

CRIMINAL LAW – sentencing – unlawful wounding – Criminal Code, Section 322(1)(a) – sentence after trial – offender hit a woman with an iron rod – sentence of 2 years.

A man pleaded guilty to unlawful wounding his first wife. He broke her arm with an iron rod to protect his second wife who was being attacked by the victim.

Held:

(1) The maximum sentence is three years imprisonment.

(2) The mitigating factors are: no long term or permanent injuries received by victim; pleaded guilty; no prior convictions; unplanned, spontaneous incident; de facto provocation.

(3) The aggravating factors are: too much violence; absconded while on bail.

(4) A sentence of two years was imposed. The pre-sentence period in custody was deducted and all of the sentence was suspended subject to conditions.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
The State v Mathew David, CR No 929 of 2015, 17.07.15
The State v Philip Lekis (2007) N5029

SENTENCE

A man was convicted after trial of unlawful wounding and the following reasons for sentence were given.

Counsel

M Pil, for the State
A Meten, for the offender

10th December, 2015

1. CANNINGS J: Abraham Gendi pleaded guilty to one count of unlawful wounding, and has been convicted of that offence under Section 322(1) (a) of the Criminal Code. He committed the offence at Bukbuk settlement Madang on 26 April 2014. The victim, Arine Abraham, is his first wife. They were estranged at the time. The victim went to Bukbuk and found the offender with his second wife, Naksy Abraham. The victim was angry with Naksy and attacked her. The offender came out of the house armed with an iron rod and used it to strike the victim in order to protect Naksy. He used more force than was necessary and broke the victim's left arm. She had to be rushed to hospital. She suffered no life threatening injuries or long-term injuries but she was traumatised and spent more than a week in hospital.

ANTECEDENTS

2. The offender has no prior convictions.

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 the court and the victim but I had no plan or intention to harm her. I only did it to protect Naksy as I feared that she might be killed. My first wife had already left me and I had a second wife at the time of this incident. I was very cross with my first wife as she was not looking after our children well and one of my sons had lost an eye while I was away at sea, in my work. She was gambling when I was away and misusing the money I sent her to look after the children. So I decided to take a second wife to look after the children and do the house work while I am away. I paid K200.00 to her while she was in hospital. I have tried to compensate her to no avail.

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). I will take into account that there was a strong element of de facto provocation and the offender has attempted to compensate the victim.

PRE-SENTENCE REPORT

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

Personal details of Abraham Gendi

SUBMISSIONS BY DEFENCE COUNSEL

6. Mrs Meten highlighted the guilty plea and the genuineness of the attempt to compensate the victim. There was a high element of de facto provocation. There was an early guilty plea. She asked for an 18-month suspended sentence.

SUBMISSIONS BY THE STATE

7. Mr Pil did not oppose a suspended sentence subject to strict conditions.

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. Section 322(1)(a) (wounding and similar acts) of the Criminal Code states:

A person who ... unlawfully wounds another person ... is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years.

The maximum penalty is therefore three years imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

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

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

11. I refer to The State v Philip Lekis (2007) N5029, in which a man had a dispute with his sister and his father in a public place. He swung his bushknife at his sister, cutting her on the head. He pleaded guilty to unlawful wounding and was given a sentence of 30 months imprisonment. The pre-sentence period in custody was deducted and the sentence was fully suspended on conditions including payment of compensation.

12. In a recent Ramu case, The State v Mathew David, CR No 929 of 2015, 17.07.15, the offender pleaded guilty to one count of unlawful wounding. The offender was a security guard on duty at the main gate of Ramu Sugar's premises. The victim was also on duty as a security guard at the same place. The pair had an argument about a vehicle pass. The offender used a two-way radio to attack the victim, inflicting a superficial laceration on upper eyelid of right eye and a deep scalp laceration on the forehead. Those were not long term or life threatening injuries. A sentence of two years imprisonment was imposed which was fully suspended.

STEP 4: WHAT IS THE HEAD SENTENCE?

13. Mitigating factors are:

• no long term or permanent injuries received by victim;
• pleaded guilty;
• no prior convictions;
• unplanned, spontaneous incident;
• de facto provocation.
  

Aggravating factors are:

• too much violence;
• absconded while on bail.
  

The appropriate sentence is two years imprisonment.

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

14. Yes: three weeks.

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

15. This is an appropriate case for a suspended sentence. A reasonable amount of compensation is K2,000.00, payable within two months. I will suspend the entire sentence on the following conditions:

1. must by 10 February 2016 pay K2,000.00 cash compensation to the victim, the payment to be arranged through and supervised by the Madang Probation Office;
2. must appear before the National Court at Madang on 18 February 2016 at 1.30 pm to prove compliance with condition (1);
3. must reside in Madang at a specific address notified to the Probation Office and nowhere else except with the written approval of the National Court;
4. must perform at least three hours unpaid community work each week, to be arranged through the Probation Office;
5. must attend his Church every weekend for service and worship and assist the church in its community activities;
6. must report to the Probation Office at Madang at least once each month;
7. must not consume alcohol or drugs;
8. must keep the peace and be of good behaviour;
9. must have a satisfactory probation report submitted to the National Court Registry at Madang and appear before the Court for probation review as and when required;
10. 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

16. Abraham Gendi, having been convicted of one count of unlawful wounding, contrary to Section 322(1)(a) of the Criminal Code, is sentenced as follows:

Sentenced accordingly,

_____________________________________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender