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State v Ken [2016] PGNC 157; N6345 (22 June 2016)

N6345

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1095 OF 2015

THE STATE

V

DOMINIC KEN

Porgera: Auka, AJ
2016: 15^th & 22^nd June

CRIMINAL LAW - Sentence - Particular offence - Guilty plea - Unlawful wounding - Mitigating factors considered - Two (2) years imprisonment - Less time spent in pre-trial custody - Sentence suspended - Criminal Code - S. 322 and S.19.

Case Cited:
Aiva Aihi v. The State (No.3) [1982] PNGLR 92
Goli Golu v. The State [1979] PNGLR 92
Lawrence Simbe v. The State [1994] PNGLR 38
The State v. Kila Neko Unreported Judgement dated 23rd August, 2016.

Counsel:
Mr. Joe Waine, for the State
Mr. Robert Bellie, for the Accused

SENTENCE

22^nd June, 2016

1. AUKA AJ: The prisoner pleaded guilty to one Count of Unlawfully wounding another person Stella Dominic an offence against S.322 of the Criminal Code.

2. The brief facts of the case are that on 7^th April, 2015 at about 5:30pm at Porgera the accused was under the influence of alcohol. He was with his wife and child at Pimek Corner in Porgera and was arguing with his wife who was carrying their baby who is the victim in this case. The accused was walking ahead of his wife when all of a sudden, picked up a stone about the size of a folded fist and threw it at his wife. However, the stone missed her and instead hit the infant victim on her forehead causing a deep wound. Victim was rushed to the hospital and was treated and discharged. It is alleged that what accused did was unlawful or unauthorised by law.

3. The Clinic Book dated 7^th April, 2015 showed that the victim was rushed to the hospital by Police Vehicle. He was crying due to pain from a deep cut on the forehand which was bleeding. The victim was treated and discharged.

4. I heard the privilege of hearing the accused and Mr. Bellie of counsel for the accused on their address to the Court on Sentence.

5. On the part of the accused, he said his wife instigated the problem by swearing at him and his sister in public. When he heard his wife swearing, he picked up a stone and threw it at his wife. His wife used the little child as a shield and the stone landed on her forehead and caused a deep wound on the forehand. He was arrested and charged and placed in Police Custody and spent 3 weeks before released on bail. He felt sorry for the victim and gave her K600.00 in cash. He ask the court to have mercy on him. He is prepared to pay further compensation.

6. Mr. Bellie of Counsel for the accused submitted that the accused is 30 years old. He is from Karik village, Porgera District, Enga Province. At the time of the offence, he was residing at Suyan Village. He is married with 2 wives and has 3 children. He comes from a family of 3 brothers and 1 sister. He is the 2nd born in the family of 5 children. He completed grade 10 at Porgera High School in 2000. He is currently employed by Barrick at the Open Mine Pit as Heavy Equipment Operator. He has been employed by Barrick for 9 years. Mr. Bellie submitted that a term of 1 year 6 months and the sentence fully suspended with conditions would be the appropriate sentence.

7. Mr. Bellie submitted that the Court should consider in accused favour the following factors;
1. That the victim is his own daughter and the offence occurred within the family
2. That he pleaded guilty to the charge.
3. That he is a first time offender.
4. That he has a prior good character.
5. That he expressed remorse to the Court and the victim.
6. That he paid K600.00 in cash as compensation and is willing to pay further compensation.

8. The offence of Unlawful Wounding under S. 322 of the Criminal Code is a misdemeanour and is punishable by an imprisonment of three (3) years.

9. On Authority of Goli Golu v. The State [1979] PNGLR 653, Avia Aihi v. The State (No. 3) [1982] PNGLR 92, the maximum penalty must be reserved for the worst type case. In my view the accused's case is not a worst type case.

10. It is an principle that each case should be considered on its own facts and circumstances, Lawrence Simbe V. The State [1994] PNGLR 38.

11. The trend of Sentencing on Unlawful Wounding cases depends entirely on the facts of each case. In the case of CR No. 885 OF 2006, The State v. Kila Neko, Unreported Judgement dated 23rd August, 2006, the accused pleaded guilty to one Count of Unlawfully wounding Michael Simox. This is a case where the accused used a pocket knife and stabbed the victim on his neck region. The victim saw blood oozing from the wound and fainted and fell down to the ground. He was immediately taken to St. Mary's Hospital where he was treated. The stabbing occurred during a argument between the accused and the victim. Upon a plea of guilty to the charge, His Honour Lenalia J imposed a sentence of 2 years imprisonment.

12. The Sentence was fully suspended on condition that the accused shall enter into a recognizance to keep the peace for 2 years.

13. In considering the appropriate sentence, I consider the following factors in favour of the accused;

1. That he pleaded guilty
2. That he is a first time offender
3. That he has a prior good character
4. That he expressed remorse to the Court and to the victim
5. That he paid K600. 00 cash as compensation to the victim
6. That he is willing to pay further compensation

14. Going by the sentence imposed in the case of The State v. Kila Neko (Supra) and the particular facts and circumstances of the present case, I consider that a sentence of 2 years is appropriate less pre-trial custodial term.

15. The remaining term is fully suspended on condition that he shall enter into a recognizance to keep the peace for 2 years.

16. The second condition is that the accused shall pay compensation into the sum of K500. 00 to the victim payable within 2 months.

17. The K500. 00 bail shall be converted towards the payment of compensation.

The Public Prosecutor : Lawyer for the State
The Public Solicitor : Lawyer for the Accused