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State v Daniel [2016] PGNC 158; N6344 (24 June 2016)

N6344

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 299 OF 2015

THE STATE

V

JOSEPHINE DANIEL

Porgera: Auka, AJ
2016: 22^nd & 24^th June

CRIMINAL LAW - Sentence - Particular offence - Plea of guilty - Unlawful wounding - Mitigating and Aggravating factors considered - Two (2) years imprisonment - Less time spent in Custody awaiting trial and sentence - Remaining term fully suspended on Conditions - 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. Joseph Pingin (2001) N2169
The State v. Marshell Western Pangil (2004) N2676

The State v. Kila Neko (2006) Unreported Judgement dated 23rd August 2016

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

SENTENCE

24^th June, 2016

1. AUKA AJ: The accused pleaded guilty to one Count of Unlawfully wounding another person SIMON ENO, an offence under S.322 of the Criminal Code.

2. The brief facts of the case were that on the afternoon of 6th September, 2014 the victim Simon Eno who is accused's husband was at the premises of Bank of South Pacific, Paiam Station, Porgera Enga Province. The accused was there and when she saw him she was upset with him because he was the person who chopped her left hand off using a bush knife in 2014. She approached the victim from his back and stabbed him with a kitchen knife on the right side of his back and injured him. The victim was rushed to Paiam Hospital and was appropriately treated and discharged. State alleged that what the accused did was unlawful or unauthorised by law.

3. Unfortunately there is no medical report to determine the nature and extent of the injury suffered by the victim.

4. I had the privilege of hearing the accused and Mr. Bellie of Counsel for the accused on their addresses to the Court on Sentence.

5. On the part of the accused, she said in February, 2014 she was at home and the victim who is her husband came home and chopped off her left hand with a bush knife. She was taken to the hospital and admitted. She was appropriately treaded and discharged. When she was discharged from the hospital, she laid a complaint at Paiam Police Station against the victim and he was arrested and detained at the Police Cell. However he escaped. Then on 6^th September, 2014 she saw the victim at the Bank of South Pacific, Paiam Station approached him from his back and stabbed him with a knife on the right side of his back. At the Police Station she admitted that she did the trouble and felt sorry for the victim. She asked the Court to have mercy on her.

6. Mr. Bellie of Counsel for the Accused submitted on Sentence the following matters;

1. That offender is 25 years old. She comes from Yarik Village, Porgera Enga Province.
2. She is married to the victim who is her husband and have no children.
3. Both were residing at Yarik Village when the trouble happened.
4. The offender has 3 brothers and she is the first born in the family of four (4) children.
5. That she surrendered to Police straight after the trouble and was detained.
6. That she was detained at Baisu Correctional Institution for six (6) months.
7. She was released on K1000. 00 cash bail by the Porgera District Court.
   

7. In mitigating, Mr. Bellie urged the Court to consider the following matters in favour of the accused:

1. There was high degree of provocation in a non-legal sense in that in February, 2014 the victim chopped the accused's left hand off with a bush knife which resulted in the offender losing 100% use of her left hand.
2. That she pleaded guilty and saved Court's time
3. That she is a first time offender
4. That she expressed remorse and pleaded for mercy of the Court on Sentence.
   

8. Mr. Bellie submitted that a sentence of 2 years and fully suspended should be appropriate in the circumstances of the present case.

9. The offences of unlawful wounding under S. 322 is a misdemeanour and is punishable by an imprisonment of 3 years.

10. It is an established principle that the maximum penalty should be reserved for the worst type cases; Goli Golu v. The State [1979] PNGLR 653, Aiva Aihi v. The State (No. 3) [1982] PNGLR.

11. In my view this is not a worst type of unlawfully wounding case.

12. It is also a principle that each case should be considered on its own facts and circumstances. Lawrence Simbe v. The State [1994] PNGLR 38.

13. I have noted the following sentences in the following cases;

1. Firstly, in case of The State v. Joseph Pingin (2001) N2169, the accused pleaded to one Count of Unlawfully wounding of one Boddy Yamrumbu. His Honour Kandakasi J imposed a hard sentence of 3 years, and of that three head sentence, accused was ordered to serve a term of 1 year less pre-trial custodial term. Further ordered that the balance of 2 years suspended with condition, including payment of K5000.00 in compensation to the victim within 6 months from date of sentence. This is a case where the accused regarded victim's brother a Sorcerer, victim was not happy and approached the accused and told him to stop calling his brother a Sorcerer in public. That resulted in a first fight. The fight stopped and the party were separated. The accused went to his house. However, some minutes later he the accused came out of his house with a bush knife and cut the victim on his right shoulder and he fell down on the ground. The victim was taken to Boram Hospital and appropriately treated and discharged.
   
2. Secondly, in the case of The State v. Marshell Western Pangil (2004) N2676, the accused pleaded guilty to a charge of unlawfully wounding Steven Elluh Petsul Contrary to S. 322 (1) (a) of the Criminal Code. His Honour Kandakasi J imposed a Sentence of 2 years and fully suspended the sentence with conditions including payment of K1000. 00 in compensation to the victim within 2 months. This is a case where the accused was clearing some bush in his village to plant Vanilla. While the accused was busy doing that, the victim approached him with a bush knife and a metre long timber with a sharp edge. Victim told him to stop clearing that bush as the land ownership was under dispute. The victim also threatened to cut him in half if he did not stop clearing the Land. Suddenly the victim swung his bush knife at the accused twice but avoided both of them and started to run away with the victim pursuing him. Realizing that he could not catch up with the accused, he chopped one of accused dogs, which came barking at him. Victim then decided to cut down some of accused's Vanila shade plants. Thereafter he retired to his house.

In the meantime the accused went to his house, armed himself with a fishing gun, and followed the victim to his house and caught up with him and shot him with the fishing gun. That resulted in a penetrating injury to the victim from his right elbow to the right lateral abdominal wall. In the process, the victim's right hand was stuck to his abdomen. He tried to release them but could not do it himself. Two of his cousins helped him to do that and took him to Lorengau Hospital the same day. At the hospital, he received appropriate treatment and recovered uneventfully.

3. Thirdly 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 Simon an offence against S.322 of the Criminal Code. This is a case which took place at Sonoma Primary School where a PMV vehicle dropped off passengers including the accused, the victim and others and after the vehicle left, the victim and others started to accuse the prisoner about some missing money. An argument arose between the accused and the victim. The accused threw a bottle of beer at the victim but he swayed to the side and avoided it. He got a fork and used it to scratch the right side of victim's face and ear. The accused was held back by a person named Joe Michael. However accused struggled free and got hold of a small pocket knife and used it and stabbed the victim on his neck region. The victim saw blood oozing from the wound and became dizzy and fainted and fell down to the ground unconscious. He was immediately taken to St. Mary's Hospital Vunapope where he was treated. Unfortunately no medical report was produced in Court to determine the nature and extent of the injuries suffered by the victim.

14. In considering the appropriate sentence, I consider the following mitigating matters in favour of the accused;

1. That the accused pleaded guilty and saved Court's time

2. That she is a first time offender

3. That there was a high degree of provocation in a non-legal sense in that the victim chopped her left hand completely off with a bush knife which resulted in the accused losing 100% use of her left hand. This incident happened in the month of February, 2014. (The accused showed to the Court the scar of her chopped off left hand).

4. That she co-operated with Police and admitted in the Record of Interview.

5. That she expressed remorse and pleaded for mercy of the Court on Sentence.

15. The Aggravating factors considered against the accused are that;

1. She took the law into her own hands

2. She used a knife to stab the victim

3. The offence is a prevalent offence

16. Going by the maximum penalty for this offence, the sentencing ranges in the cases I have mentioned above and the particular facts and circumstances of the present case, I consider that a sentence of 2 years is appropriate in this case.

17. The sentence is fully suspended on Condition that she shall enter into a recognizance to keep the peace for 2 years.

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