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State v Tulia [2016] PGNC 274; N6479 (30 August 2016)

N6479

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 148 OF 2016

THE STATE

V

KATA TULIA

Popondetta: Auka, AJ
2016: 19^th, 22^nd July & 30^th August

CRIMINAL LAW – Sentence – Particular offence – Plea of guilty – Unlawful wounding – Mitigating and Aggravating factors considered – 18 months imprisonment – Sentence suspended – Criminal Code s.322 and s.19

Case Cited:
Goli Golu v. The State [1979] PNGLR 653
Lawrence Simbe v. The State [1994] PNGLR 38
The State v. Aine Petrus (2011) N4257
The State v. Dominic Ken (2016) N6345
The State v. Joseph Pingin (2001) N2169
The State v. Kila Neko, Unreported Judgement dated 23^rd April, 2006
The State v.Mario Ako (2013) N5405
The State v. Rubert Kassman (2004) N2682

Counsel:
Ms Babra Gore, for the State

Mr. E Yavisa, for the Accused

DECISION ON SENTENCE

30^th August, 2016
1. AUKA AJ: The accused pleaded guilty to one Count of Unlawful wounding to Everlyn Peter pursuant to Section 322 of the Criminal Code Act.

2. The brief facts of the case were that on 5^th April, 2015 at about 7:00pm the accused met the victim at SBS Compound in Popondetta town and both had an argument and a fight ensued. During the fight the accused used a knife and cut the victim twice on her left forearm and the victim suffered knife wounds on her right wrist and left shoulder. The victim was taken to the hospital and appropriately treated and later discharged. State alleged that the accused was not authorised by law to do what she did.

3. A Medical Report of Dr. Paul Gimots dated 9^th April, 2015 confirms that a tender superficial Laceration about 4 to 6 cm long with minimal bleeding on victim’s right hand. The Report also shows multiple bruises to victim’s head and neck.

4. I had the privilege of hearing the accused, Mr. Yavisa of counsel for the Accused and Ms. Babra Gore for the state on their addresses to the Court on Sentence.

5. On her statement on Allocatus, the accused said sorry to the Court for what she did. She also said sorry to the victim. She said she was thinking of Compensating the victim after the fight by paying K500.00 in cash. However the victim brought the complaint to the policeman upon which she was charged. She said sorry again to the victim. She said she has 2 children both boys and the elder boy aged 9 years is attending school doing grade 3. The second boy is aged 8 years old and is an Epileptic Patient. She is the only one looking after him. She is unemployed and asked the Court to have Mercy on her and impose a non-custodial sentence.

6. On the request of Mr. Yavisa of Counsel for the accused, the Court directed the Probation Officer to prepare and file a Probation Report and directed the matter to return on 22^nd July, 2016 at 1:30pm. I’m in possession of the Report. The report is in favour of the accused in that it recommends that the accused is a good candidate for Probation. One of the main reasons to consider placing accused on probation is that one of her son is an Epileptic patient who needs accused care, Love and warmth.

7. In relation to accuseds personal particulars, Mr. Yavisa submitted that the accused is 33 years old married with 2 children who are both boys. One of the boys as stated above is an Epileptic patient. She is from Togopini Village in Pangia area of Southern Highlands Province. She resides with her family at SBS Compound in Popondetta town. She attends Lutheran Church. She attended school and completed grade 6 only. She is engaged in informal businesses in selling cooked food like eggs, flour and drinks at the market.

8. Mr. Yavisa submitted and urged the Court to consider in Accused’s favour the following factors on sentence;

1. That she pleaded guilty and saved Court’s time and money;
2. That she expressed remorse to the Court and to the victim;
3. That she attempted to pay compensation in the sum of K500.00 but victim refused and as such the matter ended up in Court;
4. That she has a child who is an Epileptic patient and she is the only person who provides the care and love to the child;
5. That she is willing to compensate the victim with K1,000.00 in cash within two months from the date of sentence.
   

9. Mr. Yavisa submitted and urged the Court to impose a non-custodial term with condition in the circumstances of the case.

10. Mr. Yavisa referred the Court to the National Court Case of The State v. Mario Ako (2013) N5405. In that case accused pleaded guilty to the charge of Unlawful Wounding. It’s a case were the accused stabbed the victim on his left thigh with a knife and the victim sustained a knife wound on his left thigh. Accused was sentenced to 2 years which was wholly suspended with conditions.

11. Ms. Gore Counsel for the State submitted and urged the Court to consider ordering the accused to pay compensation to the victim.

12. The offence of Unlawful Wounding under s.322 is a misdemeanour and is punishable by an imprisonment term of 3 years.

13. On authority of cases like Goli Golu v The State [1979] PNGLR 653, the maximum penalty should be reserved for the worst type case of Unlawful Wounding. In my view the accused case is not a worst type of case.

14. It is also an established principle that each case must be considered on its own facts and circumstances, Lawrence Simbe v. The State [1994] PNGLR 38.

15. The trend of sentencing on Unlawful Wounding cases as stated above depends entirely on the facts and circumstances of each case. I refer to the following cases for purposes of comparing the type of sentences imposed on Unlawful Wounding cases:

1. In the case of The State v. Joseph Pingin (2001) N2169, the accused pleaded guilty to one Count of Unlawful Wounding of the victim. This is a case where the accused approached the accused and told him to stop calling his brother a Sorcerer in public. That resulted in a fight. That fight was stopped and the accused went away to his house. However, some minutes later the accused came out of his house with a bush knife and cut the victim on his right shoulder and he fell to the ground. The victim was taken to Boram Hospital and was appropriately treated and later discharged. The accused upon his plea of guilty was sentenced to a head sentence of 3 years, and of the 3 years, accused was ordered to serve 1 year less pre-trial custodial term. Further ordered that the balance of 2 years suspended with condition including payment of K5,000. 00 as compensation to the victim with 6 months from the date of sentence.
   
2. In the case of The State v. Rubert Kassman (2004) N2682, the accused pleaded guilty to a count of Unlawful Wounding and was sentenced to a head sentence of 3 years. Two (2) years was deducted as compensation was paid and the accused did not have prior conviction. After deducting the pre-trial custodial term, the remaining term of 7 months 20 days was suspended on condition including the accused be of good behaviour and perform community service for the term of the suspended sentence.
   
3. In the case of CR 855 of 2006, The State v. Kila Neko, Unreported Judgement dated 23^rd August, 2006, the accused pleaded guilty to one Count of Unlawfully wounding the victim Michael Simox. The accused during an argument with the victim used a pocket knife and stabbed the victim on his neck region. He was taken to St. Mary’s Hospital where he was appropriately treated and later discharged. He was sentence to 2 years imprisonment. The sentence was fully suspended on condition that the accused shall enter into a recognizance to keep the peace for 2 years.
   
4. In the case of The State v. Aine Petrus (2011) N4257, the accused pleaded guilty to Unlawful wounding the first wife of her husband by stabbing her left breast and on the left shoulder with a small knife. The victim was on the ground at the time having been felled by the husband, who assaulted her first. A sentence of 2 years imprisonment was imposed. The pre-sentence period in custody of one week was deducted and one year of the sentence was suspended.
   
5. In the case of The State v. Mario Ako (supra), the accused pleaded guilty to the charge of Unlawful Wounding and was sentenced to 2 years wholly suspended with conditions. This is a case where the accused went to victim’s house in the vehicle and bumped the gate to the premises down. The accused entered the victim’s house and fought with the victim. In the course of the fight, 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.
   
6. In the case of The State v. Dominic Ken (2016) N6345, the accused pleaded guilty to Unlawful Wounding and was sentenced to 2 years wholly suspended on conditions that he enter into a recognizance to keep the peace for 2 years and that he pay K500.00 compensation to the victim within 2 months from date of sentences. In this case the accused was under the influence of alcohol and at the material time was with his wife and their child. An argument occurred and during the argument the accused 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 and caused a deep wound. Victim was rushed to the hospital and was treated and later discharged.
   

16. In considering the appropriate sentence, I consider the following factors in favour of the Accused:

1. That she pleaded guilty and saved court’s time;
2. That she is a first time offender;
3. That she has a prior good character and has no prior conviction against her;
4. That she has expressed remorse to the Court and victim;
5. That she has a child who is an Epileptic patient and she is required as the mother to continue to provide that care, love and warmth to the child;
6. That she is willing to pay K1, 000. 00 as compensation to the victim.
   

17. Against the factors in favour of the accused, the Court considered the following aggravating factors;

1. That she did not hesitate in using a dangerous weapon namely a knife
2. That use of dangerous weapons like small and large knives including bush knives are prevalent
3. The offence of Unlawful Wounding is a very prevalent offence
   

18. Going by the trend of sentences imposed in some of the cases referred to and the particular factors and circumstances of the present case, I consider that a sentence of 18 months imprisonment is appropriate. Accordingly I impose a sentence of 18 months imprisonment. The term of 18 months is fully suspended on conditions that she shall enter into her own recognizance to keep the peace for 18 months.

19. The second condition is that the accused shall pay compensation to the victim in the sum of K1, 000.00 within 2 months from the date of sentence.

20. The accused bail money of K200. 00 shall be converted towards the payment of compensation.

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