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State v Saka [2016] PGNC 276; N6481 (31 August 2016)

N6481

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1032 OF 2015

THE STATE

V

MARY SAKA

Popondetta: Auka, AJ
2016: 19^thJuly & 20^th July
& 31^st August

CRIMINAL LAW – Sentence – Particular offence – Plea of guilty – Grievous Bidily Harm – Mitigating and Aggravating factors considered – Two (2) years imprisonment – Sentence fully suspended on conditions – Criminal Code s.319 and s.19

Case Cited:
Avia Aihi v. The State (No.3)[1982] PNGLR 92
Goli Golu v. The State [1979] PNGLR 653
The State v. Bill Kora (2012) N4663
The State v. Francis Kurufher (2008) N3364
The State v. Martin Konas (2010) N4157
The State v. Martin Konos (2010) N4157
The State v. Peter Olombol (2014) N5748
The State v. Ruben Iroven (2002) N2239
The State v. Torita Mann (2007) N4028
The State v. Veronica Kulina (2010) N5403
The State v. Wapuri (1994) PNGLR 271

Counsel:
Ms Babra Gore, for the State

Mr. E Yavisa, for the Accused

DECISION ON SENTENCE

31^st August, 2016
1. AUKA AJ: The accused pleaded guilty to Unlawfully Causing grievous bodily harm to Winifred Moses pursuant to s.319 of the Criminal.

2. The brief facts of the case were that on 9^th October, 2014 at about 3:00pm at Puhemo village Popondetta, both the accused and victim were in the village and both met and an arguement started between them. There were others present who took sides and the arguement got worse and a fight started. It was a fist fight and accused started fighting with a woman from victim’s side by swinging her fist. Unfortunately accused folded fist missed the woman and it landed on victim’s mouth and the victim sustained a broken tooth. The victim went to the hospital and was appropriately treated.

3. A Medical Report by Dr. Peter Miam dated 16^th October, 2014 showed slight swelling of Upper lips and missing dentition. The report says that the victim is likely to encounter speech, masticatory and cosmetic problems as a result of the broken tooth.

4. In her statement on Allocatus, the accused said sorry to the family of the victim. She said she wanted to settle the matter at the village level but victim and her relatives were not happy so they brought the matter to court. She said sorry to the court and pleaded for court’s mercy on sentence.

5. 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 Means Assessment report and directed the matter to return on 20^th July, 2016 at 1:30pm. I’m in possession of the reports and in my view both reports are in favour of the accused. A payment of K500.00 as compensation has been recommended which the accuse is willing to pay and that the accused is a good candidate for Probation.

6. In relation to accuseds personal particulars, Mr. Yavisa submitted that the accused is 30 years old from Puhemo Village in Oro Province. She is married with five children ages ranging from 7 to 18 years. She attends Anglican Church. She has no formal education. Both she and the husband are substance gardeners and hunters. Her family reside at the village.

7. Mr. Yavisa submitted and urged the court to take into account in accuseds favour the following factors;

1. That she pleaded guilty and saved court’s time;
2. That she is a first time offender;
3. That she expressed remorse to the Court and to the victim’s family
4. That she has raised her intention to pay compensation to the victim and make amends to their relationship and live peacefully.

8. Mr. Yavisa submitted and urged the court to impose a imprisonment term of one year and the term to be wholly suspended with conditions. He referred the court to the National Court case of The State v. Peter Olombol (2014) N5748. In that case the accused pleaded guilty to the charge of unlawfully causing grievous bodily harm. Accused was sentenced to one year and the sentence was wholly suspended on conditions that he entered into a recognizance to be of good behaviour for 12 months and also that he pay compensation in the sum of K500.00 to the victim for the injury and pains he suffered. This is a case where the accused swung a piece of firewood towards victim’s head. The victim lifted his left arm to block the firewood. The second time the accused swung the firewood, he hit the victim on the right side of his face. The blows resulted in the victim sustaining a broken arm and a cut to the face.

9. Mr. Yavisa submitted that the present case is less serious in that the accused used her bare hand.

10. Ms. Gore submitted that the court should make an order for the accused to pay compensation to the victim.

11. The maximum penalty for unlawfully doing grievous bodily harm under s.319 is an imprisonment term of 7 years.

12. On authority of cases like Goli Golu v. The State [1979] PNGLR 653 and Avia Aihi v. The State (No.3) [1982) PNGLR 92, the maximum penalty should be reserved for the worst type case of grievous bodily harm. In my view and I agree with Mr. Yavisa that accuseds case is not a serious case or not a worst type of case.

13. The trend of sentencing on Grievous Bodily Harm and similar offences depends entirely on the facts of each case. I refer to the following cases for purposes of comparing the type of sentences imposed on the offence of grievous bodily harm.

1. In the State v. Bill Kora (2012) N4663, the accused pleaded guilty to Unlawfully doing grievous bodily harm to his female neighbour in an urban setting, cutting her on the face with a bush knife, inflicting an eye injury and superficial injuries requiring seven (7) stiches. His Honour Cannings J sentenced him to 4 years and fully suspended the term in view of a favourable pre-sentence report and his preparedness to pay further compensation.
   
2. In the case of The State v. Martin Konos (2010) N4157, the accused pleaded guilty to Unlawfully doing grievous bodily harm to his nephew by attacking him with a piece of timber, fracturing his knee and inflicting many other superficial injuries by multiple blows. His Honour Cannings J sentenced the prisoner to 3 years. The sentence was fully suspended with stringent conditions.
   
3. In the case of The State v. Tovita Mann (2007) N4028, the offender pleaded guilty to unlawfully doing Grievous Bodily Harm to the victim. The victim was holding a body when accused cut him on the right shoulder and inflicted a deep and extensive cut. His Honour Injia CJ sentenced him to 5 years reduced by the pre-trial custodial term and ordered to serve the remaining term of 2 years 11 months 12 days.
   
4. In the case of The State v. Veronica Kulia (2010) N5403, the accused during an domestic argument used a knife and inflicted injuries on victims fingers and caused fractures to his fingers. A sentence of one (1) year imprisonment was imposed with time spent in custody deducted and the balance wholly suspended on conditions.
   
5. In the case of The State v. Francis Kurufher (2008) N3364, the accused struck a young man in the back with a coconut palm frond. The victim sustained a broken rib. The accused was sentenced to 3 years imprisonment. The sentence was wholly suspended with conditions.
   
6. In the case of The State v. Wapuri [1994] PNGLR 271, the accused pleaded guilty to a charge of doing grievous bodily harm. The accused strucked the face of wife of his cousin using a motor vehicle handbrake cable. The assault left the victim with 90% loss of vision in her left eye. The court imposed a sentence of 18 months, deducted 5 months for pre-trial custodial term and suspended the balance of the term and placed the accused on good behaviour bond for 12 months. In addition the court made orders for accused to pay compensation to the victim in form of K500.00 cash, five (5) pigs. In default of payment, the accused was liable for 2 months imprisonment. The orders were made after considering a Means Assessment report and evidence of custom and compensation payments made in the area at that time.
   
7. On extreme side of sentence on this offence, let me cite a case involving very serious Aggravating factors. Its the case of The State v. Ruben Iroven (2002) N2239 where the maximum penalty of seven (7) years was imposed. It was a case where the prisoner forced his two (2) wives to strip naked before him and he inflicted certain permanent injuries onto their bodies by using hot iron. That case involved family problem and the presiding judge imposed the maximum penalty as it was a worse type of case.
   

14. 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;
4. That she expressed remorse in Court and said sorry to the victim;
5. That she has raised her intention to pay compensation.

15. The Aggravating factors considered against the accused are that there was some intention to do harm and that the victim received an injury which the doctor said is likely to affect victim’s mastication process and speech. The court also considered the fact that the offence is a prevalent offence.

16. 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 this is a less serious case than many other grievous bodily harm cases, particularly those involving dangerous weapon, like bush knives.

17. The appropriate sentence is two (2) years imprisonment. Accordingly I impose a sentence of 2 years imprisonments. The term of 2 years is wholly suspended on conditions that accused enter into a recognizance to keep the peace for 12 months and further subject to the following conditions;

1. The accused shall pay K500.00 in cash to the victim within two months from the date of sentence;
2. That accused must reside at her current residential location and nowhere else;
3. That she must not leave Popondetta town without the approval of the National Court;
4. She must not consume alcohol or drugs;
5. That she must keep the peace and be of good behaviour and must not cause trouble, or harass the victim and her family;
6. If she breaches any one or more of the above conditions, she shall be brought before the National Court to show because why she should not be detained in Custody to serve the 2 years which have been suspended.
   

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