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State v Kogen [2016] PGNC 39; N6211 (19 February 2016)

N6211

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 861 OF 2015

THE STATE

V

HELEN KOGEN

Madang: Cannings J
2016: February 5, 18, 19

CRIMINAL LAW – sentence – assault occasioning bodily harm – Criminal Code, Section 340(1) – guilty plea – offender assaulted sister-in-law with piece of wood, fracturing arm – family dispute – sentence of 2 years.

Fact:

A woman pleaded guilty to committing the offence of assault occasioning bodily harm against her sister-in-law, with whom she was living at the time. The offender was angry with the victim and struck her violently with a piece of wood, fracturing her arm.

Held:

(1) The maximum penalty is three years and a starting point of 18 months is appropriate.

(2) Mitigating factors are: the offender was the sole attacker; she is a first-time offender; the guilty plea.

(3) Aggravating factors are: use of weapon; the attack on the victim was violent and disproportionate to the cause of the offender's anger; another person (the offender's infant child) was put at risk of injury.

(4) A sentence of two years imprisonment was imposed, the pre-sentence period in custody was deducted and none of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
The State v Aaron Lahu (2011) N2798
The State v Abuc Batulik CR 284/2010, 26.05.10
The State v Carol Peter (2011) N4320
The State v Irene Soso CR 149/2009, 04.03.10
The State v Judah Lusan Piries (2007) N4982
The State v Mark Mondo Bassop CR 75/2008, 25.03.10
The State v Mathew Sabuin, Gabriel Pinia & Philip Kit (2006) N4475
The State v Peter Jai (2011) N4391

SENTENCE

This was a judgment on sentence for assault occasioning bodily harm.

Counsel

F K Popeu, for the State
J Morog, for the offender

19th February, 2015

1. CANNINGS J: Helen Kogen has pleaded guilty to one count of assault occasioning bodily harm under Section 340(1) of the Criminal Code. The offence was committed on the evening of Wednesday 15 April 2015 at the Paramed residential compound in Madang town, where both the offender and the victim, Natalie Lalir, were living.
   
2. The victim was the offender's sister-in-law, due to the offender having had a de facto relationship with the victim's brother, Gabriel. That relationship ended when Gabriel returned to his home province, West New Britain, and, after a period of 12 months, indicated that he had no intention of returning to Helen, or to Madang. Helen continued to live with the mother of Natalie and Gabriel, Hildegard, together with her two-year old child, a boy, whose biological father was Gabriel.
   
3. The offence was committed when Helen, after being out of the house for some time, returned to find Natalie holding the child. Helen was not happy about that, and she assaulted Natalie with a piece of wood and hit her on her right arm, fracturing it. Natalie was taken to the Emergency Department of Modilon General Hospital and an x-ray revealed that she had suffered a fracture to the ulna (the thinner and longer of the two long bones in the forearm).
   
4. The offender had no lawful justification or excuse for striking the victim. It was an unlawful assault and the victim suffered bodily harm.
   

ANTECEDENTS

5. The offender has no prior convictions.
   

ALLOCUTUS

6. The offender was given the opportunity to address the court. She said:
   

I apologise to the court for what I have done. I fought with my sister-in-law as she took my baby without my permission. I was angry and frustrated so I got a piece of dry wood and struck her on the arm. I did not hit her very hard and I did not intend to hurt her badly. She went to the hospital and got a medical report and decided to take me to court. My parents came down from Mt Hagen and we tried to reconcile with her. She was willing to reconcile and settle this problem out of court but her mother intervened. Her mother is the problem as she wants me and her son to divorce. That's why I am before the court.

OTHER MATTERS OF FACT

7. As the offender has pleaded guilty she 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). It is important to appreciate that an offender is given the benefit of reasonable doubt. The court is not obliged to accept everything that an offender has said in allocutus at face value (The State v Aaron Lahu (2011) N2798).
   
8. I cannot accept that the offender intended to cause no serious harm or that she did not hit the victim very hard. I do not find any strong mitigating factors in what she said or in the depositions. In fact, the depositions indicate that this was a much more serious incident than what the offender has made it out to be.
   

PRE-SENTENCE REPORT

9. Helen Kogen comes from Ogelpeng village in the Hagen District of Western Highlands Province. She was married to her de facto husband for two years before he left her. She has one child from that relationship. She is not interested in renewing that relationship. She comes from a family of two children. Both her parents are alive and live in the village. She has a grade 12 education. She has never been formally employed. Her health is sound. She moved out of the place she was living in, after committing the offence and now lives with her sister in another part of Madang town. She wants to return home when this case is finished. Her financial position is poor. She is unemployed, living in an urban area, and has no income. She is relying on the support of her family to survive financially.
   
10. The victim, Natalie, and her mother, Hildegard, were interviewed. Natalie said it was a very bad incident as Helen's baby could easily have been killed. Natalie said that Helen has never apologised to her or made any attempt to reconcile and was about to leave Madang for Mt Hagen when she was arrested by the Police. Natalie does not seek compensation. She prefers to see Helen sent to jail so she can learn a lesson and cease her aggressive behaviour. Hildegard, who was present when the offence was committed, shared her daughter's sentiments: she favours a prison sentence rather than a suspended sentence. She also expressed concern for the welfare of the child, her grandson. She had looked after him from birth and was willing to continue to do so, but he is now with Helen's relatives at Mt Hagen.
    

SUBMISSIONS BY DEFENCE COUNSEL

11. Mr Morog stressed that the offender has no prior convictions. The offence was committed after long-running tension between the offender and the victim and the court should take all the circumstances into account in arriving at a sentence, especially that the offence was committed out of frustration within a family environment. The offender was genuinely concerned about the welfare of her child. Mr Morog submitted that because of the guilty plea a sentence of no more than 18 months was warranted; and it should all be suspended.
    

SUBMISSIONS BY THE STATE

12. Mr Popeu did not take issue with the proposed head sentence of 18 months but submitted that because of the attitude of the victim, and other negative aspects of the pre-sentence report, it would not be appropriate for the entire sentence to be suspended.
    

DECISION MAKING PROCESS

13. 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?

14. The maximum penalty is 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?

15. I will use the mid-point of 18 months as the starting point.
    

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

16. The following table shows a number of sentences under Section 340(1).
    

SENTENCES FOR ASSAULT OCCASIONING BODILY HARM
CRIMINAL CODE, SECTION 340(1)

STEP 4: WHAT IS THE HEAD SENTENCE?

17. I will determine a head sentence by listing and weighing the mitigating and aggravating factors in relation to the starting point of 18 months.
    
18. Mitigating factors are:
    
    • the offender was the sole attacker;
    • she is a first-time offender;
    • the guilty plea.
      
19. Aggravating factors are:
    
    • use of a dangerous weapon (the piece of wood);
    • the attack on the victim was violent and disproportionate to the cause of the offender's anger;
    • another person (the offender's infant child) was put at risk of injury.
      
20. The fact that the offender pleaded guilty is the main mitigating factor. However, it is outweighed by the aggravating factors, which bring the sentence above the starting point. I am not bound by the agreement of counsel that the appropriate sentence is 18 months. I fix a head sentence of two years imprisonment.
    

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

21. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted (deduction) from the term of imprisonment the whole of the pre-sentence period in custody, which is three months, two days.
    

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

22. Despite the violent nature of this crime, this is the sort of case in which a suspended sentence could have been imposed if the victim had been prepared to accept compensation and reconcile with the offender. However, she has shown no willingness to do so. She has taken the attitude that if the offender is sent to prison, this might teach her a lesson that she needs to curtail her aggressive behaviour. The issue of whether the victim's mother has convinced her to take that position is irrelevant. In any crime of violence the victim's views are the most important. The Court must respect and give effect to those views when exercising its discretion as to sentence. I decline to suspend any part of the sentence, which will be served in custody.
    

SENTENCE

23. Helen Kogen, having been convicted of one count of assault occasioning bodily harm contrary to Section 340(1) of the Criminal Code, is sentenced as follows:
    

Sentenced accordingly.
_____________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the offender