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State v Wagi [2008] PGNC 184; N3543 (11 December 2008)

N3543

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 765 0F 2008

THE STATE

V

JOHN WAGI

Kimbe: Cannings J
2008: 12 August,
7 October,
11 December

SENTENCE

CRIMINAL LAW – grievous bodily harm – Criminal Code, Section 319 – sentence on plea of guilty – 4 years.

A man pleaded guilty to doing grievous bodily harm to another man by slashing his forehead with a bushknife. The offender was angry with the victim who he claimed had not paid him court-ordered compensation over a previous incident involving the two of them in which the offender had been injured.

Held:

(1) The starting point for sentencing purposes is in the middle of the available range: 42 months imprisonment.

(2) Mitigating factors are: the victim and his people had previously attacked the offender; sole attacker; the offender surrendered to the police; cooperated with police; pleaded guilty; expressed some remorse; first-time offender; good family and community support.

(3) Aggravating factors are: use of a dangerous and lethal weapon; multiple cuts inflicted on the victim; it was a planned attack; no apology, compensation or reconciliation; the injury could easily have been fatal; the victim has suffered permanent injuries.

(4) A sentence of four years was imposed, none of which was suspended.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
The State v Charles Kaona CR 459/2007, 24.08.07
The State v Bob Ananias CR 1413 + 1414/2003, 20.04.06
The State v Justin Ipa (2008) N3439
The State v Ludwina Waiguma CR 68/2007, 21.03.07
The State v Nicodemus Badui CR 683/2007, 17.08.07
The State v Ria Bernard CR 374/2005, 20.05.05
The State v Rodney Gela and Clarence Logi CR 1300 + 1301/2005, 27.10.05

Abbreviations

The following abbreviations appear in the judgment:

cm – centimetre
CR – Criminal
GBH – grievous bodily harm
J – Justice
K – kina
N – National Court judgment
No – number
SCRA – Supreme Court Criminal Appeal
v – versus

SENTENCE

This was a judgment on sentence for grievous bodily harm.

Counsel

F Popeu, for the State
R Beli, for the offender

11 December, 2008

1. CANNINGS J: John Wagi, a 36-year-old man, has pleaded guilty to doing grievous bodily harm to a 30-year-old man, Joe Gambu, a schoolteacher, contrary to Section 319 of the Criminal Code.

2. The incident happened on the afternoon of Thursday 22 May 2008 in Kimbe. John was involved in an ongoing conflict with Joe and his people. John went to a store, bought a bushknife, then went to a licensed social club, the Golden Beach club. It was about 2.00 or 3.00 pm when John entered the club and found Joe inside. He went straight up to him, swung the bushknife at his head and cut him, once, on the forehead. He swung the bushknife a second time but on this occasion Joe lifted his hand to defend himself and suffered a minor cut. John tried to cut him a third time but club patrons jumped in and prevented further injury. Joe was taken to the hospital immediately.

3. The medical evidence shows that he sustained a serious cut, measuring 13 cm x 3 cm x 5 cm deep, and a linear fracture of the frontal bone. He has a permanent facial disfigurement. It is likely that he will experience intermittent splitting headaches.

ANTECEDENTS

4. The offender has no prior convictions.

ALLOCUTUS

5. The offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:

I apologise to the court for what I have done. Joe Gambu and six of his wantoks had cut me before. I was admitted to hospital. Then I took them to the District Court and in July 2007 a grade V magistrate awarded me compensation of K2,150.00. They did not pay up. I suffered permanent injury. That is why I got angry and I did what I did. I am ready to compensate Joe Gambu. I would like probation so that I have time to compensate him.

OTHER MATTERS OF FACT

6. As the offender has pleaded guilty he will be given the benefit of the 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). In that regard, I will take into account that:

• there was a clear motive for the attack: the victim had injured the offender in a previous altercation, and the offender had obtained a compensation order from the District Court, but the victim had not complied with the order;
  
• the offender surrendered to the police;
  
• he made early admissions to the police and co-operated with them;
  
• he has entered an early guilty plea.
  

PRE-SENTENCE REPORT

7. A pre-sentence report prepared by the Kimbe branch of the Community Correction and Rehabilitation Service reveals that John Wagi is of mixed WNB and Chimbu parentage. He has been raised in the Talasea area at Tamare village. He has a reasonably happy and stable marriage. He has four children and his wife does not want to see him sent to jail. He earns his living by selling copra and cocoa. His health is basically OK though he has an ongoing shoulder problem, due to an injury suffered when he was attacked by a group of in-laws in 2002.

8. John Wagi is a member of the Catholic faith. He attends church regularly and is well regarded in some sectors of the local community. However, the victim, Joe Gambu, does not regard him highly. He alleges that John mistreats his wife (who is Joe’s sister) and that this has been the cause of ongoing conflict between John and Joe and their families.

9. Joe says that John has not apologised or compensated him. He is prepared to accept compensation but will leave that up to the court to decide.

SUBMISSIONS BY DEFENCE COUNSEL

10. Mr Beli submitted that a lot of weight should be attached to the offender’s surrender to the police and his early guilty plea. A sentence of four years would be appropriate and much of it should be suspended, he submitted.

SUBMISSIONS BY THE STATE

11. Mr Popeu agreed that four years would be an appropriate sentence.

DECISION MAKING PROCESS

12. 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?

13. The maximum penalty under Section 319 (grievous bodily harm) of the Criminal Code is seven 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?

14. In the present case I have been unable to locate a suitable precedent, so I will use the mid-point of three years, six months (42 months) as the starting point.

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

15. Before I fix a sentence, I will consider sentences I have imposed in recent times for GBH offences, as shown in the table below.

SENTENCES FOR GBH UNDER SECTION 319 OF THE CRIMINAL CODE,
WEST NEW BRITAIN, CANNINGS J, 2005-2008

STEP 4: WHAT IS THE HEAD SENTENCE?

16. Mitigating factors are:

• the victim and his people had previously attacked the offender;
  
• sole attacker;
  
• the offender surrendered to the police;
  
• cooperated with police;
  
• pleaded guilty;
  
• expressed some remorse;
  
• first-time offender;
  
• good family and community support.
  

17. Aggravating factors are:

• use of a dangerous and lethal weapon;
  
• multiple cuts inflicted on the victim;
  
• it was a planned attack;
  
• no apology, compensation or reconciliation;
  
• the injury could easily have been fatal;
  
• the victim has suffered permanent injuries.
  

18. In weighing all these factors I place great weight on the early guilty plea and the fact that the offender surrendered to and co-operated fully with the police. However, the aggravating factors are also strong. A sentence slightly above the starting point is warranted. After comparing this case with other recent GBH cases, I agree with both counsel that the most appropriate sentence is four years imprisonment.

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

19. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is one week and one day.

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

20. The favourable pre-sentence report may appear to warrant a partial suspension. However, the use of the bushknife and the seriousness and permanency of the victim’s injuries mean that the offender must spend a considerable time in custody. I will not suspend any part of the sentence.

SENTENCE

21. John Wagi, having been convicted of one count of unlawfully doing grievous bodily harm, is sentenced as follows:

Sentenced accordingly.

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