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State v John (No.3) [2011] PGNC 104; N4371 (24 August 2011)

N4371

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO. 37 OF 2010

STATE

V

GRACE JOHN (No.3)
Offender

Goroka: Ipang AJ
2011: 23 & 24 August

CRIMINAL LAW – Sentence – Criminal Code Act s.319 grevious bodily harm –found guilty after trial – prisoner biting the second right digit finger of the victim- cutting it completely off.

CRIMINAL LAW – Sentence – Pre-sentence Report recommends offender to be suitable candiate for probation – offender initially after commission of the offence paid K200.00 to the victim- offender sentenced to three(3)years imprisonment – custodial sentence is suspended with conditions.

Cases Cited
State v Ruth Kenndy CR. No. 441 of 2010

Counsel
Ms. B. Gore, for the State

Mr. M. Mumure for the Accused

DECISION ON SENTENCE

24 August, 2011

1. IPANG AJ: This is the decision on sentence for the offender Grace John who pleaded not guilty and was found guilty after trial and was convicted for causing unlawful grevious bodily harm on one Wendi Bruce, contrary to s.319 of Criminal Code Act.

BRIEF FACTS

2. The brief facts of this case as I found are these: On the 21st day of August, 2009 at Kakaruk Market in Goroka, the prisoner who was with her elder sister Lin had few beers there. The prisoner then saw her husband and had an argument with her husband. A fight then eventuated. The prisoner and her elder sister fought with the prisoner's husband. The victim Wendi Bruce, a good friend of the prisoner's husband attempted to stop the fight. She told the prisoner and her husband to stop fighting and to go home. This was because it was a public place and there were a lot of people.
   
3. The prisoner was mad at the victim for interfering in her problem with her husband and so fought with the victim. The victim then fought back and in the course of the fight the accused bit the victim's second (2nd) right digit finger and completely cut it off with her teeth.
   
4. The prisoner has been convicted under s. 319 of the Criminal Code Act, Chapter 262. The s.319 of the Criminal Code Act states:
   

319 Grevious bodily harm

"A person who unlawfully does grevious bodily harm to another person is guilty of a crime. Penalty: Imprisonment for a term not exceeding seven years.

Submission by Defence Counsel

5. Mr. Mumure of counsel for the prisoner submitted that the prisoner is 21 years old, from Sinesine in Chimbu Province. She currently resides at Piswara settlement and she is the youngest of the five (5) children. She was educated up to grade 7 at Sioki Primary School. Counsel said her parents had divorced and that she currently lives with her mother and her step –father. She has a nine (9) month old baby.
   
6. Counsel further submitted that the prisoner is a first –time offender and there is evidence of de facto provocation. Counsel submitted that though s.319 of the Criminal Code Act attracts a maximum sentence of seven (7) years, this court has a discretion under s.19 of the Criminal Code Act to impose a non –Custodial Sentence.
   

Pre-Sentence Report dated 19th August, 2011

7. The PSR partly states as follows:
   

The offender is worried about her daughter and very young to be separated from the mother. The offender misses and worries about the welfare of her daughter. The family members came in to the CBC office to meet with Keti Kenosi and Julie Ward. The family is very supportive of the offender and would like to see her released on probation. They expressed concern for the welfare of the baby, who cries for her mother when the mother is not there. They all said that the husband is a drug-addict, who is not a good provider or partner for the offender. The wife of the community leader of the Piswara settlement also came to the meeting and expressed concerns that the husband is a hopeless marijuana addict.

The PSR recommended that given the offender's young age, lack of criminal antecedents and strong family support, the offender is assessed to be a suitable candidate for probation.

Submission by State

8. Ms. B.Gore of Counsel for the State refers this Court to the unreported case of State v Ruth Kennedy CR. No.441 of 2010. The brief facts of this case are these: the prisoner had a fight with the prisoner's husband. During the course of the fight, the complainant's thumb got in to the prisoner's month. The prisoner bit the thumb partly off. The prisoner pleaded guilty to the offence.
   

DEFENCE CASE

9. She was a first time offender, the court went further on to say that although she was provoked, it didn't give her right to bite off the complainants thumb. The Court sentenced her to three (3) years and the sentence was wholly suspended on the conditions that she was placed on a good behavior bond for two (2) years and compensation in the amount of K300 to be paid within two months of the day of the order.
   
10. Ms. Gore submitted that the present case is similar to the case of State v Ruth Kennedy (supra) as both prisoners used their teeth to bite fingers.
    
11. In arriving at an appropriate sentence for the prisoner, I take all the circumstances into consideration including both the mitigating and the aggravating factors, the recommendation by the PSR and the seriousness of the injuries sustained. In mitigating factors, the prisoner is a first –time offender, paid K200 as compensation to the victim already. In aggravation, the injury sustained by the victim is serious in that it rendered the victim complete loss of her second right digit finger, and the prisoner was under the influence of alcohol.
    
12. I consider a custodial sentence of three (3) years would be appropriate in the circumstances. I would suspend whole of the three (3) years custodial sentence and place the prisoner on three (3) years probation with the following strict conditions.
    
    1. To report to CBC officer in –charge of Goroka office right after the decision.
       
    2. To do 300 hours of free community service.
       
    3. To make time available to receive six (6) sessions of counseling from the Family Voice, Goroka.
       
    4. Not to consume any form of alcoholic drinks.
       
    5. Not to take any dangerous drugs like marijuana (sativa cannabis)
       
    6. To regular attend church services or any Christian fellowships, Christian crusade's etc.
       
    7. To be home bound by 6pm to 6am each day.
       
    8. A part from the K200 compensation initially paid; the prisoner is now ordered to pay additional K400 compensation to the victim Wendi Bruce before the end of six (6) months in to her three (3) years probation period.
       
    9. Any breaches of the above orders, would allow the prisoner to be recalled and sentenced accordingly.

____________________________________

A/Public prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Accused