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State v Jai [2011] PGNC 118; N4391 (15 September 2011)

N4391

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1472 0F 2009

THE STATE

V

PETER JAI

Madang: Cannings J
2011: 3, 6 June, 5, 15 September

SENTENCE

CRIMINAL LAW – sentence – assault occasioning bodily harm – Criminal Code, Section 340(1) – guilty plea – offender assaulted neighbour with iron bar, breaking two teeth – neighbourhood dispute – sentence of 2 years.

A man pleaded guilty to assault occasioning bodily harm. The victim was a female neighbour with whom the offender had had a series of differences over neighbourhood issues.

Held:

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

(2) The aggravating factors outweighed the mitigating factors, so a sentence above the starting point was warranted: a two-year sentence was imposed. The pre-sentence period in custody was deducted and the balance 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 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 CR 886/2007, 18.09.07
The State v Mark Mondo Bassop CR 75/2008, 25.03.10
The State v Mathew Sabuin, Gabriel Pinia & Philip Kit CR 921-922/2006, 25.08.06

SENTENCE

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

Counsel

S Collins, for the State
B Tabai, for the offender

15 September, 2011

1. CANNINGS J: Peter Jai has pleaded guilty to one count of assault occasioning bodily harm under Section 340(1) of the Criminal Code. The offence was committed at the Madang Timbers compound in Madang town, where both the offender and the victim, Dianne Boku, live in separate dwellings with their families, on the evening of Thursday 2 April 2009. The victim was in her house when the offender suddenly shouted at her from outside the house, charged into the house, smashed open the door with an iron bar, found her in a bedroom, grabbed her and struck her over the head with the iron bar, causing the loss of two front teeth. The offender had no lawful justification or excuse for striking the victim. It was an unlawful assault and the victim suffered bodily harm.

2. The peculiar feature of this case is that the offender's wife was earlier this year convicted after a trial of the same offence committed on a different occasion (in January 2008) against the same victim at the same place, inflicting similar injuries (with an agricultural implement). The offender's wife is now in prison serving a two-year sentence (The State v Carol Peter (2011) N4320).

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. The offender was given the opportunity to address the court. He said:

I apologise to the Court and to the victim for what I did. I have three children and my wife is in jail and my children will be adversely affected if I also go to jail. I would also lose my job. Please have mercy on me and give me a non-custodial sentence. I have tried hard to reconcile with the victim but she has not been cooperative. I have K800.00 available to compensate her.

OTHER MATTERS OF FACT

5. 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). He cooperated with the police from the beginning and made admissions when interviewed. He said he got angry with the victim when he heard that she had accused his wife, who had earlier in the day been selling baked flour balls at the school market, of using overdue flour. This does not in any way excuse his conduct but it shows that there was a reason he became angry and violent.

PRE-SENTENCE REPORT

6. Peter Jai comes from Manjuat village in the Angoram District of East Sepik Province. He is happily married with three school-age children. He has a grade 4 education. He has been employed in Madang as a security guard for the last 14 years, and the last 11 years have been with Madang Timbers. He claims to be a TB patient but there was no medical evidence provided in support of this assertion. He is well known and highly regarded in his local community. The victim was approached for her views. She is interested in reconciling with the offender but says that he needs to take the initiative (thus providing a very different version of how this issue was being dealt with, to that provided by the offender in allocutus). He is considered suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

7. Mr Tabai 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, including that his wife is presently in jail. Mr Tabai also asked that the offender's status as father of three school-aged children be considered.

SUBMISSIONS BY THE STATE

8. Mr Collins submitted that there were a number of aggravating factors that meant that this case was at the higher end of the scale of seriousness: the invasion of the victim's home; the use of a dangerous weapon; and the permanent loss of two teeth. The same sentence should be imposed as that imposed on the offender's wife: two years imprisonment.

DECISION MAKING PROCESS

9. 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?

10. 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?

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

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

12. 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?

13. I will determine a head sentence by listing and weighing the mitigating and aggravating factors in relation to the starting point of 18 months.

14. Mitigating factors are:

• the offender was the sole attacker;
• he is a first-time offender;
• the high level of cooperation with the police, including making admissions in formal interview;
• the guilty plea;
• remorse;
• the preparedness to compensate and reconcile with victim;
• the adverse effect that a long prison term will have on his children.
  

15. Aggravating factors are:

• invasion of the victim's home;
• use of a dangerous weapon;
• facial injuries;
• the permanent loss of two teeth;
• the incident followed an earlier very similar incident involving a serious assault on the same victim;
• it was an assault by a man upon a woman (rather than a woman upon a woman, as in the previous incident).
  

16. The fact that the offender cooperated with the police after being arrested and pleaded guilty are the main mitigating factors, however the aggravating factors outweigh them and bring the appropriate sentence above the starting point. 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?

17. 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 day.

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

18. Despite the violent nature of this crime, the offender has received a sound pre-sentence report, which shows that he is genuinely remorseful and is prepared to compensate and reconcile with the victim. He pleaded guilty and he has a steady job. His children will suffer greatly if he is imprisoned as their mother is already in custody. This combination of factors warrants a suspended sentence subject to strict conditions, one of which will be payment of compensation to the victim. The balance of the sentence is therefore suspended on the conditions that the offender:

(a) must participate in a reconciliation ceremony with the victim, supervised and witnessed by the Village Court and the Probation Office, within two months after the date of sentence, and at the reconciliation ceremony:

• he must give K800.00 cash + foodstuffs to the victim;
• the victim's family must contribute 5 chickens + foodstuffs;
  

(b) must appear before the National Court at Madang on 17 November 2011 or at such other time set by the Court to prove compliance with condition (a);

(c) must report to the Probation Office within three days after the date of sentence and settle on a community work program, involving at least three hours unpaid community work each week at a place notified to the Probation Office;

(d) must reside at Madang Timbers Compound and nowhere else except with the written approval of the National Court;

(e) must not leave Madang Province without the written approval of the National Court;

(f) must attend his local Church every weekend for service and worship and submit to counselling;

(g) must report to the Probation Office on the first Monday of each month between 9.00 am and 3.00 pm;

(h) must not consume alcohol or drugs;

(i) must keep the peace and be of good behaviour;

(j) must have a satisfactory probation report submitted to the National Court Registry every six months after the date of sentence;

(k) if he breaches any one or more of the above conditions, shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

SENTENCE

19. Peter Jai, 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
Tabai Lawyers: Lawyers for the offender