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State v Petrus [2011] PGNC 27; N4257 (21 April 2011)

N4257

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1560 OF 2010

THE STATE

V

AINE PETRUS

Madang: Cannings J
2011: 10 March, 5, 21 April

CRIMINAL LAW – sentencing – unlawful wounding, Criminal Code, Section 322(1)(a) – sentence after guilty plea – offender twice stabbed first wife of her husband with small knife – sentence of 2 years.

The offender pleaded guilty to unlawfully wounding the first wife of her husband by stabbing her on the left breast and on the left shoulder with a small knife. The victim was on the ground at the time, having been felled by the husband, who assaulted her first.

Held:

(1) The maximum sentence available was three years imprisonment, so a starting point of half the maximum was used.

(2) The mitigating factors (the guilty plea, the lack of prior convictions and payment of compensation) were outweighed by the strong aggravating factors (the victim had already been assaulted, she was on the ground, and the use of a knife to inflict multiple wounds), warranting a sentence above the starting point.

(3) A sentence of 2 years imprisonment was imposed. The pre-sentence period in custody of one week was deducted and one year 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 Owen Sangu CR No 22 of 2006
The State v Arnold Ongkau CR No 715 of 1999, 18.10.07
The State v Philip Lekis CR No 1927 of 2005, 13.07.07

SENTENCE

This was a judgment on sentence for unlawful wounding.

Counsel

A Kupmain & M Pil, for the State
E Thomas, for the offender

21 April, 2011

1. CANNINGS J: This is the decision on sentence for Aine Petrus, a 23-year-old woman, who has pleaded guilty to unlawful wounding and has been convicted of that offence under Section 322(1)(a) of the Criminal Code. The victim is a 34-year-old woman, Maria Roy, who is the first wife of her husband, Roy Miling. The offence was committed in the early evening of Wednesday 12 May 2010 at Mahoven hamlet, near Gum, just outside Madang. Maria had taken Roy to court for adultery, a case in which Aine was a co-defendant. Roy was angry about that and assaulted Maria and she fell to the ground. He was still assaulting her when Aine ran in and stabbed Maria with a small knife on the left chest and the left shoulder. Maria was rushed to hospital and admitted to the surgical ward. She was in great pain, had difficulty breathing and was treated in hospital for five days before being discharged.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

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

I thank the court and the lawyers for dealing with my case and apologise for taking the court's time. I apologise sincerely to the victim. I had no intention of doing what it did. I feel that it was the actions of others who made me act as I did. It is my first time in court and have never done anything like this before. I again say that I am deeply sorry about what I did.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty she 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). I will take into account her claim that the man who she befriended and became her husband did not tell her that he was already married to the victim, Maria. I also accept that it was a spontaneous incident that arose when Maria came to where she was staying with Roy and served some court papers on some children who were asked to give the papers to Aine and Roy. Aine paid K1,500.00 compensation to the victim after the incident.

PRE-SENTENCE REPORT

5. Aine Petrus is 23 years old. She committed the offence when she was aged 22. She comes from the Huon Gulf area of Morobe Province. She had been living with her parents at a police barracks in Lae before being brought to Madang by her husband, only to find out that he already had a wife. She has separated from him since this incident. Her parents are very supportive of her but are angry with the husband who they believe is the person to blame for causing all the problems. She has a grade 12 education and has been employed in several jobs in Lae but has resigned so that she could attend to this case. She does not feel physically well at the moment (but there is no medical report available to support this claim). The report concludes that the offender is suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Thomas asked the court to give credit to the offender for her early and consistent guilty plea, her co-operation with the police and the court and payment of considerable compensation to the victim. All these factors show that she has been prepared to take full responsibility for her actions. She acknowledges that she has got herself in a mess and she needs the court's help to get her life back together. She is also a victim, as she was lied to her by her husband about his marital status. A sentence of one year imprisonment, fully suspended, should be imposed, Mr Thomas submitted.

SUBMISSIONS BY THE STATE

7. Mr Pil highlighted two serious aggravating factors: the offender stabbed the victim more than once and the victim was on the ground, having already been assaulted by their husband. He agreed that a sentence of one year would be appropriate.

DECISION MAKING PROCESS

8. 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?

9. Section 322(1) of the Criminal Code states:

A person who—

(a) unlawfully wounds another person; or

(b) unlawfully, and with intent to injure or annoy any person, causes any poison or other noxious thing to be administered to, or to be taken by, any person,

is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years.

The maximum is thus three years imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

10. As the maximum penalty is a relatively short period I will use the middle of the range as a starting point: 18 months.

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

11. In a case in Kimbe, The State v Philip Lekis CR No 1927 of 2005, 13.07.07, I sentenced a man to 30 months imprisonment for unlawfully wounding his sister in the course of a domestic dispute and had inflicted the wound requiring 20 stitches on the victim's head. The offender pleaded guilty. It was a very serious case and I indicated that the offender was lucky not to have been charged with a much more serious offence.

12. In a Madang case The State v Arnold Ongkau CR No 715 of 1999, 18.10.07, a man was convicted after trial of unlawful wounding. He slashed another man with a bushknife in an unprovoked attack, inflicting a head wound requiring 5 stitches and other less serious wounds. I sentenced him to the maximum term of three years imprisonment.

13. In another Madang case The State v Owen Sangu CR No 22 of 2006, 22.02.08, I sentenced a man to 4 years imprisonment after he pleaded guilty to two counts of unlawful wounding. The offender was drunk and got into an argument with some other men. He left the scene of the argument, went to his house, armed himself with a kitchen knife then returned to the scene of the argument. Then he stabbed two innocent people, inflicting serious but not fatal wounds. I imposed two years on each offence, the sentences to be served cumulatively.

STEP 4: WHAT IS THE HEAD SENTENCE?

14. To determine the head sentence I will focus on the starting point of 18 months and assess the mitigating and aggravating factors. The more mitigating factors there are, the more likely the head sentence will be below the starting point. The more aggravating factors present, the more likely the head sentence will be above the starting point range. It is not, however, only the number of mitigating and aggravating factors that determines the head sentence. The strength or weight to be attached to each of those factors is more important.

15. Mitigating factors are:

• it was a spontaneous incident;
• the offender had been lied to by her husband and put in a very stressful martial environment;
• she co-operated with police;
• she has made an guilty plea;
• she is a first-time offender;
• she has paid cash compensation to the victim;
• she has expressed genuine remorse.
  

16. Aggravating factors are:

• the use of an offensive weapon;
• two stab wounds were inflicted on the victim to vulnerable parts of her body;
• serious injuries were inflicted on the victim, causing her to be hospitalised for five days;
• the victim was on the ground, having already been assaulted by her husband, when the offender moved in.
  

17. There appear to be more mitigating factors than aggravating factors, however the cowardly nature of the attack and the use of a knife warrant a sentence above the starting point. Comparing this case with the three precents referred to, it is of equivalent seriousness to Sangu and not as serious as Lekis and Ongkau. The appropriate sentence is two years imprisonment.

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

18. 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.

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

19. The pre-sentence report provides a reasonable case for suspension of the sentence but I think the only way of signalling the gravity of the offence –any incident in which a person stabs another person near their neck can easily be fatal – is to impose a custodial term and to allow partial suspension. The offender has requested that she be imprisoned at Buimo Correctional Institution, Morobe Province, which is close to where some of her relatives reside. That is a reasonable request and I will sign a warrant of commitment to that effect and suspend one year of the sentence on these conditions:

(a) must reside at West Taraka Police Barracks and nowhere else except with the written approval of the Probation Service;
(b) must not leave Morobe Province without the written approval of the Probation Service;
(c) must perform at least six hours unpaid community work each week;
(d) must attend her local church every weekend for service and worship and submit to counselling;
(e) must report to the senior Probation Officer at Lae on the first Monday of each month between 9.00 am and 3.00 pm;
(f) must not consume alcohol or drugs;
(g) must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim and her family;
(h) must have a satisfactory probation report submitted to the National Court Registry at Madang every six months after the date of sentence;
(i) if the offender breaches any one or more of the above conditions, she shall be brought before the National Court to show cause why she should not be detained in custody to serve the rest of the sentence.

SENTENCE

20. Aine Petrus, having been convicted of one count of unlawful wounding under Section 322(1)(a) of the Criminal Code, is sentenced as follows:

_______________________________

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