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State v Dua [2013] PGNC 8; N4957 (31 January 2013)

N4957

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 603 0F 2012

THE STATE

V

NEIMAN DUA

Madang: Cannings J
2012: 14 November, 12, 18 December
2013: 31 January

CRIMINAL LAW – sentence – grievous bodily harm – Criminal Code, Section 319 – guilty plea – offender cut and severed wife's arm with bushknife – 5 years

The offender attacked his wife with a bushknife, severing her left arm and inflicting other injuries, as he was angry with her for having an extra-marital affair. He pleaded guilty to unlawfully doing grievous bodily harm and the victim expressed the desire that he not be imprisoned as she depended on him to support her and their four children.

Held:

(1) The maximum sentence under Section 319 of the Criminal Code is seven years imprisonment and an appropriate starting point is three and a half years.

(2) Mitigating factors: moderate amount of de facto provocation; cooperated with police; has already paid compensation and is willing to pay more; pleaded guilty; early plea; expressed remorse; substantial reconciliation; victim's desire to see him given suspended sentence; no prior conviction.

(3) Aggravating factors: use of lethal weapon; planned and sustained attack; multiple injuries to vulnerable parts of body; victim's permanent disability.

(4) A sentence of five years was imposed, fully suspended in view of favourable pre-sentence report and the victim's attitude, subject to payment of further compensation.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
The State v Bill Kara (2012) N4663
The State v Justin Ipa (2008) N3439
The State v Ray Sheekiot (2011) N4454

SENTENCE

This was a judgment on sentence for grievous bodily harm.

Counsel

M Pil, for the State
S Tanei, for the offender

31 January, 2013

1. CANNINGS J: Neiman Dua pleaded guilty to unlawfully doing grievous bodily harm to his wife, Margaret Dua, and has been convicted of that offence under Section 319 of the Criminal Code. The incident occurred at Murunas in the north coast area of Madang Province on the morning of Saturday 28 April 2012. The offender was at the time employed by the Cocoa and Coconut Research Institute and he and his wife and family were living in the vicinity. He had been returning on a ship from Wewak to Madang and rang his wife and told her to meet him at the wharf in town. She did as she was told and met him at the wharf and they then boarded a PMV bound for Murunas. On the way in the moving vehicle he questioned her over an alleged affair she was having with another man and threatened her with a bushknife and a pair of scissors. She was frightened and on their arrival at Murunas she attempted to run away from him but he chased and attacked her with the bushknife, inflicting two separate wounds the most serious of which almost severed her left arm. She was rescued by passers-by and the police arrived soon after the attack and apprehended the offender.

2. A report by Dr John Maihua, Specialist Plastic Surgeon, Modilon General Hospital, states that the victim presented with the left hand hanging by a small piece of skin. All muscles, nerves, blood vessels and bones were cut 5 cm from the elbow joint, which was the amputation point. There was also a laceration of the extensor surface of the right forearm. She was admitted and remained in hospital for two weeks undergoing treatment. By the end of May she had developed wrist drop on the right hand due to the severed extensor muscles but her left arm had healed well. She has permanent disability of both arms.

ANTECEDENTS

3. The offender has no prior conviction.

ALLOCUTUS

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

I admit to what I have done. I have paid compensation and I am willing to pay more. My wife and I want to settle this problem by custom. I apologise for what I have done. This is my first time in court. I am looking after my wife and family. I ask for mercy and a non-custodial sentence.

OTHER MATTERS OF FACT

5. As the offender has pleaded guilty he 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). He made full admissions when interviewed by the police on 23 May 2012, within a month after the incident. He had a genuine belief in a rumour that his wife had committed adultery. This does not excuse what he did but as he pleaded guilty it will be taken into account as a moderate mitigating factor that there was an element of de facto provocation.

PRE-SENTENCE REPORT

6. A report on the offender was prepared by the Community Corrections and Rehabilitation Service to assess his suitability for probation. He is from Sangum village, Maprik District, East Sepik Province. He is 36 years old and has one wife, the victim, and they have four children. They have been living at Murunas since 2009. His mother is alive but his father died in 1996. He has four brothers and one sister and they get on well. He has a grade 9 education. His health is sound. His only formal employment has been as a pollinator at the CCRI but he has lost his job due to this offence. His financial position is weak. His wife was interviewed and expressed the desire for her husband not to be imprisoned. She is permanently disabled and feels that he must get a job so that he can look after her and their children. She cannot do any significant physical work and fears for her welfare and that of the children if her husband is imprisoned. They have already largely reconciled and if he pays further compensation to her the problem will be largely resolved.

SUBMISSIONS BY DEFENCE COUNSEL

7. Mr Tanei, while acknowledging that the use of a bushknife made it a serious matter, highlighted the early guilty plea, the absence of prior convictions and the fact that it was a one-off incident in which there was de facto provocation; the offender was the only attacker and he cooperated with the police and paid compensation before being ordered to do so by the court; he has shown genuine remorse and reconciled with the victim. Comparing this case with others in which the parties had reconciled or made progress towards reconciliation and compensation, a sentence of no more than four years imprisonment, fully suspended, should be imposed.

SUBMISSIONS BY THE STATE

8. Mr Pil submitted that the case had many aggravating features, in particular the use of the bushknife and the seriousness of the injury, but did not press for a heavier sentence than that proposed by the defence.

DECISION MAKING PROCESS

9. To determine the appropriate penalty the following decision making process will be used:

• 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 under Section 319 (grievous bodily harm) is seven years imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

11. I will use the midpoint of three and a half years.

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

12. Attacks of this nature where the offender pleads guilty to a Section 319 grievous bodily harm offence and there is an identifiable cause and where the offence can be described as a crime of passion usually result in a sentence of three to five years imprisonment, depending on the circumstances. See, for example, The State v Justin Ipa (2008) N3439 and The State v Bill Kara (2012) N4663.

STEP 4: WHAT IS THE HEAD SENTENCE?

13. Mitigating factors are:

• there was a moderate amount of de facto provocation that led to the incident;
• the offender cooperated with the police and made full and early admissions;
• he has already paid some compensation;
• he pleaded guilty;
• it was an early guilty plea;
• he expressed remorse;
• the victim has a positive attitude in that she is prepared to reconcile and remain married to the offender and she has expressed the desire to see him not imprisoned;
• he has no prior conviction.
  

14. Aggravating factors are:

• use of lethal weapon;
• it was a savage and merciless attack against a defenceless person;
• it was a planned and sustained attack;
• the victim suffered multiple injuries to vulnerable parts of the body;
• the victim has suffered permanent and serious disabilities.
  

15. I place great weight on the fact that the offender has pleaded guilty and done a number of other sensible and beneficial things (cooperating with police, paying compensation) since committing the offence. However, any GBH case in which a bushknife is used, particularly a case involving severing of a limb, is an extremely serious case, involving great distress to the victim as it puts them in a life threatening situation (The State v Ray Sheekiot (2011) N4454). I reject Mr Tanei's submission that a sentence of only four years is called for. This is too serious a case for that sort of sentence. Frankly the offender is lucky not to have been charged with attempted murder, in which case the maximum penalty would have been life imprisonment. The appropriate sentence, which gives the greatest weight as is reasonable to the mitigating factors, is five years imprisonment.

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

16. Yes, I exercise the discretion available under the Criminal Justice (Sentences) Act 1986 to deduct the full pre-sentence period of three months.

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

17. Despite the extremely violent nature of this crime, the offender has received a sound pre-sentence report and most importantly his wife is prepared to accept further compensation and wants to reconcile with him and does not want to see him imprisoned. This combination of factors warrants a suspended sentence subject to strict conditions, one of which will be payment of further compensation. The entire sentence is suspended on the following conditions:

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

• he must give K1,500.00 cash + 8 chickens + foodstuffs to the victim; and
  
• the victim must contribute foodstuffs;
  

(b) must live with and care and provide for the victim and their children and must not assault the victim or their children;

(c) must appear before the National Court at Madang on 6 June 2013 at 9.00 am or at such other time set by the Court to prove compliance with (a) and (b);

(d) must reside at the place notified to the Probation Office 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 perform at least three hours unpaid community work each week at a place notified to the Probation Office under the supervision of his Ward Councillor;

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

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

(i) must not consume alcohol or drugs;

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

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

(l) if the offender breaches any one or more of the above conditions, he 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

18. Neiman Dua, having been convicted of one count of unlawfully doing grievous bodily harm contrary to Section 319 of the Criminal Code, is sentenced as follows:

Sentenced accordingly.
_________________________________

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