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State v Duma [2014] PGNC 101; N5643 (24 June 2014)

N5643

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1297 0F 2013

THE STATE

V

NIGEL DUMA

Madang: Cannings J
2014: 6 May, 17, 24, 26 June

CRIMINAL LAW – sentence – grievous bodily harm – Criminal Code, Section 319 – guilty plea – offender cut neighbour on arms and back with bushknife.

A man pleaded guilty to unlawfully doing grievous bodily harm to his neighbour in an urban setting, cutting him on the back with a bushknife, inflicting a 15 cm x 2 cm wound. This is the judgment on sentence.

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 are: pleaded guilty; made very early admissions to and cooperated with Police; complied with bail conditions and cooperated with the Court; no prior convictions; the victim had been causing problems for the family; preparedness to reconcile.

(3) Aggravating factors are: use of lethal weapon; others assisted him in the attack; the victim was unarmed; an element of planning was involved.

(4) A sentence of three years was imposed. The pre-sentence period in custody was deducted but none of the sentence was suspended due to the victim's lack of preparedness to reconcile and/or receive compensation.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
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 & F Popeu, for the State
A Meten, for the offender

26th June, 2014

1. CANNINGS J: Nigel Duma pleaded guilty to unlawfully doing grievous bodily harm to his neighbour, Laining Kacthao, and has been convicted of that offence under Section 319 of the Criminal Code. The incident occurred at Sisiak 2, near Madang on Thursday 12 September 2013. The victim was at his house, cooking, with two friends when the offender, who was drunk, turned up. The offender, standing outside the front of the house, shouted obscenities at the victim who went outside to see what was happening. He was set upon by the offender, who had hid in a dark area, and slashed with a bushknife on the back. When the victim's two friends tried to intervene they were chased away by two members of the offender's family, who were assisting him to attack the victim. The victim ran away and was taken to Modilon General Hospital. He had suffered knife wounds to the back (in particular, the left posterior scapula region), 15 cm long and 2 cm deep, and to the arms. His back injury required 12 sutures (stitches). He was admitted to the hospital overnight and discharged the next day.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

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

I apologise for what I have done. I ask the Court to consider how difficult it is to look after a child without a father. I ask for the mercy of the Court so that I can be put on probation.

OTHER MATTERS OF FACT

4. 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 has persistently claimed that he was provoked into attacking the victim by the victim's bad attitude and behaviour over a long period. The victim, he says, was in the habit of using insulting and abusive words against him while under the influence of liquor. He also suggested the victim had made his (the offender's) sister pregnant and that this had caused problems that the victim was not dealing with. Those things do not excuse what the offender did but they do assist in explaining the motivation for commission of the offence and amount to a mild mitigating factor.

5. Another matter arising from the depositions, favourable to the offender, is that he made early admissions and cooperated with the Police from the outset. The incident happened on the night of 12 September, the offender was arrested and placed in custody the next day and on 19 September he underwent a formal Police interview and made full admissions and apologised.

PRE-SENTENCE REPORT

6. Nigel Duma is from the Pagwi area of East Sepik Province but has been a resident of Sisiak for a long time. He is 21 years old and married with one child. He has a stable marriage. He lives with his parents, who are supportive of him. His father has full-time employment with Divine Word University. He has four siblings. It is a close-knit family. He has a grade 12 education and wishes to undertake a course in teacher education at Madang Teachers College. He derives informal-sector income from the sale of clothes and other items. His health is sound. The local Ward Councillor Mr Isaac Carl has nothing bad to say about the offender and is willing to assist him and the victim reconcile their differences. The offender is willing to reconcile but it appears that the victim is not interested. A number of attempts to contact the victim, to elicit his attitude to the offender and the question of whether he is prepared to accept compensation and reconcile with the offender, were unsuccessful. He is not considered a risk to the community and is recommended for probation.

SUBMISSIONS BY DEFENCE COUNSEL

7. Mrs Meten highlighted the guilty plea and the preparedness of the offender and his family to compensate and reconcile with the victim. He has also cooperated with the Police and the Court from the outset. The offence was committed out of frustration after derogatory remarks were made by the victim and the victim was not taking any responsibility for the problem he created in making the offender's sister pregnant. The sentence should be no more than three years imprisonment, all of which should be suspended.

SUBMISSIONS BY THE STATE

8. Mr Pil agreed that a sentence of at least three years is required. There was no strong objection to the idea of suspending the sentence.

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 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 cases summarised in The State v Justin Ipa (2008) N3439.

STEP 4: WHAT IS THE HEAD SENTENCE?

13. Mitigating factors are:

• pleaded guilty;
• made very early admissions to and cooperated with Police;
• complied with bail conditions and cooperated with the Court;
• no prior convictions;
• the victim had been causing problems for the family;
• the victim had used drunken, insulting language against the offender;
• offender's preparedness to reconcile.
  

14. Aggravating factors are:

• use of lethal weapon;
• others assisted him in the attack;
• the victim was unarmed;
• an element of planning was involved.
  

15. Any GBH case in which a bushknife is used is a very serious case, involving great distress to the victim as it puts them in a life threatening situation (The State v Ray Sheekiot (2011) N4454). However, I place great weight on the fact that the offender has made very early admissions and cooperated fully with the Police and the Court. He has pleaded guilty. Because of the strong mitigating factors I will in the special circumstances of this case impose a sentence lower than the starting point. I accept the defence counsel's submission and decide that the appropriate sentence is three years imprisonment.

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

16. The entire pre-sentence period in custody of one month, three weeks, four days will be deducted.

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

17. Despite the violent nature of this crime, this is the sort of case in which a suspended sentence could have been imposed if the victim had been prepared to accept compensation and reconcile with the offender. However, he has shown no willingness to do so. In any crime of violence the victim's views are the most important. The Court must respect and give effect to those views when exercising its discretion as to sentence. I do so in this case by declining to suspend any part of the sentence, which will be served in custody.

18. This will make life difficult for the offender's wife and their young child but unfortunately there are many people who become victims when such serious and violent crimes are committed in the community. Attempting to solve family and neighbourhood problems by violence is not the proper and lawful way.

SENTENCE

19. Nigel Duma, 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