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State v Augustine [2014] PGNC 175; N5787 (22 August 2014)

N5787

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 106 OF 2013

THE STATE

V

PAULUS AUGUSTINE

Kimbe: Cannings J
2014: 11, 20, 22 August

CRIMINAL LAW – sentence – grievous bodily harm – Criminal Code, Section 319 – guilty plea – offender cut victim with a bushknife

A man pleaded guilty to unlawfully doing grievous bodily harm to another man. The offender was a spectator at a sporting event. He had been consuming liquor and was armed with a bushknife. He approached the victim and attacked him with the bushknife, cutting him on the head and various other parts of his body. This is the judgment on sentence.

Held:

(1) The maximum sentence for unlawful grievous bodily harm under the Criminal Code, Section 319 is seven years imprisonment.

(2) Mitigating factors are: pleaded guilty; complied with bail conditions and cooperated with the Court; no prior convictions; paid modest compensation or bel kol.

(3) Aggravating factors are: use of lethal weapon; the victim was unarmed; alcohol involved.

(4) A sentence of three years was imposed, none of which was suspended.

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

F K Popeu, for the State
D Kari, for the offender

22nd August, 2014

1. CANNINGS J: Paulus Augustine pleaded guilty to unlawfully doing grievous bodily harm to Yalamo Heni, and has been convicted of that offence under Section 319 of the Criminal Code. The incident occurred at Galai 1 near Kimbe on 5 December 2010. The offender was a spectator at a soccer grand final. He had been consuming liquor and was armed with a bushknife. He approached the victim and attacked him with the bushknife, cutting him on the head and various other parts of his body.

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 but I was provoked. I have paid K500.00 compensation.

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). I will take into account that he paid K500.00 compensation. I will not take into account that he was provoked, as no details in support of that assertion were provided and there is no evidence of provocation.

PRE-SENTENCE REPORT

5. The court was presented with a report prepared by the Kimbe office of the Community Based Corrections Service.

Personal details of Paulus Augustine

Age : 34

Origin : Dagua, ESP

Upbringing : WNB

Marital status : Married with 3 children, stable

Family : 4th born in a family of 7

Education : grade 11

Employment : no formal employment

Occupation : Farmer, cash crops + PMV and trade store

Health : OK

Religion : Catholic

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Kari highlighted the guilty plea and the preparedness of the offender to compensate and reconcile with the victim. He has paid some compensation. He submitted that a three-year sentence, fully suspended, would be appropriate.

SUBMISSIONS BY THE STATE

7. Mr Popeu submitted that a deterrent penalty is required: three to four years imprisonment, which should not be fully suspended.

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. The maximum penalty under Section 319 (grievous bodily harm) is seven years imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

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

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

11. 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?

12. Mitigating factors are:

• pleaded guilty;
• complied with bail conditions and cooperated with the Court;
• no prior convictions;
• paid modest compensation or bel kol.
  

13. Aggravating factors are:

• use of lethal weapon;
• the victim was unarmed;
• alcohol involved.
  

14. Any grievous bodily harm 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). He has pleaded guilty. Because of the 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?

15. There is nothing to deduct.

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

16. 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 real willingness to do so. He has said that he will accept K10,000.00, no less. I see no indication that the offender would be able to pay that much. 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 decline to suspend any part of the sentence.

SENTENCE

17. Paulus Augustine, 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