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State v Marcus [2014] PGNC 177; N5799 (23 August 2014)

N5799

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 225 OF 2014

THE STATE

V

STEVEN MARCUS

Kimbe: Cannings J
2014: 11, 22, 23 August

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

A man pleaded guilty to unlawfully doing grievous bodily harm to another man, with whom he was angry. He cut the victim with a bushknife. This is the judgment on sentence.

Held:

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

(2) Mitigating factors are: pleaded guilty; made early admissions to and cooperated with Police.

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

(4) A sentence of three years was imposed, the pre-sentence period in custody was deducted and no part 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 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

23rd August, 2014

1. CANNINGS J: Steven Marcus pleaded guilty to unlawfully doing grievous bodily harm to Adick Waite, and has been convicted of that offence under Section 319 of the Criminal Code. The incident occurred at Kapore on 5 October 2013. Prior to that the offender had an argument with his wife and she left the house. He looked for her but could not find her. On the day of the incident between 3 and 4 pm he was walking past the victim's house. He heard the victim talking to someone and then realised that he was talking to his (the offender's) wife. He became angry and used a bushknife to cut the victim on his left leg then cut him a second time on the left arm and then on his fingers. His wife called out and he assaulted her and then ran off.

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 have five children and my wife has left me – my children are scattered and I do not know where they are. I ask for mercy and a non-custodial sentence.

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 take into account that he made admissions when interviewed by Police at Kapore on 7 October 2013.

PERSONAL PARTICULARS

5. There was no pre-sentence report. The offender is 39 years old, from Yangoru, East Sepik Province. He has lived at Kapore for a long time.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Kari highlighted the guilty plea. Not life-threatening injuries. Asked for three years.

SUBMISSIONS BY THE STATE

7. Mr Popeu submitted for four years.

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;
• made early admissions to and cooperated with Police.
  

13. Aggravating factors are:

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

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). 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?

15. 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 10 months.

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

16. No. There is no pre-sentence report and no evidence of reconciliation between the offender and the victim.

SENTENCE

17. Steven Marcus, 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