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State v Imane [2015] PGNC 199; N6098 (24 September 2015)

N6098

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 664 OF 2015

BETWEEN:

THE STATE

V

MARTIN IMANE
Prisoner

Mendi: Nablu, AJ
2015: 14, 15 & 24 September

CRIMINAL LAW – Sentence - Plea of guilty- Grievous bodily harm – Criminal Code Act, Chapter 261; s.319 –Prisoner attacked victim following a history of disagreement – victim's left middle finger severed – use of dangerous weapon - bush knife – Sentence of 3 years in hard labour – Part Custodial Sentence and part suspended sentence with conditions

Cases cited:

Goli Golu v. The State [1979] PNGLR 635
State v. Kiatni (2011) N4331
State v. Rusa (2008) N3510
State v. Veronica Mandili Kulia (2010) N5403
State v. Kerry Rueben Irowen (2002) N2239
State v. Waigama (2007) N3188
State v. Ambe Tu (2008) N3306

Counsel:

S.Luben, for the State
C.Koek, for the Prisoner

DECISION ON SENTENCE

24 September, 2015

1. NABLU, AJ: The prisoner Martin Imane, pleaded guilty to one count of causing unlawful grievous bodily harm to Cecilia Kandi contrary to Section 319 of the Criminal Code.

2. After having satisfied myself from the Court depositions presented by the State that the charge was made out, I convicted the prisoner accordingly.

3. The facts put to the prisoner on arraignment were that the prisoner, on 3rd May 2014 at about 6am, in Tulure Village, Kagua, Southern Highlands Province armed himself with a bush knife and went to the victim's home. He blamed the victim and her husband for giving him poisoned food which made him ill and demanded money from the victim. The victim refused to pay him and he swung his bush knife at her. The victim raised a spade handle to protect herself and in the process, the bush knife landed on the victim's left hand, completely severing the left middle finger.

4. On allocutus, the prisoner began by stating that his brothers' wife came with a bush knife and pointed it at his neck. He grabbed her right hand and took out the bush knife. In the process of taking out the bush knife, the bush knife cut her left hand. He said he was sorry in the eyes of God, before the Court and the staff of the Court and asked for mercy.

5. The lawyer for the prisoner submitted the following mitigating factors which the Court should take into consideration.

6. The prisoner pleaded guilty which saved the State time and money. The prisoner is a first –time offender. The prisoner is a father. He was the only attacker. The prisoner had co-operated with Police as evidenced from the confessional statement and admissions in his Record of Interview. Compensation of K500 was paid to the victim.

7. Ms Koek also submitted that another mitigating factor which the Court should take into consideration is that whilst he was in custody, there was a break out from prison but he remained incarcerated.

8. The prisoner's lawyer also submitted that this is not a worse type case of grievous bodily harm.

9. She submitted further that a head sentence of three (3) years be imposed, one year four months and ten days which is the time spent in custody prior to trial should be deducted and the rest be suspended and that he be placed on one year good behaviour bond with conditions.

10. The State, on the other hand, argued that there were aggravating factors which the Court should take into consideration. They are, that this was a violent crime. The offence of grievous bodily harm is a serious and prevalent offence. There is evidence that there was a history of disharmonious relations between the prisoner and the victim. The prisoner had demanded the victim to compensate him for causing him to be ill when she gave him bad food. A dangerous weapon was used to commit the offence, namely, a bush knife. The prisoner had pre-meditated the attack by arming himself with the bush knife before he went to the victim's home. The victim's middle finger was completely chopped off and she is now left with a permanent disability.

11. Ms Luben of counsel for the State submitted that a head sentence of 4 years to be imposed to reflect the seriousness and gravity of the offence and only time spent in custody pending trial be deducted.

12. Section 319 of the Criminal Code provides that the maximum penalty for the offence of unlawful grievous bodily harm is a term of imprisonment not exceeding seven (7) years.

13. It is trite law, that the maximum penalty should be imposed in the worse type of cases; Goli Golu v. The State [1979] PNGLR 635.

14. Section 19 of the Criminal Code provides a discretion to the Court to impose a lower sentence. However, such discretion must be exercised judiciously and in appropriate circumstances.

15. Bearing in mind that the Court should determine the punishment on the facts and merits of each case. Counsel have referred a number of cases which I have had regard to for the purposes of comparing the sentences imposed by this Court in order to ascertain what the appropriate punishment should be for this case.

16. Counsel for the prisoner, submitted the following cases; State v. Kiatni (2011) N4331; State v. Rusa (2008) N3510 and State v. Veronica Mandili Kulia (2010) N 5403.

17. In the case of State v. Kiatni (supra), the prisoner pleaded guilty to causing grievous bodily harm to his brother in law. The prisoners' sister and her husband (victim) had an argument which escalated into a fight. The victim threw his knife on the ground and was struggling with the wife to remove the knife she was holding, when the prisoner picked up the knife from the ground and chopped off his brother in-laws' hand. The prisoner was sentenced to four years imprisonment. Two years was suspended with conditions, after serving two years in custody.

18. In State v. Lucy Rusa (supra), the prisoner was sentenced to two years imprisonment with hard labour for chopping off two toes from the victims left foot during a fight. The offence occurred in a domestic setting between co-wives.

19. In State v. Veronica Mandili Kulia (supra), on a plea of guilty, the prisoner was sentenced to one year imprisonment. The time spent in custody was deducted and the rest of the sentence was wholly suspended. The prisoner caused fractures to the victim's right hand and disfigured his middle fingers with a bush knife.

20. Ms Luben of counsel for the State referred the Court to a number of cases. She submitted that the sentences imposed ranged from 2 to 7 years and consisted of custodial and suspended sentences.

21. In the State v. Kerry Rueben Irowen (2002) N2239, the Court imposed the maximum penalty of seven years imprisonment on each count to be served cumulatively. In that case, the prisoner inflicted severe and permanent injuries on his two wives. The trial judge was of the view that, there were serious aggravating factors and took into consideration the lack of remorse expressed by the prisoner and the history of physical abuse inflicted on the victims. This case was categorized a worst case which attracted the maximum penalty of imprisonment.

22. In State v. Waigama (2007) N3188, the prisoner was sentenced to four (4) years imprisonment. One week was deducted for time spent in custody. No part of the sentence was suspended. In that case, the aggravating factors outweighed the mitigating factors. The prisoner was a middle aged woman who stabbed another woman following a history of ill feelings between them.

23. In State v. Ambe Tu (2008) N3306, the prisoner used a knife to inflict multiple cuts on the victims' hands, back, neck and shoulder area. The injuries were life-threatening. The left thumb was completely amputated and the right inner-wrist area injuries resulted in separation of the tendons, nerves and ulna artery. The victim was left with serious permanent disabilities in both hands. In those circumstances, the Court imposed a four year custodial sentence.

24. In the present case, the prisoner plead guilty to one count of unlawful grievous bodily harm pursuant to Section 319 of the Criminal Code. In serious or worst cases it attracts a maximum penalty of 7 years imprisonment. The issue before the Court, is whether this case falls within the category of a worst case and what is the appropriate punishment?

25. I am of the view that this is not a worst case and therefore the maximum penalty is inappropriate.

26. In terms of mitigation, I take into account the following mitigating factors which Ms Koek of counsel for the prisoner submitted are in the prisoners' favour. He pleaded guilty to the offence, thus saving the State's time and costs. He is married and has a 3 year old child. He was the only attacker. He co-operated with Police which is evidenced by his admission in the record of interview. Compensation of K500 was paid to the victim. He was remorseful and apologised to the Court and the victim. He has little or no formal education and says he was educated to grade 3 level. He was a simple villager at the time the offence was committed.

27. I also took into account that the prisoner has no prior convictions and is a first time offender. He pleaded guilty therefore demonstrating his acceptance of criminal liability for his actions. He pleaded for mercy and leniency.

28. In his allocutus, he stated that he was sorry, however, I was not entirely convinced that his remorse was genuine for the reason that he did not say sorry to the victim amongst the persons he expressed remorse to. His allocutus started with what appears to be an excuse for his actions, which he says were in self defence or accidental. Therefore, the lack of genuine remorse goes against him and I do not take it into account.

29. His lawyer also submitted that the Court should take into account the fact that there was some form of compensation paid to the victim of K500. I accept that factor as a mitigating factor in favour of the prisoner despite the lack of genuine remorse.

30. The following aggravating facts I considered are against the prisoner. The offence involved the use of a dangerous weapon. The victim has a permanent injury which is the permanent loss of the middle finger on her left hand. The offence of unlawful grievous bodily harm is prevalent in the community. Such offences of grievous bodily harm and in particular the use of dangerous weapons like bush knives to settle disputes or problems is prevalent. Therefore the Court should consider severe penalties to deter like-minded persons who take the law into their own hands and inflict harm on persons in an effort to resolve disputes.

31. As I alluded to above, I was not convinced that the prisoner was truly sorry for committing the crime. In reviewing the court depositions, I note in his Record of Interview he states that he met the victim and her husband when he was on his way to the market. He asked them to pay him some money for giving him bad food (allegedly food cooked with the victims' menstrual blood). He also stated that the incident took place 2 years ago and he had not been paid. The victim and the husband refused to pay. He then took his bush knife and intended to cut them. He threatened the victim by holding up his bush knife. He stated that she blocked his bush knife with a spade and as a result the bush knife cut her left hand severing her middle finger.

32. What is of grave concern to me is that in the record of interview the prisoner admitted that he intended to cut the victim and her husband. Furthermore, in allocutus, the prisoner stated that the victim came towards him and put a knife to his neck whilst he was sharpening his bush knife, in the struggle to remove the bush knife, it cut off her middle finger on her left hand.

33. It would appear the Prisoner was now raising de facto provocation in the non-legal sense as a mitigating factor. I do not accept these assertions, which are contrary to the Court depositions and appear to be a "recent invention" or distortion of the facts. Furthermore, the prisoner is an able-bodied man. The victim was a 38 year old women who was trying to defend herself and ward off the attack.

34. In the present case, after careful consideration and weighing of the aggravating and mitigating factors, I am of the view that a sentence of 3 years is appropriate in the circumstances. I deduct one year four months and 10 days for time spent in custody prior to trial. This leaves the balance of the sentence of 1 year 7 months 21 days. The prisoner is to serve 7 months 21 days in custody at Bui-Iebi Correctional Institute. Taking into account the fact that the prisoner pleaded guilty, I will suspend one year of the sentence on the following conditions.

35. The Prisoner to enter into a good behaviour bond for one year duration of his suspended sentence from the date of his release.

36. Upon release, the Prisoner shall contact the Community Based Corrections Officer in order to undertake free community work for eight hours every week on Friday for six months to be arranged by the Community Based Corrections Officer preferably in Kagua District, or an appropriate location near his village, or if that is not possible, then another location as advised by the Community Based Corrections Officer.

37. The Community Based Corrections officer shall ensure that a report of the Prisoners' community service is obtained from the Supervisors of the community service after three months from commencing community work and at the end of the service which shall be submitted to the National Court.

38. The Prisoner is to reside in his village, Tulure Village, Kagua District and not to leave Southern Highlands Province for the duration of his suspended sentence unless granted leave by the National Court.

39. He is not to consume alcohol or other illicit drugs, including home brew during his suspended sentence.

40. The Prisoner is at liberty to apply for variation of these conditional orders.

41. If the Prisoner breaches any of the conditions during his suspended sentence, he shall be arrested and brought to the National Court to explain the reasons for such breach. If the Court is not satisfied with the explanation, the Prisoner shall be committed to serve the rest of his sentence in custody at CIS - Bui – Iebi.

42. A warrant of commitment in the above terms shall be issued forthwith.

Sentence accordingly

Office of the Public Prosecutor: Lawyers for the State
Office of the Public Solicitor: Lawyers for the Prisoner