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State v Goweng [2016] PGNC 40; N6212 (19 February 2016)

N6212

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1449 OF 2015

THE STATE

V

ATANUWE GOWENG

Madang: Cannings J
2016: 3rd,18th, 19th February

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

Fact:

A man pleaded guilty to unlawfully doing grievous bodily harm to his uncle, with whom he was angry. He cut the victim on his left ankle 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; cooperated with Police; there was an element of de facto provocation; no prior convictions; offender contributed to the victim's medical expenses; offender has made a genuine attempt to reconcile; has cooperated with the court.

(3) Aggravating factors are: use of lethal weapon; the attack on the victim was disproportionate to the provocation; the victim could easily have died; the victim suffered a serious and permanent injury, which affects his quality of life.

(4) A sentence of three years, six months 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 Nigel Duma (2014) N5643
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
J Morog, for the offender

19th February, 2016

1. CANNINGS J: Atanuwe Goweng pleaded guilty to unlawfully doing grievous bodily harm to his uncle, Kosmin Qwaneng, and has been convicted of that offence under Section 319 of the Criminal Code. The incident occurred at Qwembum in the Rai Coast District of Madang Province on 6 June 2013. The offender went to his uncle's house, shouting and angry, as he had grievances with him. He swung his bushknife and cut his uncle on the left ankle, which caused great pain and a considerable loss of blood. The offender escaped to Teptep. Because of the remoteness of the location and transport difficulties, it took two days before the victim arrived at Modilon General Hospital, Madang town, for treatment. He was admitted to the operating theatre and was treated with a plaster-of-paris slab for a severed anterior tibialis tendon.
   
2. A recent medical report by Dr Steven Aaron, Emergency Registrar, Modilon General Hospital, concluded that the injury had not been repaired and "is now a permanent injury and thus [the victim] would have foot drop for the rest of his life unless corrected".
   

ANTECEDENTS

3. The offender has no prior convictions.
   

ALLOCUTUS

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

I apologise God and to the Court. I am not a young man. I have children at school and they depend on me for their welfare. I apologise to the victim, my uncle. I want to reconcile with him and resolve this matter out of court. I have tried my best to give him K1, 200.00 through the CID. That was almost nine months ago but he refuses to accept it and this has led to me coming before the court. My family has already suffered and will suffer more if I am sent to prison. I really want to compensate him.

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).
   
6. I take into account that he claimed in his Police interview and in arraignment that he did not initiate the altercation with his uncle. It was his uncle who provoked him by cutting down the fence around his house and then, after the offender went to see his uncle to discuss the matter, his uncle swung his bushknife first.
   

PRE-SENTENCE REPORT

7. This report, prepared by the Madang branch of the Probation Service, shows that the offender is aged 39 and is married with six children. He is a villager and a farmer and earns an income from sale of crops that he grows and sells. He has had no formal education or employment. His health is sound. The local ward councillor and the offender's elder brother were interviewed and explained that the offender and his uncle have had a long-running series of disputes over land matters, which needs to be resolved. The victim was interviewed and said that he has demanded K15,000.00 compensation as it was a serious attack and it took two days for him to get proper treatment and he almost died. The offender and his family offered him K1, 200.00 compensation but he refused the offer. The victim thinks that the best thing is that his nephew spends time in prison as punishment for the offence.
   

SUBMISSIONS BY DEFENCE COUNSEL

8. Mr Morog highlighted the guilty plea, the absence of any prior convictions and the early admissions and high level of cooperation with the Police. The offence was the result of a long running dispute within the family over land and property. The offender has made a genuine attempt to reconcile. He assisted the victim while he was in hospital. Mr Morog asked for a moderate sentence of two years, which should be suspended in view of the preparedness of the offender to compensate the victim.
   

SUBMISSIONS BY THE STATE

9. Mr Pil stressed that this was a very serious GBH case in which the victim has received a permanent injury. The victim has reasonably requested K15,000.00 compensation. Mr Pil asked for a sentence of four years, which should include a term in custody.
   

DECISION MAKING PROCESS

10. 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?

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

STEP 2: WHAT IS A PROPER STARTING POINT?

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

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

13. 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. A recent Madang case involving a bushknife attack on an innocent person in which the victim received similar injuries to the victim in the present case and the offender entered an early guilty plea resulted in a sentence of three years imprisonment: The State v Nigel Duma (2014) N5643.
    

STEP 4: WHAT IS THE HEAD SENTENCE?

14. Mitigating factors are:
    
    • pleaded guilty;
    • cooperated with Police;
    • there was an element of de facto provocation in that the altercation could be regarded as having been initiated by the victim;
    • no prior convictions;
    • offender contributed to the victim's medical expenses;
    • offender has made a genuine attempt to reconcile;
    • has cooperated with the court.
      
15. Aggravating factors are:
    
    • use of lethal weapon;
    • the attack on the victim was disproportionate to the provocation;
    • the victim could easily have died;
    • the victim suffered a serious and permanent injury, which affects his quality of life.
      
16. 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 admissions and cooperated fully with the Police and the Court. He has pleaded guilty. Because of the strong mitigating factors I will in the circumstances of this case impose a sentence slightly below the starting point. The appropriate sentence is three years imprisonment.
    

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

17. 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 three weeks
    

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

18. 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. He has taken the attitude that if the offender, his nephew, cannot pay the amount of compensation he has requested, he should go to jail. I have taken into account Mr Morog's submission that the families involved should be required to come together and sort out the problem, with a compulsory compensation imposed.
    
19. However, the ultimate and paramount consideration is that 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, which will be served in custody.
    

SENTENCE

20. Atanuwe Goweng, 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