N9218

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1131 OF 2019

THE STATE

-V-

ANDREW DANGI

Alotau:  Toliken, J.
2020:  19th February, 15th July, 20th November

CRIMINAL LAW – Sentence – Grievous bodily harm – Guilty plea – Prisoner chops off his child’s hand - Provocation by relatives – Child innocent and defenceless - Near worst case – Culpability high – Mitigating and aggravating factors considered  – Welfare of child and duty of prisoner to care and provide for child considered – Appropriate sentence – 5 years less time in custody – 6 months of resultant sentence to be served – Remaining balance suspended on conditions – Criminal Code Ch.262, s 319.

Cases Cited:

Aihi v The State (No.3) [1982] PNGLR 92
Kesino Apo v The State [1988-89] PNGLR 182
Golu v The State [1979] PNGLR 653
Saperus Yalibakut v The State (2006) SC890
The State v Auduwa (2012) N5169
The State v Kaninja (2011) N4329 
The State v Kiatni (2011) N4331
State v Sheekiot (2011) N4454
The State v Konos (2010) N4157
The State v Emoto Noine, CR No. 179 of 2012 (Unnumbered and unreported judgement dated 25th December 2013)

Counsel:

A Kupmain, for the State
J Apo, for the Prisoner

JUDGMENT ON SENTENCE

20th November, 2020

1.	TOLIKEN, J:	On 17th December 2016, Andrew Dangi, you were working in your garden at Payawa, Agaun, Alotau District, when your relatives confronted and disputed you over the land on which your garden was. You left the garden for the village, angry and frustrated. When you arrived, you saw your son Anco Andrew and you chopped off his left hand completely, severing it at the wrist. Due to the remoteness of your village, the matter did not get reported to police until the 17th of June 2019 when you were arrested and subsequently charged.

2.	On 19th February 2020, the State indicted you with one count of unlawfully causing grievous bodily harm to your son Anco pursuant to Section 319 of the Criminal Code.
3.	You pleaded guilty to the offence.  I confirmed your provisional guilty after satisfying myself that your plea was safe and convicted you. 
4.	This offence carries the maximum penalty of 7 years imprisonment. Whether or not I will impose the maximum penalty on you will, however, depend on whether this is a worst instance of offending and the circumstances and facts pertaining your case. (Golu v The State [1979] PNGLR 653; Aihi v The State (No.3) [1982] PNGLR 92)
5.	My task then is to determine what an appropriate sentence for you ought to be.
6.	You apologized to the Court and to your child saying that you deeply care for him. You expressed concern for your house in the village because you said the posts were rotten and the house is propped up only by stakes. You were also concerned about your vanilla crops and piggery project which have been left untended to since your apprehension and detention. And of course, you are worried about your family’s welfare. You said that the police took K300.00 cash and two pairs of cut jeans from you upon your arrest but have not returned these to you. You were also worried about the fact that your family had not visited you while in custody. You, therefore, asked for probation and promised never to re-offend.
7.	You come from Payawa village, Agaun, Duau RLLG of Alotau District, Milne Bay Province. At the time you committed the offence, you were 33 years old. You are now 37 years old. You are married with 3 children, the last of whom is the victim here. You are an Anglican and was only educated up to Grade 3. You are the second of five siblings, and this is your first offence. You have been in custody since your apprehension on 17th June 2019.
8.	Your lawyer- Mr. Apo, submitted that yours is a near worst case, because you took your frustration on a totally innocent person and caused him permanent disability when you completely chopped off his hand. Nevertheless, while admitting that there are some strong aggravating factors against you, Mr Apo submitted that there are significant mitigating factors in your favour. And while your Pre-Sentence (PSR) is not a balanced one because the author was not able to get the views of your family and the community due to the remoteness of your village, Counsel said the author, nevertheless recommended probation supervision for you so that you can support your now partly disabled son. Counsel, therefore, submitted that, in the circumstances, a non-custodial sentence will be appropriate for you so that you can be rehabilitated and help care for your son who is still at a very tender age. A starting point for you, Counsel said, ought to be 3 ½ to 4 years with a head sentence set below that to reflect the matters in mitigation.  The whole sentence ought then to be suspended and that be placed on good behaviour for a period of 2 years.
12..	Mr. Kupmain submitted on behalf of the State that this is a very serious case because you took your frustration upon your innocent child, and it is miracle that he survived given he was taken to the hospital a day after you cut him. Counsel, however, conceded that your child needs you at this stage of his life and hence he left it to the discretion of the Court to decide what to do with you.
13.	I do agree with both lawyers that yours is a very serious case. In fact, as your lawyer said, it is a near worst case. The starting point for this type of offence had been set by this court at 3 ½ years. (The State v Konos (2010) N4157; The State v Sheekiot (2011) N4454). However, for your case, I set a starting point for you at 4 years because viewed objectively your culpability was high.
14.	I must now determine an appropriate sentence for you.  And I start by considering your mitigating and aggravating factors.
15.	The following factors mitigate your offence:
(i)	You pleaded guilty very early to your charge.
(ii)	You co-operated with the police by making early admissions or confessing your crime.
(iii)	You are a first-time offender.
(iv)	You are a simple, unsophisticated villager.
(v)	You were of prior good character.
(vi)	You said in your PSR that you paid a live pig valued at K1000.00 and K250.00 cash to your wife’s people and your own brothers whose jealousy towards you caused you to injure your son – a total of K2,500.00. The State was not able to counter this, hence, I take this into account in your favour and hold that you indeed compensated your relatives. (Saperus Yalibakut v The State (2006) SC 890).
(vii)	You were of course very remorseful, and I accept that to be genuine.
(viii)	The injuries you inflicted on your child is of self-inflicting because   you will unfortunately have to care for the needs of your son well into his adulthood if you live that long. (Kesino Apo v The State [1988-89] PNGLR 182)
(ix)	You were provoked on the non-legal sense, but this carries very little weight because you directed your frustration on a totally innocent and defence-less victim.
16.	Against you are the following: 
(i)	You used a dangerous weapon.
(ii)	Your victim was a totally innocent and defenceless child.
(iii)	The injuries you inflicted on the victim were permanent.
(iv)	The offence is very prevalent.
(v)	The victim suffered pain and hardship beyond what a child of his age could bear.
17.	What you did to your son is one of the most unimaginable things that a father, or parent for that matter, can ever do to his own child. Judging from the photographs of the child in the dispositions, he could not have been more than two years old when you committed this atrocious act on him. You have essentially handicapped him for life and denied him the full use of his hands and the quality of life that he could enjoy if he were able bodied. And, so, while you still have the full use of your two hands, the child whom you say you love so dearly will not have the same benefit because you had rendered him handicap. And for this, you will and must be punished appropriately.
18.	I, however, do not lose sight of the fact that your offence is self-inflicting as I have noted above. I also do not lose sight of the fact that you have an obligation to put in that extra effort to raise your now partly handicapped child to adulthood and possibly beyond that. You have compensated your relatives and your wife and her relatives, but I doubt any of that benefitted your child personally. At that age, the compensation you paid would have had no impact at all toward improving his quality of life.
19.	Your lawyer, Mr. Apo, cited several cases to me, but none of these were similar to the circumstance of your case. I find some guidance, however, in the following cases which are more similar to yours.
20.	The State v Kiatni (2011) N4331 (Ipang AJ). The victim in that case had an argument with his wife. Both were holding knives. When they were told to remove their knives, the victim threw his knife down and was trying to disarm his wife when the offender (the wife’s 19-year-old brother) picked up the knife dropped by the victim and swung it at the victim. The victim put up his hand to fend off the blow but ended up having his hand completely chopped off. On a guilty plea, the offender was sentenced to 4 years imprisonment, two of which were suspended.
21.	The State v Kaninja (2011) N4329 (Ipang AJ): The offender there claimed ownership of the land on which a church had been built for which he had not been compensated. He went to the church ground and after cutting down all the flowers around the church, attempted to set the church building on fire. He and his family members then attacked the victim, in the course of which, he chopped off the victim’s right foot. On a guilty plea, the offender was sentenced to 5 years imprisonment, 3 of which were suspended on conditions including compensation of K5,000.00.
22.	The State v Auduwa (2012) N5169 (Toliken AJ): The offender and his wife were at a community centre when the victim walked pass. The offender’s wife and the victim exchanged a few words. This led to an argument, in the course of which the victim said some disparaging words against the offender’s and his wife’s church. This offended the offender, and he attacked the victim with a bush knife cutting him on the left ankle, fracturing it as a result. An X-ray revealed a through and through fracture of the ankle which was held together only by the skin. The doctors managed to debride the ankle, but they were of the opinion that the victim will have lost 100 per cent use of his left ankle. The offender pleaded guilty before me and I sentenced him to 5 years imprisonment less time in custody. I then suspended 3 years and placed the offender on probation with an additional condition that he pays K5,000.00 to the victim.
23.	The State v Emoto Noine, CR No. 179 of 2012 (Unnumbered and unreported judgement dated 25th December 2013 per Toliken, AJ). There, the offender had met the victim and remembered or recalled what the victim had said about his wife some years back. An argument ensued which led eventually to a fight. Both men were armed with grass knives. The fight was stopped but started again after the victim threw a stone at the offender. The victim swung a piece of timber at the offender. The offender then swung his grass knife to block the blow with such force that he cut the victim’s wrist. The injury was so serious that the wrist had to be amputated. On his guilty plea, I sentenced the offender to 4 years imprisonment. I suspended 2 years and placed the offender on good behaviour with conditions including payment of K2,000.00 compensation.
24.	And so, coming back to your case, I am of the view, that you should get a similar sentence to the cases I have just cited above because comparatively, the circumstances there are very similar to yours. The only difference here is that the victims in those cases were all adults and were not family members of the offenders.
25.	It is obvious to me that you lost control of yourself when you vented your anger and frustration on your poor innocent and defenceless child. You could have easily killed him, and I agree with Mr. Kupmain that the fact that he is still alive today is nothing short of a miracle when we consider the fact that he was taken to the Agaun Health Centre a day after the incident where the dedicated health workers there attended to him.
26.	While you have significant mitigating factors, these pale into insignificance when considered against the fact that you almost took the life of your innocent and defenceless child. You must be punished appropriately. 
26.	 All things considered; I should think that you should get a sentence of five years imprisonment. I, therefore, sentence you to 5 years imprisonment with hard labour. From that, I deduct the period you had been in custody, which is 1 year, 5 months and 3 days. That should leave you with a balance of 3 years, 6 months, and 27 days.
27.      Now, should any part of the balance of sentence be suspended as your lawyer Mr. Apo had implored the Court to do? Mr. Kupmain appeared to me to concur with your lawyer’s submission which is essentially what you wanted also. I also note the Probation Officer’s plea in the PSR that whatever the case, the Court should also consider the welfare of the victim child. That is a legitimate call, for indeed the child’s welfare may not be fully enhanced and protected with a lengthy term of imprisonment which will remove and divest you of your responsibility to care for and give your now partly handicapped child the best support that he can get from you.
28.	I intend, therefore, to suspend a part of your resultant sentence so that you can be allowed to return to your family and look after your child. 
29.	You will, therefore, serve only 6 months from the balance of your sentence. The remaining 3 years and 27 days will be suspended, and you will be placed on probation for a period of 3 years.
30.	The sentence and orders of the Court are therefore -
1.	You are sentenced to 5 years imprisonment with hard labour.

2.	The time you spent in pre-sentence custody, which is 1 year, 5 	months and 3 days, is deducted, leaving you with a resultant sentence of 3 years, 6 months, and 27 days.

3.	You will serve 6 months of your resultant sentence while the balance of 3 years and 27 days is suspended upon your entering into probation for a period of 3 years under the direct supervision of a Voluntary Probation Officer appointed by the Provincial Community Based Correction Officer.

4.	The Voluntary Probation Officer shall submit 6-Monthly Reports to the Provincial Community Based Correction Officer in Alotau.

Ordered accordingly.
______________________________________________________________
P Kaluwin, The Public Prosecutor:	Lawyer for the State
L B Mamu, The Public Solicitor:	Lawyer for the Accused