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State v Maino [2021] PGNC 308; N9095 (30 July 2021)

N9095

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 972 OF 2020

BETWEEN:
THE STATE

AND
JACKLYN MAINO

Vanimo: Rei, AJ
2021: 18^th, 26^th, 27^th July

CRIMINAL LAW – PRACTICE AND PROCEDURE – GBH S319 OF CCA – Plea of Guilty - left hand broken from blows inflicted – PSR MAR favour prisoner – victim accepting compensation – suspended sentence with conditions.

Held:

Plea of Guilty
Suspended Sentence

Cases Cited:

The State -v- Sam Propin CR No.1291 of 2006; N3585
State -v- Jude Misili CR No. 554 of 2016; N7251
The State -v- Ogi Songe [2017] N6759
The State -v- Philip Piapia [2017] N6763
The State -v- Steven Tumu [2017] N6768
The State -v- Ure Hane [1984] PNGLR 105
Goli Golu -v- The State [1979] PNGLR 653

Legislations cited:

Section 319 of Criminal Code Act
Section 19 of the Criminal Code Act

Counsel:

Ms. T. Aihi, for the State
Mr. S. Parihau, for the Defendant

30^th July, 2021

1. REI AJ: FACTS: The brief facts of this case are that on the 7^th day of January 2020 at Wara Kongkong, Vanimo, West Sepik Province, the prisoner did unlawfully cause grievously bodily to a Rachael Nakmea by hitting the victim with the use of spade handle on her left arm resulting in broken left arm. The victim was hospitalized. She recovered from a mild permanent function impairment.

GREVIOUS BODILY HARM (‘The GBH”)

2. The charge of GBH was laid pursuant to S.319 of the Criminal Code Act which provides that:

“A person who unlawfully do grievous bodily harm to another person is guilty of a crime.”

“Penalty: Imprisonment for a term not exceeding seven years.”

PLEA

3. On the 18^th of July 2021, the prisoner was arraigned in which she entered a plea of guilty.

4. The Counsel for the prisoner then applied for a pre-sentence report and means assessment report.

5. These reports have since been filed.

ANTECEDENTS

6. The prisoner is 26 years old female who comes from Wara Kongkong Ward 4 Vanimo Urban LLG West Sepik Province. She is a single parent with two young children who are aged 4 years and 1 year respectively. Her husband from Chimbu left her some years back and has not returned to the family to help provide for their sustenance and maintenance.

7. The PSR report does not say whether the husband has been paying maintenance to the wife for the up keep of the children except that the prisoner is the sole bread winner.

ALLOCUTUS

8. The prisoner said she apologized to the victim by saying sorry to her.

9. She is prepared to pay compensation of K500 to the victim as proposed in the PSR prepared and filed by Ben Kasanda.

MITIGATING FACTORS

10. The mitigating factors are that:

(a) the prisoner is a first-time offender
(b) she pleaded guilty to the charge as laid saving time and costs
(c) she has expressed genuine remorse to the victim and the Court
(d) no permanent physical disability or impairment was suffered by the victim
(e) the presence of de facto provocation
(f) one-off isolated indictment
(g) she is prepared to compensate the victim and
(h) she undertakes not to cause any further problem to the victim and her family.

AGGRAVATING FACTORS

11. The aggravating factors are:

(a) injury to the arm
(b) use of offensive or dangerous weapon
(c) pre-valence of offence

APPROPRIATE SENTENCE

12. The imposition of a sentence depends on the circumstances of each case, as well as the discretionary powers of Court in sentencing under Section 19 of the CCA.

13. Section 319 of the CCA provides that the maximum penalty is 7 years imprisonment.

14. However, Section 19 of the CCA gives wide powers to the Court to impose sentences below that which is provided for under Section 319 of the CCA including a suspended sentence.

15. The Court should however be guided by sentences imposed in previous cases.

16. In the case of The State -v- Sam Propin CR No.1291 of 2006; N3585, the prisoner pleaded guilty to the charge of GBH under Section 319 of the CCA whose sentence of 3 years less time spent in remand was wholly suspended.

17. The facts in that case are that the prisoner swung a spade two times to the body of the victim which resulted in the severing and amputation of her left ring finger.

18. In the case of the State -v- Jude Misili CR No. 554 of 2016; N7251, the prisoner swung a bush knife and cut the victim; who is his uncle, on the left hand causing grievous bodily harm.

19. In cases involving similar circumstances and facts, the Court has been imposing sentences in the range of 3 to 4 months of which some a Suspended Sentence – The State -v- Ogi Songe [2017] N6759, The State -v- Philip Piapia [2017] N6763 & The State -v- Steven Tumu [2017] N6768.

20. The prisoner in his case used a blunt spade handle to strike/hit the victim resulting in injuries which had been healed and the use of the arm has been fully restored.

21. I consider that this is not the worst case of grievous bodily compared to the cases cited herein. The imposition of a prison term should be left for the worst case involving repeated assaults resulting in permanent physical disability and impairment of a limb of the body – The State -v- Ure Hane [1984] PNGLR 105 and Goli Golu -v- The State [1979] PNGLR 653.

22. The PSR speaks highly of the prisoner which states that the prisoner is a proper candidate for probation.

SENTENCE

23. I note from the submissions of both Counsels that a sentence of 3 year is appropriate.

24. In the exercise of my discretion as provided for under Section 19 of the CCA, I impose a sentence of 3 years in hard labour.

25. I therefore order that the prisoner shall be incarcerated in Vanimo Correctional Institution for a period of three (3) years less any previous term for remand.

26. I however, order that the whole of the sentence is forthwith suspended upon the following terms:

(i) the prisoner shall enter into a probation for 3 years on the within conditions;

(ii) the prisoner shall within 48 hours report to the Probation Officer;

(iii) shall be resident at Wara Kongkong in Vanimo at all times in the course of your probation period;

(iv) shall not leave Wara Kongkong Vanimo without the leave of this court during the course of your probation period;

(v) shall keep the peace and be of good behaviour at all times;

(vi) shall not take liquor or any form of intoxicating substance or drugs during the period of your probation;

(vii) shall attend your church every Sabbath for service and worship whilst on probation;

(viii) shall within 5 months as of the date of this order make restitution to the complainant in the sum of K500 cash;

(ix) The restitution shall be witnessed by your probation officer, the police informant, and OIC Registry of National Court of Justice, Vanimo;

(x) The Probation Officer shall file a report on the responses and progress of the probationer every six months and at any other time or interval as the National Court may order upon application;

27. If in any event the prisoner breaches any of those conditions, she shall be immediately arrested and brought before this Court to be sentenced to imprisonment to serve her term.
_________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant