N9305

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1376 OF 2019

STATE

V

THOMAS AGOBE

Waigani: Wawun-Kuvi, AJ
2021:  4th October, 11th, 15th November
CRIMINAL LAW-SENTENCE-Criminal Code, s 319 & 315 (b) (d), Causing Grievous Bodily Harm and Intention to Cause Grievous Bodily Harm-Domestic Setting-Prisoner hit wife on hand with iron rod on first occasion & stabbed on second occasion.

Cases Cited
State v Kumbi (2021) Cr 939 of 2019
State v Luke Paip (2021) Cr 430 of 2021
State v Namaliu [2020] PGNC 234; N8506 
State v Homolpi [2015] PGNC 112; N5863 
State v Dokta [2014] PGNC 66; N5589 
State v Kara [2012] PGNC 19; N4663 
State v Sheekiot [2011] PGNC 165; N4454 
State v Konos [2010] PGNC 179; N4157 
State v Wiramas [2008] PGNC 209; N3456 
Saperius Yalikabut v The State [2006] PGSC 27; SC890
Gima v Independent State of Papua New Guinea [2003] PGSC 3; SC730 
State v Winston [2003] PNGLR 5 
State v Susure [1999] PGNC 58; N1880 
Public Prosecutor v Hale [1998] SC 564
Public Prosecutor v Thomas Vola [1981] PNGLR 412

Reference
Criminal Code, Ch 262
Counsel
Mr Dale Digori & Ms Toidalema, for the State
Mr Malcom Sumbuk & Joshua John, for the Defence
 
SENTENCE

15th November, 2021

1.	WAWUN-KUVI, AJ:  Thomas Agobe (offender) and his wife(victim) were once in a loving marriage. Out of their marriage they brought five children into the world. Along the way, animosity and anger surfaced. The offender found it difficult to deal with his feelings of anger. He made the decision to release his anger and frustration through violence. And the unfortunate target of that frustration and anger was his wife.

2.	The first occasion occurred when she was standing at the 9 Mile Bus Stop. An otherwise ordinary day. She waited with other commuters to catch bus when the offender walked up to her and hit her arm with an iron rod. She was rushed to the hospital where she underwent surgery to repair a fracture to her arm.

3.	On the second occasion, the victim was standing at Tabari Place, Boroko. While she was standing there, the offender ran up to her and stabbed her in the back. He then ran off. The knife remained lodged in her back. She was rushed to the hospital by a passing police unit. She underwent surgery to remove the knife. She remained in hospital for about a week and was discharged.

4.	I now must decide what sentence to impose on the offender for both incidents of violence against his wife.
Purpose of Sentencing
5.	In considering the offender’s sentence, I remind myself of the purpose of sentencing which includes but is not limited to, considerations such as punishment of the offender, rehabilitation, specific and general deterrence, communicating clearly that the community and society does not condone the offender’s conduct and in cases of violent and serious offences for the protection of the community.
The Charge
6.	The offender pleaded guilty to the charges of Causing Grievous Bodily Harm under s 319 and Intention to Cause Grievous Bodily Harm under s 315 (b) (d) pursuant to the Criminal Code respectively.
Penalty
7.	The maximum penalty is 7 years and life imprisonment respectively. Both penalties are subject to section 19 of the Code.

8.	I remind myself that the maximum penalty is reserved for the most serious case: Goli Golu v The State [1979] PNGLR 653. This is not such a case that would warrant the maximum.
Submissions
9.	The Defence submit for a sentence of 3 years for the charge of causing grievous bodily under s 319 and 6 years for the charge of intention to cause grievous bodily harm under s 315 (b) (d). 

10.	It was further submitted that the sentence should be wholly suspended because of the offender’s early plea, remorse, and willingness to compensate the victim.
 
11.	In aggravation, it was submitted that the only aggravating factor is the use of offensive weapons to injure the victim. In mitigation, it was submitted that the offender pleaded guilty, has no prior convictions, there was de facto provocation, he expressed remorse and he is willing to compensate the victim. 

12.	The State however submits for a sentence within the range of between 3 and 5 years imprisonment for both charges. That no part of the sentence should be suspended. 

13.	The State concedes with the Defence in all factors of mitigation other than that there was de facto provocation. In aggravation, the state submits that offensive weapons were used, the victim received significant injuries that required hospitalization and surgery and that the offence is prevalent. 

14.	Both counsels referred the Court to the following comparable cases:

Causing Grievous Bodily Harm, s 319 

15.	State v Kara [2012], Cannings J: The prisoner pleaded guilty to doing grievous bodily harm to his neighbor. He had no prior convictions. There was a dispute between the prisoner and victim’s family. Stones were thrown. The prisoner charged out of his yard with a bush knife. He pointed the sharp end of the knife against the victim’s shoulder while she had her back to him. She turned and at the same time he pulled the knife across her face. The knife cut her across the face and eye. She received stiches for the cut on her face and has impaired vision for the injury on the eye. The offender was sentenced to 4 years imprisonment, which was wholly suspended. He had paid some form of compensation and was willing to pay further compensation.

16.	State v Sheekiot [2011], Cannings J: The prisoner pleaded guilty to cutting his cousin on the neck and cheek with a bush knife. The mitigating factors were a plea of guilty, early admissions, paid compensation and reconciled with victim. The prisoner was sentenced to 4 years. The sentence was wholly suspended based on a favorable pre-sentence report more so that compensation was paid and there was reconciliation.

17.	State v Konos [2010]  Cannings, J: Prisoner pleaded guilty to striking his nephew with a piece of timber, fracturing his knee and causing other superficial injuries. Factors in mitigation were a plea of guilty, first-time offender, the victim was a known troublemaker, de facto provocation for the attack, a blunt object was used on the leg, lessening the risk of a fatal injury, the offender made early admissions. The prisoner was sentence to 3 years. The sentence was wholly suspended based on the favorable Pre-Sentence Report more so the fact that the victim’s family requested customary reconciliation.

18.	 The State also referred to the case of The State v Lester Marus (2003) Cr 523 of 2003 (delivered on 11 January 2007). This is an unpublished judgement cited in the case of State v Wiramas [2008]. The facts as found in State v Wiramas, is that the offender hit the victim, a woman, on the head with a timber. As she was falling, he hit her a second time on the right hand. Her right forearm was fractured. The prisoner was sentenced to 2 years which was wholly suspended.

19.	In State v Wiramas [2008], the prisoner was found guilty after a trial. He used an iron rod used to pick oil palm fruit to attack the victim. He swung the iron rod at the victim. The victim raised his left arm to block the iron rod. The rod landed on the victim’s arm. It caused the forearm to fracture. The prisoner was sentenced to 3 years imprisonment. The sentence was wholly suspended with strict conditions that included compensation.

20.	I have found the following comparable cases:

21.	In State v Kimai [2017], Auka AJ: The prisoner was in a relationship with the victim. The victim was taking care of their sick child when the prisoner came from the back and kicked her on the head. When she fell, he continued to kick and punch her and used an iron bar to hit her all over the body. She suffered various injuries all over her body. The prisoner was sentenced to 3 years imprisonment. The sentence was wholly suspended with conditions.

22.	In State v Maka [2014], David J: The prisoner pleaded guilty to hitting the victim with a stone and axe. There was an intimate relationship between the parties. The victim suffered multiple injuries. The prisoner was told to stop but he did not. He was sentenced to 3 years imprisonment less time spent in custody. No part of the balance was suspended.

23.	In State v Andrew [2014], Kassman, J: The prisoner pleaded guilty to fracturing her husband’s hand with a piece of wood. The prisoner and the victim were engaged in an argument in their home which led to a physical altercation. The Court found that there was genuine remorse and the prisoner had paid compensation according to customary rites witnessed by the family prior to her guilty plea. The Court also found based on the prisoner’s evidence that for a considerable time leading up to the offence, the prisoner was a victim of abuse, threats and actual violence. Further it was conceded by the State that the actions of the prisoner stemmed from frustration and anger caused by the disgraceful conduct by the victim on the previous day. The prisoner was sentenced to 1 year imprisonment which was wholly suspended on conditions.

24.	In State v Dokta [2014], David J: The offender pleaded guilty to doing grievous bodily harm to his stepsister. The offender argued with the victim. A fight ensured. The offender punched the victim three times. The victim then grabbed a piece of firewood and attempted to strike the offender. The offender disarmed her and punched her with force, causing her to fall to the floor. As a result, she fractured the ulna bone in her left forearm. The offender was sentenced to 2 years with time spent in custody deducted. The balance was wholly suspended.

25.	State v Busii [2012], Batari, J: The prisoner pleaded guilty to hitting the victim with a wood fracturing her right forearm. The prisoner’s wives were fighting, and the prisoner sided with one. He was in the process of slashing the other wife with a bush knife when the victim, an elderly woman, intervened. The victim demanded compensation. The Court acknowledged the prevalence of the offence. The prisoner was sentenced to 3 years which was wholly suspended with conditions which included compensation.

Intention to Cause Grievous Bodily Harm, s 315 (b) (d)

26.	The State did not cite any comparable cases as they relate to this charge.

27.	The Defence submits the following:

28.	State v Homolpi [2015], Kassman J: the offender pleaded guilty to stabbing the victim in the back with a knife. He was a first-time offender and at the time of the offence was about 60 years old. The victim was the Village Court Clerk. Two other persons also attacked the victim. An extenuating factor was that the village court proceedings were in relation to the victim failing to pay compensation and protracting the village court hearing. The offender was sentenced to 3 years imprisonment. The sentence was wholly suspended.

29.	State v Susure [1999], Kirriwom, J: The offender pleaded guilty to chopping the victim on the head and nose. The offender was angry over the victim allegedly attempting to rape his wife. He got in a vehicle with the victim to go resolve the matter. An argument ensured in the vehicle. The victim said something that further agitated the offender. The offender had no prior convictions. He was sentenced to 3 years imprisonment. 2 years was suspended with conditions. The balance was ordered to be served.

30.	 The case of State v Susure [1999] was decided 22 years ago and sentencing trends have changed over time. Furthermore, there are extenuating circumstances in that case that do not exist in the present case. Likewise State v Homolpi [2015], there were extenuating circumstances.

Additionally, I have found two comparable cases. They relate to guilty pleas, first time offenders, domestic setting and use of knives.
31.	 In State v Luke Paip (2021)Kangwia J: the offender pleaded guilty to slashing his brother-in-law on the head, shoulder, and hand. He was a first-time offender and there was de facto provocation. The victim had assaulted his sister in front of him on a previous occasion and on the date of the offence he had gone to get his wife and child when he fired gun shots and swore at members of the community. The offender approached him from the back and cut him with a bush knife on his head, shoulder, and hand. He pleaded guilty, was a first-time offender, there was de facto provocation. He was sentenced to 8 years imprisonment less time spent in custody.

32.	 In State v Aret [2015], David J:  The offender pleaded guilty to attacking his wife and mother in-law with a bush knife and inflicting multiple life-threatening injuries. The offender chopped off his wife's right arm just below her elbow and inflicted three other cuts to the right arm, shoulder and back. The offender chopped his mother in-law on her arm, shoulder and back. The victims were hospitalized as a result. He was angry that his family matters were brought to the village court. He assumed that his mother-in-law was responsible for the report and attacked her as well. He was a first-time offender. He was sentenced to 8 years for the attack on his wife and 6 years for his mother-in-law. The sentences were made concurrent, and time spent in custody was deducted. The sentence was not suspended.

Factors in Mitigation

33.	 He pleaded guilty and was a first-time offender. I accept that there was some de facto provocation in that the victim had committed adultery. This had caused the offender some emotional distress. This can be found in the offender’s pre-sentence report. The State has not negated this aspect: Saperius Yalikabut v The State [2006] PGSC 27; SC890 (27 April 2006)

Factors in Aggravation

34.	Weapons were used. In the first incident a metal rod and in the second incident the victim was stabbed with a knife. Additionally, the offender was the husband of the victim. This was a breach of trust and security.
35.	Another factor that is aggravating is that the offender caused the first incident on 18 October 2018 and the second on 8 December 2018. Some two months in between. The offences were also committed in public places.

Personal Particulars

36.	The offender is 43 years old and is from Makara Village, Koroba, Hela Province. He resided at Peter Kama Block, 9 Mile Settlement in the National Capital District prior to his incarceration. He was self-employed.

37.	The offender’s parents are deceased. He has three brothers and one sister. 

38.	He was married to the victim, and they have 5 children. The children range from 14 to 3 years of age. Two of the children reside in the village whilst the other three reside in the National Capital District. He does not know the present location of his children.

39.	 He is a member of the Christian Brotherhood Church. Since incarceration he attends church with the United Pentecostal Church. 

40.	He attended Kutubu Primary School from Grade 1 to 4 and later Lake Hayabu Primary School. He did not further his education after Grade 8.

Allocutus

41.	The offender said in Allocutus:

“First I wish to say sorry to the Court, for what I did was not right and I say sorry. Secondly I say sorry to my wife whom I already did what I did to her. Thirdly I say sorry to my children for the years I spent in custody. My wife has moved on to remarry and my children are still here. I say sorry for wasting my lawyer’s time and lastly say sorry to my family and my wife’s family, they have reconciled.

42.	I accept his statement as a sign of remorse for his actions.

Pre-sentence Report

43.	The Probation Officer interviewed the offender, his cousin Timon Tomalia along with two other relatives who did not wish to be named. 

44.	The offender explained that he was involved in the betel nut trade and was busy travelling when his wife committed adultery. This was confirmed by his cousin. He and his relatives wish to pay compensation and ask for a non-custodial sentence.

45.	No views were obtained from the community.

46.	 For the Court to consider suspension the views of the community in which the offender resides must be obtained: Gima v Independent State of Papua New Guinea [2003], State v Winston [2003] and Public Prosecutor v Hale [1998].

Victim Views

47.	The Probation Officer attempted to locate the victim but was not able to do so because she had moved location. 

48.	The State did not obtain a Victim Impact Statement.

Consideration 

49.	As I had said in State v Kumbi, Cr 939 of 2019 which I have just handed down sentence “Since being appointed to the bench in August of this year, all the bodily harm and manslaughter cases that I have presided over, have had a domestic element. The number of published judgments this year also reveal a high number of deaths and bodily harm cases arising out of a domestic setting. Most of the victims are women. It appears that our society is plagued by a far bigger issue than a break down in law and order. Most of the offences arise out of trivial or petty issues that would otherwise not lead to death had offenders simply walked away from the argument. Our society appears to be one that accepts violence as a mode of conflict resolution.”
50.	The offender has children and as a father he must be a role model for his children. His pleas for leniency because of his children come too late. It is those very children that he should have had regard of before he decided to attack their mother. He had more than sufficient opportunity to do so when the complainant decided to have the matter settled out of court, on the first occasion when he struck her with the iron rod. Instead, he chose to threaten her and carry out the threat. The second injury was life threatening. It was fortunate that the knife remained lodged and was removed at the hospital. Otherwise, the victim would have died from blood loss and the charge would be far more serious.

51.	The offender must take responsibility for his actions and learn that women are not property to be possessed or livestock that are beaten into compliance.  Women are human beings. As held in State v Namaliu [2020] PGNC 234; N8506 (17 September 2020), “Women are an integral part of society.  They are entitled to be treated with respect and dignity.  They have the same rights and privileges as men.  They are entitled to fully participate in, and benefit from, the development of the country: ss. 35 of the Constitution, Preamble to the Constitution, National Goals and Directive Principles”.

52.	Having considered all the factors as they pertain to this case, the relevant guidelines, and comparative cases, I find that an appropriate sentence for the charge of causing grievous bodily harm under s319 is 3 years. For the charge of intention to cause grievous bodily under s 315 (b) (d), the appropriate sentence is 8 years imprisonment. 

53.	There is nothing in the pre-sentence report that justifies suspending the sentence. Whilst a report was prepared. There were no views obtained from the victim or from members of the offender’s community.

54.	The same factors that reduced sentence cannot be used to suspend sentence: Public Prosecutor v Thomas Vola [1981] PNGLR 412.

55.	In terms of pre-sentence custody, the offender was arrested on 23 June 2019. I exercise my discretion and deduct the 2 years, 4 months, 3 week and 2 days. 

Orders

56.	The Orders are as follows:

1.	The offender is sentence to 3 years imprisonment for causing grievous bodily harm.
2.	The offender is sentenced to 8 years imprisonment for intention to cause grievous bodily harm.
3.	The sentence is to be served concurrently.
4.	The offender shall serve 8 years imprisonment.
5.	The pre-sentence custody of 2 years, 4 months, 3 week and 2 days is deducted.
6.	The prisoner shall serve 5 years, 7 month, 5 days in hard labour at the Bomana Correctional Institution.
________________________________________________________________
Office of The Public Prosecutor: Lawyer for the State
Office of The Public Solicitor: Lawyer for the Defence