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State v Dau [2021] PGNC 663; N9960 (23 September 2021)

N9960

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1343 OF 2019

THE STATE

V

ANDREW DAU

Kokopo: Suelip AJ
2021: 9^th & 23^rd September

CRIMINAL LAW – sentence – plea – grievous bodily harm s.319 Criminal Code – fractured bone in left forearm – victim demands compensation – previous criminal history – currently serving sentence for another charge – violent character - unfavorable presentence report – willing to pay small compensation and reconcile with victim – partial custodial sentence – balance on probation with conditions.

Cases Cited

Goli Golu v The State [1979] PNGLR 653
State v. Ray Sheekiot (2011) N4454
State v. Martin Konos (2010) N4157
State v. Mathew Komit & 2 ors [2019] N8059
The State v. Danny Patrick (2021) N9903

Counsel

T Kametan, for the State
S Pitep, for the Prisoner

SENTENCE

23^rd September, 2021

1. SUELIP AJ: On 9 August 2021, the prisoner was indicted for unlawfully causing grievous bodily harm to his daughter-in-law, thus contravening section 319 of the Criminal Code Act. He pleaded guilty to the charge and was convicted accordingly.

2. This is my decision on sentence.

3. The facts are these. On Friday, the 16^th day of August 2019, at about 5pm, the prisoner was at Vunapalading No.3 village, Gazelle District in the East New Britain Province. At the said time and place, he had returned from work at Kairak Oil Palm and had found out that his wife had had an argument with his daughter-in-law named Leonie Louis (the complainant), and his daughter-in-law had chased his wife to the bushes. Being angry about this, he got a branch of the ‘marmar’ tree and started hitting the complainant with it. The complainant was afraid that the tree branch will hit her head, so she was protecting her head with her arms and as a result, she was hit on her left forearm, five times altogether. He then stopped hitting the complainant when his son Louis yelled at him to stop. The complainant was afraid and went and slept elsewhere that night. In the morning she went to the Kerevat Rural Hospital where she was examined and found to be in severe pain as there was swelling in her left forearm and a fracture of one of the bones in her left forearm. The action of the prisoner contravenes section 319 of the Criminal Code in that he unlawfully caused grievous bodily harm to another person and the State charged him for that offence.

The offence

4. The offence of grievous bodily harm is found under Section 319 of the Criminal Code which states: -

319. Grievous Bodily Harm

A person who unlawfully does grievous bodily harm to another person is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

5. The penalty under that section is imprisonment for a term not exceeding seven years.

6. A pre-sentence report prepared by Senior Probation Officer, Nigel Amos shows that the prisoner is 61 years old from Bapadu, Wosera District, East Sepik Province. He is the sixth child out of 8 children in his family. Four (4) of his siblings have passed on and both his parents are also deceased. He was previously married and now lives with his second wife at Hetwara, Vunapalading 3, Inland Baining LLG, Gazelle District, East New Britain Province. He completed his education up to grade 8 and thereafter, he did odd jobs. He is now the Ward Member for Hetwara community. He also admitted in the report that he is currently serving his sentence for being in possession of cannabis.

7. During allocutus, the prisoner said he is sorry for what he did and apologised to God, this Court and all who are present in court. He also apologized to the victim and admit he did wrong. He said this is his first time to do harm to his daughter-in-law and he promised not to repeat the same wrong. He asked for probation and want to serve his time outside of prison so he can care for his family. He said he has reconciled with the victim by cooking and sharing food. He also said he has paid half of the victim’s bride price and he intends to pay what is outstanding.

8. In his favor, the mitigating factors are: -

(i) he pleaded guilty.

(ii) there was minimum de facto provocation.
(iii) he cooperated with the police.
(iv) he expressed genuine remorse

9. Against him, the aggravating factors peculiar to his case are: -

(i) he used an object to hit the victim.

(ii) he used excessive force, multiple times.

(iii) his victim is a female and is vulnerable

(iv) the victim sustained a broken bone in her left forearm.

(vi) the offence is prevalent in the society.

Submissions

10. On behalf of the prisoner, his counsel argued that the maximum penalty must be reserved for worst type case as held in the case of Goli Golu v The State [1979] PNGLR 653. She says that this is not the worst type case and therefore should not attract the maximum penalty.

11. His counsel says further that the appropriate starting point is 3½ years as held in the case of State v. Ray Sheekiot (2011) N4454 and also in State v. Martin Konos (2010) N4157. His counsel also referred to several comparable cases but the most relevant one is the local case of State v. Mathew Komit & 2 ors [2019] N8059, where the 3 offenders repeatedly assaulted the complainant by punching him. One of them got a piece of timber with a nail on it and attempted to hit the complainant’s head. The complainant tried to block the timber and the timber landed on his arm and fractured his ulna bone. The Court sentenced 2 of the offenders to 3 years and the other to 4 years depending on the degree of participating in committing the offence. All the sentences were suspended with compensation orders of K2,000 and 100 fathoms of shell money.

12. His counsel argued that the starting point should be 3½ years and the proper head sentence for the prisoner should be 3 years after weighing the mitigating factors against the aggravating factors, less time already spent in custody. She also argued that any suspension is within the discretion of the Court and the Court is to take into account the guilty plea and his willingness to compensate and reconcile with the victim.

13. On the other hand, the State argued that the offence of grievous bodily harm is serious and prevalent in the society hence, the need for deterrence sentences. The State referred to several comparable cases but none of them is similar to this case but the sentences range in all the cases cited by the State is from 2½ years to 4 years with balances wholly or partially suspended on conditions.

14. The State therefore argued that a sentence of 3 years to be the most appropriate sentence in the circumstances of this case and the proper head sentence should be 3 to 4 years less time spent in custody. The State also argued that some sentence can be suspended, and the prisoner should be placed on probation for at least 12 months.

Consideration

15. The maximum penalty for the offence is imprisonment not exceeding 7 years. As it is, this is not a worse type case and so a lesser penalty will be imposed.

16. In considering the appropriate sentence for the prisoner, I see that the aggravating factors outweigh the mitigating factors. I also take into account that he is currently serving sentence for being in possession of dangerous drugs.

17. From the presentence report, I consider the views of the community elder as well as the views of the victim where they both say he has a violent character and have been in trouble with the law before. The former says it is best that he is incarcerated whilst the latter demands that K3,000 be paid within 6 months and she is happy to allow the prisoner on probation for him to work on compensation. I also take into account that victim’s forearm still hurts when she works for long hours.

18. In the Means Assessment Report, it shows the prisoner does not have any savings and can only pay K200. However, there is now a demand for K3,000 from the victim. He says his elder sister and his younger brother can assist him to pay compensation.

19. This case is somewhat similar to the recent case The State v. Danny Patrick (2021) N9903 where I sentenced the offender to 2 years, less time spent in custody. The offender was placed on probation for a period of 12 months on conditions. In that case, the offender assaulted the victim after she swore at him, and she sustained a fractured left ulna on her left arm.

20. As it is, this is not a worse type case and so the maximum penalty will not be imposed. Given the prisoner’s violent character, I consider a sentence of 3 years is warranted in the circumstances of this case. This is to deter the prisoner from committing any more offence and also to rehabilitate him. The time he spent in custody which is 4 months and 3 weeks is deducted. He will spend 12 months in prison, and he is placed on probation for the balance of his sentence on the following conditions: -

(i) he will pay the sum of K3000 cash as compensation before the end of his sentence.

(ii) he will enter into his own recognizance and promise to keep the peace and be of good behavior for the duration of his probation.

(iii) he will not commit another or similar offence.

(iv) he will not consume alcohol or drugs for the duration of his probation period.

(v) if he breaches any of these conditions, he will be brought before this Court to show cause as to why he should not serve the remainder of his sentence in prison.

21. The Orders of the Court are: -

(i) He is sentenced to 3 years imprisonment.
(ii) His pretrial custody period of 4 months and 3 weeks is deducted.

(iii) He will spend 12 months in custody.

(iv) He is placed on probation for the balance of his sentence with conditions.
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Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner