State v Lekis [2007] PGNC 214; N5029 (13 July 2007)

N5029

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1927 OF 2005

THE STATE

V

PHILIP LEKIS

Kimbe: Cannings J
2007: 15 May, 3, 13 July

CRIMINAL LAW – sentencing – unlawful wounding – Criminal Code, Section 322(1)(a) – sentence on plea of guilty – offender slashed his sister with bushknife – sentence of 30 months.

A man had a dispute with his sister and his father in a public place. He swung his bushknife at his sister, cutting her on the head. He pleaded guilty to unlawful wounding.

Held:

(1) The starting point for sentencing for this sort of assault in a domestic setting is 18 months imprisonment.

(2) Mitigating factors are: single blow; only one attacker; co-operated with police; pleaded guilty; first offender.

(3) Aggravating factors are: offender solely responsible; dangerous weapon used; no accident; unprovoked attack; the victim was an able-bodied woman; vicious assault; did not give himself up; no compensation yet; no genuine remorse.

(4) A sentence of 30 months imposed. The pre-sentence period in custody was deducted and the sentence was fully suspended on conditions.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
Tom Longman Yaul v The State (2005) SC803

PLEA

A man pleaded guilty to unlawful wounding and the following reasons for sentence were given.

Counsel

F Popeu, for the State
O Oiveka, for the accused

13th July, 2011

1. CANNINGS J: This is a decision on the sentence for a man who pleaded guilty to one count of unlawful wounding, arising from the following facts. At 8.00 am on 20 June 2005 the offender, Philip Lekis, was driving his vehicle along the road at Sarakolok, near Kimbe. He saw his sister, Helen Lekis, and his father walking along the road. He stopped his vehicle, confronted Helen in regard to a family dispute and asked Helen if they were going to fight with him. He then pulled out a bushknife and ran towards Helen and his father, swung his bushknife at Helen and cut her on the head; and she had to be rushed to hospital. He had no lawful justification or excuse for wounding his sister.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows.

I intend to pay compensation to my sister. I have reconciled with her.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty, he is entitled to the benefit of the doubt on mitigating factors that are apparent from the depositions, the allocutus (or plea) or matters raised by his defence counsel that are not contested by the prosecutor (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06, Supreme Court, Jalina J, Mogish J, Cannings J). The most significant thing is that the offender co-operated with the police and made admissions in his police interview.

PRE-SENTENCE REPORT

5. To help me make a decision on the appropriate sentence and determine whether any of it should be suspended I requested and received a pre-sentence report under Section 13(2) of the Probation Act for the prisoner. The report, prepared by the Kimbe office of the Community Corrections and Rehabilitation Service, is summarised below.

PHILIP LEKIS: 43-year-old male.

Residence: Sarakolok, Section 8 – was living on his parents' block but was forced out following the incident over which he has been convicted.
Family background: parents are from East Sepik – offender born and raised in Sarakolok – his mother died recently (April 2007) – his sister is his only sibling.
Marital status: married with eight children – happily married.
Education: grade 8, Kimbe Secondary School, 1978.
Employment: employed as a driver by Mosa Local-level Government – been employed there for 15 years.
Health: excellent.
Financial status: sound.
Plans: stay at Sarakolok, but not on his father's block.
Victim's attitude: she still experiences pain from the injury, a laceration requiring 20 stitches, but wants to reconcile with her brother and does not want him to go to jail, as that would make life very difficult for his family.
Attitude of community: regarded as an easy going person who looks after his family well – no previous behavioural problems.
Assessment: a low-risk offender, provided that the problem within his family is solved.
Recommendation: the offender is a suitable candidate for probation, subject to conditions including paying compensation to the victim.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Oiveka submitted that the offender had received a good pre-sentence report and therefore he should be given a fully suspended sentence.

SUBMISSIONS BY THE STATE

7. Mr Popeu for the State submitted that a sentence of two years imprisonment would be appropriate.

DECISION MAKING PROCESS

8. 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 should the head sentence be?
• step 4: should the pre-sentence period in custody be deducted?
• step 5: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. Section 322(1)(a) (wounding and similar acts) of the Criminal Code states:

A person who ... unlawfully wounds another person ... is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years.

10. The maximum penalty is therefore three years imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

11. I have been unable to locate a suitable precedent, so I will use the mid-point of 18 months as the starting point.

STEP 3: WHAT IS THE HEAD SENTENCE?

12. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be reduced below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point. Three sorts of considerations are listed. Numbers 1 to 8 focus on the circumstances of the incident. Numbers 9 to 13 focus on what the offender has done since the incident and how he has conducted himself. Numbers 14 to 16 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

1. Did the assault on the victim consist of just a single blow? Yes.
   
2. Was just one person involved in the assault? Yes.
   
3. Was there some other cause of bodily harm, ie did the injury not result directly from the assault committed by the offender? No.
   
4. Was the victim injured by only a fist? No.
   
5. Did the offender not set out to hurt anyone? No.
   
6. Did the victim or any other person provoke the offender in 'the non-legal sense', eg did the victim abuse or assault the offender? No, but even if she did, the offender's reaction was totally out of proportion.
   
7. Did the victim have a pre-existing condition making her susceptible to injury by a moderate blow? No.
   
8. Can the assault on the victim be classed as 'not vicious'? No – it was very vicious, the wound required 20 stitches.
   
9. Did the offender give himself up after the incident? No.
   
10. Did the offender cooperate with the police in their investigations? Yes.
    
11. Has the offender done anything tangible towards repairing his wrong, eg offering compensation to the victim, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what he did? No, the offender is still talking about compensation, without putting the talk into action.
    
12. Has the offender pleaded guilty? Yes.
    
13. Has the offender genuinely expressed remorse? No.
    
14. Is this his first offence? Yes.
    
15. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence? No.
    
16. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? No.
    

13. After weighing all these factors and bearing in mind that there are nine aggravating factors compared to five mitigating factors, the head sentence should be above the starting point. This was a vicious attack with a bushknife. The offender is lucky not to have been charged with a more serious offence. I impose a head sentence of 30 months imprisonment.

STEP 4: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

14. The offender has spent one month in custody in connexion with this offence and it is proper that that period be deducted from the total sentence. 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 one month.

STEP 5: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

15. This is an appropriate case for a suspended sentence. Although it was a serious case of unlawful wounding and the offender has not paid compensation or expressed genuine remorse the favourable pre-sentence report justifies a fully suspended sentence. The victim does not want her brother to go to jail. He has a steady job and a big family to look after. The bad blood within the family will, I think, ease if the offender serves his sentence outside the prison, continues in his job and finds some money to compensate his sister. A reasonable amount of compensation is K1,000.00, payable within three months. I will suspend the entire sentence on the following conditions:

1. must within three months after date of sentence pay at least K1,000.00 cash compensation to the victim and participate in a reconciliation ceremony in accordance with custom, to be witnessed by a probation officer;
   
2. must reside at Sarakolok and nowhere else except with the written approval of the National Court;
   
3. must not leave West New Britain without the written approval of the National Court;
   
4. must perform at least six hours unpaid community work each week at Revival Centre Church, Sarakolok, under the supervision of the Senior Pastor;
   
5. must attend Revival Centre Church, Sarakolok, every Sunday for service and worship and assist the church in its community activities under the supervision of the Senior Pastor;
   
6. must report to the Probation Office at Kimbe on the first Monday of each month;
   
7. must not consume alcohol or drugs;
   
8. must keep the peace and be of good behaviour;
   
9. must have a satisfactory probation report submitted to the National Court Registry at Kimbe every three months after the date of release from custody;
   
10. if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.
    

16. The last condition is very important. If any of these conditions is breached, any person may report the matter to the police or to any person nominated to supervise the offender or to the Probation Office, any of who may bring the matter to the attention of the National Court. The Court may then issue a warrant for arrest of the offender and he can be brought before the Court to show cause why he should not be sent to jail to serve the rest of his sentence. (Tom Longman Yaul v The State (2005) SC803).

SENTENCE

17. Philip Lekis, having been convicted of the crime of unlawful wounding, is sentenced as follows:

Length of sentence imposed	2 years, 6 months
Pre-sentence period to be deducted	1 month
Resultant length of sentence to be served	2 years, 5 months
Amount of sentence suspended	2 years, 5 months, subject to prescribed conditions
Time to be served in custody	Nil, subject to compliance with conditions of suspended sentence

Sentenced accordingly.
_________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused