State v Philip [2007] PGNC 253; N5494 (18 October 2007)

N5494

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 80 0F 2006

THE STATE

V

DOUGLAS PHILIP

Madang: Cannings J
2007: 11, 18 October

CRIMINAL LAW – grievous bodily harm – Criminal Code, Section 319 – sentence on plea of guilty – 3 years.

A prisoner became angry with a group of prisoners who he believed had insulted him. He picked up a piece of sawn timber, threw it at the prisoners he was angry with, missed them and struck another prisoner, fracturing his skull. The offender pleaded guilty to doing grievous bodily harm.

Held:

(1) The starting point for sentencing for grievous bodily harm under Section 319 of the Criminal Code is 42 months imprisonment.

(2) Mitigating factors are: single blow; only one attacker; provocation; cooperated with police; forgiveness; pleaded guilty; remorse. Aggravating factors are: offender solely responsible; dangerous object used; no accident; victim was able-bodied; vicious assault; did not give himself up; not a first-time offender.

(3) A sentence of three years was imposed. The pre-sentence period in custody was deducted and no part of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v Bob Ananias CR 1413 + 1414 of 2003, 20.04.06
The State v Jeffery Lamis CR 1929 of 2005, 20.04.06
The State v Ludwina Waiguma CR 68 of 2007, 21.03.07
The State v Nicodemus Badui CR 683 of 2007, 17.08.07
The State v Philip Lekis CR 1927 of 2005, 13.07.07
The State v Ria Bernard CR 374 of 2005, 20.05.05
The State v Rodney Gela and Clarence Logi CR 1300 + 1301 of 2005, 27.10.05
The State v Steven Moni, James Baki, Freddy Gorea, Francis Kuvi & Alois Raka CR 293-297 of 2004, 19.12.06

SENTENCE

This was a judgment on sentence for grievous bodily harm.

Counsel

M Ruarri, for the State
A Turi, for the offender

18th October, 2007

1. CANNINGS J: This is a decision on sentence for a man who pleaded guilty to one count of unlawfully doing grievous bodily harm to another man. The offender, Douglas Philip, was a prisoner at Beon Jail near Madang serving a 16 months sentence for possession of dangerous drugs. Between 10.00 and 11.00 am on 24 May 2005 Douglas became angry with a group of prisoners who he believed had been laughing at him and using insulting words towards him. In his angry state he picked up a piece of sawn timber, threw it at the prisoners he was angry with, missed them and struck another prisoner (who he had no intention of hitting) and the prisoner who he hit was rendered unconscious and taken to the hospital and suffered a fractured skull.

ANTECEDENTS

2. The offender has a previous conviction for possession of dangerous drugs. He was convicted by the Madang District Court in August 2004 and given a 16-months sentence.

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 want to say sorry for what I've done. I ask for mercy. I am sorry for taking up the court's time. I ask for a lenient sentence, this is my first time to be in National Court.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06). He co-operated with the police and made admissions. He has, since the incident, reconciled with the victim, Bruno Makeo. The victim has recovered well from the incident.

PERSONAL PARTICULARS

5. Douglas Philip is aged in his early twenties and he is educated to grade 8. He comes from Kearifu in the Yangoru area of East Sepik Province.

SUBMISSIONS BY DEFENCE COUNSEL

6. Ms Turi highlighted the fact that there has been a reconciliation between the offender and the victim. They have had a handshake in the jail and bear each other no grudges. A sentence of three years would be appropriate.

SUBMISSIONS BY THE STATE

7. Mr Ruarri for the State asked the court to take into account that the victim was seriously wounded and lost consciousness and the offender should be severely punished for his reckless behaviour towards another prisoner.

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 sentences have been imposed for equivalent offences?
• step 4: what is the head sentence?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. Section 319 (grievous bodily harm) of the Criminal Code states:

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.

10. The maximum penalty is therefore seven 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. In the present case I have been unable to locate a suitable precedent, so I will use the mid-point of three years, six months (42 months) as the starting point.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

12. Before I fix a sentence, I will consider sentences I have imposed in recent times in for offences under Division V.4 (offences endangering life or health) of the Criminal Code.

TABLE 1: NATIONAL COURT SENTENCES FOR OFFENCES ENDANGERING LIFE OR HEALTH, DIVISION V.4, CRIMINAL CODE, 2005-2007

No	Case	Offence	Details	Sentence
1	The State v Ria Bernard CR 374/2005, 20.05.05	Sec 319 – GBH 2 counts	Guilty plea – 29-year-old offender was under the influence of alcohol – cut his brother with a bushknife – then cut his father when he came to his brother's aid – life threatening injuries.	4 years each count; total 8 years, cumulative sentence
2	The State v Rodney Gela and Clarence Logi CR 1300 + 1301/2005, 27.10.05	Sec 319 – GBH	Guilty plea – victim and both co-offenders had been drinking – argument between one of the offenders and victim – degree of participation or type of weapons used – bushknife and a tree branch – victim stabbed in abdomen, suffers permanent injury.	6 years, 4 years
3	The State v Bob Ananias CR 1413 + 1414/2003, 20.04.06	Sec 319 – GBH	Guilty plea – offender believed that two people were sorcerers and made his mother sick – he held the victims captive then assaulted them – he injured one of them badly, slashing him with a bushknife, injuring his leg and cutting off one finger – victim stabbed in abdomen, suffers permanent injury.	3 years
4	The State v Jeffery Lamis CR 1929/2005, 20.04.06	Sec 322 –unlawful wounding	Guilty plea – domestic setting – argument between father and mother – son assaults father – no weapons used.	18 months
5	The State v Steven Moni, James Baki, Freddy Gorea, Francis Kuvi & Alois Raka CR 293-297/2004, 19.12.06	Sec 315 –GBH, with intent; Sec 322 – unlawful wounding	Guilty plea – group attack by six men against two, over a village dispute – one victim had his arm chopped off by an offender other than those being sentenced, the other victim was cut on his arm.	5 years; 4 years, 6 months (x 2); 3 years, 3 months (x 2); depending on degree of involvement and age
6	The State v Ludwina Waiguma CR 68/2007, 21.03.07	Sec 319 –GBH	Guilty plea – female offender stabbed another woman with a knife, after a history of bad feeling between them – offender claimed the victim had been saying bad things about her, due to suspicion that she was having an affair with the victim's husband.	4 years
7	The State v Philip Lekis CR 1927/2005, 13.07.07	Sec 322 –unlawful wounding	Guilty plea – offender had dispute with his sister and his father in a public place – swung his bushknife at his sister, cutting her on the head – wound required 20 stitches.	30 months
8	The State v Nicodemus Badui CR 683/2007, 17.08.07	Sec 315 –GBH	Guilty plea – drunken offender, armed with grassknife, angry with someone he suspected of having an affair with his wife – wounded the victim, severing two fingers.	4 years

STEP 4: WHAT ARE THE RELEVANT CONSIDERATIONS AND WHAT IS THE HEAD SENTENCE?

13. 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 she 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 – the offender used a dangerous object: a piece of sawn timber.
   
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? Yes.
   
7. Did the victim have a pre-existing condition making him susceptible to injury by a moderate blow? No.
   
8. Can the assault on the victim be classed as 'not vicious'? No.
   
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? Yes, he has had a hand-shake with the victim, who, despite the serious injury he suffered has forgiven the offender.
    
12. Has the offender pleaded guilty? Yes.
    
13. Has the offender genuinely expressed remorse? Yes.
    
14. Is this his first offence? No.
    
15. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence? Neutral.
    
16. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Neutral.
    

14. To recap, mitigating factors are:

• No 1 – single blow;
• No 2 – only one attacker;
• No 6 – provocation;
• No 10 – co-operated with police;
• No 11 – forgiveness;
• No 12 – pleaded guilty;
• No 13 – remorse.
  

15. Aggravating factors are:

• No 3 – offender solely responsible;
• No 4 – dangerous object used;
• No 5 – no accident;
• No 7 – victim was able-bodied;
• No 8 – vicious assault;
• No 9 – did not give himself up;
• No 14 – not a first-time offender.
  

16. The other factors (Nos 15 and 16) are neutral. After weighing all these factors (seven mitigating factors and seven aggravating factors) the head sentence should be around the starting point. On the strength of the guilty plea I will fix a sentence below the starting point. I impose a head sentence of three years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

17. 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 year, eight months.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

18. No, as no material has been presented that warrants suspension of any part of the sentence.

SENTENCE

19. Douglas Philip, having been convicted of one count of doing grievous bodily harm, is sentenced as follows:

Length of sentence imposed	3 years
Pre-sentence period to be deducted	1 year, 8 months
Resultant length of sentence to be served	1 year, 4 months
Amount of sentence suspended	Nil
Time to be served in custody	1 year, 4 months

Sentenced accordingly.
________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender