State v Waiguma [2007] PGNC 80; N3188 (21 March 2007)

N3188

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 68 0F 2007

THE STATE

V

LUDWINA WAIGUMA

Bialla: Cannings J
2007: 14, 19, 21 March

CRIMINAL LAW – grievous bodily harm – Criminal Code, Section 319 – sentence on plea of guilty – 4 years.

The offender is a middle-aged woman who stabbed another woman with a knife, after a history of bad feeling between them. The offender claimed that the victim had been saying bad things about her, due to suspicion that she was having an affair with the victim’s husband.

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; co-operated with police; pleaded guilty; remorse; ongoing dispute.

(3) Aggravating factors are: offender solely responsible; dangerous weapon used; no accident; unprovoked attack; the victim was able-bodied; vicious assault; did not give herself up; no compensation or reconciliation; not a first offender; not a youthful offender.

(4) A sentence of 4 years was imposed. The pre-sentence period in custody of one week was deducted and no part of the sentence was suspended.

Cases cited

Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v Bob Ananias CR 1413 + 1414/2003, 20.04.06
The State v Jeffery Lamis CR 1929/2005, 20.04.06
The State v Ria Bernard CR 374/2005, 20.05.05
The State v Rodney Gela and Clarence Logi CR 1300 + 1301/2005, 27.10.05
The State v Steven Moni, James Baki, Freddy Gorea, Francis Kuvi & Alois Raka CR 293-297/2004, 19.12.06

SENTENCE

This was a judgment on sentence for grievous bodily harm.

Counsel

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

21 March, 2007

SENTENCE

1. CANNINGS J: This is a decision on the sentence for a woman who pleaded guilty to doing grievous bodily harm to another woman.

CONVICTION

2. The offender pleaded guilty to the following facts:

• At 8.30 am on Sunday 28 May 2006 the offender went to see the victim, Serah Gela, who was sitting under her house at Woo settlement, Bialla.
  
• She questioned the victim about something the victim had allegedly said the previous Friday, 26 May 2006.
  
• When the victim saw the knife in the offender’s hands she pleaded with her to drop it.
  
• But the offender did not drop the knife. She cut the victim on the lower left arm.
  
• She had no lawful justification or excuse for doing that.
  

3. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted her on one count of doing grievous bodily harm under Section 319 of the Criminal Code, as charged.

ANTECEDENTS

4. The offender has one prior conviction, also for grievous bodily harm, dealt with by the Bialla District Court in 2003. She was fined K500.00 and ordered to pay compensation of K2,000.00.

ALLOCUTUS

5. 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 her response follows:

I committed this offence for a reason. The victim used to approach me in public and swear at me as she suspected that I was having an affair with her husband. Because of these problems, we have been to mediations. I thought all of this would stop but it did not. That made me angry and that is why I cut her with a knife. I am married with four daughters, two of whom are in high school at Bialla. I now apologise before the court. I say sorry to the victim for the injury I caused her and to her children and relatives. I ask for a good behaviour bond. I can then make some payments of compensation.

OTHER MATTERS OF FACT

6. As the offender has pleaded guilty she 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, (Jalina J, Mogish J, Cannings J)).

7. I accept that the incident arose due to an ongoing dispute between the offender and the victim. The offender had tried to settle the dispute through mediation, to no avail. The offender made admissions to the police and co-operated fully.

PRE-SENTENCE REPORT

8. To help me make a decision on the appropriate sentence I considered a pre-sentence report under Section 13(2) of the Probation Act in relation to the offender. The report was prepared by the Kimbe Office of the Community Corrections and Rehabilitation Service. A summary of the report follows.

LUDWINA WAIGUMA

Age: 35-year-old female.

Residence: Nivani Camp, Bialla, with her husband.

Family background: parents are from Maprik, ESP – born and raised in WNB, at Vilelo.

Marital status: Married with four daughters – not happily married – prolonged marital problems.

Education: grade 10, Bialla HS, 1985.

Employment: has worked as a casual nurse at Bialla Hospital.

Health: OK.

Financial status: relies on husband’s income and marketing.

Plans: would like the chance to compensate the victim and reconcile with her.

Victim’s attitude: the victim, Serah Gela, says the offender was having an affair with her husband – the knife used was a bushknife – still suffers from the effects of the injury – feels that she needs to see a specialist.

Family’s attitude: the offender’s husband believes that the offender was having an affair with the victim’s husband but is supportive of a non-custodial sentence for his wife, with strict conditions – he will also assist her pay compensation.

Assessment: the offender is remorseful and wants to reconcile with the victim however, she is considered a high risk person, in need of counselling.

Recommendation: recommended for probation, subject to strict conditions.

SUBMISSIONS BY DEFENCE COUNSEL

9. Mr Oiveka submitted that this was a case of an ongoing dispute between two women that got out of hand. There was no lawful excuse for what the offender did but the problem would best be solved if she were given a non-custodial sentence and ordered to pay compensation. She should be given a second chance.

SUBMISSIONS BY THE STATE

10. Mr Popeu submitted that this was a serious case of grievous bodily harm involving use of a knife. The victim has not been compensated and may require specialist medical treatment. A sentence of six years imprisonment is warranted.

DECISION MAKING PROCESS

11. 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 other sentences have been imposed recently for similar offences?
  
• step 4: what are the considerations that should be taken into account in determining the head sentence, in terms of years; and what is the head sentence?
  
• step 5: should the pre-sentence period in custody be deducted from the term of imprisonment?
  
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

12. 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.

13. 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?

14. 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?

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

TABLE 2: NATIONAL COURT SENTENCES
FOR OFFENCES ENDANGERING LIFE OR HEALTH,
DIVISION V.4 CRIMINAL CODE,
CANNINGS J, 2005-2006

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 –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

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

16. 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.

17. 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 herself. 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 weapon: a knife.
   
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, there was an ongoing dispute but the event that seemed to trigger the attack was something that the victim had said two days earlier. This cannot be regarded as provocation.
   
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. Whenever any person stabs another person, it is a vicious assault.
   
9. Did the offender give herself 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 her wrong, eg offering compensation to the victim, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what she did? No.
    
12. Has the offender pleaded guilty? Yes.
    
13. Has the offender genuinely expressed remorse? Yes.
    
14. Is this her first offence? No.
    
15. Can the offender be regarded as a youthful offender or are her 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? Yes, there was an ongoing dispute between the offender and the victim.
    

18. To recap, mitigating factors are:

• No 1 – single blow;
• No 2 – only one attacker;
• No 10 – co-operated with police;
• No 12 – pleaded guilty;
• No 13 –remorse; and
• No 16 – ongoing dispute.
  

19. Aggravating factors are:

• No 3 – offender solely responsible;
• No 4 – dangerous weapon used;
• No 5 – no accident;
• No 6 – unprovoked attack;
• No 7 – the victim was able-bodied;
• No 8 – vicious assault;
• No 9 – did not give herself up;
• No 11 – no compensation or reconciliation;
• No 14 – not a first offender;
• No 15 – not a youthful offender; and
• No 16 – it was a gutless and mindless action.
  

20. After weighing all these factors and bearing in mind that there are six mitigating factors compared to eleven aggravating factors, the head sentence should be above the starting point. This was an unprovoked stabbing by a woman wielding a knife against another woman. This is the sort of situation in which a death could easily have occurred. The offender has previously committed a similar offence. I impose a head sentence of four years imprisonment.

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

21. The offender has spent one week in custody in connexion with these offences 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, as shown in table 2:

TABLE 1: CALCULATION OF FINAL SENTENCE

Length of sentence imposed	4 years
Pre-sentence period to be deducted	1 week
Resultant length of sentence to be served	3 years, 11 months, 3 weeks

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

22. No. This is the offender’s second GBH conviction in four years. This one was very serious. The incident happened more than nine months ago, which is ample time within which to start a process of compensation and reconciliation with the victim. But the process has not started. The pre-sentence report recommends probation but I do not think it is a strong recommendation, given the offender’s personal circumstances. I have considered the adverse effect a custodial sentence will have on the offender’s family. Unfortunately that is the price that has to be paid for this sort of anti-social, violent and unacceptable behaviour by a parent.

SENTENCE

23. Ludwina Waiguma, having been convicted of one count of doing grievous bodily harm, is sentenced as follows:

Length of sentence imposed	4 years
Pre-sentence period to be deducted	1 week
Resultant length of sentence to be served	3 years, 11 months, 3 weeks
Amount of sentence suspended	Nil
Time to be served in custody	3 years, 11 months, 3 weeks

Sentenced accordingly.
____________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused