State v Peter [2011] PGNC 345; N4320 (22 June 2011)

N4320

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1206 0F 2008

THE STATE

V

CAROL PETER

Madang: Cannings J
2011: 31 May, 16, 22 June

SENTENCE

CRIMINAL LAW – sentence – assault occasioning bodily harm – Criminal Code, Section 340(1) – trial – offender assaulted neighbour with stick-hook, breaking a tooth – neighbourhood dispute – sentence of 2 years.

A woman was convicted after trial of assault occasioning bodily harm. The victim was a female neighbour with whom the offender had had a series of differences over neighbourhood issues.

Held:

(1) The maximum penalty is three years and a starting point of 18 months is appropriate.

(2) Mitigating factors were: sole attacker; victim's injuries not extensive; first-time offender; the adverse effect that a long prison term will have on her children.

(3) Aggravating factors were: use of a dangerous implement; facial injuries; lack of remorse; no evidence of reconciliation with victim.

(4) The aggravating factors outweighed the mitigating factors, so a sentence above the starting point was warranted: a two-year sentence was imposed. The pre-sentence period in custody was deducted and half of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

The State v Abuc Batulik CR 284/2010, 26.05.10
The State v Carol Peter (2011) N4299
The State v Irene Soso CR 149/2009, 04.03.10
The State v Judah Lusan Piries CR 886/2007, 18.09.07
The State v Mark Mondo Bassop CR 75/2008, 25.03.10
The State v Mathew Sabuin, Gabriel Pinia & Philip Kit CR 921-922/2006, 25.08.06

SENTENCE

This was a judgment on sentence for assault occasioning bodily harm.

Counsel

S Collins, for the State
B Tabai, for the offender

22 June, 2011

1. CANNINGS J: Carol Peter has been convicted after a trial of one count of assault occasioning bodily harm under Section 340(1) of the Criminal Code. The offence was committed at the Madang Timbers compound in Madang town, where both the offender and the victim, Dianne Boku, live in separate dwellings with their families, on the afternoon of Wednesday 23 January 2008. Their respective husbands are employed by Madang Timbers. In the course of an altercation between the two, which erupted over a trivial neighbourhood issue, the offender struck the victim's face using heavy force with a wooden-handled agricultural implement, a stick-hook, breaking one tooth. The victim was in severe pain and was treated the following day at the Dental Clinic of Modilon General Hospital and the tooth was extracted. The offender had no lawful justification or excuse for striking the victim. It was an unlawful assault and the victim suffered bodily harm. Further details of the circumstances in which the offence was committed are set out in the verdict judgment, The State v Carol Peter (2011) N4299.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. The offender was given the opportunity to address the court. She said:

The Court has found me guilty for what I did. I have three children who are in school. One is in grade 8, another in grade 6 and the youngest is doing Elementary. Their father is working and there is no one living with us in the compound who would be able to look after them. We live quite a distance away from the victim's house. I have learned a lot from the wrong that I committed. I ask for the Court's mercy and a non-custodial sentence.

PRE-SENTENCE REPORT

4. The court was presented with a report prepared by the Madang office of the Community Based Corrections Service.

Personal details of Carol Peter

Age : 37
Origin : Arani village, Angoram, East Sepik Province
Upbringing : Village and Madang town
Marital status : Married, three children
Family : Both parents deceased, 2 brothers
Education : Never been to school
Employment : No formal employment
Occupation : Housewife/informal sector business
Health : Sound
Religion : Unknown

Other aspects of the offender's life

5. The offender came to Madang at a young age and was raised in the Biwat settlement near Madang Airport. She has a stable marriage and wishes to continue living in the accommodation provided by her husband's employer. Community elders have tried unsuccessfully to have the problems between the offender and the victim (including the incident that led to this trial) resolved out of court, to no avail. Both parties blame the other for not seriously attempting reconciliation.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Tabai stressed that the offender has no prior convictions. The offence was committed after long-running tension between the offender and the victim and the court should take all the circumstances into account in arriving at a sentence. Mr Tabai also asked that the offender's status as mother of three school-aged children be considered.

SUBMISSIONS BY THE STATE

7. Mr Collins submitted that there were a number of aggravating factors that meant that this case was at the higher end of the scale of seriousness: the use of a dangerous instrument, the permanent loss of a tooth and the fact that the offender, after making no admissions during the police investigation, took the matter to trial. The lack of willingness to reconcile and the lack of remorse meant that a sentence of two to three years imprisonment, with no suspension, was warranted, Mr Collins submitted.

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. The maximum penalty is 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?

10. 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 OTHER SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

11. The following table shows a number of sentences under Section 340(1).

SENTENCES FOR ASSAULT OCCASIONING BODILY HARM
CRIMINAL CODE, SECTION 340(1)

No	Case	Details	Sentence
1	The State v Mathew Sabuin, Gabriel Pinia & Philip Kit CR 921-922/2006, 25.08.06, Buka	Guilty plea – three men assaulted another man – first offender twice kicked victim in the head; second and third offenders kicked victim all over his body as he lay on the ground – all were drunk.	18 months; 2 years; 2 years
2	The State v Judah Lusan Piries CR 886/2007, 18.09.07, Buka	Guilty plea – three counts – offender drunk, assaulted three members of same family with guava stick, causing bruising and pain – no broken limbs.	2 years
3	The State v Irene Soso CR 149/2009, 04.03.10, Madang	Trial – female offender hit female victim – altercation in urban setting – struck twice on her left arm and broke forearm.	1 year
4	The State v Mark Mondo Bassop CR 75/2008, 25.03.10, Madang	Trial – male offender assaulted his aunt – kicked her in thigh and slapped her on the face – victim hospitalised for a short time.	2 years
5	The State v Abuc Batulik CR 284/2010, 26.05.10, Madang	Guilty plea – the male offender assaulted the male victim, a fellow villager, with a breadfruit tree branch, fracturing jaw.	2 years

STEP 4: WHAT IS THE HEAD SENTENCE?

12. Mitigating factors are:

• the offender was the sole attacker;
• the victim's injuries were not extensive;
• she is a first-time offender;
• the adverse effect that a long prison term will have on her children.
  

13. Aggravating factors are:

• use of a dangerous implement;
• facial injuries;
• the permanent loss of a tooth;
• no evidence of reconciliation with victim.
  

14. In weighing all these factors the court must also take into account that the offender took the matter to trial. That is not an aggravating factor as the offender was quite entitled to plead not guilty and put the State to proof the allegations. However, it is something that must inevitably be reflected in the total head sentence. I agree with the State's submission that this was a serious assault. A sentence above the starting point is warranted. Therefore I impose a sentence of two years imprisonment.

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

15. Yes. 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 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

16. This is a case that would have been suitable for a fully suspended sentence if there was proof of remorse, compensation, reconciliation and forgiveness. However, the offender has shown no remorse. She has paid no compensation. There has been no reconciliation. The victim has not forgiven the offender for what she did. A person who has been convicted of this sort of offence cannot sit back and wait for the victim to sort out these things. The offender, as the wrongdoer, must take the initiative. She has not done that and therefore a fully suspended sentence is unwarranted.

17. However, I cannot help but think that with some motivation being provided by a court order, reconciliation is still possible. I have therefore decided to suspend half of the sentence. The offender will be required to spend some time in custody – which will signal the seriousness of the offence – but then she will be given the chance to compensate the victim and to reconcile with her and serve the rest of the sentence on probation. One year of the sentence will be suspended on condition that the offender:

(a) must report to the Probation Office within three days after the date of release from custody;

(b) must participate in a reconciliation ceremony with the victim, supervised and witnessed by the Village Court and the Probation Office, within one month after the date of release from custody, and at the reconciliation ceremony:

• she must give K400.00 cash + foodstuffs to the victim;
  
• the victim's family must contribute 5 chickens + foodstuffs;
  

and, within one week after the reconciliation ceremony, the Probation Office shall provide a report of the reconciliation ceremony to the National Court in Madang;

(c) must reside at a place notified to the Probation Office and nowhere else except with the written approval of the National Court;

(d) must not leave Madang Province without the written approval of the National Court;

(e) must perform at least six hours unpaid community work each week at a place notified to the Probation Office under the supervision of her Ward Councillor;

(f) must attend her local Church every weekend for service and worship and submit to counselling;

(g) must report to the Probation Office at Madang on the first Monday of each month between 9.00 am and 3.00 pm;

(h) must not consume alcohol or drugs;

(i) must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim and her family;

(j) must have a satisfactory probation report submitted to the National Court Registry at Madang every six months after the date of release from custody;

(k) if she breaches any one or more of the above conditions, shall be brought before the National Court to show cause why she should not be detained in custody to serve the rest of the sentence.

SENTENCE

18. Carol Peter, having been convicted of one count of assault occasioning bodily harm contrary to Section 340(1) of the Criminal Code, is sentenced as follows:

Length of sentence imposed	2 years
Pre-sentence period to be deducted	1 month
Resultant length of sentence to be served	1 year, 11 months
Amount of sentence suspended	1 year, subject to conditions
Time to be served in custody	11 months
Place of custody	Beon Correctional Institution

Sentenced accordingly.
___________________________
Public Prosecutor: Lawyer for the State
Tabai Lawyers: Lawyers for the offender