State v Wamingi [2013] PGNC 329; N5723 (20 June 2013)

N5723

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 102 OF 2013

THE STATE

V

HELEN WAMINGI

Madang: Cannings J
2013: 16 May, 17, 20 June

CRIMINAL LAW – sentence – assault occasioning bodily harm – Criminal Code, Section 340(1) – guilty plea – offender bit off ear of sister in-law causing permanent injuries – sentence of 18 months.

The offender was charged with one count of assault occasioning bodily harm. She pleaded guilty to the charge. During a fight with her sister in-law, the offender bit off her right ear so hard that two-thirds of the outer ear (the pinna) was severed. The part of the ear that was bitten off was not recovered, so the ear has not been reconstructed.

Held:

(1) The maximum sentence under Section 340(1) of the Criminal Code is three years imprisonment and an appropriate starting point 18 months.

(2) Mitigating factors are: the offender was the sole attacker; she is a first-time offender; high level of de factor provocation; the high level of cooperation with the police; the guilty plea; early guilty plea; the preparedness to compensate and reconcile with victim; the adverse effect that a long prison term will have on her children.

(3) There is only one aggravating factor: the very serious injury, causing permanent disfigurement to the victim.

(4) A sentence of 18 months was imposed. The pre-sentence period in custody was deducted and none of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
The State v Abuc Batulik CR 284/2010, 26.05.10
The State v Carol Peter (2011) N4320
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
The State v Peter Jai (2011) N4391

SENTENCE

This was the sentence of an offender for the offence of assault occasioning bodily harm.

Counsel

M Pil, for the State
S Tanei, for the offender

20th June, 2013

1. CANNINGS J: Helen Wamingi has pleaded guilty to one count of assault occasioning bodily harm under Section 340(1) of the Criminal Code. The offence was committed at Sisiak 2 near Madang town, at 3.00 pm on Saturday 3 November 2012. The offender was living at the nearby Madang Teachers College residential compound and went with her sister, Vanessa, to Sisiak 2, where some of her relatives resided, as she heard that there was some problem there concerning her brother, who had allegedly damaged some property. When she arrived, her brother was not there, and she confronted her brother's wife, Rosa Kuluban, and they argued. Then a fight erupted, initially it was between Vanessa and Rosa but then Helen joined the fight, assisting Vanessa, and then in the course of the physical confrontation with Rosa, Helen bit Rosa on the right ear, so hard that two-thirds of the outer ear (the pinna, also known as the auricle) was severed. The part of the ear that was bitten off was not recovered, so the ear has not been reconstructed.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

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

I am sorry for what I did. It will never happen again. The victim is my sister in-law. I am willing to pay compensation.

OTHER MATTERS OF FACT

4. 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 (2006) SC890). She cooperated with the police from the beginning and made admissions when interviewed on 9 November 2012, just six days after the incident. She explained that she had received a report that on the morning of the incident her brother Tom had damaged the gate of their parents' house when he was drunk and swore at them and that Tom's wife, the victim Rosa, had also verbally abused her parents. So she went to Sisiak to sort out the problem. Unfortunately she ended up fighting with the victim. She did not intend to injure her. The reason that she bit her on the ear is that in the course of the fight the victim bit her (the offender) on the bicep, so she had to do something drastic to get her to release her teeth. She bit the closest body part available which happened to be the fleshy part of the ear.

PRE-SENTENCE REPORT

5. Helen Wamingi comes from Dupakui village in the Yangoru District of East Sepik Province. She is married with two children. She completed grade 12 at Malala Secondary School. She has a Diploma in Applied Science from Unitech and a teaching diploma from University of Goroka. She has had regular paid employment. She moved to Madang in 2010 to take up a teaching position at Tusbab Secondary School and in 2011 she took up a teaching position at Madang Technical College, where she is presently employed. She has made active attempts to reconcile with the victim and has offered to pay substantial compensation (K10,000.00). The offender however and also her husband (the offender's brother) have resisted. They want to see the offender imprisoned and will not accept compensation.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Tanei highlighted the guilty plea and that it was an early guilty plea. The offender was a single attacker. She cooperated with police and made very early admissions. She has made genuine attempts to reconcile. The sentence should be no more than 12 months, fully suspended.

SUBMISSIONS BY THE STATE

7. Mr Pil submitted that there were a number of aggravating factors that meant that this case was at the higher end of the scale of seriousness: it was a very serious and permanent injury and the victim will not accept compensation. The sentence must reflect the serious nature of the case.

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 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 – male offender assaulted male victim, a fellow villager, with a breadfruit tree branch, fracturing jaw.	2 years
6	The State v Carol Peter (2011) N4320, Madang	Trial – female offender assaulted female victim, neighbour, with agricultural implement – facial injuries: broken tooth.	2 years
7	The State v Peter Jai (2011) N4391, Madang	Guilty plea – victim was a female neighbour with whom the offender had had a series of differences over neighbourhood issues – assault with iron bar.	2 years

STEP 4: WHAT IS THE HEAD SENTENCE?

12. I will determine the head sentence by listing and weighing the mitigating and aggravating factors in relation to the starting point of 18 months.

13. Mitigating factors are:

• the offender was the sole attacker;
• she is a first-time offender;
• high level of de facto provocation (the offender was bitten by the victim);
• the high level of cooperation with the police, including making admissions in the formal interview only six days after the incident;
• the guilty plea;
• early guilty plea;
• the preparedness to compensate and reconcile with victim;
• the adverse effect that a long prison term will have on her children.
  

14. The aggravating factor is:

• it was a very serious injury, causing permanent disfigurement to the victim.
  

15. The facts that the offender cooperated with the police after being arrested and that she pleaded guilty are the main mitigating factors. This was a serious case that warranted a grievous bodily harm charge. I fix a head sentence of 18 months imprisonment.

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

16. There is nothing to deduct.

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

17. This is a difficult issue. One the one hand, the offender has come to court, pleaded guilty, saved a lot of time and resources that would be otherwise spent on her case, and says she is willing to pay substantial compensation. She is a first time offender. On the other hand it is a very serious case and the fact that it happened in the family and that the victim has been permanently disfigured makes it the sort of case that attracts a prison term. When a violent crime of this nature is committed the most important person is the victim. Has there been reconciliation between the offender and the victim? No. Is the victim willing to forgive? No. Does the victim want compensation? No. Therefore there will be no suspension of the sentence.

SENTENCE

18. Helen Wamingi, 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	18 months
Pre-sentence period to be deducted	Nil
Resultant length of sentence to be served	18 months
Amount of sentence suspended	Nil
Time to be served in custody	18 months
Place of custody	Beon Correctional Institution

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