State v Maka [2014] PGNC 173; N5817 (19 November 2014)

N5817

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No.1205 of 2013

BETWEEN:

THE STATE

AND:

YAKINIWA MAKA
Prisoner
(No 2)

Mt. Hagen: David, J
2014: 17 & 19 November

CRIMINAL LAW – sentence – unlawful doing of grievous bodily harm – conviction after trial – victim assaulted with stone and axe – multiple injuries sustained – Criminal Code, Section 319.

The prisoner assaulted the victim with a stone and axe following her refusal to give the prisoner's request for some money. There was an existing boy/girl relationship or romance between the prisoner and the victim. The victim suffered three lacerations to the left side of the head each measuring about 1.5 cm deep and 5 cm in length and required a total of 12 stitches. One laceration required 5 stitches, another required 4 stitches and the last one required 4 stitches. The victim also lost 500 mls of blood. She also sustained a right chest injury and one of her ears was slightly severed.

Held:

1. The maximum sentence under Section 319 of the Criminal Code is 7 years imprisonment. The maximum sentence is usually reserved for the worst cases.
   
2. Mitigating factors were; the prisoner was the sole attacker; the prisoner was a first offender; there was de-facto provocation as it appeared from the Record of Interview that there was an existing boy/girl relationship or romance between the prisoner and the victim and the incident arose after an argument between the two of them over money; and until the offence, the prisoner was of good character.
   
3. The prisoner did not express remorse. This was a neutral factor.
   
4. Aggravating factors were; conviction was attained after a trial despite admissions or incriminating statements in the Record of Interview; the victim sustained multiple injuries to the left side of her head (3 x lacerations requiring a total of 12 stitches), right chest, and one of her ears was slightly severed and lost 500 mls of blood; an axe and stone were used; the village magistrate told the prisoner to leave the victim alone, but he did not listen; the offence was prevalent; and the prisoner was an adult with at least some formal education to tell what was right from wrong.
   
5. This case did not fall within the worst category of unlawful doing grievous bodily harm cases so a sentence of 3 years imprisonment was imposed less the remand period and no part of the remaining term was suspended.
   

Cases cited:

Public Prosecutor v Don Hale (1998) SC564
Edmund Gima and Siune Arnold v The State (2003) SC730
Richard Liri v The State (2007) SC883
The State v Ludwina Waiguma (2007) N3188
The State v Bomai Hesi (No 2) (2007) N3232
The State v Elvis Kos (2013) N5365
The State v Yakiniwa Maka (2014) N5816

Counsel:

J. Kesan, for the State
E. Sasingin, for the prisoner

SENTENCE

19th November, 2014

1. DAVID, J: On 14th of November 2014, I convicted the prisoner, Yakiniwa Maka of one count of unlawfully doing grievous bodily harm to a female victim called Win Kupiwa at Sip village in Baiyer District of the Western Highlands Province on 6th September 2013 contrary to Section 319 of the Criminal Code following a trial.
   
2. The prosecution case was constituted by documentary evidence consisting of the Record of Interview conducted on the 18th of September 2013 and the undated Medical Report of Nelson Tony, CHW of the Simbimale Health Centre tendered by consent of the defence. The Record of Interview contained admissions or incriminating statements where the prisoner said he struck the victim with a stone and an axe when she refused his request to give him some money. The Medical Report showed that the victim suffered three lacerations to the left side of the head each measuring about 1.5 cm deep and 5 cm in length and required a total of 12 stitches. One laceration required 5 stitches, another required 4 stitches and the last one required 3 stitches. The victim also lost 500 mls of blood. She also sustained a right chest injury and one of her ears was slightly severed. At the trial, the prisoner who was the sole defence witness raised the defence of alibi and tried to challenge the Record of Interview without filing notices of alibi and voir dire. The defence of alibi was abandoned, but the Court nevertheless found that it was a false alibi given it was delayed and belated. No application for leave to adduce alibi evidence was made. I rejected the challenge to the Record of Interview for the simple reason that no notice of voir dire was filed. My findings on the defence of alibi and Record of Interview essentially meant that the accused did not adduce before me any cogent or credible evidence challenging the prosecution case. The full reasons of my judgment on verdict are contained in The State v Yakiniwa Maka (2014) N5816.
   
3. The prisoner has no prior convictions.
   
4. On his allocutus, the prisoner only stated that he has been in custody for a long time since his arrest and incarceration and requested that he be released. It appeared to me that the prisoner was pleading to be sentenced to the rising of the Court.
   

5. The prisoner is a subsistence villager from Sip village in the Baiyer District of the Western Highlands Province. He is an adult, single and was aged about 28 years when he committed the offence. He would be aged 29 years now. He has completed Grade 4 formal education. He was once employed by Kuima Security Services for a period of two months at Lae. Until committing this offence, he was residing at his village. He is a member of the Baptist Church. The prisoner has been in custody since his arrest on the 17th of September 2013. He has been remanded in custody for a period of 1 year, 2 months and 2 days.

6. The maximum sentence for this offence is, subject to Section 19 of the Code, imprisonment for a term not exceeding 7 years. The maximum sentence is usually reserved for the worst cases.

7. In their respectful submissions, both counsel concur that the mitigating and aggravating factors in the present case warrant a sentence within the range of 3 to 4 years imprisonment.
   
8. The factors which mitigate the offence are:
   
   1. the prisoner was the sole attacker.
   2. the prisoner was a first offender.
   3. there was de-facto provocation as it appears from the Record of Interview that there was an existing boy/girl relationship or romance between the prisoner and the victim and the incident arose after an argument between the two of them over money.
   4. until the offence, the prisoner was of good character.
      
9. I am unable to consider any other factor that will mitigate the offence.
   
10. The prisoner did not express remorse. This is a neutral factor.
    
11. The factors which aggravate the offence are:
    
    1. conviction was attained after a trial despite admissions in the Record of Interview.
    2. the victim sustained multiple injuries to the left side of her head (3 x lacerations requiring a total of 12 stitches); right chest; and one of her ears was slightly severed and lost 500 mls of blood
    3. the prisoner used an axe and stone.
    4. the village magistrate told the prisoner to leave the victim alone, but he did not listen.
    5. the offence was prevalent.

6. the prisoner is an adult with at least some formal education to tell what is right from wrong.

12. I am satisfied that the present case does not fall within the worst category of unlawful doing grievous bodily harm cases for the maximum penalty to be imposed. I will however consider an appropriate sentence according to the peculiar facts of the present case.

13. In considering an appropriate sentence for the prisoner, I have considered the following cases.

14. In The State v Ludwina Waiguma (2007) N3188, the middle-aged female prisoner stabbed the female victim with a knife after a history of bad feeling between them. The prisoner claimed that the victim was saying bad things about her because the victim suspected her of having an affair with her husband. The Court described the stabbing as vicious and arising from a gutless and mindless action which could have resulted in death. On a guilty plea to one count of the offence under consideration, a sentence of 4 years imprisonment was imposed less the remand period and no part of the sentence was suspended.

15. In The State v Bomai Hesi (No 2) (2007) N3232, the prisoner was convicted of the offence under consideration after a trial. He was assaulted in a fight and lost consciousness. When he regained consciousness, he grabbed two bush knives and went to the house where he thought his assailants were and to fight them using the knives. When he was inside the house, he swung the knives menacingly and dangerously in front of him and at his back and cut the victim and two others. The victim sustained; deep lacerations to her head; her left thumb was amputated; a deep laceration down to her wrist; severe bleeding and loss of blood and multiple minor bodily wounds. A sentence of 3 years imprisonment was imposed less the remand period and no part of the sentence was suspended.

16. In The State v Elvis Kos (2013) N5365, the prisoner, the victim's husband, suspected the victim of engaging in extra-marital affairs in his absence. He assaulted the victim with an axe causing multiple amputation of digits on her left hand and the victim was locked up in a room despite her injuries. On a plea of guilty to one count of the offence under consideration, I imposed a sentence of 4 years imprisonment less the remand period and suspended 3 years of the sentence on terms with the aid of a favourable pre-sentence report.
    

17. What is the appropriate sentence for the prisoner? Taking into account all the circumstances of the present case and guided by the comparable sentences I have alluded to above, I think the appropriate sentence for the prisoner is 3 years imprisonment in hard labour.

18. I will deduct from the head sentence the remand period of 1 year, 2 months and 2 days leaving the prisoner 1 year, 9 months and 26 days (the remaining term) to serve.

19. The prisoner will serve the remaining term at the Baisu Correctional Institution.

20. Should I suspend the whole or any part of the remaining term? The Supreme Court has held that there can be no suspension of sentence without the support of a pre-sentence report: Public Prosecutor v Don Hale (1998) SC564; Edmund Gima and Siune Arnold v The State (2003) SC730; Richard Liri v The State (2007) SC883. There is no pre-sentence report before me to warrant a consideration of the question of suspension of the whole or any part of the remaining term. For this reason, no part of the remaining term will be suspended.

21. A warrant of commitment shall issue forthwith to enforce the sentence.

Sentenced accordingly

__________________________________________________

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