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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO 884 OF 2014
THE STATE
V
AMAI MAIS
Madang: Cannings J
2014: 12, 13 November, 5, 13 December
CRIMINAL LAW – sentence – grievous bodily harm – Criminal Code, Section 319 – guilty plea – offender cut the victim with a bushknife.
A man pleaded guilty to unlawfully doing grievous bodily harm to his brother, with whom he was angry. He cut the victim on his left shoulder with a bushknife. This is the judgment on sentence.
Held:
(1) The maximum sentence for doing grievous bodily harm under Criminal Code, Section 319 is seven years imprisonment.
(2) Mitigating factors are: pleaded guilty; made early admissions to and cooperated with Police; no prior convictions.
(3) Aggravating factors are: use of lethal weapon; the victim was unarmed.
(4) 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 (2006) SC890
The State v Justin Ipa (2008) N3439
The State v Nigel Duma (2014) N5643
The State v Ray Sheekiot (2011) N4454
SENTENCE
This was a judgment on sentence for grievous bodily harm.
Counsel
M Pil, for the State
A Meten, for the offender
13th December, 2014
1. CANNINGS J: Amai Mais pleaded guilty to unlawfully doing grievous bodily harm to his brother, Samuel Tati, and has been convicted of that offence under Section 319 of the Criminal Code. The incident occurred at Amaimun in the Transgogol area of Madang Province on 2 January 2014. The offender approached his brother, who was telling stories with other people, without warning and cut him on the left shoulder, inflicting a deep wound, which was very painful. The victim was given medical treatment at Maritambu Aid Post the next day, which required application of multiple stitches under local anaesthetic. The offender was under the influence of alcohol and has offered no rational explanation for attacking his brother.
ANTECEDENTS
2. The offender has no prior convictions.
ALLOCUTUS
3. The offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:
I apologise for doing this to my elder brother. I apologise to God. I am married with four children. I have gardens to look after. I ask for a suspended sentence so that I can sort out this problem with my brother in a customary way.
OTHER MATTERS OF FACT
4. As the offender has pleaded guilty he will be given the benefit of reasonable 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). I take into account that he made admissions when interviewed by Police at Madang on 5 June 2014.
PRE-SENTENCE REPORT
5. This report, prepared by the Madang branch of the Probation Service, shows that the offender is aged 28 and is married with four children. He is a villager and a farmer and earns an income from sale of cocoa, betel nut and garden vegetables. He has had no formal education or employment. His health is sound. The victim was interviewed and said that he thinks that the best thing is that his brother spends time in prison as punishment for the offence. The victim said that he did not report the incident to the Police straightaway as he wanted his brother to apologise. After a month there was no apology so he reported it. He has still received no apology, hence he favours a prison term. The victim's wife supported that approach. The author of the report was unable to obtain the views of anyone else.
SUBMISSIONS BY DEFENCE COUNSEL
6. Mrs Meten highlighted the guilty plea, the absence of any prior convictions and the early admissions and high level of cooperation with the Police and asked for a moderate sentence, which could be suspended in view of the preparedness of the offender to compensate the victim.
SUBMISSIONS BY THE STATE
7. Mr Pil did not dispute the presence of the mitigating factors outlined by the defence counsel but emphasised that the views of the victim did not favour a suspended sentence. The offender had ample time to reconcile with his brother but has left it too late for his offer to compensate to be taken seriously.
DECISION MAKING PROCESS
8. To determine the appropriate penalty I will adopt the following decision making process:
STEP 1: WHAT IS THE MAXIMUM PENALTY?
9. The maximum penalty under Section 319 (grievous bodily harm) is seven years imprisonment.
STEP 2: WHAT IS A PROPER STARTING POINT?
10. I will use the midpoint of three and a half years.
STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?
11. Attacks of this nature, where the offender pleads guilty to a Section 319 grievous bodily harm offence, and there is an identifiable cause and where the offence can be described as a crime of passion, usually result in a sentence of three to five years imprisonment, depending on the circumstances. See, for example, the cases summarised in The State v Justin Ipa (2008) N3439. A recent Madang case involving a bushknife attack on an innocent person in which the victim received similar injuries to the victim in the present case and the offender entered an early guilty plea resulted in a sentence of three years imprisonment: The State v Nigel Duma (2014) N5643.
STEP 4: WHAT IS THE HEAD SENTENCE?
12. Mitigating factors are:
13. Aggravating factors are:
14. Any grievous bodily harm case in which a bushknife is used is a very serious case, involving great distress to the victim as it puts them in a life threatening situation (The State v Ray Sheekiot (2011) N4454). However, I place great weight on the fact that the offender has made very early admissions and cooperated fully with the Police and the Court. He has pleaded guilty. Because of the strong mitigating factors I will in the special circumstances of this case impose a sentence slightly below the starting point. The appropriate sentence is three 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 nine months, one week.
STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?
16. Despite the violent nature of this crime, this is the sort of case in which a suspended sentence could have been imposed if the victim had been prepared to accept compensation and reconcile with the offender. However, he has shown no willingness to do so. He has taken the attitude that it was up to the offender, his younger brother, to come forward and apologise for what he did. In any crime of violence the victim's views are the most important. The Court must respect and give effect to those views when exercising its discretion as to sentence. I decline to suspend any part of the sentence, which will be served in custody.
SENTENCE
17. Amai Mais, having been convicted of one count of unlawfully doing grievous bodily harm contrary to Section 319 of the Criminal Code, is sentenced as follows:
| Length of sentence imposed | 3 years |
| Pre-sentence period to be deducted | 9 months, 1 week |
| Resultant length of sentence to be served | 2 years, 2 months, 3 weeks |
| Amount of sentence suspended | Nil |
| Time to be served in custody | 2 years, 2 months, 3 weeks |
| Place of custody | Beon Correctional Institution |
Sentenced accordingly.
____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender
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URL: http://www.paclii.org/pg/cases/PGNC/2014/196.html