State v Lubiale [2014] PGNC 229; N5779 (22 August 2014)

N5779

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 608 0F 2014

THE STATE

V

JACKLYNE LUBIALE
Defendant

Kimbe: Cannings J
2014: 6, 17, 22 August

CRIMINAL LAW – sentence – unlawful wounding – Criminal Code, Section 322(1)(a) – guilty plea.

The offender pleaded guilty to unlawfully wounding another woman. The offender had suspected that the victim was having an affair with her husband. She approached the victim, pulled out a knife and cut her on the right shoulder. This is the judgment on sentence.

Held:

(1) The maximum penalty for unlawful wounding under Section 322(1)(a) of the Criminal Code is three years imprisonment.

(2) A starting point of 18 months imprisonment was used.

(3) Mitigating factors are: pleaded guilty; made very early admissions to and cooperated with Police; complied with bail conditions and cooperated with the Court; no prior convictions; de facto provocation.

(4) Aggravating factors are: use of lethal weapon; the victim was unarmed; an element of planning was involved.

(5) A sentence of two years imprisonment was imposed, which was fully suspended subject to conditions including payment of compensation.

Cases cited

The following cases are cited in the judgment.

Saperus Yalibakut v The State (2006) SC890
The State v Philip Lekis (2007) N5029

SENTENCE

This was the sentence for an offender who pleaded guilty to unlawful wounding.

Counsel

F K Popeu, for the State
D Kari, for the accused

22nd August, 2014

1. CANNINGS J: Jacklyne Lubiale pleaded guilty to unlawfully wounding Pauline Toape, and has been convicted of that offence under Section 322(1)(a) of the Criminal Code. The incident occurred at Kisere, in Kimbe, on 23 November 2013. The offender had suspected that the victim was having an affair with her husband. She approached the victim, pulled out a knife and cut her on the right shoulder.

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. She said:

"The victim and I know each other as we are neighbours at Nahavio. She did the wrong thing by going around with my husband. I took this problem to the police but nothing was done, so I stabbed her. I gave her K1,000.00 the next day. After receiving the compensation she reported me to the police. I am willing to pay more compensation. I apologise for what I have done. I will not do it again."

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty she 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 will take into account that she made admissions when interviewed by Police at Kimbe on 27 February 2014.

PRE-SENTENCE REPORT

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

Personal details of Jacklyne Lubiale

Age : 31
Origin : Hela
Upbringing : Highlands
Marital status : Married with children, but unstable marriage
Family : Both parents alive, in village; 8 siblings
Education : Grade 12
Employment : Formal employment with Porgera Mine
Occupation : Housekeeper
Health : OK

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Kari highlighted the guilty plea and the preparedness of the offender to compensate the victim. She has cooperated with the justice system since day one.

SUBMISSIONS BY THE STATE

7. Mr Popeu did not oppose a suspended sentence subject to strict conditions.

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. Section 322(1)(a) (wounding and similar acts) of the Criminal Code states:

A person who ... unlawfully wounds another person ... is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years.

10. The maximum penalty is therefore 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?

11. I will use the midpoint of one and a half years.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

12. I refer to The State v Philip Lekis (2007) N5029, in which a man had a dispute with his sister and his father in a public place. He swung his bushknife at his sister, cutting her on the head. He pleaded guilty to unlawful wounding and was given a sentence of 30 months imprisonment. The pre-sentence period in custody was deducted and the sentence was fully suspended on conditions including payment of compensation.

STEP 4: WHAT IS THE HEAD SENTENCE?

13. Mitigating factors are:

• pleaded guilty;
• made very early admissions to and cooperated with Police;
• complied with bail conditions and cooperated with the Court;
• no prior convictions;
• de facto provocation.
  

14. Aggravating factors are:

• use of lethal weapon;
• the victim was unarmed;
• an element of planning was involved.
  

15. This was a very serious case, which warrants a sentence above the starting point. The appropriate sentence is two years 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 an appropriate case for a suspended sentence, as it is not seriously opposed by the victim, provided that she is compensated. A reasonable amount of compensation is K2,000.00, payable within six months. I will suspend the entire sentence on the following conditions:

1. must within six months after date of sentence pay at least K2,000.00 cash compensation to the victim, the payment to be arranged through and supervised by the Probation Office;
   
2. must reside at Nahavio and nowhere else except with the written approval of the National Court;
   
3. must not leave West New Britain without the written approval of the National Court;
   
4. must perform at least three hours unpaid community work each week, to be arranged through the Probation Office;
   
5. must attend her Church every weekend for service and worship and assist the church in its community activities;
   
6. must report to the Probation Office at Kimbe on the first Monday of each month;
   
7. must not consume alcohol or drugs;
   
8. must keep the peace and be of good behaviour;
   
9. must have a satisfactory probation report submitted to the National Court Registry at Kimbe and appear before the Court for probation review every six months after the date of release from custody;
   
10. if the offender breaches any one or more of the above conditions, she 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. Jacklyne Lubiale, having been convicted of one count of unlawful wounding contrary to Section 322(1)(a) of the Criminal Code, is sentenced as follows:

Length of sentence imposed	2 years
Pre-sentence period to be deducted	Nil
Resultant length of sentence to be served	2 years
Amount of sentence suspended	2 years
Time to be served in custody	Nil, subject to compliance with conditions of suspended sentence

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