State v Naguin [2014] PGNC 373; N6847 (26 September 2014)

N6847

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 810 of 2012

THE STATE

V

GORDON GIOBUN NAGUIN

Buka: Injia CJ
2014: 24 & 26 September

CRIMINAL LAW- Sentence- Unlawful wounding- Left hand of woman cut with bush knife- Attack sex related - Wound healed- No permanent injury- Prior conviction for similar offence - Punitive and deterrent sentence appropriate- 2 years imprisonment- Criminal Code, s 322 (1)(a)

Counsel

P Kaluwin, for the State
F Pitpit, with F Lungabai, for the accused

26^th September, 2014

1. INJIA CJ: The prisoner pleaded guilty to one count of unlawful wounding under s322 (1) (a) of the Criminal Code. The offence carries a maximum penalty of three (3) years.

2. I accept submissions of Mr Lungabai of counsel for the prisoner that it is a trite principle of sentencing that the maximum punishment is reserved for the worst case of its kind on the facts and that the appropriate sentence to be imposed in a particular case depends on the facts of each case.

3. I also accept Mr Lungabai's submission that the circumstances of the present case does not warrant the imposition of the maximum penalty because those circumstances do not present the worst case scenario. There exists adequate circumstances of extenuation and mitigating factors that when taken together favour the prisoner which then leads me to this conclusion. With regard to the extenuating circumstances, although an offensive weapon was used for an improper motive or reason, the injury inflicted on the victim is not very serious. A deep cut on the palm of her left hand was inflicted when the bush knife was lifted to threaten the victim and the victim's hand came into contact with the bush knife's blade in mid air. The nature of the wound inflicted suggests that the impact of the force was not as heavy as it would have been if the knife was thrust directly at the victim and the cut was inflicted. The medical report shows the wound healed and no serious permanent injury resulted from the cut.

4. With regard to the mitigating factors, he is a Christian man with a family which is a wife and two young children. He co-operated with the police and made early admissions of the offence to police. He pleaded guilty before this Court and saved time and resources for the Court and the State.

5. There are however some serious aggravating factors mentioned by Mr Kaluwin of counsel for the State that should be taken into account and balanced against the extenuating circumstances and mitigating factors that I have just mentioned. The victim Brenda Marelu aged 26 years old is a school teacher. She was attacked in broad daylight and without warning and for an unlawful purpose. The prisoner no doubt planned the attack and used an offensive weapon to attack an innocent, harmless and unsuspecting woman who was freely going about doing her business for the day. She was waiting to catch the bus to Buka town when the prisoner preyed on her and attacked her for sexual purposes. Apart from the terrifying experience she went through and the physical injury that inflicted pain and suffering, the attack no doubt was degrading and shameful for her. The attack on women using bush knives on public roads is prevalent in this country, the ABG included. The attack in this case, as with many other such attacks, is sex related, in that she was attacked in order to overpower her for sexual purposes.

6. This is not the first time this prisoner has attacked a woman for sexual purposes. In 2005, he was convicted by this Court for an offence of sexual penetration of a girl under the age of 16 years and sentenced to six and a half years. A portion of that sentence was suspended and as a consequence of that suspension, he would have been released early but it is clear that he did not learn from that punishment and did not change his criminal behaviour. A tougher sentence for the present crime hopefully will change his criminal mentality especially towards women.

7. I am satisfied that the aggravating circumstances are of such gravity that the maximum sentence could be quite easily imposed but for the extenuating circumstances and mitigating factors that stand in his favour. I consider that an appropriate sentence in this case would have to be one that is very close to the maximum punishment for this offence. I do not consider it appropriate to suspend any portion of that sentence as was done in the two cases cited by Mr Lungabai, because suspension will serve no purpose, given that suspension of a portion of the sentence in the previous sentence imposed in 2005 obviously has not had any impact in changing his behaviour for the better.

8. I consider that a sentence of two (2) years eight (8) months is appropriate and I impose the same. The period of 2 years 3 months and 3 days in pre-trial custody is deducted from this sentence. He will serve the balance of 4 months and 27 days.

______________________________________________________________
Pondros Kaluwin, Public Prosecutor: Lawyer for the State
Frazer Pitpit, Public Solicitor: Lawyer for the Prisoner