State v Pulkun [2014] PGNC 69; N5603 (14 May 2014)

N5603

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 560 OF 2014

THE STATE

V

DAVID PULKUN

Wewak: Geita AJ
2014: 8, 14 May

CRIMINAL LAW - Guilty plea – Grievous Bodily Harm – factors - use of weapon - complete severance of five toes - serious and permanent injury – adult male - domestic setting - prisoner and victim are husband and wife.

CRIMINAL LAW & PRACTISE –Guilty plea – Effect off – reduction in sentence – avoidance of lengthy trials – long term economic benefits – expedited disposition of backlog of case - where the accused person has surrendered his right to enter a guilty plea sentencing courts must reciprocate mitigation in a meaningful way – "General plea matrix" coined and applied as a tool to ensure relativity and consistency in sentencing trends.

CRIMINAL LAW- Sentencing — Grievous bodily harm — mitigating factors - first time offender – early guilty plea –Attempted to pay some compensation in cash and kind-maximum penalty is 7 years - Criminal Code - section 319 - Sentenced to 4 years less 6 months for pre trial custody- Two years of which will be suspended upon payment of K2000 as compensation- Criminal Compensation Act 1991– Remaining 2 years to act as personal and public deterrence – Further suspension of sentence inappropriate.

Cases cited

The State v Lucy Rusa (2008) N3510
The State vs. Ambe Tu (2008) N 3306
The State v Ludwina Waiguma (2007) N3188
Jimmy Mostata Maladina v Posain Poloh (2004) N2568

Legislation considered

Criminal Law (Compensation) Act 1991,

Counsel:

Ms Sheila Luben, for the State
Mr Francis Fingu, for the accused

JUDGMENT ON SENTENCE
14th May, 2014

1. GEITA AJ: The accused pleaded guilty to one count of doing grievous bodily harm to his wife the victim contrary to section 319 of the Criminal Code.

The Law

2. The offence of grievous bodily harm and its penalty is prescribed by section 319 of the Criminal Code in these terms:

"319. Grievous bodily harm.

A person who unlawfully does grievous bodily harm to another person is guilty of a crime.

Penalty : Imprisonment for a term not exceeding seven years."

Brief Facts

3. The brief facts are these: On 1st November 2013 between 6 pm and 7pm at your village in Ilipaim, Yangoru District you assaulted your wife with a cane and severed all her toes to her right foot with a bush knife after suspecting her of having an adulterous affair with other man the previous day. Your wife and son stayed away from home in fear after you threaten her with a bush knife but had returned home when you sent for them via your two daughters. When she returned home you locked her in the kitchen and began assaulting her resulting in this hideous crime. You left your wife unconscious in the kitchen until she was rescued by Ward Counsellor Jerry Inandu who assisted her to seek medical attention.

4. Medical evidence forming part of the depositions also confirms excessive wounds occasioned on the victim's foot with all five toes missing.

Criminal History

5. No prior convictions have been recorded against your name and I accept that position as presented to me by the State Prosecutor.

Allocutus

6. In your allocutus or when you were asked if you had anything to say about the sentence that should be considered you said this was your first time to appear before a National Court and you asked for leniency. You further said you were sorry to your wife and to the court and all your family members. You also asked to be put on probation.

Mitigation Circumstances

1. First time offender

2. No prior convictions,

2. Early admission in Record of Interview

3. Guilty plea

Aggravating Circumstances

1. A weapon was used-bush knife

2. There was prior confrontation

3. Innocent daughters used to lure mother home

Submissions on sentence - Defence

7. In his oral submissions Defence Lawyer Mr. Francis Fingu conceded that the crime was serious in that the victim had five of her right toes completely severed. He however urged the court to take note of the prisoner's lack of sophistication and surroundings. He is a villager with no formal education. Defence Lawyer submitted that the prisoner was the last born out of a family of seven brothers and both his parents had died. He is a member of the Revival Church. The prisoner has been in remand custody for little over 6 months awaiting his trial. Mr Fingu submitted that the prisoner's attempts for reconciliation by way of K1000 in cash and kind were refused by the victim's relatives in December 2013. In support of his submissions for a mid range head sentence of 4 years to be considered by the court he referred me to the case of The State v Lucy Rusa (2008) NC 3510. In that case the prisoner was sent to gaol for 2 years. It was a domestic setting in which the victim lost two toes. This was a guilty plea and the prisoner was a first time offender with suspended sentence considered inappropriate by that court. The court was invited to invoke its discretionary powers under Section 19 of the Criminal Code and consider partial suspension of sentence with orders for some compensation to be made.

8. Mr Fingu further submitted that the prisoners statements made under Section 96 District Court Act also be taken into account in considering an appropriate sentence as it contains some crucial evidence in relation to the crime: victim's admission of an adulterous affair? These statements, usually sworn are an integral part of the criminal justice system. The outcome of the matter before the committal magistrate may quickly change, depending on whatever answers are received and recorded at the time. Section 96 is a mandatory procedure and will prove fatal and amount to denial of natural justice if not properly observed by committal magistrates (Jimmy Mostata Maladina v Posain Poloh (2004) N2568 Injia DCJ as he was then). This practice I believe was long observed in Papua New Guinea and still appropriate today.

9. For purposes of convenience I set out Section 96 here:

S.96. Accused to be asked whether he desires to give evidence.

(1) Where a Court proceeds with the examination of a defendant in accordance with this Division, the Court or the Chairman of the Court shall read the charge to the accused and explain its nature in ordinary language and shall say to him these words, or words to the same effect—

"Having heard evidence for the prosecution do you wish to be sworn and give evidence on your own behalf, or do you desire to say anything in answer to the charge? You are not obliged to be sworn and give evidence, nor are you required to say anything, unless you desire to do so; but whatever evidence you may give on oath, or anything you may say, will be taken down in writing, and may be given in evidence on your trial. You are clearly to understand that you have nothing to hope from any promise of favour, and nothing to fear from any threat, which may have been held out to you to induce you to make any admission or confession of your guilt; but whatever you now say may be given in evidence on your trial, notwithstanding any such promise or threat."

(2) Anything that the defendant says in answer to a statement made in accordance with Subsection (1) shall be –

(a) taken down in writing in the English language and read to him; and

(b) signed by the Magistrate constituting the Court and by the defendant if he so desires; and

(c) kept with the depositions of the witnesses and transmitted with them to the Public Prosecutor.

10. In the present case Defence Lawyer invited the court to act upon an alleged fact favourable to the prisoner in mitigation. The prisoner gave an unsworn statement; hence questions of credibility and weight present themselves to his detriment in my view. I am more inclined to treat the unsworn statement with caution and disregard its relevance and credibility in mitigating the prisoner's sentence.

Guilty plea cases –What degree in mitigation?

11. Accused persons plead guilty prior to trial for various reasons. Some of these include a hope for reduction in sentence; the avoidance of lengthy long drawn out trials or after successful plea bargaining just to name a few. Whatever the reason, I am of the view that since the accused has surrendered his constitutional right to enter a guilty plea, the sentencing court in the exercise of its unfettered discretion must reciprocate that gesture in a meaningful way.

12. The long term economic benefits are numerous including the manifestation of the often quoted legal dictum justice delayed is justice denied, to our struggling criminal justice system in Papua New Guinea: faster turnaround time of cases, avoidance of long drawn out trials, the expedited movement of a back log of cases and many more? To this end I venture to adopt and apply what I now call a general plea matrix in my quest to ensuring relativity and consistency in sentencing trends. I will accord the prisoner a 1/3 reduction from the maximum penalty based on his guilty plea. I have deliberately scratched the tip of an iceberg on this controversial subject with the hope that sufficient interest will be generated amongst my judicial colleagues.

Submissions on sentence - State

13. The State Prosecutor Ms Sheila Luben submitted that although this crime could not be classed as the worst, serious injuries were caused to the victim in which she lost all five toes to her right leg. Despite the toes not forming part of the vital body organs, the victim has suffered great distress and lost consciousness. Furthermore the prevalence of such crimes in the society especially violence being used to resort to family disputes remains a concern and must be discouraged or deterred with stiffer penalties. In response to defence submissions on the prisoner's lack of sophistication with no formal education Ms Luben said the faith based church which the prisoner attends do not condone violence. She said the victim lost 5 toes with permanent disability.

14. In support of her submissions for a custodial sentence the court was referred to the case of The State vs. Ambe Tu (2008) N 3306. In that case the victim received multiple cuts to her body and hands which were life threatening, serious disability to hands, guilty plea, first time offender, no compensation paid- Sentenced to 4 years imprisonment. In another case of The State v Ludwina Waiguma (2007) N3188 the court sentenced a middle aged woman to 4 years less pre trail custody of 1 week. In that case no compensation was paid, there were serious aggravating factors, offender solely responsible; dangerous weapon used; no accident; unprovoked attack; the victim was able-bodied; vicious assault; did not give herself up; no compensation or reconciliation; not a first offender; not a youthful offender. In short the State is asking for a custodial sentence as deterrence.

15. In deciding the appropriateness of sentence to be imposed to the factual situation before me I have had the benefit of submissions from both lawyers on all relevant issues including the supporting cases. A common thread running through all three cases referred to me is that they all relate one way or another to marital disharmony with reconciliation and some form of compensation sought for by courts. Besides other aggravating considerations decided in the case of Ambu Tu and Ludwina Waiguma (supra) warranting the 4 years sentences the present case holds evidence of minimal compensation in cash and kind to the victim and her relatives which was rejected. To my mind compassion and remorse was displayed at the earliest opportunity hence a favourable mitigating factor for the prisoner.

16. My task as trial judge and sentencing judge is exercised judicially based on all evidence before me from both sides. Each case is different with particular circumstances and in most situations will ultimately determine the kind of sentence that must be imposed. Applying the "general plea matrix" in this case, a head sentence of 4 years 6 months is therefore imposed less 6 months for his pre trial custody, leaving him with only 4 years. Although I do not have the benefit of a means assessment report to consider some compensation I will take judicial notice of your earlier attempts to make compensation. Furthermore I find comfort and will have recourse to Criminal Law (Compensation) Act 1991, in which courts may order compensation up to K5000.00. The payment of a reasonable compensation in my view is warranted to cater for the victim's pain and suffering, in particular the loss of five toes. In the exercise of my discretion under Section 19 Code, I sentence you in the following:

1. You are convicted and sentenced to 4 years,

2. Two years of which will be suspended upon you paying the victim K2000 as compensation within 3 months,

3. The suspension of further sentence is considered inappropriate.

Orders accordingly.
________________________________________

Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyers for the accused