State v Dingi [2016] PGNC 249; N6444 (16 August 2016)

N6444

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 637 OF 2014

THE STATE

V

MOND MOMORIKE DINGI

Kundiawa: Liosi, AJ
2016: 7^thApril, 15^th June
And 16^th August

CRIMINAL LAW – Sentence – Grievous Bodily Harm –Guilty plea – Criminal Code Section 319 and 19 – Extenuating circumstances – Hefty compensation payment rendering it a special mitigating factor – Pre-trial custody period deducted – Balance of sentence suspended –

Cases cited:
Manu Kovi v. The State (2005) SC789
State v. Dua [2013] N4957
State v. Robert (2009) N3629
State v. Sheekiot [2011] N4454
Ume v. The State [2006] SC836
Yatime Korogula No.2 (2009) N3742

Counsel:
Mr. K Umpake, for the State
Mr. B Popeu, for the Offender

SENTENCE
16^th August, 2016

1. LIOSI AJ: On 7^th April 2016 I convicted the prisoner on 1 Count of Grievous Bodily Harm after he pleaded guilty to the charge and after satisfying myself the plea was in order. The matter was then adjourned for pre-sentence report to be obtained. I heard submissions on sentence on 15^th June after the pre-sentence report was prepared.

Allegations of fact

2. The brief allegation of facts on arraignment to which the offender pleaded guilty to are the following. On 7^th November 2013, at Mikirima Village in the Kamtai area the victim Alfred Kindine and asked why he had destroyed the guitar, some tambourines and the pulpit belonging to the Mikirima Lutheran Church. Confrontation ensured during which the offender chopped the victim on his left forearm with a bushknife. The victim sustained deep laceration on his left forearm with fracture of the two bones in that arm.

Allocutus

3. On his allocatus he says he is from Mikirima Village, Sinasina Yongumugl. He holds two positions. He is a carpenter and a helping hand to the pastor to spread the gospel. He says at Mikirima village, Kerenga Kua donated some money to construct a Lutheran Church. He constructed the church but did not finish the job so Kerenga Kua gave an extra K31, 000.00 to complete the job. The money came from Sinasina Yongumugl District Fund. The victim went ahead and signed the cheque without his church elders and pastor’s knowledge. Kerenga Kua then rang from Port Moresby advising that payment had been done which they were not aware of.

4. Frustrations built up and people stopped attending church service. Frustrated he went in and broke the tambourines and the guitar. He did not break the chairs and the pulpit. The guitar and the tambourine he says are his own property and not the church. At about the same time the victim’s wife rang him and swore at him saying “drink the blood of woman sorcerer”, she said that to the offender on 5^th November 2013.

5. On 7^th November 2013, at about 7pm after getting drunk the victim went looking for the offender asking, “Where is Mond the sorcerer man?” He then asked the offender why he broke the church property. The offender advised him to go home and to solve the problem the next day as it was late. He then challenged the offender to kill him saying that if the offender doesn’t kill him he will kill the offender. He then ran to the Pastor’s house got a bushknife and came back and swung the bushknife at the offenders neck and missed. The force felled him. The offender was afraid that when he gets up he will cut him. While he was trying to get up he removed the bushknife from him and cut him on his left hand.

6. The victim was taken to the hospital. Later on the offender paid K5, 000.00 as the initial compensation payment first. After the victim got discharged further K50, 000.00 and 5 pigs were paid as compensation. An affidavit was done on the compensation payment but a policeman constable Nime Tango got the affidavit and demanded K1, 200.00 to release the affidavit. He says he has been in custody for 2 years 8 months now. He is sorry to God, the Court and people and asked the Court for mercy.

The Law

7. Section 319 of the Criminal Code as amended prescribed the penalty:

“319. Grievous Bodily Harm

A person who –

(a) Attempts unlawfully does Grievous Bodily Harm to another person is guilty of

a crime;

Penalty; Imprisonment for a term not exceeding 7 years”.

Defence Submission

8. Mr. Popeu of counsel gives personal details as follows:

• The prisoner is 63 years old, married and has two children. They attend grade 8 and 4 respectively at Mai community school. The prisoner was a pastor during commission of the offence and earns K200.00 monthly allowance for pastoral work. Apart from his pastoral allowance, the prisoner also derives income from coffee sales and earns K500.00 per coffee season. The prisoner is educated to the level of grade 3 but never continued due to tribal fight.

Mitigation

9. In mitigation the following is submitted:

• Prisoner has no prior convictions; he is a first time offender.
• He cooperated with the police from the outset by admission in his record of interview at question 17 and 18.
• He pleaded guilty saving time and resources.
• He expressed genuine remorse in Pre-Sentence Report.
• The victim did not suffer any permanent serious physical injury. According to the medical report of 6^th December 2013 tendered into evidence the injuries have healed well.
• Compensation of K51, 000.00 and 5 live pigs valued at K2, 000.00 each was accepted by the victim as stated in the pre-sentence report.
• The prisoner is an elderly citizen 63 years old with 2 young children.
• He comes from a strong Christian background.
• The Supreme Court in Ume v The State SC 836 clarified the distinction between mitigating factors and extenuating circumstances, basically reduce the seriousness of the crime. They include defacto provocation, duress/coercion, degree and extent of offender’s participation, medical condition etc...

Counsel submits that there was defacto provocation saying “you Kaikai Kan, blut blo ol meri na blo meri blo you, you sanguma pes”. The victim also challenged him to kill him otherwise he will kill him. There was a reasonable possibility that he was provoked.

Aggravating factors

10. The aggravating factors are:

• The prevalence of the offence
• The use of a bushknife

Pre-Sentence Report

11. The Pre-Sentence Report recommends that the prisoner is a suitable candidate for probation service.

12. Defence submits that given the mitigating factors, the existence of a defacto provocation as an extenuating circumstance and the hefty compensation payment, the sentence should be between 2-4 years. Further the presentence custody period of 2 years 8 months should be deducted. Further given that the presentence report favours a wholly suspended sentence, the court should exercise it’s discretion under section 19(1) (d) and fully suspend the sentence imposed.

State Submission

13. The state submits that a dangerous weapon a bushknife was used. Two bones on the left forearm were fractured requiring specialist treatment. The prisoner was a clergy and he should have exercised some restraint. Various cases were cited to demonstrate the sentencing trend. It submits the sentencing range should fall between 3-4 years.

Decision

14. In deciding on the appropriate sentence I have been referred to a number of decided cases.

• State v Robert (2009) N3629
  Prisoner pleaded guilty to cutting his brother with bushknife causing facial injury a sentence of 3 years 6 months was imposed
  
• Yatime Korogula No.2 (2009) N3742
  The offender cut off victim’s left thumb which was stitched back with 90% functional loss. Offender was sentenced to 2 years imprisonment in hard labour but was wholly suspended.
  
• State v Sheekiot (2011) N4454
  The offender pleaded guilty to grievous bodily harm under section 319 of the Criminal Code. The offender used a bushknife to cut his cousin sister in the neck and cheek. The victim suffered injuries to vulnerable parts of her body and he had a prior conviction. A sentence of 4 years was suspended in view of a favourable pre-sentence report and the fact that compensation of K1, 837.00 was paid to the victim with reconciliation.
  
• State v Dua [2013] N4957
  The offender pleaded guilty to grievous bodily harm. The offender attacked his wife with bushknife severing her hand and inflicting other injuries for having an extra marital affair. This was a planned and sustained attack and victim suffered multiple injuries to vulnerable parts of the body. The attack left the hand hanging by a piece of skin before healing. The injuries were permanent. A sentence of 5 years imprisonment in hard labour was imposed. The pre-sentence custody period of 3 months was deducted and the balance of 4 years 9 months was fully suspended.

15. In comparison the current case is less serious than the case of Dua and Sheekiot. I also agree there was defacto provocation as the offender was challenged to kill the victim failing which the offender was attacked first which bordered on self defence but was abandoned.

16. I also note a hefty compensation payment of K56, 000.00 and 5 pigs. Such a hefty compensation payment places the compensation in the special mitigating factor category; see case of Manu Kovi (supra) at page 7 and 8 of the judgment.

17. Taking all this factors into consideration. The prisoner is sentenced to 3 years imprisonment in hard labour. I deduct the pre-trial custody period of 2 years 8 months, leaving the balance of 4 months which is wholly suspended.

Sentenced accordingly,

______________________________________________________________

Public Prosecutor: Lawyers for the State
Public Solicitor : Lawyers for the Offender