State v Kumasi [2020] PGNC 475; N8740 (4 December 2020)

N8740

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 737 OF 2020

THE STATE

V

JOYCE KUMASI

Lae: Dowa AJ
2020: 13^th October & 04^th December

CRIMINAL LAW – sentence – prisoner pleaded guilty to one count of causing grievous bodily harm – accused stabbed complainant on left thigh with a kitchen knife – what is the appropriate sentence – offence not in the worst category of cases – prisoner sentenced to 3 years in custody - pre-trial custody period considered and deducted – 1 year 6 months suspended - prisoner to serve 7 months and 7 days in custody before been placed on good behaviour bond for 2 years – s319 Criminal Code Act

Cases Cited

Goli Gol v State (1979) PNGLR 653
Lawrence Simbe v State (1994) PNGLR 38.
Public Prosecutor v Don Hale (1998) SC 564
Ure Hane v The State (1984) PNGLR 105
The Acting Public Prosecutor v Aumane & Others [1980] PNGLR 510
The State v Dua (2013) N4957
The State v Goweng (2016) N6212
The State v Waiguma (2007) N5497

Counsel:

S Joseph, for the State
J Huekwahin, for the Defendant

SENTENCE

04^th December, 2020

1. DOWA AJ: This is a decision on sentence. The Prisoner pleaded guilty to one count of grievous bodily harm contrary to Section 319 of the Criminal Code Act.

FACTS

2. The Prisoner, and the Complainant were in a de facto relationship and resided at Hibiscus street, Eriku, Lae, Morobe Province, at the time of the offence.
   
3. It is alleged that on 27^th December 2019, between 7:00 am and 8:00 am the prisoner argued with the complainant and got into a fight. In the course of the fight, the accused got a kitchen knife and stabbed the complainant on his left thigh. The complainant sustained a serious wound and was rushed to Flores Private Hospital where his wound was dressed and treated.
   
4. The accused was indicted on 2^nd September 2020 and pleaded guilty to the charge.
   

ISSUE

5. What is the appropriate sentence to be imposed on the prisoner?
   

LAW

6. The accused is charged under Section 319 of the Criminal Code Act, and it reads:
   
   1. ” 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.”

7. The maximum sentence for this offence is seven (7) years. In determining appropriate sentence, the following principles apply:
   
   1. The type of sentence to be imposed is a matter of discretion under section 19 of the Criminal Code Act.
      
   2. The maximum sentence is reserved for the worst form or category for that particular offence: refer: Ure Hane v The State (1984) PNGLR 105 & Goli Gol v State (1979) PNGLR 653.
      
   100. In determining a sentence for a prisoner, the Court has to decide each case on its own facts and peculiar circumstances. Refer: Lawrence Simbe v State (1994) PNGLR 38.
        

ALLOCATUS

8. When I administered allocutus, the prisoner was very apologetic and shown remorse. She regretted her actions which affected her relationship with her de facto husband and their children. She also apologised to the Court.
   

SUBMISSIONS OF COUNSEL

9. Counsel for the Prisoner, Mr Huekwahin submitted that this is not the worst type or category of cases. There is no intention to inflict the harm and that there is no permanent residual disability. He submitted based on comparable verdicts a starting head sentence be fixed at 3 years. Mr Huekwahin submits further that after deducting time spent in custody, the balance of the term be suspended.
   
10. Ms Joseph, counsel for the State submits that the aggravating factors outweigh the mitigating factors using the check list of considerations enunciated in the case of State -v- Waiguma (2007) N5497. She submitted that crimes in domestic settings are becoming prevalent, and this crime involve use of a dangerous weapon such as a knife and thus she be given a custodial sentence of four (4) years.
    

REASONS FOR DECISION

11. Counsel have been helpful in their submissions. The accused is charged with an offence that carries a maximum penalty of seven (7) years imprisonment. The maximum penalty is reserved for the worst type or category of this offence. In the present case, the accused stabbed the victim on the left side thigh after what appears to be a minor argument. The victim sustained a deep wound and was treated. The victim was not hospitalised although he rested and stayed away from work about two weeks. The wound has healed and there is no evidence of any residual disability. I accept the submissions of Defence counsel that this is not the worst type or category of the case of Grievous Bodily Harm (GBH).
    

STATING SENTENCE

12. What is the appropriate head sentence? In our Criminal Justice system, sentence must be appropriate to serve its purposes: namely deterrence, separation, rehabilitation and retribution. It should reflect the purposes of sentencing. Refer: The Acting Public Prosecutor v Aumane & Others [1980] PNGLR 510.
    
13. Counsel for the Prisoner has referred me to the cases The State v Dua (2013) N4957 and The State v Goweng (2016) N6212 for comparison.
    
14. In State v Dua (supra), the offender attacked his wife with a bush knife, severing her left arm and inflicting other injuries, as he was angry with her for having extra marital affairs. He pleaded guilty to the charge of grievous bodily harm and has shown remorse. He was imposed a head sentence of five (5) years with custodial sentence. After deducting period spent in custody the balance of the term was suspended.
    
15. In State v Goweng (supra), the prisoner pleaded guilty to a charge of Grievous Bodily Harm (GBH). In that case, the offender went to his uncle’s house shouting and angry, as he had grievances with him. He swung his bush knife and cut his uncle on the left ankle. The victim was admitted to the hospital with several anterior tibialis tendon. As a result of the wound, the victim has a permanent residual disability of footdrop. The Court considered a head sentence of three (3) years. After deducting time in custody, the prisoner was ordered to spend the balance of the term in custody.
    
16. In my view, the cases referred to above are more serious than the present case. In the present case, the victim used a kitchen knife to stab the victim once, with no residual disability. The accused has pleaded guilty and has no prior conviction. I will consider three (3) years as the appropriate starting point.
    
17. What should be the head sentence. Again, the appropriate head sentence depends on weighing out the mitigating factors against the aggravating factors. The following are mitigating factors:
    
    1. First time offender
    2. Young Offender
    100. De facto provocation
    4. Pleaded Guilty
    5. Shown remorse
       
18. The following are aggravating factors:
    
    1. Use of dangerous weapon – kitchen knife
    2. Serious assault
       
19. The crime is committed in a domestic setting. Due to the prevalence of crime committed in domestic settings, there is a need to deter the accused and others from committing similar offences. Offences in domestic settings affect relationships and children in particular are affected, as in this case. Sentence must have both a punitive effect as well as a learning experience. I will therefore fix the head sentence at 3 years.
    

Should all or part of the head sentence be deducted for pre-sentence period in custody.

20. Under Section 3(2) of the Criminal Justice (Sentences) Act, there shall be deducted from the term of imprisonment the whole or part of the pre-sentence period in custody, which is 10 months and 24 days. I will deduct that period from the head sentence.
    

Should all or part of the head sentence be suspended

21. The Court has a discretion under section 19(1) of the Criminal Code Act, to suspend all or part of sentence to be imposed. The discretion has to be exercised on proper principles taking into account the purposes of sentence. In the present case, the pre-sentencing report does not recommend suspension. Generally, a court should be slow in suspending sentence where there is no recommendation for suspension from the Pre-Sentence report. This is what the Supreme Court said in Public Prosecutor v Don Hale (1998) SC564.
    

“The discretion to suspend a part or whole of the starting sentence is a discretionary matter which must be exercised on terms and it must be supported by a pre-sentence report either from the community or where that is difficult to obtain, it must come from the prison or the institution from where the escape took place and the arresting officer. Unless there is such material supporting a suspension of the starting minimum sentence, it cannot be suspended or reduced.”

22. In the present case the Probation Officer could not recommend suspension because both the Prisoners family and the Community leaders did not attend the interviews at the office of the Probation Officer. I also note, the Probation Officer was not able to get the victims views despite several attempts.
    
23. The prisoner is about 27 years old. It is unlikely that prisoner will be reconciled to the complainant. The prisoner has a son, 12 years old, from a previous relationship who needs her. The Prisoner is not educated with any skills and is unemployed. Her family is based in Wewak. She currently stays with her cousin at Speedway, Lae City.

24. As I stated earlier, this is not the worst type of the case for the offence of grievous bodily harm. In my view, this is an appropriate case for part of the head sentence to be suspended. The Prisoner has already spent almost a year in prison and has been sufficiently punished for her crime. I am therefore prepared to suspend part of the sentence on terms that she enters into a good behaviour bond.
    

SENTENCE

25. Being convicted of unlawfully causing Grievous Bodily Harm (GBH) contrary to Section 319 of the Criminal Code, the accused, Joyce Kumasi is sentenced to three (3) years imprisonment. Ten (10) months 24 days is deducted for pre-sentence period in custody. A period of one year and six months is suspended. The accused will serve time in custody until 10^th July 2021. Upon release the accused shall enter into a Good Behaviour Bond for two years.
    

ORDER

26. The orders of Court are:
    

1.	Length of Sentence Imposed	3 years
2.	Pre-Sentence period Deducted	10 months, 24 days
3.	Time to be served	2 years, 1 month, 6 days
4.	Amount of time suspended	1 year, 6 months
5.	Time to spend in custody	7 Months, 7 days
6.	Bail	Not Applicable

__________________________________________________________________
Public Prosecutor : Lawyer for the State

Public Solicitor : Lawyer for the Defendant