State v Pombo [2020] PGNC 482; N8741 (4 December 2020)

N8741

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 724 OF 2020

THE STATE

V

RONALD POMBO

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

CRIMINAL LAW – sentencing – particular offence - unlawful grievous bodily harm- plea of guilty – mitigating and aggravating factors – consideration of – pretrial custody period deducted – partial term suspended - prisoner to serve the balance and placed on good behaviour bond

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 State alleges that the accused is married to the complainant however due to his violent behaviour the complainant left him and was living with her parents at China Town in Lae at the time of the alleged offence.
   
3. It is alleged that on the 24^th of January 2020 between 6:00 pm and 7:00 pm, the accused was armed with a kitchen knife, broke into the house where the complainant was staying. The complainant saw the accused and ran outside of the house screaming.
   
4. The accused caught up with the complainant and stabbed her three times on the back and once on the right shoulder. The complainant’s father heard her scream and ran to the aid of his daughter whilst the accused fled the scene. The complainant was rushed to the Angau Memorial Hospital where she was admitted to the surgical ward as a case of spinal nerve injury and paralysis due to stab wound to the back.
   
5. The accused was indicted on 2^nd September 2020 and pleaded guilty to the charge.
   

ISSUE

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

LAW

7. 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.”

8. 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

9. When I administered allocutus the prisoner was very apologetic and shown remorse. He regretted his action which affected his relationship with his wife and their child. He also apologised to the Court.
   

SUBMISSIONS OF COUNSEL

10. 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.
    
11. Ms Joseph of 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 thus crime involve use of a dangerous weapon such as a knife and thus he be given a custodial sentence of five (5) years.
    

REASONS FOR DECISION

12. 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 three times on the back and once on the right shoulder. The stab wound on the shoulder was 5cm long, not deep. The backstab wounds were about 2-3cm long, depth not known. The victim was hospitalised for two weeks at Angau General Hospital. The wounds have healed and there is no evidence of any residual disability. I do not accept the submissions of Defence counsel that this is not the worst type or category of the case of Grievous Bodily Harm (GBH). Had the victim’s father not turned up in time the stabbings could have continued and could have been fatal.
    

STARTING SENTENCE

13. 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.
    
14. 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.
    
15. 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.
    
16. 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.
    
17. In my view the cases referred to are identical to the present case. In the present case the accused used bush knife (even though he denied in his record of interview, saying he used a kitchen knife) to stab the victim four times, three to the back and once at the right shoulder. The accused has pleaded guilty and has no prior conviction.
    
18. What should be the head sentence. 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 (23 years)
    100. De facto provocation
    4. Pleaded Guilty
    5. Shown remorse
    6. Co-operated with police and Court
       
19. The following are aggravating factors:
    
    1. Use of dangerous weapon – knife
    2. Serious assault: multiple wounds
       
20. The crime is committed in a domestic setting. Due to the prevalence of crime committed in domestic violence, there is a need to deter the accused and others from committing similar offences. Offences committed in domestic settings affect relationships and families. Sentence must have both a punitive effect as well as a learning experience. I will therefore fix the head sentence at 4 years.
    

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

21. 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 9 months 16 days. I will deduct that period from the head sentence.
    

Should all or part of the head sentence be suspended.

22. 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.
    
23. In the present, 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 victim’s views despite several attempts.
    
24. The prisoner is about 23 years old. The prisoner has not reconciled with the victim yet. Both the victim and the accused are from the Highlands provinces where compensation is widely practised as a form of dispute resolution. In the present case there is no evidence of such an event taking place. It is unlikely that prisoner will be reconciled to the complainant. The Prisoner is not educated with any skills and is unemployed.
    
25. Whist the aggravating factors outweigh the mitigating factors, the accused has pleaded guilty. He has co-operated with the police, admitting the crime during the record of interview. This has saved both time and expense of running a trial. He has no prior conviction and has shown remorse. 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. I am therefore prepared to suspend part of the sentence on terms that he be placed on good behaviour bond after the custodial sentence.
    

SENTENCE

26. Being convicted of unlawfully causing Grievous Bodily Harm (GBH) contrary to Section 319 of the Criminal Code, the accused, Ronald Pombo is sentenced to four (4) years imprisonment. 9 months 15 days is deducted for pre-sentence period. A period of one year and eight months and 15 days is suspended. The accused will serve time in custody until 4^th June 2022. Upon release the accused shall enter into a Good Behaviour Bond for two years.
    

ORDERS

The orders of Court are:

1.	Length of Sentence Imposed	4 years
2.	Pre-Sentence period Deducted	9 months, 15 days
3.	Time to be served	3 years, 2 months, 15 days
4.	Amount of time suspended	1 year, 8 months,15 days
5.	Time to spend in custody	1year, 6 months
6.	Bail	Not Applicable

__________________________________________________________________Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant