State v Dunamis [2022] PGNC 389; N9925 (11 August 2022)

N9925

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1442 OF 2021

THE STATE

V

JACOB DUNAMIS

Waigani: Ganaii, AJ
2022: 11^th August

CRIMINAL LAW – Sentence – Grievous Bodily Harm with Intent – Section 315 of the Criminal Code – Severed left foot and four fingers - Guilty Plea – Aggravations and mitigations – Domestic Relationship – Deterrence
Cases Cited:
Papua New Guinean Cases

Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
Saperus Yalibakut v The State SCRA No 52 of 2005
State v James Peter Kenneth, (2018) N7338
State v Kangi [2016] PGNC 165; N6357
State v Kup [2018] PGNC 366; N7477
State v Magua [2016] PGNC 404; N6715
State v Makapu [2017] PGNC 118; N6761
State v Nerious Pinda [2012] PGNC 291; N4872
State v Peter Pendin [2012] PGNC 292; N4551
State v Tumbari Pu (2021) Cr 1310 of 202
State v Waimba [2016] PGNC 430; N6954

Overseas Cases

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

Counsel

Mr. N. Digori, for the State
Ms. C. Koek, for the Defendant

DECISION ON SENTENCE

11^th August, 2022

1. GANAII, AJ This s a ruling on sentence where the offender pleaded guilty to one count of Grievous Bodily Harm with Intent, contrary to s 315 (b) (d) of the Criminal Code. The maximum punishment for the offence subject to section 19 of the Criminal Code is imprisonment for life.

Statement of Facts

2. The facts the offender pleaded guilty to are that the offender and the victim were in a relationship. At the time of the commission of the offence, they had gone separate ways. Unknown to the victim, the offender approached her and launched a surprise attack on her several times with a one-metre-long bush knife on various parts of her body. The victim sustained multiple wounds including an amputated right foot resulting in a medically amputated leg at the knee and four severed fingers except for the thumb in the right hand. After the brutal attack on the victim, the offender then grabbed the victim’s handbag containing personal effects including cash and original school and work certificates and fled. He was on the run until arrested.

3. The medical report shows that the victim now suffers from 60 % permanent loss of efficient use of her right hand and 80% permanent loss of efficient use of her right leg. She uses the aid of an artificial limb (prosthetic leg).

Allocutus

4. I have considered what the offender had said in allocatus. He had said sorry to court and to the victim and had sought the court’s leniency.

The offender’s antecedent and particulars

5. The offender is 33 years old and comes from Sarang village, Sumkar District of the Madang Province. Prior to his arrest, he resided at Bushwara Settlement, Nine Mile, in the National Capital District with his church family. He is the last born out of a family of six, comprising of four brothers and two sisters. His siblings are all grown up and they live their own lives. His parents are both deceased. He was in a relationship with the victim but had no children. He is now married to another woman and also has no children.

6. The offender had been educated up to Grade 8 at the Sakul Primary School in Madang in 2007. He also did adult matriculation studies and obtained a Grade 10 certificate in 2010. The offender has not had any formal employment. He did seasonal work as a fruit picker in New Zealand on a contractual basis from time to time. The offender has K2, 000 as savings in his bank account from investment in company shares.

7. The offender is well and healthy. He says he does not consume alcohol and drugs. On his future plans the offender says he wants to earn money to support his plans to further his education. He also wants to do gospel ministry work for the church.

8. Regarding the offence, the offender spoke of matters that were not contained in the brief statement of facts that he pleaded guilty to. At this juncture I pause to remind counsels of the important task of understanding the importance of an agreed set of facts before arraignment. The set of facts relied on in arraignment must be put to the accused who must have a say on it. These facts will then be relied on for sentencing purposes.

9. In the Pre-Sentence Report (PSR) the offender explained his reasons for the attack on the victim. He said the opposite to what was in the facts he pleaded guilty to. He said the victim was still living with him at Nine Mile, Bushwara settlement when she was communicating with another man. He also said she complained about money and cost of living and tried to attack the offender with a bush knife. The offender disarmed her and used the same bush knife to attack her. After the attack, the offender said he gave the victim K1, 000 for her medical expense. He also told her that he would go into hiding as her relatives might go after him and kill him. The offender said he is sorry for what he has done to the victim.

10. The PSR states that the offender is a threat to the victim and tension is still very high in their community. The offender does not have any family members at Nine Mile, here in the NCD who could make statements about his good character and involvement in the community. They all live back in his home province. The offender’s church family whom he said he had come to live with at Nine Mile, here in the NCD were not interviewed. The writer has not explained why he had not obtained their views.

11. The writer summarizes the offender’s involvement in the community by saying that the offender has no steady address and there is no evidence of his good standing in his community.

12. The victim says she had incurred a lot of medical cost as a result of the offender’s actions. She had not produced evidence of the cost. The depositions do contain various medical reports which show the extent of the injuries sustained and the various life and limb saving medical attention she received. The victim suffered from severed four fingers and right foot resulting in the amputation of the right leg at the knee. She had asked that the Court would consider ordering the offender to pay her K50, 000 as compensation.

Submissions

13. Counsel for the offender submitted on his personal particulars as contained in the PSR. The offender had spent 2 years and 9 months in pre-sentence custody.

14. In mitigation, the offender had pleaded guilty saving the State and Court time and resources. He is a first-time offender and has shown genuine remorse. The aggravations are that the commission of the offence involved the use of a dangerous weapon namely a bush knife; there was loss of leg and four fingers, and the offence is prevalent. The court will apply the principle in the case of Goli Golu [1979] PNGLR 653.

15. Defence submitted on the following comparable cases for consideration:

a) State v Waimba [2016] PGNC 430; N6954 (18 May 2016). The offender pleaded guilty to a charge of grievous bodily harm with intent where he used a bush knife to cut the victim on the left eye. The victim was a duty police officer who had gone to investigate an incident when the offender cut him. He sustained a permanent injury to the left eye with 100% loss of vision to that eye. The offender was sentenced to 8 years.

b) State v Kangi [2016] PGNC 165; N6357 (14 July 2016). The offender took aim with his factory made shot gun and fired a shot at the victim where pellets hit the left side face of the victim causing injury to the victim’s eye. On a plea of guilty, the offender was sentenced to 5 years. Time in pre-trial custody was deducted and orders for probation and community work for 8 months were imposed.

c) State v Magua [2016] PGNC 404; N6715 (15 July 2016). In this case, an argument developed between the victim and the offender. The victim and another man armed with bush knives attacked the offender. The offender retaliated and chopped the right thumb and four fingers of the victim’s left hand. On a guilty plea to a charge of grievous bodily harm with intent, the prisoner was sentenced to 2 years in hard labour. Time in pre-trial custody was deducted.

16. For this present matter, Ms. Koek submitted that this is the offender’s first conviction. He has shown genuine remorse. A head sentence of 10 years is appropriate. The time spent in pretrial custody is to be deducted from the head sentence. Upon the s 19 discretion of the Court, a further 3 years be suspended on mitigation and the balance is to be served in custody.

17. Counsel referred to the offender’s character reference from the prison chaplain. It showed that the offender holds a leadership position in prison as the chairman for the Pentecostal churches since 2019. He did Bible studies in prison and graduated with a diploma in Theology from the Bomana Truth and Life Bible school in 2020. He is student pastor. He preaches during Sunday Service and leads roll call and devotions.

18. The character reference also show that the offender is outspoken, has shown leadership towards other inmates and has no bad reports or records against him by other in mates. He is respectful to the warders. I also take particular note of what the prison chaplain stated when he said the offender’s confinement has helped to rehabilitate him.

19. State submitted on the presence of the aggravations and mitigations. The aggravations are that the offence is serious, there is a strong desire to cause grievous bodily harm, it was a non-provoked assault, it was a sudden and brutal attack on a defenseless and unsuspecting victim, she sustained multiple injuries, the offence was pre-planned, there was use of a dangerous weapon namely a knife, the victim was resuscitated and hospitalized, she suffers from permanent loss of four fingers 60 % and permanent loss of right leg at 80% due to amputated right leg at the knee, due to offender amputating the right foot of the victim.

20. In mitigation, the offender pleaded guilty and is a first-time offender. The aggravations outweigh the mitigations.

21. State relied on these comparable cases.

1. State v Peter Pendin [2012] PGNC 292; N4551. The offender was agitated by the victim’s presence. He suddenly swung a bush knife on the head of the victim. As she ran, he pursued her whilst swinging the bush knife. She received cuts to head and shoulder. Her right arm was amputated below the elbow. On a guilty plea to a charge of grievous bodily harm with intent, the offender was sentenced to 16 years.
   
2. State v Nerious Pinda [2012] PGNC 291; N4872. The offender pleaded

guilty to grievous bodily harm with intent where he severed the left arm of the victim with a bush knife. The offender was sentenced to 16 years. Time in pre-trial custody was deducted.

100. State v Tumbari Pu (2021) Cr 1310 of 202. The offender pleaded guilty to

grievous bodily harm with intent. He used a bush knife to cut off both hands of victim who was his wife. Where there was a domestic dispute, the victim left the offender to be with her family. He went to her family home and took her back. On the way to his home, he asked her where she was hiding. She did not respond. He got angry and attacked her. She has 100 % loss of use of both hands. The offender was sentenced to 15 years, minus time in pre-sentence custody period.

22. State submitted that an appropriate sentence is one of imprisonment of a term between 15-20 years. The court will take note that the aggravations far outweigh the mitigations; the extent of the injuries sustained by the victim and the effect of the crime on her and others in the community.

Application
Law

23. The offence of doing grievous bodily harm with intent attracts the maximum penalty of life imprisonment. It is an offence of intent. The offender must be punished for intentionally causing injuries that are life and limb threatening.

24. It is settled law in this jurisdiction that the maximum penalty for any offence is reserved for the worst kind of case. The principle in the case of Goli Golu v the State (supra) is applied. Section 19 of the Criminal Code vests the sentencing authority the discretion to impose a sentence less than the maximum prescribed sentence, where the circumstances of the case warrants, applying the principle in the case of Lawrence Simbe v The State [1994] PNGLR 38.

The purpose for sentencing

25. In imposing an appropriate penalty, the court is mindful of the purpose for sentencing which include the imposition of an adequate punishment relative to the seriousness of the offence, for deterrence, rehabilitation, accountability, denouncement, protection and recognition of the harm done to the victim. Sentencing principle in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 is adopted and applied.
26. Apart from considering the cases cited to me by counsels, I have also researched two other cases which I cite here:

a) State v Makapu [2017] PGNC 118; N6761. On a guilty plea, to a charge of grievous bodily harm with intent, where the offender used a bush knife to cause multiple injuries to the head of the victim and also to cut the right hand and left leg of the victim over allegations of sorcery, a sentence of 8 years was imposed.

b) State v Kup [2018] PGNC 366; N7477. On a charge of grievous bodily harm with intent, where the offender pleaded guilty, the victim sustained an amputated left arm and an amputated right leg. A sentenced of 10 years was imposed. Time in custody was deducted and there was no suspension.

Sentencing Trend

27. These cited cases show that the courts have been imposing sentences between 8 - 16 years imprisonment depending on the peculiar facts of the case. In a case involving an amputated arm and leg, a sentence of 10 years was imposed (Kup case). The sentence in Kup’s case was imposed four years ago. The offence of grievous bodily harm with intent in a domestic setting is prevalent and therefore should attract a sentence of more than 10 years or between 15-20 years.
Circumstances of the killing

28. Unlike Tumbari Pu’s (supra) case, the offender in the present case is not an unsophisticated villager as he was educated up to Grade 8 and has had been exposed to life overseas doing seasonal work in New Zealand. He has had modern influence. The offender had come to Port Moresby to build a church and was living with his church family at the time of commission of this offence. He therefore has had the church’s influence. Those influences and experiences however meant nothing to him. He did not stop to think about what the consequences of his actions were going to be. He chose to break the law.
29. Tumbari Pu was an unsophisticated villager who had never been to school, lived in a small village all his life and had never been formally employed. He was sentenced to 15 years for chopping off both hands of his wife. The offender in the present matter should have known better. The court must consider an appropriate sentence in this regard.
30. The offence of grievous bodily harm with intent is serious because it is a crime of intent and therefore must be met with a severe punishment to deter the offender and others who are likeminded or may be similarly inclined to intentionally cause grievous bodily harm and threatening the lives and limbs of victims. The offender gave his explanations for his actions in the PSR but those were not the facts he pleaded guilty to. Consequently, I reject those facts and accept those that he pleaded guilty to when arraigned for this offence.
31. In saying this, I accept that the victim was living her own life and it was unknown to her that the offender was tracking her and was nearby. The offender approached her without her knowing it and launched a surprise attack on her. This resulted in grave and serious consequences. The victim now suffers from 60 % loss of use of her right hand and 80 % loss of use of her right leg. Her life had been drastically altered and affected after this attack. She is now reliant on the use of an artificial limb to assist her move and do things and to try to live a normal life. Regardless, her life has never been the same again.
32. The victim obviously had incurred a lot of medical cost associated with the injuries sustained. An appropriate punishment therefore must be one that gives due recognition to the harm done to the victim, the physical and psychological pain and sufferings she had gone through and the financial burden she had carried.
33. The offender was armed with a dangerous weapon in a public place when he launched the surprise attack on the victim. The use and possession of dangerous weapons such as knives in a public place is a prohibited act and is a summary offence. With the appropriate government support to relevant state agencies like the Police, they must raise their efforts in the enforcement of the law relating to such summary offences. Loiterers who walk around aimlessly must be checked on the spot and such weapons if found on them must be removed from them. They must be arrested and charged before they go on to commit very serious offences resulting in grave consequences including loss of life. Many deaths and grievous bodily injuries occur because people are left to carry and possess concealed weapons on their person and to use then readily and sparingly. The offender was one such person who had concealed a dangerous weapon and had no regard to the rule of law and the safety, comfort and rights of others, including his ex-partner.
34. This crime no doubt was carried out with some degree of planning. The offender would have studied the victim’s movements in order for him to have known where exactly to find her alone in order for him to launch his surprise attack on her. She was on her way to work and had on her, her personal effects including some cash and school and work certificates. She was robbed off all her personal items. The offender’s actions also amounted to an offence of armed robbery. I wonder if he was charged for that offence.
35. A premeditated and pre-planned offence is a serious consideration in sentencing. That makes this case a more serious one for an offence of grievous bodily harm with intent. The victim was alone, unarmed, unsuspecting and helpless. She was unable to defend herself before she was struck as it was a surprise attack. After she was struck, she was not able to get away as her right foot was amputated causing her to lay helpless on the ground. When she raised her hand to fend off the knife, her fingers were chopped off. The attack was brutal and was life threatening.
36. The community where the victim lives in, ie at Nine Mile, is made up of people from all walks of life in PNG, who like herself are living there due to affordable rental prices. City residents whether in the suburbs or settlements who have been able to contribute meaningfully to society through their careers must be protected. The victim was an educated and trained laboratory technician. At that time, she worked as a National Laboratory technician at the Pacific International Hospital. She must be free to move around at any time without fear. She has the right to be protected from dangerous people like the offender. The punishment that this court will impose must send out a strong message that violence is not tolerated in our communities and citizens must be protected.
37. Further to that, the message that must be sent out to all persons, both men and women, including youthful offenders is that those who go around being armed with knives whether it is a one-meter tramoltina bush knife or a kitchen knife concealed in a bilum or pocket have no place in our communities.
38. In the context of domestic violence, the message that the court must also give to the offender and other likeminded persons is that there are lawful means and peaceful ways of resolving relationship or marital disputes or differences. Issues of trust, respect, how to use family income, abuse of alcohol; divorce, separation, and custody and maintenance of children etc can be better resolved with a sense of maturity. For e.g. through the police, the courts, the mediation processes; through counselling at the Welfare Department and with help from church and clan elders based on spiritual and appropriate Melanesian practices and advice, domestic issues can be resolved amicably.
39. Unfortunately, in our country, lack of government services such as certified and trained marriage counsellors or family and relationship dispute therapists does not help. The experience in the District Courts by the coming into operation of the Family Protection Act shows that the parties are left to their own devices and their own experiences to handle their issues and court battles. Issues are often times varied and sometimes complex and it becomes a need for certified and trained counsellors to provide the necessary expert advice and remedy both in and out of court. This is especially so when the law places a legal obligation on the Courts to act with the granting of orders for mediation and counselling.
40. Regardless, it is no excuse that matured and more experienced adults are not able to handle family and domestic disputes in a civilised way. I would like to think that the starting point for everyone regardless of whatever background one comes from and whatever experiences they have had in life is a human rights-based approach to domestic disputes. No one should be subjected to any form of abuse including physical violence. The offender in this matter had the support of his church family. He was heavily involved in church. He, however, chose not to resolve to peaceful resolutions and took matters into his own hands.
41. In s 4 of the Family Protection Act of 2013, the six main guiding principles of the law shows the true intent of Parliament pertaining to how stakeholders should address this endemic of domestic or gender-based violence. These principles must act as a guide for everyone including the perpetrators. For the Courts, in sentencing for an offence that carries the hallmarks of domestic violence, a national pandemic, the Courts must also be guided by these principles.
42. In the exercise of the sentencing discretion of this court, this court will impose a punishment that must hit home the message that freedom from violence is everyone’s right; violence is a learned behaviour and can be unlearned (though, counselling and rehabilitative measures); violence in the home, in a marriage or in a relationship is not a private matter anymore; domestic violence is a social problem and a public concern; stopping domestic violence will strengthen marriages and relationships and will improve family life; stopping domestic violence will create a more peaceful society and everyone including the courts have the responsibility to take a strong stand against domestic violence in whatever shape and form at all levels of society. Imposing a sentence that must promote these objectives gives meaning to the true intent of the law and to the principles of sentencing.

43. In State v James Peter Kenneth, (2018) N7338, on a charge of murder, but where the comments are relevant, Numapo J said in the closing remarks of his judgement that:

“..the increasing number of killings arising out of a domestic setting is becoming a concern for the courts in recent times. Domestic violence in all forms is becoming too prevalent and this has prompted both the government, Church groups, civil societies and NGOs to direct their focus and resources in combating this problem. The court has a role to play in ensuring that those who committed such offence are given a long custodial sentence. This will also serve as a deterrence to other would-be offenders”.

44. In this sentencing, the above comments are relevant and applicable.
45. In his favour, I have taken into account what the offender had said in allocatus, his guilty plea and show of remorse, that he is a first-time offender, and he has paid K1, 000 as compensation payment.

46. The PSR does not support good character in his community as no one in the offender’s community was interviewed. His family lived in Madang. The PSR did not say why no one from his church community that he lived with at Nine Mile was not interviewed. The writer was not able to verify what the offender had said about coming to Port Moresby to do work for the church. Consequently, there is no support for a suspended sentence and orders for good behaviour or probation.
47. The views of the chaplain of the Bomana Correctional Institute Service (CIS) prison demonstrated that the offender became involved and was committed to church activities in prison due to his confinement which has helped him to be rehabilitated. Due to that, I am of the view that an order that ensures the continuity of this rehabilitative measure is necessary.
48. The offender wants to earn money to continue his work with the church, but again there is no views from his church family at Nine Mile to support this.
49. The victim had sought K50, 000 as compensation. Regardless of the amount sought as compensation, there is no evidence before me on the offender’s financial ability and means to pay any amount of compensation. Therefore, compensation will not be ordered.
Head Sentence
50. In consideration of all of the above, an appropriate head sentence is one of 15 years imprisonment in hard labour and time spent in pre-sentence custody is deducted.
Court Order
51. This is the sentence.

1. The offender is sentenced to 15 years imprisonment in hard labour;
2. Time in pre-trial custody, ie 2 years and 9 months is deducted from the head sentence;
3. The offender shall serve the balance of 12 years and 3 months;

4. In the further exercise of this court’s discretion, taking into account the guilty plea and good character report within prison, the Court deducts 2 years and 3 months;

5. The offender shall serve the balance of 10 years imprisonment in hard labour.

Orders accordingly.
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Public Prosecutors: Lawyers for the State
Public Solicitors: Lawyers for the Defendant