State v Joshua [2022] PGNC 477; N9979 (17 October 2022)

N9979

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1215 OF 2021

THE STATE

-v-

MICHELLE JOSHUA

Mt Hagen: Kaumi J
2022: 11^th March, 16^th & 23^rd August, 17^th October

CRIMINAL LAW – Criminal Code Act 1974, Part V-Offences Against the Person and Relating to Marriage and Parental Rights and Duties, and Against the Reputation of Individuals-Division 4-Offences Endangering Life or Health-Section 319 Grievous Bodily Harm subsection (1)-Plea of Guilt-Woman attacked a Woman-Mitigating and Aggravating Factors – Genuine Expression of Remorse–Prevalent Offence.

CRIMINAL LAW-Sentence-Guilty Plea-De facto provocation considered-PSR considered -Deterrence and Personal Rehabilitation Considered-Partial Suspension not a disservice to community.

CRIMINAL LAW- Sentence-Sentencing Guidelines Discussed-Starting Point-Relevant considerations are identified and considered.

CRIMINAL LAW- Usual purposes of criminal sentencing such as Deterrence, Restitution or Rehabilitation are also relevant factors for consideration- Worst type of offence-Aggravating factors outweigh Mitigating factors-Plea of Guilty and Pre- paid Compensation considered - Life Threatening Injuries suffered by Victim considered very strong aggravating factor - PSR considered-Suspension of Sentence not Recommended -Criminal Code Ch.262, section 19 (1) (d) (6)- Criminal Justice (Sentences) Act 1986, Section 3 (2)

CRIMINAL LAW- It is incumbent on criminal sentencing courts to exercise the people's power vested in them by the Constitution to impose sentences that are in touch with the aspirations and attitudes of the people of PNG.

A female offender pleaded guilty to one count of grievous bodily harm and the matter was for sentence.

Cases Cited:

The State v Darius Taulo (2000) N2034
The State v Henry Idab (2001) N2172
The State v Rueben Irowen (2002) N2239
The State v Vincent Naiwa [2004] PGNC 58; N2710
The State v Ria Bennard CR 374/2005 (20/05/05)
Saperus Yalibakut v. The State (2008) SC890)
The State v Heni [2008] PGNC 200; N3541
The State v Ray Sheekiot [2011] PGNC 165; N4454
The State v Bill Kara [2012] PGNC 19; N4663
The State v Dosa Porop [2017] PGNC 93; N6733
The State v Kevin Ambai (16 March 2018) N7154
The State v Joe Kura & Jason Kura (2019) N7735
State v John Tine [2019] PGNC 72; N7732
The State v Edith Agaru [2021] PGNC 379; N9119

Legislation Cited:

Constitution of Papua New Guinea
Criminal Code 1974
Criminal Justice (Sentencing) Act 1986

Counsel

Ms. Margret Wurr, for the Offender
Mr. Joseph Kesan, for the State

SENTENCE

17^th October, 2022

1. KAUMI J: This is a decision on sentence for a woman who on the 11 March 2022 was found guilty of one count of Grievous Bodily Harm contrary to Section 319 of the Criminal Code Act Chapter 262.
   

ISSUE

2. The relevant issue is what the appropriate sentence is in her case.
   

AGREED BRIEF FACTS

3. The facts the offender pleaded guilty are that on the 16 of April 2021, around 2:30pm, the victim Ronica Joseph was at Banana Gate at Warakum in Mt Hagen, Western Highlands Province. She was in the company of three other women, and they went to see their councilor to mediate a problem between the victim and the offender. When they arrived at the councilor’s residence at Banana Gate, they knocked on the gate, but they were confronted by the offender who was inside the premises. At that time the offender and the victim started to argue and fought each other.
   
4. During the fight the offender pulled out a knife and stabbed the victim on the left side of her lower abdomen, causing massive internal injuries which almost cost her life. She was admitted to the Mt Hagen General Hospital for several weeks until she fully recovered and was discharged.
   
5. The State alleged that the offender unlawfully caused grievous bodily harm to the victim, thereby contravening section 319 of the Criminal Code Act.
   
6. After having read the committal depositions and being satisfied that the evidence therein supported the elements of the charge and that her plea of guilt was in order, I proceeded to confirm her plea and convicted her as charged.
   

ANTECEDENT

7. The Antecedent Report of the offender provided to the Court by the State shows she has no prior conviction recorded against her.
   

ALLOCUTUS

8. When I administered allocutus to the offender i.e., allowing her the opportunity to say what matters she would like the court to take into account when contemplating what kind of punishment to give her, the following is a paraphrased summary of her response:
   

“I say very sorry in the eyes of God. I’ve done wrong. I wasn’t planning for the fight. They rang my husband on his phone. We were quarrelling and they came and attacked me. After the argument they pulled the gate and entered. I say sorry for what I did. I paid compensation to the victim with K2500.00 for the wrong I did. I say sorry for what I did and ask for the Court’s mercy on me”.

OTHER MATTERS OF FACT

9. The offender pleaded guilty and so I will give her the benefit of the doubt on mitigating matters raised in the committal depositions, the allocutus in submission that are not contested by the prosecution: Saperus Yalibakut v. The State (2008) SC890). In her allocutus the offender stated that the victim and her friends entered the gate and an argument started between them and then they attacked her and that she was sorry for what she did and compensated the victim for what she did to her with K2500.00 and I accept that compensation was paid to the victim and her expression of remorse as genuine.
   

SUBMISSION BY DEFENCE COUNSEL

10. Ms Wurr highlighted the offender’s plea of guilty and that the aggravating factors and mitigating factors of the case to point out that the case did not fall into the worst-case category. She submitted that considering cases she cited and sentencing trends, the Pre-Sentence Report and the circumstances of this case, a head sentence of 2 years to be wholly suspended with conditions would be an appropriate sentence.
    
11. Further that the offender Michelle Joshua was 25 years old and from Yungili Village, Pangia District in the Southern Highlands Province. She was educated as far as grade 12 and was from a Christian background. She was married to her husband for 3 years of which they had a son of 2 and a half years old. She was unemployed and dependent on her husband for financial support and was residing with her in-laws at Warakum, Mt Hagen, WHP since 2019.
    

SUBMISSION BY THE STATE

12. Mr Kesan, submitted that the State took into account the mitigating factors from the circumstances of the matter, particularly that the offender had no priors, that the offence was committed in domestic setting, there was no preparation or pre-meditation by the offender, that there was some de facto provocation arising from the arguments between the victim and the offender and that some compensation was paid according to the Pre-Sentence Report and the offender was willing to pay further compensation.
    
13. He also submitted that the factors in her aggravation made the matter serious and referred the court to them.
    
14. In addition to these aggravating factors, he submitted that from the Victim Impact Statement and her oral testimony in court, it was clear that the victim had suffered greatly and continue to suffer today and would do so in future.
    
15. Given the very serious nature of this case, the State submitted that this is a worst case of grievous bodily harm that could attract the imposition of the maximum penalty of 7 years imprisonment.
    
16. He further cited cases involving serious Grievous Bodily Harm where the victim suffered permanent injuries and maximum penalty of 7 years was imposed on the offenders.
    
17. That given compensation had been paid and peace restored, the sentence could be suspended to reflect this, either wholly or partially with strict conditions in with orders for further compensation to be paid as per the sentencing discretion of the Court.
    

RELEVANT LAW

18. The offender pleaded guilty to one count of Grievous Bodily Harm contrary to section 319 of the Criminal Code Act:
    

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.

WHAT IS THE MAXIMUM PENALTY?

19. The maximum penalty for Grievous Bodily Harm is 7 years imprisonment by virtue of Section 319 of the Criminal Code. This Court has a wider sentencing discretion under Section 19 of the Criminal Code to impose a lesser sentence than the prescribed penalty. It is also trite that the maximum penalty is reserved for the worst type of offence.
    

WHAT IS THE STARTING POINT?

20. The proper starting point is three and a half years. (Midway point)
    

WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

21. I will now consider the sentencing trends in recent history.
    

NATIONAL COURT SENTENCES FOR GRIEVOUS BODLIY HARM, 2000-ONWARDS

Maximum Penalty of 7 years Imposed (Use of Knives)

1. The State v Rueben Irowen (2002) N2239 Kandakasi. J (as he then was) – Offender forced his two wives (2 victims) to strip naked and savagely attacked them with a bush knife inflicting life-threatening on their bodies. The victims each had permanent disabilities to their bodies. Maximum Penalty two sentences of 7 years imposed cumulatively.
   
2. State v Thompson Titus [2017] PGNC 156; N6763 – This was a serious case, and it was categorized by the Court as worst case which attracted the maximum penalty of 7 years imprisonment. In this case the offender was armed with a long bush knife which he used to chop the victim’s right hand off at the wrist which required amputation. As a result, the victim had 100% permanent loss of his right wrist and hand. The aggravating factors which the Court considered in sentencing were that it was a vicious attack with the use of a dangerous weapon on an innocent person. Further that a lot of force was used to completely chop off the hand and that the victim was an educated who had completed his training to become a mechanic thus he needed both hands for his line of work. The offender was therefore to 7 years imprisonment without any suspension.
   

Lesser Sentences Imposed (Use of Knives)

1. The State v Darius Taulo (15/12/00) N2034; Kandakasi, J (as he then was) – Offender attacked victim (wife). 3 years imposed-wholly suspended on strict terms-compensation already paid- a preparedness to undergo his wife’s traditional form of compensation – Adult offender was not a danger to society-Pre-Sentence Report supported rehabilitation of Offender.
   
2. The State v Henry Idab (2001) N2172; Kandakasi. J (as he then was) – Plea of guilt – a group of men attacked another group mistakenly and a Village Court magistrate sustained serious bush knife injuries to both hands, 85% loss of hands. 5 years imposed – partly suspended on strict terms.
   
3. The State v Vincent Naiwa [2004] PGNC 58; N2710 (22 June 2004) Kandakasi. J (as he then was) – Guilty Plea-Offender attacked sister-in-law with a bush knife for no good reason-Left hand rendered useless-Prevalent offence-no compensation paid and having no means to pay- Pre-sentence report not balanced-custodial sentenced appropriate-5 years imposed.
   
4. The State v Ria Bennard CR 374/2005 (20/05/05)-Guilty plea-29 years old offender was under the influence of alcohol-Cut his brother with a bush knife- then cut his father when he came to his brother’s aid-Life threatening injuries- Sentenced 4 years for each count imposed, a total of 8 years cumulative sentence.
   
5. The State v Heni [2008] PGNC 200; N3541 (11 December 2008); Cannings. J- Guilty plea- Offender attacked a man with a bush knife- 4 years imposed- None of which was suspended.
   
6. The State v Ray Sheekiot [2011] PGNC 165; N4454 (22 November 2011)- Guilty plea- Offender cut his cousin sister on the neck and check with a knife- 4 years imposed, fully suspended in view of a favourable pre-sentence report and payment of compensation and reconciliation.
   
7. The State v Bill Kara [2012] PGNC 19; N4663 (10 May 2012); Cannings. J- Guilty Plea-Offender cut his female neighbour in an urban setting, cutting her on the face with a bush knife, inflicting an eye injury and superficial facial injuries requiring seven stiches- Starting point- 3 and half years- 4 years imposed- fully suspended in view of a favourable pre-sentence report and preparedness to pay further compensation.
   
8. State v Dosa Porop [2017] PGNC 93; N6733 – The offender used a kitchen knife to strike the victim on his stomach. The knife penetrated the victim’s stomach and perforated the small intestine resulting in massive internal bleeding. The offender was sentenced to 3 years imprisonment in hard labor.
   
9. The State v Joe Kura and Nason Kura (14 February 2019) N7735; Miviri. J- The offenders taunted the victim then chased him and attacked him with bush knife causing grievous bodily harm. 4 years imposed; 2 years suspended conditionally with the balance to be served.
   
10. The State v Kevin Ambai (10 March 2018) N7154; Susame. AJ – Bush knife was used in attack on the victim and unjustified. There may have been a couple of incidents earlier on involving the victim and the offender and they were reported to police and were pending investigations when the offender attacked the victim, and he suffered severe injury. 5 years imposed. Nil suspended.
    
11. State v John Tine [2019] PGNC 72; N7732 – offender was sentenced to 3 years imprisonment in Hard labor for chopping the victim on his head causing permanent damage to his head. The offender in that case had paid compensation and peace was restored however given the seriousness of the offence, an order for further compensation was made by the Court.
    
12. The State v Edith Agaru [2021] PGNC 379; N9119 – After an argument, the offender used a kitchen knife to slash her husband on his abdomen. The Court held that this was a serious case as the victim was stabbed on a vulnerable part of his body, th abdomen and could have lost his life. The offender was sentenced to 3 years imprisonment which was fully suspended with conditions including an order for compensation.
    

22. It is apparent from the above 15 cases that in all of them dangerous weapons i.e., knives were used to inflict injuries on the victim, the head sentence was three to seven years and suspension of these periods ranged on from wholly to partial depending on the peculiar circumstances of the matter. I note that suspension of sentences either wholly or partially have only occurred based on a provision of Pre-Sentence Report provided by Community Based Corrections office. I note also where the circumstances dictated the head sentence or maximum was not suspended. And where there were multiple victims, cumulative sentences imposed accordingly.
    

WHAT IS THE HEAD SENTENCE?

23. In order to arrive at a head sentence, I have to consider the particular circumstances in which the prisoner has committed the offence and the result of which will come the factors in his aggravation as well as those in his mitigation.
    
24. Both mitigation and aggravating factors may be mild or strong and weighed accordingly. The State v Raka Benson (2006) CR 447 and 445.
    

MITIGATING FACTORS

25. The mitigating factors in the case are as follows:

[i] The offender pleaded guilty and saved the court’s time.

[ii] The offender surrendered to police after the offence was committed on her accord and cooperated with police from initial stages of investigation and made admissions.

[iii] The Offender apologized to the court and the victim and showed genuine remorse for her actions in allocatus;

[iv] First time Offender.

[v] The Offender compensated the victim with K2500:00 to maintain the peace in the community.

[vi] there was some de facto provocation by the victim.

26. Besides the above mitigating factors, I also consider her family background, matters raised in her allocutus and her favorable antecedent report.
    

AGGRAVATING FACTORS

27. At the outset of my consideration of the aggravating factors in this matter I consider a profound statement made by the Supreme Court in Anna Max Marangi v The State SC702, (8 November 2002) when endorsing the trial judge’s emphasis on the use of knives as lethal weapons, a statement very pertinent to the matter before me for sentence, so I reproduce it:
    

“We endorse His Honour’s emphasis on the use of a knife as a lethal weapon to kill another person as unacceptable under any circumstances. To our knowledge, there are increasing instances of manslaughter and murder killings coming before the Courts in which a knife is used to settle domestic differences, with fatal consequences. The use of readily available kitchen knife to settle one’s domestic grievances is prevalent in this country. It is becoming a silent lethal weapon, far more dangerous than other potentially dangerous weapons like axes, bush knives or even guns. The reason for this is because the knife is readily available, it can be easily concealed, and used on unsuspecting unarmed victims who are usually taken by surprise, and used in a calculating and precise manner, that the human body is easily penetrated, and vital organs are damaged or even severed. It seems to us that more lives are being lost in this country today from the use of the knife than with any other weapon. Therefore, a strong punitive and deterrent sentence is required.”

28. I endorse these sentiments by the Supreme Court without reservation as in our villages or communities and in our urban centers today, disputes that could otherwise be resolved amicably through intermediaries such family members, village and community leaders, law enforcers or the courts are instead readily decided by the tip of a blade. Victims are scarred, maimed or crippled for life or worst become statistics (loss of life) of such wanton acts. This is a serious aggravation factor against the offender for her use of the knife.
    
29. Another factor of serious aggravation against the offender, was not just the extent and viciousness of her attack on the offender but the result of her attack. The victim had to be hospitalized for a couple of weeks before being discharged from the hospital because of the injuries she received. I will now refer to the actual injuries the offender inflicted on the victim and treatment she received and lastly, the condition of the victim today.
    
30. I refer to the medical report which I consider clearly puts matters into perspective in as far as the injuries sustained by the victim are concerned and the treatment she received for those injuries.
    
31. Firstly, according to the Interim Medical Report for Ronica Joseph, female aged 25 years, she was a victim of penetrating stab wound to the left flank with hemodynamically unstable and admitted to the surgical ward on 16 April.
    
32. I note that the two parts of the medical report of the victim by Dr. Peter Kolkia, a Surgical MO at the Mt Hagen General Hspital dated 20 April 2021 and are as outlined:
    
    1. Injuries identified includes:
       
       • Lacerated colon at the splenic fixture with fecal matter spillage and contamination
       • Left kidney lacerated into two halves
       • Bleeding splenic injury
       • Hemoperitoneum -2000mls
         
    2. Treatment includes:
       
       • Explorectomy under general anaesthesia
       • Left nephrectomy (removal of left kidney)
       • Splenectomy (removal of spleen)
       • Bowel repair with vicryl 3-0
       • Intra-abdominal washout with normal saline 4Lirtes.
33. The operation was done on 16 April 2021, the day of admission. At the time of the writing of this report, the victim was in the surgical ward for intravenous antibiotics, regular pain medications and monitoring of the right kidney function.
    
34. I note with particular concern that because of a single stab wound, the victim suffered horrendous and damaging injuries to her vital organs, indeed so serious were they that Dr Kolkia had no option but to remove the left kidney and spleen, the bowel had to be repaired with vicryl 3-0 and the Intra-abdominal had a washout with normal saline 4Litres. What this means in effect is that the victim will live for the rest of her life with one kidney only, her right one and no spleen, which puts her at a great disadvantage as opposed to the normal person who has the benefit of two kidneys in case one fails to function. What the offender has indeed done to the victim by inflicting such horrendous injuries on her body is to give her a life sentence of suffering as evidenced in the PSR.
    
35. Other aggravating factors are:
    

[i] The Prevalence of this offence.

[ii] The attack on the victim was Vicious and callous by the offender.

[iii] The victim was unarmed.
VICTIM IMPACT STATEMENT

36. I now consider the Victim’s Impact Statement and reproduce in its entirety to highlight the condition of the victim today:
    

“I am traumatized because I cannot perform normal duties as a mother to my under aged children. I am wife to my husband, but I cannot fulfill all my marital obligations as a wife to a husband and a mother to my children. I depend entirely on my husband and his parents and siblings to do everything for me and my children. I cannot bear another child again due to this injury. My husband is the only child to his parents, and I cannot bear him any more children because of this injury. I cannot wash myself, so my husband and his relatives wear dippers on me and remove it after I release the waste. I sustained a deep cut through my intestine and further went into my left kidney and damaged it. I underwent major operations where my left kidney was removed and my intestine was repositioned and placed outside the surface of my waistline. Because of this injury my internal organs are not functioning well where I experience the blockage along my urea tube where that creates sharp pain in my right kidney. I now remove my excreta/waste from the waist side, and it is the disguising life I am living. I even cannot bear a child anymore and that’s worries me a lot. I have two (02) underaged children to look after and that worries me a lot. I always think about my children’s future as I cannot afford to raise them on my own until they complete their education”.

37. I note the medical report by Dr. Linda Yaga of the Western Highlands Provincial Hospital dated 7 September 2022. Her report is that the victim had an operation in 2021 to remove her left kidney and as a result of this operation, she developed chronic kidney disease (Kidney Failure) of the remaining right kidney. She explained that because of the illness, there can be a build-up of waste products of metabolism in the body which is usually removed by the kidneys. That when these waste products reach a certain level in the blood, patient can become confused, and that condition is called uremic encephalopathy. The gist of her report was that the victim developed this condition and was admitted to the medical ward of the Mt Hagen General Hospital from 21 January to 4 February 2022 and made an uneventful recovery. That she will need further kidney transplant or dialysis in the future if the kidney function has deteriorated to a certain point.
    
38. The victim’s physical well-being and health today and into the future, is fraught with risk and uncertainty.
    

EXTENUATING FACTORS

39. An extenuating factor in this matter is that this was a fight of four persons against one and this perhaps explains in some way the viciousness of the attack by the offender which of course does not absolve her from wrongdoing or her culpability in this matter but nevertheless in my view is an extenuating factor as she had deal with four women against her, the odds were stacked against her.
    
40. I view the loss of the victim’s left kidney (an internal organ) and in view of Dr. Yaga’s assessment of the victim’s future health prospects as being worse than the loss of an external limb such a hand or leg or an eye. Indeed, her remaining right kidney has already developed chronic kidney disease or Kidney Failure and should it deteriorate to a certain point she will need a kidney transplant or dialysis in future. If the current state of our health facilities is anything to go by, I must say her future looks bleak to say the very least. So, in this sense this case can be differentiated from the cases I have referred to.
    
41. I find that the aggravating factors outweigh the mitigating ones.
    
42. I agree with the State Prosecutor that this offence is in the worst category of cases for this offence.
    
43. For the reasons I have referred to I impose the maximum sentence of 7 years.
    

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED?

44. Section 3 (2) of the Criminal Justice (Sentences) Act 1986 provides that:
    

There may be deducted from the length, or any term of imprisonment imposed of any court any period before the sentence was imposed during which the offender was in custody in connection with the offence for which the sentence was imposed.

45. This provision allows the court discretion to decide whether to deduct the period an offender has spent in custody in remand awaiting trial. It is not an automatic right of the offender to have this period deducted.
    
46. The offender spent 1 month 1 week in pre-trial custody.
    
47. So, it is proper to deduct these respective periods spent in pre-trial custody and this leaves a head sentence of 6 years 10 months and 3 weeks.
    

STEP 6: SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?

48. The PSR does not contain the views of the leaders of the offender’s community so for this reason and the circumstances of this matter the PSR does not recommend any suspension of any kind and recommends a custodial sentence. Despite this it still offers some factors of assistance to Court, factors which form the basis for suspension of sentence (first time offender, payment of compensation, promise to pay more compensation, genuine remorse, de facto provocation etc).
    
49. When I consider the plea of guilt by the offender, her lack of prior convictions, her payment of compensation of K2500.00 to the victim on her own accord and the extenuating factor, I strongly feel that justice would be done if she was given some discount in the form of suspension. So, I impose suspension but only partial, of 3 years 10 months and 3 weeks of the head sentence on a good behavior bond.
    
50. This sentence is to serve as a deterrence to like-minded persons in the community, punish and rehabilitate the offender.
    
51. The offender is sentenced to three years imprisonment with hard labour.
    

SENTENCE

52. The orders of the Court are as follows:
    

Length of Sentence imposed	7 years
Pre-sentence period to be deducted	1 month 1 week
Resultant length of sentence to be served	6 years 10 months 3 weeks
Amount of sentence to be suspended	3 years 10 months 3 weeks on Good Behaviour Bond
Time to be served in custody	3 years to be served at Baisu Corrective Institution in Hard Labour
Bail	Refunded forthwith

Sentence accordingly.

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