N10262

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 30 OF 2022

THE STATE

V

SAKARIAS YAKAMO
	
Waigani : Linge, AJ
2023	 : 3rd May

CRIMINAL LAW – Unlawful wounding contravening, s.322 (1)(a) of the Code – mitigating factors – sentence concurrent or cumulative - Guilty plea  

Cases Cited: 
Goli Golu v The State [1979] PNGLR 38 
State v Gendi [2015] PGNC 258; N6149 
State v Tinpuar [2016] PGNC 170
State v Gedi (2022) PGNC 245; N9732
State v Kusan [2021] PGNC 258
Public Prosecutor v Bruce William Tardew [1986] PNGLR 91
Lawrence Simbe v The State [1994] PNGLR 38
State v Sovou (1998) N1961
Lialu v The State [1990] PNGLR 487
Kerua and Kerua v Public Prosecutor [1985] PNGLR 85
State v Polin Pachalou Lopai [1988-89] PNGLR 48
State v Benjamin Makile (2016) N6251
The State v Lekis [2007] PNGC 214: N5029
The State v Edmund Hostia Geria (2008) N3868
State v Tinpuar [2016] PGNC 170

Counsel:

Ms. Susan Patatie, for the State
Ms. Cecilia Koek,	for the Prisoner

SENTENCE

19th May, 2023

1.	LINGE AJ: The prisoner is indicted with three (3) counts of unlawful wounding contravening Section 322 (1) (a) of the Criminal Code Act. He pleaded guilty to all three (3) counts.

2.	The maximum penalty for an offence charged under s. 322 (1)(a) of the Criminal Code is a term not exceeding 3 years imprisonment. Section 322 (1) (a) provides:

(1)	A person who-
(a)	unlawfully wounds another person; or 
(b)	…
is guilty of a misdemeanour. 
Penalty: Term not exceeding three years.  

3.	The prisoner and the complainants namely Amos Anton, Merolyn Amos and Docas Anton all reside on the same block of land at Taurama, NCD. Apparently, the land was a subject of dispute between them causing the prisoner and the family of the three complainants not to be in good terms.
4.	The prisoner pleaded guilty to Count 1 that on the 1 of September 2020 at Taurama around 1:00 pm, he wounded Dorcas Anton who was holding on to an 8-month-old child.  The prisoner yelled at her and punched her face causing her to fall to the ground and her nose to bleed.
5.	He also pleaded guilty to Count 2 that he and Amos Anton exchanged punches. Later in an attempt to cut Merolyn Amos with the bush knife, cut Amos Anton on his left foot when he intervened. 
6.	The prisoner also pleaded guilty to the third count that he got a two (2) metre long metal rod and chased Merolyn Amos, who stepped on a broken bottle and fell over.  He then raised the metal rod and hit her wounding her on her head which required hospitalization and stitching.  
7.	The action of the prisoner contravenes section 322(1) (a) of the Criminal Code when:
(a)	He punched Dorcas Anton in her face and hit her with the timber on her back, his actions were unlawful, and he caused bodily harm to her.
(b) 	The prisoner cut Amos Anton on his left foot with a bush knife 
(c)	The prisoner hit Merolyn Amos on her head with a metal rod his actions were unlawful, and he caused her bodily harm.
8.	In considering an appropriate sentence I am guided by the settled principle that the maximum penalty should be reserved for the most serious instances of an offense:  Goli Golu v The State [1979] PNGLR 653.
9.	The Court must also take into its consideration any circumstances of aggravation and /or mitigation.  Further the Court has a wide discretion under s. 19 of the Criminal Code Act in determining the proper sentence as each case and its circumstance warrant. 
10.	The Court is not constrained in its consideration and may consider other pertinent circumstance or factors including but not limited to sentencing trends, special or extenuating circumstances and the appropriate head sentence: The State v Edmund Hostia Geria (2008) N3868.
11.	It is also trite that each case is determined on its own peculiar facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38; State v Sovou (1998) N1961.
12.	This case is peculiar in that the prisoner inflicted unlawful wounding to three (3) different victims using three (3) different weapons on each of the victim in a one incident of rage. It was in a family type setting, and it seems over a dispute about land in a semi urban setting.  
13.	In Count 1, the prisoner punched Dorcas Amos then got a piece of wood and his her on her back.  He did not consider that the victim was defenceless, old and at the time she was carrying her grandson. 

14.	On the second count, the prisoner hit Merolyn Amos on the head with an iron rod when on the ground after being chased by the prisoner and stepped on a broken bottle and fell face down. Merolyn Amos suffered head injuries, concussion and she passed out. She was later taken to the hospital where her head was stitched and released.

15.	In State v Gendi [2015] PGNC 258 the prisoner pleaded guilty to the use of a rod causing unlawful wounding. The offender used the iron rod to hit the victim in order to protect another person thereby broke the victims left arm. The victim spent one week in hospital. The prisoner was sentence to 2 years but wholly suspended on condition of monetary payment of K 2,000.00 to the victim. 
16.	The third count involved use of a Bush knife as a weapon. The prisoner was about to slash Merolyn Amos when the victim Amos Anton went to save her, the prisoner cut the latter’s, Amos Anton foot instead.  
17.	In State v Tinpuar [2016] PGNC 170 the offender with a bush knife cut the victim on his right leg and then his toes. The unlawful wounding followed an argument between the parties in a domestic setting and the parties are family.  The starting point there was 18 months.  
18.	In The State -v- Lekis [2007] PNGC 214; N5029, the prisoner had a dispute with his sister and his father in a public place.  He swung his bush knife at his sister, cutting her on the head.  He pleaded guilty to unlawful wounding.  It was held that the starting point for sentencing for this sort of assault in a domestic setting is 18 months as the starting point for Unlawful Wounding sentences.  It should either increase or decrease depending on the presence of aggravating and mitigating factors, had a dispute with his sister and his father in a public place.   The court sentenced the prisoner to 30 months imprisonment but deducted the pre-sentence time the prisoner had served and wholly suspended the sentence with imposed conditions. 
19.	In State v Benjamin Makile (2016) N6251, the prisoner pleaded guilty to unlawful wounding.  The prisoner attacked his brother violently with a bush-knife. The Court sentenced him to two (2) years imprisonment; one (1) year was suspended with imposed conditions, subject to the prisoner serving the first year in full in custody. 
20.	In relation to Count 3 the accused was about to slash Merolyn Amos when the victim Amos Anton intervened to save her, and the prisoner cut his foot instead.  
21.	In this matter the prisoner used three different weapons and assaulted not only one but three persons unlawfully wounding each one of them.  The severity of the injuries sustained by each victim reflected the type of weapons used on each of them and must be measured accordingly. Each injury as reduced into each count is distinct and will be determined on its circumstance. In State v Polin Pachalou Lopai, [1988-89] PNGLR 48, at page Bredmeyer J aptly expressed in the following, “...with consequences the more serious the consequences, the greater the punishment”.
22.	Thus, the Court must be guided by some principles in order to properly exercise its sentencing discretion. The Supreme Court per Kapi DCJ held in Lialu v The State [1990] PNGLR 487 that:
“This exercise of the sentencing discretion must be guided by proper principles.  These include the characteristics of the offence or the offender which may aggravate or mitigate the seriousness of the crime taken together with all other relevant considerations.  In this regard it is desirable that the courts must be consistent in the application of these principles.  These principles of sentence do not necessarily resolve the difficult task of fixing a particular term of sentence for any one particular case.  The reason is clear, and it has been pointed out in previous cases that there is no mathematical or scientific formula for arriving at a particular specific sentence from the general principles”.
23.	In Kerua and Kerua v Public Prosecutor [1985] PNGLR 85; the Supreme Court settled on three (3) principles of sentencing to guide Courts in deciding between concurrent or cumulative sentence:

“1.	where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent. “   [“the one-transaction rule], 

2.	Where the offences are different in character, or in relation to different victims, the sentence should normally be cumulative.

3.	When a court has arrived at appropriate sentences and decided whether they should be concurrent or cumulative, it must then look at the total sentence to see if it is just and appropriate. If it is not, it must vary one or more sentences to get a just total.”

24.	The Court is also required to consider the impact of mitigating factors versus factors of aggravation. Parties have submitted on these for my consideration, and these are:

1.	 Mitigating factors for the prisoner:

(i)	Guilty plea thereby saving the courts time in dealing with this matter.
(ii)	He apologized and was remorseful.
(iii)	Co-operated with police and admitted to the charge at an earliest in the Record of Interview.
(iv)	Favourable pre-sentence Report.

2.	Aggravating factors of this case include:

(i)	Injuries sustained by the three (3) victims- 
(a)	Amos Anton suffered from a cut on his left foot, he received stitches on his foot and was unable to walk for a week.
(ii)	Merolyn Anton was unconscious from the blow of the iron rod.  She suffered severe headache and dizziness; she received several stitches on her head.
(iii)	Dorcas Anton on elderly defenceless women was hit by a piece of wood on her back while carrying her grandson.  She was injured on her back, to this day she has had severe back ache.

(iv)	Offensive weapons used included bush knife, iron rod and piece of wood
(v)	The victims were unarmed
*  Domestic violence is a prevalent offence regarding the land issues
*  Parties are family
(vi)	Prior conviction 

25.	Another factor that has now attracted the Courts attention and consideration is the view of the victim. A document referred to as the victim impact statement becomes an integral part of the total consideration. Here the victims had filed respective statements on the 20 of April 2023.

26.	The three (3) victims stated that they have suffered tremendously. They were not formerly employed and the injuries they sustained hindered their day-to-day activities and ability to make ends meet for a while.
27.	They were in a financial debt, they borrowed money for hospital bills, it took a while for them to repay.  They were all injured and was not able to repay the borrowed money quickly. In the case of Dorcas Anton, she explained that since the prisoner hit her back with the wood, she had difficulties getting in and out of bed or move around to do gardening and marketing.
28.	Merolyn Amos stated that after the incident she could not stand in the sun for longer period, and she gets drowsy and faints a lot.  She could not carry heavy load on her head, and this disadvantaged her from gardening and marketing to sustain her family.

29.	Amos Anton suffered also from the incident, his greatest fear now is to protect his family from the accused and to avoid repeat of similar altercations in the future.

30.	The prisoner on the other hand requested for a Pre-sentence Report which has been prepared by the Probation Services. The main recommendation is that the offender is submitted as a “…suitable candidate for a non-custodial sentence”.    The report also raised concern that the prisoner may be a threat to the victims.  
31.	I have considered all of the above including the factors of aggravation and mitigation, the victims impact statements and the Pre-Sentencing Report (PSR). 

32.	Due to the guilty plea the Court is not privy to the exact nature of nor the factors leading up to the commission of the misdemeanour. There is however a hint of a dispute over possession and use of land between him and Amos Anton and family that led to the altercation. Such will not go away but there are proper processes to follow to deal with such matters be it customary land or alienated land. Any risk of recurrence of the incident leading up to this indictment cannot be ruled out but a lot has taken place since and people and circumstances do change.

33.	The prisoner’s experience of being incarcerated since 22 November 2021 would have been a lifelong lesson that will linger in him for the rest of his life. His embracing of and taking a leading role in the Prison Lutheran worship is a reflection of what change that might be taking place within him.  His guilty plea in the National Court on the 3 May 2023 and my observation of his expression of remorse is from a person who truly accepts his wrongdoing.   

34.	I now will deal with the sentencing principle for this matter. The offences are different in character as reflected in the three (3) separate counts involving three (3) separate victims.  It was not done in one transaction and in such a situation the sentence should normally be cumulative.
 
35.	The prisoner had been in custody since 22 November 2021. He was committed to stand for trial for the offence on the 17 January 2022. 
36.	Having settled that the sentence should be cumulative, the next thing is to determine the starting point for each count. This must be based on the severity of and the circumstances and nature of wound or injury. That is, the three counts must attract different starting point range to reflect the circumstances and severity of the wound or injury as per the following: 

Count 1 – The victim, Dorcas Anton who was holding on to an 8-month-old child.  The prisoner yelled at her and punched her face causing her to fall to the ground and her nose to bleed.
Count 2- that he and Amos Anton exchanged punches. Later in an attempt to cut Merolyn Amos with the bush knife, cut Amos Anton on his left foot when he intervened. 
Count 3- the prisoner got a two (2) metre long metal rod and chased Merolyn Amos, who stepped on a broken bottle and fell over. The prisoner   then raised the metal rod and hit the victim wounding her on her head which required hospitalization and stitching.  
37.	I have arrived at appropriation of sentences which must be cumulative. The charge of unlawful wounding carries a term not exceeding three years.  Here it is incumbent upon me to look at the total sentence to see if it is just and appropriate. If it is not, then I must vary one or more sentences to get a just total as per Kerua and Kerua v Public Prosecutor [ supra]. 

38.	The totality principle entails that I must look at the totality of the criminal behaviour and ask myself what is or would be the appropriate sentence of all the offences. I must be satisfied that the aggregation or total of the sentences appropriate for each offence or count is a just and appropriate measure of the total criminality involved.
39.	 Therefore, if I consider the cumulative effect of 3 years for each count, this will amount to 9 years. Obviously, this is excessive and offend the principle of totality which exist to prevent an excessive sentence being imposed.   
40.	In the end I will consider allocating the sentences starting from less serious in Count 1 as the injury was not a result of use of weapon. Counts 2 and 3 rank equally in that the wounds or injuries were as a result of the use of weapons. 
41.	The time spent by the prisoner in custody is also taken into account. In the exercise of my discretion, I will impose the following sentence.

42.	The Order of the Court will be:
1	The prisoner is hereby sentenced to 30 months imprisonment.
2	The period of Two (2) years six months already spent in custody is deducted.
3	The prisoner is released from prison at the rising of the Court.

Ordered Accordingly
__________________________________________________________________
Public Prosecutor:  	Lawyers for the State	
Public Solicitor   : 		Lawyers for the Defendant