N5055
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 683 0F 2007

THE STATE

V

NICODEMUS BADUI

Kimbe: Cannings J
2007: 10 July, 7, 17 August

CRIMINAL LAW – grievous bodily harm – Criminal Code, Section 319 – sentence on plea of guilty

A young man got drunk and went to someone else's house armed with a grassknife, angry with someone he suspected of having an affair with his wife. He had an altercation with occupants of the house during the course of which he wounded one of the occupants, severing two of his fingers. The offender pleaded guilty to doing grievous bodily harm and this is the judgment on sentence.

Held:

(1)	The starting point for sentencing for grievous bodily harm under Section 319 of the Criminal Code is 42 months imprisonment.

(2)	Mitigating factors are: single blow; only one attacker; pleaded guilty.

(3)	A sentence of 4 years was imposed. The pre-sentence period in custody was deducted and no part of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
The State v Bob Ananias CR 1413 + 1414/2003, 20.04.06
The State v Jeffery Lamis CR 1929/2005, 20.04.06
The State v Ludwina Waiguma CR 68/2007, 21.03.07
The State v Philip Lekis CR 1927/2005, 13.07.07
The State v Ria Bernard CR 374/2005, 20.05.05
The State v Rodney Gela and Clarence Logi CR 1300 + 1301/2005, 27.10.05
The State v Steven Moni & 4 Others CR 293-297/2004, 19.12.06

SENTENCE

This was a judgment on sentence for grievous bodily harm.

Counsel

F Popeu, for the State
R Beli, for the offender

17th August, 2007 

1. CANNINGS J: This is a decision on sentence for a man who pleaded guilty to one count of doing grievous bodily harm to another man arising from the following facts. On 1 January 2007 at 7.00 am the offender was under the influence of liquor. He went to Bob Petrus's block at Tamba oil palm settlement near Kimbe, armed with a grassknife. Ben was in his house with two other persons. The offender asked for a person by the name of Eric. The offender was angry and swung the grassknife at Ben and his companions, causing a slight injury to one of them. He then swung the grassknife at Ben and when Ben raised his hand to protect his head the grassknife cut through two of Ben's fingers and severed them from his hand. Ben also received a cut to a third finger. Ben tried to wrestle the grass knife from the offender but was unable to do so and the offender chased Ben off his block. The offender had no lawful justification or excuse for what he did.

ANTECEDENTS

2. The offender has a previous conviction for wilful damage. He was convicted by the Kimbe District Court in 2001 and given a 12-months suspended sentence.

ALLOCUTUS

3. The offender said:

I ask the court for mercy and for a non-custodial sentence. I want to pay compensation to the victim. He is my brother. We are family. I apologise for what I have done. Eric was having an affair with my wife. I went to Ben's place to look for Eric. Ben and I struggled over the knife and then the knife cut off Ben's fingers. I was holding the other end of the knife and that is why I say it is true that I cut off his fingers.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). The only thing I can find might be mitigating amongst those materials is the offender's claim in allocutus that he went to the house to confront someone over an adultery allegation. This helps to explain why the offender was angry. But it is not a mitigating factor as he was drunk and out of control. The person he wanted to confront was not present and he ended up inflicting a very serious injury on an innocent bystander.

PRE-SENTENCE REPORT

5. To help me make a decision on the appropriate sentence I considered a pre-sentence report under Section 13(2) of the Probation Act in relation to the offender. The report was prepared by the Kimbe office of the Community Corrections and Rehabilitation Service. A summary of the report follows.

NICODEMUS BADUI: male, aged 26 years.

Residence: Tamba, Section 9 – lives with his father and his second wife.
Family background: Mother and father from Woginara 2, Dagua, ESP – both parents alive. Second born child – the victim, Petrus, the offender's young brother – their relationship is not good. They have been having a dispute over ownership and control of the block – the offender's father, Anton Pijui, is supportive of the offender and says he will help him pay compensation.
Marital status: The offender says he is married to two wives who are sisters – the man the offender suspected of adultery is his uncle, Eric.
Education: Grade 6, Tamba Primary School, 1994.
Employment: Never formally employed.
Health: OK.
Financial status: earns income from sale of oil palm.
Plans: look after his family and his block.
Victim's attitude: Ben Petrus wants the offender to compensate him for the permanent loss of his fingers – since committing of the crime the offender has not compensated him or apologised.
Offender's family's attitude: Both wives do not want their husband to go to jail – he looks after them well – they will assist him pay compensation.
Attitude of community: The local councillor, Jack Mola, regards the offender as a quiet and easy going person – however, there has been an ongoing dispute amongst the family over the block, which has been fuelled by the adultery allegations – the village court magistrate and a local catechist also speak about the ongoing family disputes – the offender is regarded as someone who looks after his family well.
Assessment: Could be regarded as a danger to well meaning members of the community – does not seem to have learned his lesson from his prior conviction – has an attitude problem.
Recommendation: not suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Beli acknowledged that the pre-sentence report was not favourable but asked the court to consider a non-custodial sentence in view of the offence being committed as a result of on-going family problems. This was a domestic dispute that got out of hand and the offender can be ordered to pay compensation.

SUBMISSIONS BY THE STATE

7. Mr Popeu asked the court to continue to impose strong sentences for this sort of offences as it has done in a number of recent cases in West New Britain. This was a serious case as the victim has been handicapped for life.

DECISION MAKING PROCESS

8. To determine the appropriate penalty I will adopt the following decision making process:

•	step 1: what is the maximum penalty?
•	step 2: what is a proper starting point?
•	step 3: what sentences have been imposed for equivalent offences?
•	step 4: what is the head sentence?
•	step 5: should the pre-sentence period in custody be deducted from the term of imprisonment?
•	step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. Section 319 (grievous bodily harm) of the Criminal Code states:

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.

10. The maximum penalty is therefore seven years imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

11. In the present case I have been unable to locate a suitable precedent, so I will use the mid-point of three years, six months (42 months) as the starting point.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

12. Before I fix a sentence, I will consider sentences I have imposed in recent times in West New Britain for offences under Division V.4 (offences endangering life or health) of the Criminal Code.

SENTENCES FOR OFFENCES ENDANGERING LIFE OR HEALTH

No	Case	Offence	Details	Sentence	
1	The State v Ria Bernard CR 374/2005, 20.05.05	Sec 319 – GBH
2 counts	Guilty plea – 29-year-old offender was under the influence of alcohol – cut his brother with a bushknife – then cut his father when he came to his brother's aid – life threatening injuries.	4 years
each count; total 8 years, cumulative sentence	
2	The State v Rodney Gela and Clarence Logi CR 1300 + 1301/2005, 27.10.05	Sec 319 – GBH	Guilty plea – victim and both co-offenders had been drinking – argument between one of the offenders and victim – degree of participation or type of weapons used – bushknife and a tree branch – victim stabbed in abdomen, suffers permanent injury.	6 years,
4 years
	
3	The State v Bob Ananias CR 1413 + 1414/2003, 20.04.06	Sec 319 – GBH	Guilty plea – offender believed that two people were sorcerers and made his mother sick – he held the victims captive then assaulted them – he injured one of them badly, slashing him with a bushknife, injuring his leg and cutting off one finger – victim stabbed in abdomen, suffers permanent injury.	3 years
	
4	The State v Jeffery Lamis CR 1929/2005, 20.04.06	Sec 322 –unlawful wounding	Guilty plea – domestic setting – argument between father and mother – son assaults father – no weapons used.	18 months
	
5	The State v Steven Moni, James Baki, Freddy Gorea, Francis Kuvi & Alois Raka CR 293-297/2004, 19.12.06	Sec 315 –GBH, with intent;
Sec 322 – unlawful wounding	Guilty plea – group attack by six men against two, over a village dispute – one victim had his arm chopped off by an offender other than those being sentenced, the other victim was cut on his arm.	5 years;
4 years, 6 months (x 2);
3 years, 3 months (x 2); depending on degree of involvement and age	
6	The State v Ludwina Waiguma CR 68/2007, 21.03.07	Sec 315 –GBH	Guilty plea – female offender stabbed another woman with a knife, after a history of bad feeling between them – offender claimed the victim had been saying bad things about her, due to suspicion that she was having an affair with the victim's husband.	4 years
	
7	The State v Philip Lekis CR 1927/2005, 13.07.07	Sec 322 –unlawful wounding	Guilty plea – offender had dispute with his sister and his father in a public place – swung his bushknife at his sister, cutting her on the head – wound required 20 stitches.	30 months

STEP 4: WHAT IS THE HEAD SENTENCE?

13. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be reduced below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point. Three sorts of considerations are listed. Numbers 1 to 8 focus on the circumstances of the incident. Numbers 9 to 13 focus on what the offender has done since the incident and how she has conducted herself. Numbers 14 to 16 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

1	Did the assault on the victim consist of just a single blow? Yes.

2	Was just one person involved in the assault? Yes.

3	Was there some other cause of bodily harm, ie did the injury not result directly from the assault committed by the offender? No.

4	Was the victim injured by only a fist? No – the offender used a dangerous weapon: a grassknife.

5	Did the offender not set out to hurt anyone? No.

6	Did the victim or any other person provoke the offender in 'the non-legal sense', eg did the victim abuse or assault the offender? No, there was an ongoing dispute but the event that seemed to trigger the attack was something that another person, Eric, had allegedly done.

7	Did the victim have a pre-existing condition making him susceptible to injury by a moderate blow? No.

8	Can the assault on the victim be classed as 'not vicious'? No. Whenever any person starts swinging a grassknife against an unarmed person, it is a vicious and gutless assault.
 
9	Did the offender give himself up after the incident? No.

10	Did the offender cooperate with the police in their investigations? Neutral. He was interviewed but did not confess.

11	Has the offender done anything tangible towards repairing his wrong, eg offering compensation to the victim, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what he did? No.

12	Has the offender pleaded guilty? Yes.

13	Has the offender genuinely expressed remorse? Neutral.

14	Is this his first offence? No.

15	Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence? No. He was a mature aged man, drunk, angry and out of control.

16	Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Neutral. There has been an ongoing dispute over the block on which the offender is residing, which helps explain the source of his anger but cannot be regarded as a mitigating factor.

14. After weighing all these factors and bearing in mind that there are three mitigating factors compared to ten aggravating factors, the head sentence should be above the starting point. This was an unprovoked stabbing by a man wielding a grassknife against another man. This is the sort of situation in which a death could easily have occurred. I impose a head sentence of four years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

15. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is four days.

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

16. The offender has two wives and neither of them want him to go to jail. Despite that, the pre-sentence report does not favour a non-custodial sentence and it is easy to see why. The offender seems prone to becoming angry, violent and out of control under liquor. If he were given a non-custodial sentence, what guarantee is there that he won't re-offend? He does seem to be a danger to the community, including his family. A clear message needs to be sent to the people of this province that swinging bushknives and grassknives at others as a way of releasing their frustration or anger is unacceptable. Deaths of innocent people can easily occur. The best way for the court to indicate the community's disgust at this sort of behaviour is to send the wrongdoers to jail. The offender has had more than seven months to sort out this problem by apologising to or compensating the victim. He has not made a concerted attempt to do anything like that so he needs to go to jail immediately. I will not suspend any part of the sentence.

SENTENCE

17. Nicodemus Badui, having been convicted of one count of doing grievous bodily harm, is sentenced as follows:

Length of sentence imposed	4 years	
Pre-sentence period to be deducted	4 days	
Resultant length of sentence to be served	3 years, 11 months, 3 weeks, 3 days	
Amount of sentence suspended 	Nil	
Time to be served in custody	3 years, 11 months, 3 weeks, 3 days	

Sentenced accordingly.
_________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender