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State v Yomi [2008] PGNC 287; N5469 (16 October 2008)

N5469

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NOS 347, 349, 350 & 351 0F 2008

THE STATE

V

SYLVIA YOMI, NANCY YAWING, ANNA JIMMY & DELILAH DAVID

Kimbe: Cannings J
2008: 13 August, 7, 16 October

CRIMINAL LAW – sentences – Criminal Code, Section 335 (common assault) – guilty pleas – four accused joined within another woman in assaulting the victim, leading to her death – sentences of ten months each.

Four women pleaded guilty to joining with another woman in assaulting the victim. Immediately after the assault, the woman who joined the co-offenders stabbed and killed the victim.

Held:

(1) The maximum penalty for an offence under Section 335 is 12 months imprisonment and a useful starting point for sentencing is the middle of the range: six months imprisonment.

(2) This was an extremely serious case as the co-offenders could legitimately have been charged with manslaughter. Though they pleaded guilty, they must be sentenced near the top of the available range.

(3) A sentence of ten months imprisonment was imposed on each offender. The pre-sentence periods in custody were deducted, with no suspension.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v Joyce Yomi, CR No 348 of 2008, 16.10.08
The State v Mark Kanupio, Balwin Kining, Peter Pasikio, Steven Lipilas and Paul Nowor (2005) N2800

SENTENCES

This was a judgment on sentence for common assault.

Counsel

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

16th October, 2008

1. CANNINGS J: Sylvia Yomi, Nancy Yawing, Anna Jimmy and Delilah David (the offenders) have pleaded guilty to unlawfully assaulting Linda Yehi at Buvussi on 8 December 2007. They were assisted in the assault by Joyce Yomi. The assault had tragic consequences as it led to Linda Yehi's death. Linda Yehi was killed by Joyce Yomi, who has been convicted of manslaughter and sentenced to 14 years imprisonment (The State v Joyce Yomi, CR No 348 of 2008, 16.10.08). The incident happened at 10.30 am. Joyce, who has been married to her husband, Yomi Siwi, for more than 20 years, suspected that he was having an affair with Linda Yehi, aged in her 30s and a nurse by profession. She went to Linda's residence, accompanied by Sylvia, Nancy, Anna and Delilah. They went there to confront Linda over the affair she was allegedly having with Yomi. When they got there, they found Linda in conversation with another woman. They approached Linda and a fight broke out. Only fists were being used at that stage. While Linda was fighting against the four offenders in this case – Sylvia, Nancy, Anna and Delilah – Joyce pulled a knife from her bag, approached Linda from the back, and stabbed her, once, in the back, killing her. Sylvia, Nancy, Anna and Delilah are now being sentenced for unlawful assault.

ANTECEDENTS

2. None of the four offenders has any prior convictions.

ALLOCUTUS

3. They each expressed remorse for what they did. Sylvia and Delilah pointed out that they were doing grade 12 at school at the time of the incident and that they have been unable to complete their studies. Anna said that the deceased's relatives had gone into her family's oil palm block and taken over the harvest for many months. So she and her family have suffered greatly. Nancy expressed concern for her children if she is sent to prison.

OTHER MATTERS OF FACT

4. As the offenders have pleaded guilty they 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 SCRA No 52 of 2005, 27.04.06). I take into account that they all co-operated with the police.

PRE-SENTENCE REPORTS

5. A report on each offender was prepared by the Kimbe branch of the Community Based Corrections Service. The reports show:

• Sylvia Yomi is 22 years old and single. She is Joyce Yomi's daughter.
  
• Nancy Yawing is a 22-year-old single mother.
  
• Anna Jimmy is 35 years old, married with three children. She is Joyce Yomi's sister.
  
• Delilah David is 19 years old and single.
  

6. They all have strong family and community support and are recommended as suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

7. Mr Beli highlighted the guilty pleas and the favourable pre-sentence reports. He submitted that a sentence of nine months each, fully suspended would be appropriate.

SUBMISSIONS BY THE STATE

8. Mr Popeu submitted that a sentence of more than nine months each is warranted.

DECISION MAKING PROCESS

9. 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?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

10. Section 335 of the Criminal Code states:

A person who unlawfully assaults another person is guilty of a misdemeanour.

Penalty: If no greater punishment is provided, imprisonment for a term not exceeding one year.

11. The maximum penalty is 12 months imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

12. As the range of available sentences is small, it is appropriate to use as a starting point the middle of the range: six months imprisonment.

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

13. I have dealt with no other similar cases in recent times.

STEP 4: WHAT IS THE HEAD SENTENCE?

14. Mitigating factors are:

• they co-operated with the police;
• they pleaded guilty;
• they expressed genuine remorse;
• they are first-time offenders;
• they have favourable pre-sentence reports.
  

15. The significant aggravating factors are:

• it was a surprise, mob attack on a defenceless woman;
• the assault enabled an accomplice to kill the victim.
  

16. The aggravating factors make this an extremely serious case. The offenders could legitimately have been charged with manslaughter, if the State had invoked the aiding and assisting provisions of Section 7 of the Criminal Code (The State v Mark Kanupio, Balwin Kining, Peter Pasikio, Steven Lipilas and Paul Nowor (2005) N2800). In fact, this is such a serious case, it warrants, on its merits, the maximum sentence. However, as the offenders have pleaded guilty and because of the other mitigating factors, I will impose a sentence of 10 months imprisonment each.

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

17. Yes. 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 three months.

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

18. No. Despite the favourable pre-sentence reports, it is necessary that the sentences be served in custody, so that the gravity of the offences can be recognised.

SENTENCES

19. Sylvia Yomi, Nancy Yawing, Anna Jimmy and Delilah David, having been convicted of unlawful assault, contrary to Section 335 of the Criminal Code, are each sentenced as follows:

Sentenced accordingly.
______________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offenders