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State v Kara [2012] PGNC 19; N4663 (10 May 2012)

N4663

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1214 0F 2010

THE STATE

V

BILL KARA

Madang: Cannings J
2012: 14 March, 12 April, 10 May

CRIMINAL LAW – sentence – grievous bodily harm – Criminal Code, Section 319 – guilty plea – offender cut neighbour on face with bushknife – sentence of 4 years.

A man pleaded guilty to unlawfully doing grievous bodily harm to his female neighbour in an urban setting, cutting her on the face with a bushknife, inflicting an eye injury and superficial facial injuries requiring seven stitches.

Held:

(1) The maximum sentence under Section 319 of the Criminal Code is seven years imprisonment and an appropriate starting point is three and a half years.

(2) Mitigating factors are: pleaded guilty; has paid a small amount of compensation to victim.

(3) Aggravating factors are: use of lethal weapon; injury to vulnerable part of body.

(4) A sentence of four years was imposed, fully suspended in view of a favourable pre-sentence report and preparedness to pay further compensation.

Cases cited
The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
The State v Justin Ipa (2008) N3439
The State v Ray Sheekiot (2011) N4454

SENTENCE

This was a judgment on sentence for grievous bodily harm.

Counsel

M Pil & S Collins, for the State
W Dogura & G Peu, for the offender

10 May, 2012

1. CANNINGS J: Bill Kara pleaded guilty to unlawfully doing grievous bodily harm to his neighbour, Maria Tambi, and has been convicted of that offence under Section 319 of the Criminal Code. The incident occurred in Tarangau Street, Newtown, Madang on 10 April 2009. A dispute between the offender's family and the victim's family got out of hand. Stones were thrown. The offender lost control and charged out on the street armed with a bushknife, confronted the victim's husband, threatened him with the bushknife and then approached the victim. He pointed the sharp end of the bushknife against her shoulder while she had her back to him. She turned around and at the same time he pulled the bushknife across her face. She bled heavily, was rushed to hospital and suffered superficial facial injuries requiring seven stitches and an eye injury that has resulted in impaired vision.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. The offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:

I apologise to the victim and plead for the leniency of the court. I ask for probation or a court fine and thank God for His wisdom and knowledge.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of reasonable 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 facts to which the offender pleaded guilty suggest that there was no high degree of intention to harm the victim. This does not excuse what he did but it is a significant mitigating factor.

PRE-SENTENCE REPORT

5. Bill Kara is from the Maprik District of East Sepik Province but has been a resident of Madang for the last 30 years. He is 51 years old and married with 11 children. He has a stable marriage. He has lived at Tarangau Street, where the incident occurred, for 24 years. His parents are deceased. He has one sister. He maintains a close connection with his village, Amni. He is well regarded in the village and in the local community at Tarangau St, despite the incident. He has a grade 12 education and has a diploma in Public Administration from the PNG Institute of Public Administration. He is a long-term and senior officer of the Madang Provincial Government and he is presently Internal Auditor. He says he has paid a small amount of compensation (K100.00 cash + K150.00 worth of foodstuff) to and reconciled with the victim. He is recommended for probation.

SUBMISSIONS BY DEFENCE COUNSEL

6. Ms Peu highlighted the guilty plea and the presence of compensation and reconciliation. He has shown genuine remorse. The offence was committed out of frustration after derogatory remarks were made by the victim's family against the offender and his family. The sentence should be no more than two years imprisonment, all of which should be suspended.

SUBMISSIONS BY THE STATE

7. Mr Collins emphasised that the use of a bushknife and the wounds to vulnerable parts of the body were strong aggravating factors. The offender should be given credit for making an attempt at reconciliation but a deterrent sentence of at least three years is required. There was no strong objection to the idea of suspending the sentence.

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

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. The maximum penalty under Section 319 (grievous bodily harm) is seven years imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

10. I will use the midpoint of three and a half years.

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

11. Attacks of this nature, where the offender pleads guilty to a Section 319 grievous bodily harm offence, and there is an identifiable cause and where the offence can be described as a crime of passion, usually result in a sentence of three to five years imprisonment, depending on the circumstances. See, for example, the cases summarised in The State v Justin Ipa (2008) N3439.

STEP 4: WHAT IS THE HEAD SENTENCE?

12. Mitigating factors are:

• the offence was committed out of frustration and there was no high degree of intention to harm the victim;
• pleaded guilty;
• expressed remorse;
• payment of some compensation to and reconciliation with the victim;
• no prior convictions;
• good pre-sentence report.
  

13. Aggravating factors are:

• the use of a bushknife;
• wounds to the face and eye;
  

14. I place great weight on the fact that the offender has pleaded guilty and paid some compensation to and reconciled with the victim. However, any GBH case in which a bushknife is used, particularly when the wound is to the head, is a very serious case, involving great distress to the victim as it puts them in a life threatening situation (The State v Ray Sheekiot (2011) N4454). I reject the defence counsel's submission that a sentence of only two years is called for. This is far too serious a case for that sort of sentence. A bushknife is a lethal weapon and here it was brandished recklessly in a threatening and violent way. The appropriate sentence is four years imprisonment.

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

15. No time has been spent in custody. There is nothing to deduct.

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

16. Despite the violent nature of this crime, the offender has received a sound pre-sentence report, which shows that he is genuinely remorseful and is prepared to further compensate and reconcile with the victim. He pleaded guilty and he has a steady job and a large family to care for. This combination of factors warrants a suspended sentence subject to strict conditions, one of which will be payment of further compensation. The balance of the sentence is therefore suspended on the conditions that the offender:

(a) must participate in a reconciliation ceremony with the victim, supervised and witnessed by the Village Court and the Probation Office, within eight weeks after the date of sentence, and at the reconciliation ceremony:

• he must give K1,000.00 cash + foodstuffs to the victim;
• the victim must contribute 4 chickens + foodstuffs;
  

(b) must appear before the National Court at Madang on 10 August 2012 or at such other time set by the Court to prove compliance with condition (a);

(c) must report to the Probation Office within three days after the date of sentence and settle on a community work program, involving at least three hours unpaid community work each week at a place notified to the Probation Office;

(d) must reside at Newtown, Madang and nowhere else except with the written approval of the National Court;

(e) must not leave Madang Province without the written approval of the National Court;

(f) must attend his local Church every weekend for service and worship and submit to counselling;

(g) must report to the Probation Office on the first Monday of each month between 9.00 am and 3.00 pm;

(h) must not consume alcohol or drugs;

(i) must keep the peace and be of good behaviour;

(j) must have a satisfactory probation report submitted to the National Court Registry every six months after the date of sentence;

(k) if he breaches any one or more of the above conditions, shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

SENTENCE

17. Bill Kara, having been convicted of one count of unlawfully doing grievous bodily harm contrary to Section 319 of the Criminal Code, is sentenced as follows:

Sentenced accordingly.
_________________________________________________________

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