N6523

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 577 OF 2010

STATE

 V

TONY GABBY

Konos  :  Batari, J
       2013:  20, 21 November
 2014:  12 December 

CRIMINAL LAW – sentence – grievous bodily harm with intent – accused stabbed pregnant victim with grass-knife – protruding injury to other side of abdomen – injury to foetus – loss of - determined attack with weapon - seriousness of – plea - change of – trial aborted on application after victim’s evidence – mitigating factors – sentence of 15 years appropriate.

Cases Cited:
No Case Cited

Counsel:
F. Popeu, for the State
M. Mumure, for the Accused

SENTENCE

12th December, 2014

1.	BATARI J:	 At the end of the Court sittings at Konos on 21 November 2013, I convicted you, Tony Gabby of the offence of stabbing Esther Tony with intent to cause grievous bodily harm, an offence that carries the prescribed maximum penalty of life imprisonment under s.315 of the Criminal Code.  .

2.	After recording your guilty plea and conviction, I reserved on your sentence indefinitely to hear submissions on sentence and allow time for filing of presentence and means assessment reports, which I had ordered from the Community Base Corrections Office (CBC Office).  

3.	I took that course having formed the view that the Court may gain further assistance from the probation officer in deciding whether the facts of the case warrants any other form of penalty and the options open to the Court.  Alternative to imprisonment is one of those options.  You will now be sentenced.

4.	 So that there is no misapprehension, the course taken to order presentence reports is not a guarantee for suspension of sentence on probation orders. That option may be open to you only if you meet the test of suitable person for probation. The informative reports now before the court are available on the records. I have considered and taken into account the relevant matters covered.

5.	You are about 56 years old, originally from Mussu Island, Wewak, East Sepik Province. To the time of the offence, you resided at Talmuk village, Simberi Island, New Ireland Province, having married there. Esther (victim) with whom you have five children was your wife. Her pregnancy with the sixth child was terminated as a result of the attack.      

6.	You are well educated having completed grade 10 at Lae Technical College. From the same college, you attained recognition in Catering and Administration. You were well travelled, serving in hotel kitchens in Port Moresby, Lae, Rabaul, Arawa, Kavieng, Manus and Simberi Gold Mine.  Upon retirement you returned to live with your wife at her village.  

7.	You belong to the United Church faith with a trouble free past and have expressed remorse.  Aside from this being your first trouble and your plea of guilty, there is nothing else significant or extraordinary from your background to mitigate your conduct.

8.	The facts of your case are these. On the early morning of 17 December 2011 about 6.30 am, you sent Esther with one of the children to buy food for breakfast from a village canteen some distance away.  She returned some two or three hours later to you sharpening a grass-knife.  Following a brief altercation, you punched and kicked her to the ground. She attempted to escape your further violence but, you thrust the sharpened end of the grass-knife into her left abdominal. The grass-knife penetrated the stomach and exited on the right side.  Esther was then four to five months pregnant.  The penetrating weapon also injured the foetus. Following initial recovery treatment, the medical team induced premature delivery of the dead foetus to save the victim.   

9.	The injuries you inflicted on the victim demonstrated a deliberate and determined attack of the highest degree on your part. The attack was intentional. You did not like her taking too long at the store and you showed your anger by sharpening a grass-knife as she approached you.  You initially assaulted her with your hands and leg and then mercilessly drove the sharpened weapon through her abdomen.  

10.	Such horrifying, gruesome attack on a pregnant wife is most disturbing and upsetting. It suggests an irrational and animalistic behaviour of a deranged mind.  Esther’s stomach injury and the injuries to the head and leg of the well-formed foetus demonstrated the strong intention to inflict grievous bodily harm.  It also suggested a strong will to terminate the pregnancy. Esther could have died from the life threatening injury had it not been for the early medical intervention.

11.	  You also seemed oblivious to and insensitive to the presence of the children and the psychological effect of your violent behaviour on their young innocent minds. Your conduct was consistent with your violent nature towards Esther. She tried to escape initially because she was apprehensive of your resort to weapons every time you fought her. The Police Antecedent Report also shows that you have a prior conviction for a similar offence of causing grievous bodily harm to your Musau partner. That confirms your violent nature and propensity towards violence. You have obviously not learned from the punishment from that earlier conviction.             

12.	You must surely know generally and from your prior conviction, that to attack a pregnant woman in the manner you did posed a grave danger to the life of the victim and the unborn child.  You surely know that a grass-knife, when adopted and used as a weapon can cause serious injury and even death.  You no doubt know also that such a serious breach of the law is punishable by imprisonment.

13.	Your plea of guilty has little weight. It started initially as a not guilty plea and the victim gave oral evidence. State Prosecutor, Mr Popeu also tendered into evidence with the consent of your lawyer, Mr Mumure, a number of documents including a medical report, records of interview and photographs of the injuries to the victim and the foetus.

14.	 You subsequently sought and the court granted you leave to change your plea to a guilty plea. I think you only took that course having realised that the evidence against you was overwhelming. The change of plea however, did little to appease the trauma you had put Esther through in reliving her harrowing painful ordeal to stay alive and survive the attack.  Esther’s post trauma in having to remove the dead foetus to save her life also put your case in the most serious category.

15.	In your record of interview, you admitted being upset over Esther’s late return after you sent her to buy breakfast from a canteen.  It seems the canteen was located some distance away and according to Esther’s evidence, it opened late that morning. She offered that as an explanation for her delayed return.  However, you told the police that she did not respond when you enquired about her long absence. Her silence infuriated you so; you hit her with the flat side of the grass-knife.  You were initially not prepared to admit the offence when you told the police that she accidently ran into the sharpened end of the grass-knife.

16.	Your conduct following the offence was consistent with your conduct at the trial when you denied the charge upon arraignment.  You were not prepared to admit and take responsibility for your gross and malicious over-reaction.  In essence, your belated plea of guilty does not support a genuine expression of remorse or offer to pay compensation.       

17.	You attacked the victim in the presence of the children over a trivial domestic issue. Your conduct clearly resulted from a paranoia personality. You were simply possessive and full of jealousy for no apparent cause. You took the law into your own hands and Esther almost lost her life.  It is a wonder that she did not die. The injuries you inflicted could have been fatal. Had she died, you might well be facing one of the more serious charges of homicide.  

18.	Nevertheless, your offence was committed in circumstances of aggravation in that the injury inflicted on Esther also caused the death of her unborn child. Esther said she was nine months pregnant. Other information in the evidence suggested she was four to five months pregnant. The photographs on the other hand clearly show a foetus with well-formed features that suggest a late stage of pregnancy.  

19.	It is an offence punishable with life imprisonment under s. 312 of the Criminal Code to kill an unborn child.  The State Prosecutor withdrew that charge at the time of trial.  It is unknown if you are ever going to be charged with killing an unborn child.  Nonetheless, the premature, violent termination of pregnancy, the trauma with the continuing stress and psychological effect on the victim are aggravating features of your current charge.   

20.	In summary, your case is aggravated by the flowing factors:

a)	Clear intention manifested in sharpening of grass-knife
b)	Extreme violence with use of a weapon;
c)	Serious life threatening injury to victim;
d)	Violent termination of pregnancy and loss of child;
e)	Unarmed victim;
f)	Prior conviction on similar offence. 

21.	In your favour, the only factors of some relevance are your plea of guilty and expression of remorse. These features however, have less weight firstly because they are belated and secondly, they do not have support in your initial denials. You also did not show remorse and contrition by way of compensation payment. The welfare of children is a factor in mitigating sentence. However, in your case, Esther has informed the court that your marriage is over.  The implication is that she no longer needed your support in the upbringing of the children. 

22.	What all these mean is this.  Your offence falls into the most serious category of causing grievous bodily harm with intent. There is no significant factor or factors from the offence or your background that will effectively mitigate your sentence. The offence of intent to cause grievous bodily harm is such a serious crime of violence that Parliament has prescribed the maximum sentence of life imprisonment under s 315 (b), (d) of the Criminal Code.

23.	A term of imprisonment is my view warranted in all the circumstances of your case. I would suggest a current general sentencing range for the offence of intent to cause grievous bodily harm as being upward from four years at the bottom end and 20 years at the top end of the range.  

24.	In my view, a term of imprisonment in the upper end of the scale is warranted.  I propose to impose a term in that region.  I have had regard to the contents of the presentence reports and the recommendations therein.  I am not satisfied that the whole or part of the sentence should be suspended.

25.	I have also considered whether compensation should be ordered as part of the punishment under s. 2 of the Criminal Law (Compensation) Act 1991.   The victim has asked for compensation. Under the Act the Court is required a means assessment report from the probation officer.  In your case, the report shows that you have no means of income but your family will assist if compensation is ordered.  I am not satisfied that compensation be ordered as part of punishment. 

17.   You are sentenced to 15 years imprisonment with hard labour. The pre-trial custodial period of 3 years is deducted from the head sentence.  A further 2 years is suspended for the long delay in processing your case.  You are to serve the balance of 10 years IHL.  

___________________________________________________________
Public Prosecutor 	: Lawyer for the State	
Public Solicitor  	: Lawyer for the accused