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State v Dokta [2014] PGNC 66; N5589 (14 February 2014)

N5589

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No.1 of 2013

BETWEEN:

THE STATE

AND:

JACOB DOKTA
Prisoner

Minj & Mt. Hagen: David, J
2013: 3 December
2014: 11 & 14 February

CRIMINAL LAW – sentence – grievous bodily harm – prisoner is step-brother of female victim – prisoner punched and kicked victim – victim sustained a fracture of left proximal ulna with no displacement - sentence of 2 years in hard labour – Criminal Code, Section 319.

Cases cited:

Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State (No 3) [1982] PNGLR 92
Public Prosecutor v Thomas Vola [1981] PNGLR 412
Ure Hane v the State [1984] PNGLR 105
Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91
The State v Frank Kagai [1987] PNGLR 320
Lawrence Simbe v The State [1994] PNGLR 38
Public Prosecutor v Don Hale (1998) SC564
Edmund Gima and Siune Arnold v The State (2003) SC730
The State v Darius Taulo (2001) N2034
The State v Albina Sinowi (2001) N2175
The State v Patrick Kimat (2005) N2947
Richard Liri v The State (2007) SC883
The State v Namba Mako, CR 48 of 2007, Unreported & Unnumbered Judgment of David J delivered on 16 October 2007 in Mt. Hagen
The State v John Komep, CR.300 of 2006, Unreported & Unnumbered Judgment of David, J delivered on 13 November 2007 at Mendi
The State v Lucy Rusa (2008) N3510
The State v Bill Simai, CR.No. 125 of 2007, Unreported & Unnumbered Judgment of David, J delivered on 18 June 2009 at Kundiawa
The State v Bill Kara (2012) N4663
The State v Rada Mau (2012) N5081

Counsel:

Joe Kessan, for the State
Philip Kapi & Maryanne Job, for the prisoner

SENTENCE

1. DAVID, J: The prisoner, Jacob Dokta appearing before me from bail, pleaded guilty to unlawfully doing grievous bodily harm to his step-sister, Serah Job and was convicted of the offence under Section 319 of the Criminal Code. The incident occurred at Koldet village, Baiyer District in the Western Highlands Province on 6th March 2012 at about 5:00 o'clock in the afternoon. The victim was with some males and females inside a house visiting a sick person and telling stories or gossiping when the prisoner who was walking past the house at the time heard what they were talking about. He entered the house and confronted the victim suspecting her of gossiping about him. An argument ensued between the two of them developing into a fight. The prisoner punched the victim three times and the victim grabbed a piece of firewood which she found inside the house and tried to strike the prisoner with it. The prisoner grabbed the piece of firewood from the victim and disarmed her. After disarming the victim, he punched her with great force causing her to fall heavily to the floor on her left side directly resulting in her sustaining a fracture of her left proximal ulna.
   
2. The Medical Report provided by Dr. Julieth Jacob of the Mt. Hagen General Hospital dated 8th March 2012 reports that the victim sustained a fracture of her left proximal ulna with no displacement. A Plaster of Paris (cast) was applied for 6 weeks and the victim was given a week's supply of indocid and panadol to minimize or prevent pain. The report further reports that the victim suffered 20% functional loss of the use of her injured arm for a period of 1 ½ months.
   
3. The prisoner has no prior convictions.
   
4. On his allocutus, the prisoner apologized to the victim and her family for causing the trouble and requested that he be forgiven. He then pleaded with the Court for mercy and a lenient sentence.
   
5. The prisoner through his counsel applied for a pre-sentence report to be compiled and filed by the Probation Service, Mt. Hagen Branch which I granted and hearing of submissions on sentence was deferred pending the filing of the report.
   
6. The pre-sentence report was duly compiled and filed by the Probation Service and I thank Ms. Theresa Puk, Probation Officer for her assistance. Apart from the prisoner and the victim, local community and village leaders including Makup Tepuka, a former Provincial Government member, Raim Romba, Village Court Magistrate, Pastor Petro Mati and a Peter Paraka were also interviewed and have all expressed that despite the incident, the prisoner is well regarded in their local community and village and has performed leadership roles in the local community and village. They are prepared to assist the prisoner pay compensation to the victim with K300.00 cash and a pig within 2 weeks of sentence. The victim says that she cannot work due to the injury. She also states that despite her condition and the expense she has been put through to sustain herself under the circumstances which she puts at K3,200.00, the prisoner has not done or said anything about addressing her situation. She therefore wants the prisoner to pay to her compensation of about K4,000.00 and an additional K3,200.00 as reimbursement for her expenses and in default the prisoner be incarcerated. No evidence was produced to support the claim for reimbursement of expenses. The prisoner states that he can only pay an amount not exceeding K700.00. The prisoner is recommended for probation.
   
7. The maximum penalty prescribed for this offence is, subject to Section 19 of the Code, imprisonment for a term not exceeding 7 years.
   
8. The maximum penalty is usually reserved for the worst sort of cases of unlawful doing grievous bodily harm: see Goli Golu v The State [1979] PNGLR 653, Avia Aihi v The State (No 3) [1982] PNGLR 92 and Ure Hane v the State [1984] PNGLR 105.
   

9. It is also settled law that each case must be decided on its own facts: see Lawrence Simbe v The State [1994] PNGLR 38.

10. The prisoner is from Koldet village, Baiyer District in the Western Highlands Province and is now aged 35 years and subsistence farmer. He is married with 2 wives and has 8 children from these relationships. His eldest child, a male is currently in Grade 9 at the Mt. Hagen Secondary School and 4 of the remaining 7 attend Primary School. His father is deceased and is survived by his mother. His father had 2 wives and had 6 children altogether from these relationships. His mother was his father's first wife whilst the victim's mother was his father's second wife. He has attained Grade 7 formal education. He is a baptized member of the Assemblies of God denomination. The prisoner was arrested and detained on 14th March 2012 and was admitted to bail 3 days later on 17th March 2012. He was committed to stand trial in the National Court on 22nd October 2012 for unlawful doing grievous bodily harm.

11. In mitigation, Ms. Job of counsel for the prisoner submitted that:

1. the prisoner pleaded guilty;
2. the prisoner was a first offender;
3. the prisoner expressed remorse and contrition;
4. the prisoner co-operated with the police;
5. the prisoner was willing to pay compensation not exceeding K700.00, but his 3 attempts to pay were rejected by the victim's brothers;
6. there was presence of a moderate amount of de facto provocation;
7. there was no high degree of intention to harm the victim;
8. the prisoner did not use any weapon.
   

12. Ms. Job referred me to three cases by way of comparison namely, The State v Patrick Kimat (2005) N2947, The State v Bill Kara (2012) N4663 and The State v Rada Mau (2012) N5081 (which I will summarize later on in the judgment) and submitted that the circumstances of the present case warranted the imposition of a sentence of no more than 12 months imprisonment, all of which should be suspended on terms.

13. Mr. Kesan of counsel for the State highlighted that the fact of the victim suffering a fractured left ulna and the prevalence of the offence were strong aggravating factors in the present case. He conceded however that although no weapon was employed by the prisoner in the assault, the magnitude of the force was such that the victim sustained the injury when she fell heavily to the floor.

14. Mr. Kessan referred me to three cases by way of comparison namely, The State v Darius Taulo (2001) N2034, The State v Albina Sinowi (2001) N2175 and The State v Lucy Rusa (2008) N3510 (which I will summarize later on in the judgment) and submitted that the circumstances of the present case warranted the imposition of a sentence of at least three years imprisonment, but with no objection to the question of suspension so long as it was made on terms including the making of compensation and community work orders

15. The factors which mitigate the offence are:

1. the prisoner pleaded guilty;
2. the prisoner was the sole attacker;
3. the prisoner had no prior convictions and was a first offender;
4. there was presence of a moderate amount of de-facto provocation given the victim was gossiping about the prisoner;
5. there was no high degree of intention to harm the victim;
6. the prisoner did not use any weapon;
7. the offence was committed against a family member;
8. the prisoner expressed remorse and contrition;
9. the prisoner co-operated with the police;
10. the prisoner attempted to pay compensation on at least three occasions;
11. until the offence, the prisoner was of previous good character.
    

16. The factors which aggravate the offence are:

1. the victim sustained a fractured left ulna with no displacement demonstrating the magnitude of force used in punching the victim;
2. the offence was prevalent;
3. the prisoner's conduct was unbecoming of a leader; and
4. the offence was committed or the victim suffered humiliation or debasement in the eyes of others.
   

17. As can be seen above, the factors in mitigation outweigh those in aggravation.

18. I am satisfied that the present case does not fall within the worst category of unlawful doing grievous bodily harm cases.

19. In considering an appropriate sentence for the prisoner, I have considered the following cases.

20. In Darius Taulo, the prisoner had a history of beating up his wife who was the victim over a number of years prior to being charged. Those beatings were very serious and near death experiences. On a guilty plea to a charge of unlawfully causing grievous bodily harm, the prisoner was sentenced to 3 years imprisonment in hard labour. However, the whole of the sentence was suspended with strict conditions applying including the prisoner; entering into a recognizance with a surety of K500.00 to be of good behaviour for the suspended period; abstaining from alcohol consumption; abstaining from assaulting his wife in any way and rendering free community service to a designated public institution. The Court considered that a non custodial sentence was appropriate because the prisoner pleaded guilty; he was a first time offender; he expressed genuine remorse and had already paid compensation; he was willing to pay further compensation in accordance with his wife's custom; it was in the best interest of the children of the marriage; the victim preferred compensation supported by a pre-sentence report; the prisoner was not a danger to society and the society would help to rehabilitate him.

21. In Albina Sinowi, the prisoner pleaded guilty to one count of unlawfully assaulting a co-wife under Section 340 of the Code. The victim was the second wife of their common husband. The prescribed maximum penalty for that offence is imprisonment for a term not exceeding 3 years. That was a case where the victim would leave her 5 children including a baby with the prisoner following an argument with the husband. On each occasion she left no food for the children. In her absence, the prisoner took on the responsibility of feeding the children and family including nursing the baby. The husband failed to stop the victim from such conduct. Upon the victim's return from her village after the third occasion, the prisoner hit the victim once with a piece of iron on her left arm. That caused a fracture to the victim's left ulna. The factors taken into account in favour of the prisoner when imposing a six months suspended sentence were; the prisoner's guilty plea; the prisoner was a first time offender; customary compensation of K1,000.00 was paid to the victim; the prisoner expressed genuine remorse; and since the commission of the offence, the victim and prisoner were living together in one house without any difficulty.

22. In Patrick Kimat, the prisoner was with his in-law consuming alcohol. The victim was drunk and would not listen to the prisoner so the prisoner cut the victim on his forehead with a bush knife causing a fracture of the frontal bone. It was single blow. At the time of sentencing; the prisoner was living together with the victim in one house; they shared meals together; and there was no problem between them. The Prisoner was sentenced to 12 months imprisonment in hard labour, less time spent in pre trial custody which was wholly suspended with strict conditions applying.

23. In The State v Namba Mako, CR 48 of 2007, Unreported & Unnumbered Judgment of David J delivered on 16th October 2007 at Mt. Hagen, the prisoner pleaded guilty to one count of unlawfully doing grievous bodily harm under Section 319 of the Code. The prisoner there was the father of the victim. They had an argument over a piece of land which developed into a fight. Initially both were armed with bush knives, but the victim was disarmed by somebody. After the victim was disarmed, the prisoner attacked the victim with his bush knife and cut him on his head. The prisoner then swung his bush knife again and when the victim tried to fend it off with his left hand, it was cut off from the wrist, a permanent disability. I sentenced the prisoner to 5 years imprisonment in hard labour less time already spent in custody. I suspended the balance of the sentence with strict conditions including an order for the prisoner to pay compensation to the victim in the sum of K5,000.00 within 3 months of his release from custody. Amongst considerations which I took into account in determining sentence was the fact that the victim was the prisoner's son.

24. In The State v John Komep, CR.300 of 2006, Unreported & Unnumbered Judgment of David, J delivered on 13 November 2007 at Mendi, the prisoner and the victim were paternal cousins whose fathers were brothers. There was a dispute over a piece of family land over which both claimed an interest. The dispute went for mediation and both of them attended the hearing. The decision was against the prisoner. Aggrieved by the decision, the prisoner pulled out a bush knife and attacked the victim causing injury to his left hand in which the little, ring and middle fingers were amputated. On a guilty plea to a charge of unlawfully causing grievous bodily harm, I sentenced the prisoner to 5 years imprisonment in hard labour less time spent in pre-trial custody of 3 months and 3 weeks leaving a balance of 4 years, 8 months and 1 week to be served. I suspended 4 years of the remaining term on terms.

25. In Lucy Rusa, the prisoner and the victim were co-wives. On the date the offence was committed, the victim was digging kaukau in her garden with two other women when the prisoner walked past them on her way to the house. An argument developed between the prisoner and the victim and eventually ended up in a fight. As they were wrestling each other, the prisoner pulled out a knife and chopped off two of the victim's toes on her left leg. The victim fell unconscious and was taken to the hospital where she was appropriately treated. On a guilty plea to a charge of grievous bodily harm, a custodial sentence of 2 years imprisonment in hard labour was imposed.

26. In The State v Bill Simai, CR.No. 125 of 2007, Unreported & Unnumbered Judgment of David, J delivered on 18 June 2009 at Kundiawa, the prisoner who was the brother of the female victim attacked her with a bush knife over the payment of a debt due and owing to him. In an attempt to fend the bush knife off, all 5 fingers of the victim's left hand were severed. On a guilty plea to a charge of unlawfully causing grievous bodily harm, I sentenced the prisoner to 5 years imprisonment in hard labour less 2 days he spent in custody leaving 4 years, 11 months and 26 days to be served. I suspended 4 years of the remaining term on terms.

27. In Bill Kara, the prisoner pleaded guilty to unlawfully doing grievous bodily harm to his female neighbour in an urban setting as a result of a dispute between neighbouring families, cutting her on the face with a bush knife, inflicting an eye injury and superficial facial injuries requiring seven stitches and an eye injury that resulted in impaired vision. A sentence of 4 years imprisonment was imposed which was suspended in its entirety subject to strict conditions.

28. In Rada Mau, the prisoner and the victim were co-wives to a common husband. An argument between the 2 co-wives developed into a fight. During the course of the fight, the prisoner bit the tip of the victim's left index finger completely amputating the tip of the finger and the finger nail. The prisoner pleaded guilty to unlawfully doing grievous bodily harm to her co-wife. A sentence of 12 months imprisonment was imposed which was suspended in its entirety subject to strict conditions including an order for the prisoner to pay K500.00 compensation to the victim within 14 days of sentence.

29. What is the appropriate sentence for the prisoner? Taking into account all the circumstances of the present case and guided by the aforementioned comparable sentences, particularly the case of Albina Sinowi, I think the appropriate sentence for the prisoner is 2 years imprisonment in hard labour.

30. I will deduct from the head sentence 3 days for pre-trial confinement period leaving the prisoner 1 year, 11 months and 25 days (the remaining term) to serve.

31. The prisoner will serve the remaining term at the Baisu Correctional Institution.

32. Should I suspend the whole or any part of the remaining term? The power to suspend a sentence conferred by Section 19(1)(d) of the Code is discretionary and should be exercised upon some proper basis: Public Prosecutor v Thomas Vola [1981] PNGLR 412. Some of these principles are set out in Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91 and The State v Frank Kagai [1987] PNGLR 320 which I have considered.

33. In William Bruce Tardrew, the Supreme Court held that suspension of part of a sentence may be appropriate in three broad categories which are not exhaustive and these are:

1. where suspension will promote the personal deterrence, reformation or rehabilitation of the offender;
   
2. where suspension will promote the repayment or restitution of stolen money or goods;
   
3. where imprisonment would cause an excessive degree of suffering to the particular offender, for example, because of bad physical or mental health.
   

34. In Frank Kagai, the court held that persons charged with serious offences may be dealt with by way of suspended sentence by reason of good character and where the court is of the view that there will be no re-offending and/or that the particular individual will be positively damaged by incarceration.

35. The Supreme Court has also held that there can be no suspension of sentence without the support of a pre-sentence report: Public Prosecutor v Don Hale (1998) SC564; Edmund Gima and Siune Arnold v The State (2003) SC730; Richard Liri v The State (2007) SC883. In Edmund Gima and Siune Arnold, the Supreme Court also observed that a sentence cannot be suspended without imposing any condition because a suspension of either the whole or any part of it is not an exercise of discretion in leniency, but is a form of punishment. Hence, conditions must be imposed to demonstrate that it is an alternative to punishment within our criminal justice system in appropriate cases.

36. I have mentioned already that the pre-sentence report recommends that the prisoner be placed on probation which I accept. In the exercise of my sentencing discretion under Section 19 of the Code, I will suspend the remaining term in its entirety on terms which I will impose shortly. I consider that suspension will promote the personal deterrence, reformation or rehabilitation of the prisoner and the payment of the compensation order I propose to make.

37. The following conditions shall apply:

1. The prisoner shall contact the Mt. Hagen Provincial Probation Officer prior to or by 1:30 pm on Friday, 21st February 2014.
   
2. The prisoner shall report to the Mt. Hagen Provincial Probation Officer as and when required by him or her to do so.
   
3. The prisoner shall enter into his own recognizance without surety to keep the peace and be of good behaviour during the period of suspension.
   
4. The prisoner shall not relocate from his village of Koldet in the Baiyer District of the Western Highlands Province unless he has given the Mt. Hagen Provincial Probation Officer reasonable notice of his intention to do so and the reason for the proposed change.
   
5. The prisoner shall not leave the Western Highlands Province without the permission of the Court during the period of suspension.
   
6. The prisoner shall, for the purpose of the Probation Act, allow a Probation Officer to enter his home during reasonable hours.
   
7. During the period of suspension, the prisoner shall provide free community service of 4 hours per day every government fortnight Friday at the Mt. Hagen Police Station or at such other institution of the State or the Western Highlands Provincial Government located within the Baiyer District requiring the services of the prisoner to be determined and supervised by the Mt. Hagen Provincial Probation Officer. The prisoner must obey all instructions from the heads of the institutions where his services will be provided in consultation with the Mt. Hagen Provincial Probation Officer.
   
8. The prisoner shall pay compensation to the victim comprising K1,000.00 cash and a pig valued at not less than K1,000.00 by or before 4:00 pm on Friday, 28th April 2014.
   

38. In the event that the prisoner breaches any of the above terms, then the prisoner's probation will be breached and he will be arrested and sent to gaol at the Baisu Correctional Institution to serve the remaining term which I have suspended.

39. The prisoner is at liberty to apply for a review of any of the above terms including the lifting of any of them provided that there is substantial compliance.
    

40. Bail monies of K350.00 are converted and shall be applied towards part-payment of the compensation order.

41. A warrant of commitment shall issue in the above terms forthwith.

Sentenced accordingly

__________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the prisoner