N5904
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1134 OF 2014

THE STATE

V

POKIRA KADOG
Defendant

Madang: Cannings J
2014: 11 December,
2015: 11, 19 March

CRIMINAL LAW – sentence – unlawfully doing grievous bodily harm, with intent – Criminal Code, Section 315 – guilty plea – offender cut victim with a bushknife

A man pleaded guilty to unlawfully doing grievous bodily harm, with intent to do so. The victim was his younger brother. The offender suspected the victim of having an affair with his wife. He approached him from behind and cut the victim several times with a bushknife, the deepest wound inflicted being on the shoulder blades of 8 cm in length and 6 cm deep. This is the judgment on sentence.

Held:

(1)	The maximum sentence for unlawfully doing grievous bodily harm with intent is life imprisonment. The starting point is ten years.

(2)	Mitigating factors are: pleaded guilty; an early plea; made early admissions to and cooperated with Police; the mother of the offender favours reconciliation.

(3)	Aggravating factors are: use of lethal weapon; the victim was unarmed; an element of planning was involved; very severe injuries; a prior conviction for an indictable offence (armed robbery).

(4)	A sentence of six years was imposed, the pre-sentence period in custody was deducted but there was no suspension as the victim favoured a custodial sentence.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
The State v Benjamin Towari, Robin Towari & Selmon Towari CR No 1431, 1433 & 1434 of 2010, 22.09.11, unreported
The State v Greg Kialo (2008) N5467
The State v Justin Ipa (2008) N3439
The State v Patrick Male CR No 1274 of 2009, 08.04.10, unreported
The State v Ray Sheekiot (2011) N4454
The State v Steven Moni, James Baki, Freddy Gorea, Francis Kuvi & Alois Raka (2006) N4519
The State v Timothy Thomas Gorea CR No 195 of 2003, 23.01.12, unreported

SENTENCE

This was a judgment on sentence for unlawfully doing grievous bodily harm, with intent.

Counsel:

F K Popeu, for the State
J Morog, for the offender

19th March, 2015

1. CANNINGS J: Pokira Kadog pleaded guilty to unlawfully doing grievous bodily harm, with intention to do so, to his brother, Smith Kadog, and has been convicted of that offence under Sections 315(b) and (d) of the Criminal Code. The incident occurred at Burag market, Karkar Island, Madang Province, on 5 June 2014. The offender thought that the victim was having an affair with his (the offender's) wife. The victim was sitting down at the market, chewing betel nut. The offender approached him from the back, armed with a bushknife. He without warning chopped the victim on the shoulder. The victim stood up and the offender cut him a further two times on the lower back. Bystanders rushed in and stopped the offender inflicting any more wounds. The victim was rushed to Gaugin Hospital, Karkar Island. A medical report reveals that he was admitted that day and remained in hospital for 11 days. The major injury was a deep cut on the right shoulder, 8 cm in length, 6 cm deep. The two cuts to the back were each 5 cm in length.

Antecedents

2. The offender has a prior conviction in 2006 for armed robbery, which resulted in a sentence of six years imprisonment.

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 would like to go back to the village and settle this problem. Please put me on probation."

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). I take into account that he made full admissions when interviewed by Police at Madang less than three months after the incident on 27 August 2014.

Pre-Sentence Report

5. The court was presented with a report prepared by the Madang office of the Community Based Corrections Service. Pokira Kadog is 45 years old, from Burag village, Karkar Island. He is the sixth born in a family of ten children. His biological father, who came from Bogia District, is deceased. The offender was raised by his biological mother and his stepfather.

6. The offender has had three wives during his life. He had only been married to his third wife for a month when he committed this offence. She returned to her home at Goroka soon after the incident. He has two children from his previous marriages. He has no formal education or employment. He survives financially through the sale of cash crops. He wants probation so that he can reconcile with his brother. A local pastor of the Seventh-Day Adventist Church and the local Ward Councillor were interviewed and both expressed the view that the offender had had problems with the law and his family before. There have been periods that he has been stable and a responsible member of the community but there have been other times when his behaviour has been violent. The attitude of the victim is not favourable to the proposal for a non-custodial sentence. He says that he went through a terrible experience that almost cost him his life. He wants to see his brother imprisoned. The mother of the offender and the victim was interviewed. She does not want to see her sons fighting over women. She wants to see them reconcile and live peacefully but she is concerned that if the offender returns to the village too soon, there might be further trouble. Her sons might continue to fight. The offender is not recommended for probation.

Submissions by Defence Counsel

7. Mr Morog highlighted the guilty plea and the preparedness of the offender to reconcile with the victim. The mother's view, which favours reconciliation, is significant. There was an element of de facto provocation in that the offender believed his brother was having an affair with his wife. He submitted that a sentence of no more than five years, fully suspended, would be appropriate.

Submissions by the State	

8. Mr Popeu opposed the submissions of the defence on the ground that the pre-sentence report does not support a suspended sentence. A custodial sentence of six or seven years is necessary.

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. It is important to remember that the offender has been convicted of unlawfully doing grievous bodily harm, with intent, under Section 315 of the Criminal Code. This is a different and more serious offence than the standard offence of unlawfully doing grievous bodily harm, without the element of intention, under Section 319 of the Criminal Code. Section 315 (acts intended to cause grievous bodily harm or prevent apprehension) states:

A person who, with intent—

(a)	to maim, disfigure, or disable any person; or
(b)	to do some grievous bodily harm to any person; or
(c)	to resist or prevent the lawful arrest or detention of any person, does any of the following things is guilty of a crime:—

(d)	unlawfully wounding or doing a grievous bodily harm to a person; or
(e)	unlawfully attempting to strike a person with a projectile; or
(f)	unlawfully causing an explosive substance to explode; or
(g)	sending or delivering an explosive substance or other dangerous or noxious thing to a person; or
(h)	causing any substance or thing referred to in Paragraph (g) to be taken or received by a person; or
(i)	puts a corrosive fluid or destructive or explosive substance in any place; or
(j)	unlawfully casts or throws a fluid or substance referred to in Paragraph (i) at or on a person, or otherwise applies any such fluid or substance to the person of a person.

Penalty: Subject to Section 19, imprisonment for life.

11. The maximum penalty is life imprisonment.

Step 2: What Is A Proper Starting Point?

12. I will use a starting point of ten years.

Step 3: What Sentences Have Been Imposed For Equivalent Offences?

13. Attacks of this nature, where the offender pleads guilty to a Section 319 grievous bodily harm offence (the maximum penalty for which is seven years imprisonment) 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.

14. However, where the offender is convicted of the more serious Section 315 offence, sentences lower than four years are unusual and should only be considered if there is a high level of reconciliation between the victim and the offender, including payment of compensation. This is borne out by the sentences imposed in the following Section 315 cases, all of which have followed guilty pleas:

•	The State v Steven Moni, James Baki, Freddy Gorea, Francis Kuvi & Alois Raka (2006) N4519: 5 years; 3 years, 3 months; 4 years, 6 months; 4 years, 6 months; 3 years, 3 months;

•	The State v Greg Kialo (2008) N5467: 6 years;

•	The State v Patrick Male CR No 1274 of 2009, 08.04.10, unreported: 5 years;

•	The State v Benjamin Towari, Robin Towari & Selmon Towari CR No 1431, 1433 & 1434 of 2010, 22.09.11, unreported: 3 years; 3 years; 6 years;

•	The State v Timothy Thomas Gorea CR No 195 of 2003, 23.01.12, unreported: 6 years.

Step 4: What Is The Head Sentence?

15. Mitigating factors are:

•	pleaded guilty;
•	made early admissions to and cooperated with Police;
•	offender's preparedness to reconcile;
•	the mother of the offender favours reconciliation.

16. Aggravating factors are:

•	use of lethal weapon;
•	the victim was unarmed;
•	an element of planning was involved;
•	the offender has a prior conviction for an indictable offence (armed robbery).

17. Any grievous bodily harm case in which a bushknife is used 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 place great weight on the fact that the offender has made very early admissions and cooperated fully with the Police and the Court. He has pleaded guilty. Because of the mitigating factors I will in the special circumstances of this case impose a sentence lower than the starting point. I accept the prosecutor's submission and decide that the appropriate sentence is six years imprisonment.

Step 5: Should The Pre-Sentence Period In Custody Be Deducted?

18. 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 nine months and three days.

Step 6: Should All or Part of the Head Sentence Be Suspended?

19. There is little in the pre-sentence report to warrant suspension of the sentence, there being no evidence of reconciliation with the victim or forgiveness or other resolution of the problem created by the offender. I decline to suspend any part of the sentence.

Sentence

20. Pokira Kadog, having been convicted of one count of unlawfully doing grievous bodily harm, with intent, contrary to Sections 315(b) and (d) of the Criminal Code, is sentenced as follows:

Length of sentence imposed	6 years	
Pre-sentence period to be deducted	9 months, 3 days	
Resultant length of sentence to be served	5 years, 2 months, 3 weeks, 4 days	
Amount of sentence suspended	Nil	
Time to be served in custody	5 years, 2 months, 3 weeks, 4 days	

Sentenced accordingly,
____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender