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State v Dickson [2017] PGNC 53; N6675 (15 March 2017)

N6675

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1866 OF 2016

STATE

V

ANTONIA DICKSON

Mendi: Ipang, J

2017: 08^th & 15^th March

CRIMINAL LAW – Sentence - Criminal Code Act – Sections 319 causing unlawful grievous bodily harm – Prisoner and the victim are co-wives of their common husband – out of jealousy the prisoner chopped victim’s right leg with a bush knife – Plea of guilty – Part custodial and part non-custodial sentence considered.

Cases cited:
State-v-Mau (2012)
State-v-Nandex Wepo CR. No. 670 & 671 of 2015
State-v-Veronica Mandili Kulia (2010)
Yalibakut-v-State SC 890 (April, 2006)

Counsel:
J. Waine, for the State
C. Koek, for the Prisoner

DECISION ON SENTENCE

17^th March, 2017

1. IPANG J: This is the decision on sentence for the offender Antonia Dickson of Wa village, Mendi, Southern Highlands Province who was found guilty of causing unlawful grievous harm to one Kena Martin contrary to section 319 of the Criminal Code Act.

2. The offender and the victim are co-wives of one Dickson Kuna of Porolo village, Lower Mendi, Southern Highlands Province. On the 23^rd March, 2016 at around 7:30pm the victim was in her house preparing dinner for her family. She went out of her house to collect some firewood. While she was outside the house, she saw a dark figure approaching her. She could not recognize the face from the distance as it was dark. The figure was the offender who was at that moment armed with a bush knife and stones. The offender approached the victim by cutting her on her right leg below her knee with the bush knife. Then she smashed her leg bone with stones she had on the spot where she had cut her. The victim fell to the ground covered in blood. She was taken to the hospital and received treatment. She suffered deep cut and compound fracture of right tibial bone. She has suffered some permanently disability in terms of deformity and unable to walk normal and she is still undergoing treatment.

3. The offender is charged for causing unlawful grievous bodily harm contrary to section 319 of the Criminal Code Act which reads:

“319. Grievous Bodily Harm

A person who unlawful does grievous bodily harm to another person is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.”

4. The maximum prescribed penalty for the offence of causing unlawful grievous bodily harm is seven (7) years imprisonment. It is the sentencing practice that maximum sentence or penalty is usually reserved for the worst types of cases. The question now I am confronted with is this; Is this one of the worst types of cases of unlawfully causing grievous bodily harm? This is given the type of weapons used and the extent of injuries the victim suffered. Whether I should impose the maximum penalty or consider a lesser penalty thus a lesser sentence subject to section 19 of the Criminal Code Act.

5. The Antecedent Report tendered recorded no prior conviction. When administering her allocutus, the prisoner said sorry to God and asked for God’s forgiveness. She apologies to this Court, the Lawyers. She said sorry to the victim. She ask this Court to have mercy on her.

6. The Pre Sentence Report recommended the prisoner as a suitable candidate for probation supervision. The prisoner revealed that with assistance of her relatives, she would be able to pay compensation but six (6) months to be given to her.

7. The prisoner is 22 years old and comes from Wa village, Mendi, Southern Highlands Province. She is the fourth born out of five (5) children. Both of her parents are still alive but of old age. She is a member of the Seventh Day Adventists (SDA) church. She was a law abiding citizen until this offence was committed. She is married for six (6) years to the common husband Dickson Kuna but has no children. Dickson Kuna is also married to the victim. Prisoner has been educated up to Grade seven (7). She is the third (3^rd) wife of the common husband and the victim is the second (2^nd) wife of the common husband. She was detained in custody after her arrest and was released on K500.00 bail. Her two (2) guarantors paid K100.00 cash sureties each. She is a first time offender. She made an early pea.

Mitigating Factors

8. The following are the mitigating factors;

8.1 Prisoner pleaded guilty thus saves time and money for putting up a trial.

8.2 She is a first time offender.

8.3 She has expressed remorse.

8.4 She is the lone attacker.

8.5 She is a youthful offender.

Aggravating Factors

9. The following are the aggravating factors;

9.1 Offensive weapons a bush knife and a stone was used to commit this offence.

9.2 The victim sustained permanent injury to her right leg.

9.3 The offence of grievous bodily harm is serious and prevalent.

Submission by the Defence

10. Ms. Koek of Counsel for the prisoner submitted that this court takes into account the prisoner’s guilty plea; her allocutus; the antecedent report, the mitigating factors and should have mercy on her when considering her sentence. That though the maximum penalty is seven (7) years imprisonment this court should use its discretion under section 19 of the Criminal Code Act and impose a lesser sentence.

11. Counsel submitted that instances of worst types of cases would be the ones that would involve; the use of dangerous weapons, vicious and planned attack and deliberate intention to harm or cause grievous bodily harm. In this instant case there is the use of bush knife to chop the victim’s leg. Counsel referred to the Record of Interview where the prisoner raised the Defence of provocation in a non-legal sense. The Counsel referred to State-v-Mau (2012). This was a judgment by His Honor Justice Lenalia. The brief facts of this case are as follows. The prisoner pleads guilty to one count of grievous bodily harm to the victim one Tina Uve. The prisoner and the victim were co-wives married to the same husband. On the 10^th day of March 2012, at around 4pm, at Vanamami Framers center at Kokopo. The victim Tina Uve on one side was having an argument with their husband Mr Mau and the prisoner was on one side. The husband was a lecturer at the above mentioned Institution and they all lived at the Institution where the incident happened. After the argument started, the husband walked across to the victim’s kitchen and broke the door down. Having seeing this, Tina got up and expressed concern that her kitchen will be left open unattended to when they are not there. Tina got up, she took a stone and hit the door to the prisoner’s kitchen and also broke the door down. Having seeing this prisoner got up and sung her hand at Tina and a fight developed between the two (2) wives. In the cause of the fight, the victim once more sung her hand at the prisoner and the prisoner caught the victim’s left hand and bit her left index finger tip and finger nail totalling to permanent injury. This was not the worst type of case and the mitigating factors were considered. Prisoner was sentenced to twelve (12) months imprisonment. However, sentence was wholly suspended on conditions such as payment of K500.00 compensation was to be paid within 14 days to the victim.

12. In the case of State-v-Nandex Wepo CR. Nos. 670 & 671 of 2015. A bush knife was used to slice the left hand in-between the pointer and middle finger which has now caused the 80% loss of the pointer finger to the first victim which was the brother in law of the offender and to the second victim, she sustained a broken arm and scares to her body, she was the wife of the offender. Court sentenced the offender to four (4) years imprisonment for the first count and four (4) years imprisonment for the second count. Sentence to be served concurrent, one (1) year 8 months was deducted for time spent in custody awaiting trial and the balance of one (1) year was suspended. One (1) year 4 months was to be served in custody. We submit that this case was the worst type of case as there were two victims and that the injuries were caused by the offender.

13. In State-v-Veronica Mandili Kulia (2010). The offender pleaded not guilty to the charge of grievous bodily harm following a trial. The offence arose out of a domestic setting as well in which the offender complained that her husband the victim was having marital affairs with other women. There was the use of bush knife held by Victim and offender (husband and wife respectively) threatening each other. During the struggle, the victim sustained injuries on his right hand included fractures to his metacarpal bones 3^rd and 4^th digits and there was disfigurement to the middle fingers which clearly was a permanent injury. However, the court considered that she was a first time offender, she was a good citizen with high standing Christian principles and she had paid some compensation to the victim. A sentence of one (1) year was imposed, time spent in custody was deducted and the balance of the sentence was wholly suspended with conditions.

14. Considering all the factors Ms. Koek submitted for a head sentence of three (3) years to be imposed minus the custody period and the balance be suspended with conditions.

Submission by the State

15. Mr. Waine for the State gave a brief response. He said the prisoner did not offer to pay the compensation to the victim. This is not captures in the Pre Sentence Report. Mr. Waine referred to the principle in Supreme Court case of Yalibakut-v-State SC 890 (April, 2006). The case basically stated that the facts must taken as the facts pleaded guilty to.

Court’s Analysis

16. This is a violent crime against a person. The offence of unlawfully causing grievous bodily harm is serious and prevalent. The Medical Report dated 3^rd May, 2016 revealed deep laceration, deformed, Restricted RoM, bush knife wound and compound fracture of Right tibial bone. The victim is current seeking medical attention.

17. The victim is the second wife of common husband Dickson Kune so as the prisoner who is the third wife of Dickson Kune. There is evidence before this court that there is no compensation paid. Thus there is no peace and harmony between the two (2) co-wives. The common husband Dickson Kune has not played an active role in restoring peace between his co-wives.

18. I have considered the seriousness of the injury caused and with the use of a bush knife and stone and would rate this case as the case which would lean towards below mid way of the spectrum of worst types of cases. Also considering the mitigating factors, allocutus, antecedent report, I consider and apply section 19 of the Criminal Code Act and will impose a lesser term of sentence than the maximum.

19. I consider the appropriate sentence of the prisoner will be the head sentence of four (4) years imprisonment. I minus one (1) month pre sentence period. This will leave balance of three (3) years, 11 months to be served. Taking into account the mitigating factors etc... I suspend one (1) year and 11 months. This will further leave two (2) years imprisonment to be served. From these two (2) years the prisoner will leave one (1) year imprisonment. After serving sentence of one (1) year imprisonment the prisoner will be placed on one (1) year Probation Supervision with conditions;

1. Within six (6) months the prisoner shall pay the compensation in the sum of K3, 000.00 to the victim.

2. To do 20 hours of community service.

3. To keep peace and good behaviour towards the victim.

4. Not to commit same or similar offence.

5. To attend regular Church Service and counselling.

6. Prisoner’s bail and Guarantors cash sureties be refunded.

_____________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Prisoner