N6733
PAPUA NEW GUINEA 
[IN THE NATIONAL COURT OF JUSTICE] 

CR NO. 1102 OF 2016 

THE STATE

V

DOSA POROP

Porgera: Auka AJ 
2017: 12th & 13th April

CRIMINAL LAW – Sentence – Particular offence – Plea guilty – Unlawfully causing grievous bodily harm – Mitigating and Aggravating factors considered – Three years imprisonment – Reduced by 1 year 2 months for pre-trial custodial term – The balance of 1 year 10 months yet to serve. Criminal Code S.319

Case Cited:
Goli Golu v. The State [1979] PNGLR 653
The State v. Tovita Mann (2007) N4028
The State v. Lundwina Waiguna (CR 68 of 2007 dated 21.03.2017
The State v. Exely Hala Heni (2008) N3541
The State v. Vincent Naiwe (2004) N2710

Counsel: 

Mr. Philip Tengdui, for the State
Mr. Jeffrey Kolowe, for the Accused

DECISION ON SENTENCE 
13th April, 2017
1.	AUKA AJ: 	An Indictment was presented by the State against the accused on 12th April, 2017. The State charged the accused with one count of unlawfully causing grievous bodily harm pursuant to S.319 of the Criminal Code Act. That followed a plea bargain between the parties from the more serious offence of attempted murder under s.304 of the Criminal Code. The accused pleaded guilty to the charge.

2.	The brief facts of the case were that on Friday 6th May, 2016 at about midnight, the accused, Dosa Porop was at a disco dance at Kakandka Village – Porgera District of Enga Province. The complainant/the victim, Dickson Paso was also at the Disco dance at that time. While there, the accused asked him to dance with her which he refused twice. On the third attempt, when the victim refused, the accused pulled his trousers which caused the victim to punch her (the accused). One of the accused’s friends came to her aid and was trying to fight the victim. In the course of the attempted fight, the accused took a kitchen knife and strucked the victim in the stomach, causing him to fall to the ground. The victim was taken to Paiam Hospital where he was appropriately treated.

3.	A Mecial Report by District Health Officer Jerry Maku dated 10th June, 2016 showed the following;

1.	Bleeding left lower abdomen
2.	Perforated small intestine
3.	Intestine prolapsed out
4.	Nausea and Vomiting
5.	In semi-conscious

The report showed that the injuries were quiet serious involving the intestine being perforated and as such a major operation was performed to save his life. He is still having some pain on the operated side which will take at least 6 months to recover fully. No Assessment Report was made available to the Court at the time of Sentence.

4.	 In her statement on Allocatus she said she had done a wrong thing and said sorry to the court. She also said sorry to the victim and his relatives. She also said sorry to her own relatives. She said she is an infected person and can no longer stay in prison with her child who is also infected. She asked the court to have mercy on her and give her good behaviour bond so that she can go home and spent it at the village. She said she has spent 1 year 2 months in remand awaiting her trial.

5.	In relation to accused’s personal particulars, Mr. Kolowe submitted that the accused is 35 years old from lower Porgera. She has a 3 year old son. She was previously married and had 2 children. She married another man and they have a 3 years old child. She is the 1st born in the family of eight (8) children. Three (3) have passed away and five (5) still alive. Both parents are deceased. She is a member of the SDA church.

6.	Mr. Kolowe submitted and urged the court to take into account in accused favour the following mitigating factors;

1.	That she pleaded guilty and saved courts time and resources;
2.	That she had expressed remorse to the family of the victim;
3.	That she surrendered to police;
4.	That she is a sick person and is infected with HIV AIDS and still being treated;
5.	That her baby is also infected and he is also on Medication. A letter from Mr. Peter Tei, Welfare officer dated 14th February, 2017 was handed up in court confirming that information.
6.	That she had been in custody for 1 year 2 months awaiting trial.

Mr. Kolowe submitted and urged the court to impose a term between 1 and 3 years and the term to be wholly suspended with conditions.

7.	Mr. Tengdui of counsel for the State submitted and urged the Court to consider the following aggravating factors against the accused;

1.	She used a dangerous weapon namely a kitchen knife to stab the victim;
2.	The injuries received by the victim are serious in that the intestine prolapsed out;
3.	The offence is a prevalent offence;
4.	No compensation paid and so mere saying sorry should be considered as non genuine;
5.	She has a prior conviction and committing a serious offence show that she is not a law abiding person;
6.	In view of the serious injuries inflicted on the victim Mr. Tengdui submitted that a term between 2 to 4 years is the appropriate penalty in the circumstances of the case.

8.	The maximum penalty for this offence under S.319 of the Code is 7 years. The court has considerable discretion whether to impose the maximum penalty by virtue of S.19 of the Code.

9.	On authority of case like Goli Golu v. The State [1979] PNGLR 653, the maximum penalty should be reserved for the worst type. In my view, the accused case is very serious case. A dangerous weapon, namely a kitchen knife was used to inflict serious injury on the victim’s body. If the victim was not given the appropriate treatment at the hospital, he would have lost his life.

10.	The trend of sentencing on unlawfully causing Grievous Bodily Harm and similar offences depend entirely on the facts of each case. I refer to the following cases to assist in considering the appropriate penalty, especially when a dangerous weapon, namely a knife is used to cause injuries;

1.	The State v. Exely Hala Heni (2008) N3541. In that case the accused pleaded guilty to the charge of unlawfully causing grievous bodily harm. He used a bush knife and slashed victim’s left hand. His Honour Cannings J sentenced him to 4 years imprisonment, none of which was suspended;

2.	The State v. Vincent Naiwe (2004) N2710. In that case the accused during a domestic argument used the bush knife and amputated 3 fingers of the victim. Accused pleaded guilty to the charge of unlawfully causing grievous bodily harm. He was sentenced to 5 years. The court declined to suspend any part of the sentence.

3.	In The State v. Ben Robert (2009) N3629, the prisoner pleaded guilty to unlawfully doing grievous bodily harm to the victim who was his younger brother. The prisoner used a bush knife causing serious wound to the right side of the victim’s face. He was sentenced to 3 years 5 months 1 week after his 3 weeks pre-sentence custodial term was deducted. There was no suspension on any part of the sentence.

4.	In the case of The State v. Lundwina Waiguma CR 68 of 2007 dated 21.03.07, the female offender pleaded guilty to unlawfully causing grievous bodily harm to another woman. A bush knife was used to stab the victim after a history of bad feeling between them. The accused claimed that victim has been saying bad things about her, due to suspicious that she was having an affair with the victim’s husband. His Honour Cannings J sentenced her to 4 years imprisonment none of which was suspended.

11.	I have considered in Accused’s favour on sentence the following mitigating factors;

1.	That she pleaded guilty and saved courts time;
2.	That she expressed remorse to the victim and his relatives;
3.	That she surrendered to police;
4.	That she is infected with HIV and AIDS and being treated.  
5.	That she had been in custody awaiting trial for 1 year 2 months.
 
12.	Against the factors in favour of the Accused, the court considered the following aggravating factors;

1.	A dangerous weapon namely a kitchen knife was used;
2.	The victim sustained serious injuries and if not operated on victim would have died;
3.	No compensation have been paid;
4.	The offence is a prevalent offence;
5.	That she has a prior conviction and have not learnt her lesson from serving a six (6) months jail term. And she not being thoughtful and concern over her sick body committed a serious offence. In my view, she deserves a appropriate punishment.

13.	Going by the trend of sentences imposed in some of the cases referred to and the particular factors and circumstances of this case, I consider that this is a serious case in that the attack using a dangerous weapon namely a kitchen knife was vicious and caused serious injury to the victim’s body. It is fortunate that a operation conducted on him saved his life. Accused’s action shows that she was such a violent person showing no hesitation in using the kitchen knife. In my view, the accused showed some intention to do some grievous bodily harm which in my view should be equally visited with a strong punitive and deterrent sentence. Having said that I give little consideration of her being affected by HIV and AIDS. In my view that has been appropriately taken care of by the authorities at Baisu CIS by providing the appropriate treatment to her and the baby. 

14.	I consider that a sentence of 3 years is appropriate. Accordingly I impose a sentence of 3 years imprisonment: I order a deduction of 1 year 2 months already spent in custody awaiting trial. That will leave the balance of 1 year 10 months yet to serve. I order that she serve 1 year 10 months at Baisu Cell.

Public Prosecutor: Lawyer for the State 
The Public Solicitor: Lawyer for the Accused