N8742

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 38 OF 2013

THE STATE

V

PEKA BEWA

Lae: 	Dowa AJ
2020: 	13th October & 04th December

CRIMINAL LAW – sentence – prisoner pleaded guilty to one count with intent to do grievous bodily harm – offence contrary to s315 Criminal Code Act – what is the appropriate sentence to be imposed – mitigating and aggravating factors considered – crime committed in domestic setting – prisoner sentenced to six (6) years imprisonment – Eight (8) months 16 days deducted for pre-sentence period - period of two (2) years, 3months and 14 days is suspended - accused will serve balance of 3 years in custody.

Cases Cited 

Goli Gol v State (1979) PNGLR 653
Lawrence Simbe v State (1994) PNGLR 38.
Public Prosecutor v Don Hale (1998) SC 564
State v Tu (2008) N3306 
State v Waimba (2016) N6954, 
State-v-Kaidog (1998
The Acting Public Prosecutor v Aumane & Others
The State -v- Dua (2013) N4957 
The State -v- Goweng (2016) N6212
The State v Waiguma (2007) N5497
Ure Hane v The State (1984) PNGLR 105  

Counsel:

S Joseph, for the State	
J Huekwahin, for the Defendant
SENTENCE
04th December, 2020
1.	DOWA AJ:  This is a decision on sentence.  The Prisoner pleaded guilty to one count of with intent to do grievous bodily harm contrary to Section 315 of the Criminal Code Act.

FACTS

2.	The State alleges that the accused is married to the complainant and they have a daughter, who was two years old at the time of the alleged offence.  They were living in Amoa village, Morobe Patrol post.

3.	It is alleged that on 4th of August 2012, during the day the accused was under the influence of alcohol and had an argument with the Complainant.  As a result of that argument the accused went into the room that he shared with the complainant in the early hours between 2:00 am and 3:00 am of Saturday 5th of August 2012, armed with a bush knife and shouted threats at the Complainant.

4.	Not long after issuing threatening words, the accused swung a bush knife at the complainant attempting to cut her neck, however the complainant raised her left hand in defence and the bush knife landed on her left hand.  The accused swung the knife the second time, cutting the complainant on her right hand.  

5.	The complainant was rushed to the Morobe Patrol Post Health Center. However, due to the serious injuries the complainant was transferred to Angau Memorial Hospital where she was admitted and treated.  The wounds were deep and long measuring between 9 and 11cm.  Several arteries and muscles were chopped off with partly cut tendons.

	ISSUE

6.	What is the appropriate sentence to be imposed on the prisoner?

	LAW

7.	The offence of acts intended to cause grievous bodily harm or prevent apprehension is created under Section 315 of the Code and the prisoner was charged specifically under section 315(b) of the Code.  Section 315 (b) is expressly stated in the following terms:

315. Acts intended to cause grievous bodily harm or prevent apprehension

A person who, with intent –

(b)	to do some grievous bodily harm to any person is guilty of a crime.
Penalty:	Subject to Section 19, imprisonment for life.

8.	The maximum sentence for this offence is imprisonment for life.  In determining appropriate sentence, the following principles apply:

a)	The type of sentence to be imposed is a matter of discretion under section 19 of the Criminal Code Act.

b)	The maximum sentence is reserved for the worst form or category for that particular offence:  refer:  Ure Hane v The State (1984) PNGLR 105 & Goli Gol v State (1979) PNGLR 653.

c)	In determining a sentence for a prisoner, the Court has to decide its case on its own facts and peculiar circumstances, refer:  Lawrence Simbe v State (1994) PNGLR 38.

	Allocatus

9.	When I administered allocatus, the prisoner was very apologetic and shown remorse.  He regretted his action which affected his relationship with his wife and their child. He also apologised to the Court.

Submissions of Counsel

10.	Counsel for the Prisoner, Mr Huekwahin submitted that this is not the worst type or category of case for the offence charged. He submitted that the Court considers a sentence that is not too crushing for the accused. He submitted the accused pleaded guilty and is a young father. He cooperated with police. He surrendered himself and paid compensation for the injuries sustained by the victim.  He submitted based on comparable verdicts a starting head sentence be fixed at 5 years.  Mr Huekwahin submits further that after deducting time spent in custody, part of the term be suspended.

11.	Ms Joseph of counsel for the State submits that the aggravating factors outweigh the mitigating factors using the check list of considerations enunciated in the case of State -v- Waiguma (2007) N5497.  She submitted that crimes in domestic settings are becoming prevalent, and thus crime involved use of a dangerous weapon such as a knife and the injuries inflicted are serious. The offence was pre-meditated and vicious and thus he be given a custodial sentence between   six (6) and ten (10) years.

REASONS FOR DECISION

12.	Counsel have been helpful in their submissions.  The accused is charged with an offence that carries a maximum penalty of imprisonment for life. In the present case, the accused cut the victim on both her right and left hands. The left-hand wound was 10cm deep and 11cm in length. The right-hand wound was 9cm deep and 12cm wide. They are serious wounds.

STARTING SENTENCE

13.	What is the appropriate head sentence? In our criminal justice system, sentence must be appropriate to serve its purpose; namely deterrence; separation, rehabilitation and retribution.  It should reflect the purposes of sentencing.  Refer:  The Acting Public Prosecutor v Aumane & Others.

14.	Both Counsel for the Prisoner and State have referred me to the cases The State -v- Dua (2013) N4957 and The State -v- Goweng (2016) N6212, State v Waimba (2016) N6954, State-v-Kaidog (1998) for comparison.

15.	In State -v- Dua (supra), the offender attacked his wife with a bush knife, severing her left arm and inflicting other injuries, as he was angry with her for having extra marital affairs.  He pleaded guilty to the charge of grievous bodily harm and showed remorse.  He was imposed a head sentence of five (5) years with custodial sentence.

16.	In State -v- Goweng (supra), the prisoner pleaded guilty to a charge of Grievous Bodily Harm (GBH).  In that case, the offender went to his uncle’s house shouting and angry, as he had grievances with him.  He swung his bush knife and cut his uncle on the left ankle.  The victim was admitted to the hospital with several anterior tibialis tendon.  As a result of the wound, the victim has a permanent residual disability of footdrop.  The Court considered a head sentence of three (3) years.

17.	In State v Tu (2008) N3306, the Offender pleaded guilty to unlawfully doing grievous bodily harm to his wife.  He used a bush knife to assault his wife, with multiple cuts to her body, he was sentenced to four (4) years without suspension.

18.	In State-v-Waimba, the prisoner slashed the left eye of a policeman on duty with a residual loss of the left eye. Even though the accused pleaded guilty, he was sentenced to 8 years subject to deduction of time spent in custody.

19.	In State-v-Kaidog, the accused cut his brother several times. He was charged with intention to cause grievous bodily harm and he pleaded guilty to the charge. The notable injury was a wound on the shoulder measuring 8cm length and 6cm deep. He pleaded guilty and was sentenced to 6 years.

20.	In my view, the cases referred above are identical to the present case.  In the present cases, the victim used a bush knife to stab the victim twice.  The accused has pleaded guilty and has no prior conviction.  I will consider six (6) years appropriate as the starting point.

21.	What should be the head sentence.  The appropriate head sentence depends on weighting out the mitigating factors against the aggravating factors.  The following are mitigating factors:  

a)	First time offender
b)	Young Offender
c)	De facto provocation
d)	Pleaded Guilty
e)	Shown remorse

22.	The following are aggravating factors:

a)	Use of dangerous weapon – kitchen knife
b)	Serious assault
c)	Under influence of homebrew 

23.	Due to the prevalence of crime committed in domestic settings. I fix the head sentence, at 6 years.  

Should all or part of the head sentence be deducted for pre-sentence period in custody.

24.	Under Section 3(2) of the Criminal Justice (sentences) Act, there shall be deducted from the term of imprisonment the whole or part of the pre-sentence period in custody which is 8 months 16 days.  I will deduct that period from the head sentence.

	Should all or part of the head sentence be suspended.

25.	The Court has a discretion under section 19(1) of the Criminal Code Act, to suspend all or part of sentence to be imposed.  The discretion has to be exercised on proper principles taking into account the purposes of sentence.  In the present case, the pre-sentencing report does not recommend suspension.  Generally, a court should be slow in suspending sentence where there is no recommendation for suspension from the Pre-Sentence report.  This is what the Supreme Court said in Public Prosecutor v Don Hale (1998) SC564.

26.	In the present, the Probation Officer could not recommend probation because both the Prisoners family and the accused assaulted the victim the second time in March 2020.

27.	The prisoner is about 27 years old. It is unlikely that prisoner will be reconciled to the complainant.  The prisoner has a 8 year old daughter.  The Prisoner has not completed his formal education with any skills and is unemployed. The crime was intentional and committed in the early hours of the morning. It could have been fatal had the victim not taken defensive reaction.

28.	In favour of the accused, I find there was de facto provocation. The accused says he was frustrated by his wife’s assertion that the child was not his. The accused has paid compensation and the matter was resolved between the accused and the victim and his family. That is the reason why the prisoner never attended Court since 2013. He was recently arrested for another offence early this year in March 2020. In my view, this is an appropriate case for part of the head sentence to be suspended.  The Prisoner has already spent almost a year in prison. I am therefore prepared to suspend part of the sentence on terms that he enters into a good behaviour bond. 

	SENTENCE
29.	Being convicted of unlawfully, with intension, causing Grievous Bodily Harm (GBH) contrary to Section 319 of the Criminal Code, the accused, Peka Beva is sentenced to six (6) years imprisonment.  8 months 16 days is deducted for pre-sentence period.  A period of two (2) years, 3months and 14 days is suspended.  The accused will serve the balance of 3 years in custody. The accused will serve time in custody until 4th December 2023.  Upon release the accused shall enter into a Good Behaviour Bond for two years.

ORDERS

30.	    The orders of Court are:

1.	Length of Sentence Imposed	6 years	
2.	Pre-Sentence period Deducted	8 months, 16 days	
3.	Time to be served	5 years, 3 months, 14 days	
4.	Amount of time suspended	2 years, 3 months, 14 days	
5.	Time to serve in custody	3 years 	
6.	Bail	Not Applicable	

_________________________________________________________________
Public Prosecutor	:  Lawyer for the State	 
Public Solicitor 	: Lawyer for the Defendant