The State v Helen Wamingi

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 20 June 2013
• Citation: (2013) N5723
• Court: National Court
• Year: 2013
• Judgement Number: N5723

Full : CR NO 102 OF 2013; The State v Helen Wamingi (2013) N5723

National Court: Cannings J

Judgment Delivered: 20 June 2013

N5723

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 102 OF 2013

THE STATE

V

HELEN WAMINGI

Madang: Cannings J

2013: 16 May, 17, 20 June

CRIMINAL LAW – sentence – assault occasioning bodily harm – Criminal Code, Section 340(1) – guilty plea – offender bit off ear of sister in-law causing permanent injuries – sentence of 18 months.

The offender was charged with one count of assault occasioning bodily harm. She pleaded guilty to the charge. During a fight with her sister in-law, the offender bit off her right ear so hard that two-thirds of the outer ear (the pinna) was severed. The part of the ear that was bitten off was not recovered, so the ear has not been reconstructed.

Held:

(1) The maximum sentence under Section 340(1) of the Criminal Code is three years imprisonment and an appropriate starting point 18 months.

(2) Mitigating factors are: the offender was the sole attacker; she is a first-time offender; high level of de factor provocation; the high level of cooperation with the police; the guilty plea; early guilty plea; the preparedness to compensate and reconcile with victim; the adverse effect that a long prison term will have on her children.

(3) There is only one aggravating factor: the very serious injury, causing permanent disfigurement to the victim.

(4) A sentence of 18 months was imposed. The pre-sentence period in custody was deducted and none of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890

The State v Abuc Batulik CR 284/2010, 26.05.10

The State v Carol Peter (2011) N4320

The State v Irene Soso CR 149/2009, 04.03.10

The State v Judah Lusan Piries CR 886/2007, 18.09.07

The State v Mark Mondo Bassop CR 75/2008, 25.03.10

The State v Mathew Sabuin, Gabriel Pinia & Philip Kit CR 921-922/2006, 25.08.06

The State v Peter Jai (2011) N4391

SENTENCE

This was the sentence of an offender for the offence of assault occasioning bodily harm.

Counsel

M Pil, for the State

S Tanei, for the offender

20th June, 2013

1. CANNINGS J: Helen Wamingi has pleaded guilty to one count of assault occasioning bodily harm under Section 340(1) of the Criminal Code. The offence was committed at Sisiak 2 near Madang town, at 3.00 pm on Saturday 3 November 2012. The offender was living at the nearby Madang Teachers College residential compound and went with her sister, Vanessa, to Sisiak 2, where some of her relatives resided, as she heard that there was some problem there concerning her brother, who had allegedly damaged some property. When she arrived, her brother was not there, and she confronted her brother’s wife, Rosa Kuluban, and they argued. Then a fight erupted, initially it was between Vanessa and Rosa but then Helen joined the fight, assisting Vanessa, and then in the course of the physical confrontation with Rosa, Helen bit Rosa on the right ear, so hard that two-thirds of the outer ear (the pinna, also known as the auricle) was severed. The part of the ear that was bitten off was not recovered, so the ear has not been reconstructed.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. The offender was given the opportunity to address the court. She said:

I am sorry for what I did. It will never happen again. The victim is my sister in-law. I am willing to pay compensation.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty she will be given the benefit of the 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). She cooperated with the police from the beginning and made admissions when interviewed on 9 November 2012, just six days after the incident. She explained that she had received a report that on the morning of the incident her brother Tom had damaged the gate of their parents’ house when he was drunk and swore at them and that Tom’s wife, the victim Rosa, had also verbally abused her parents. So she went to Sisiak to sort out the problem. Unfortunately she ended up fighting with the victim. She did not intend to injure her. The reason that she bit her on the ear is that in the course of the fight the victim bit her (the offender) on the bicep, so she had to do something drastic to get her to release her teeth. She bit the closest body part available which happened to be the fleshy part of the ear.

PRE-SENTENCE REPORT

5. Helen Wamingi comes from Dupakui village in the Yangoru District of East Sepik Province. She is married with two children. She completed grade 12 at Malala Secondary School. She has a Diploma in Applied Science from Unitech and a teaching diploma from University of Goroka. She has had regular paid employment. She moved to Madang in 2010 to take up a teaching position at Tusbab Secondary School and in 2011 she took up a teaching position at Madang Technical College, where she is presently employed. She has made active attempts to reconcile with the victim and has offered to pay substantial compensation (K10,000.00). The offender however and also her husband (the offender’s brother) have resisted. They want to see the offender imprisoned and will not accept compensation.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Tanei highlighted the guilty plea and that it was an early guilty plea. The offender was a single attacker. She cooperated with police and made very early admissions. She has made genuine attempts to reconcile. The sentence should be no more than 12 months, fully suspended.

SUBMISSIONS BY THE STATE

7. Mr Pil submitted that there were a number of aggravating factors that meant that this case was at the higher end of the scale of seriousness: it was a very serious and permanent injury and the victim will not accept compensation. The sentence must reflect the serious nature of the case.

DECISION MAKING PROCESS

8. 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?

9. The maximum penalty is three years imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

10. I will use the mid-point of 18 months as the starting point.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

11. The following table shows a number of sentences under Section 340(1).

SENTENCES FOR ASSAULT OCCASIONING BODILY HARM

CRIMINAL CODE, SECTION 340(1)

No	Case	Details	Sentence
1	The State v Mathew Sabuin, Gabriel Pinia & Philip Kit CR 921-922/2006, 25.08.06, Buka	Guilty plea – three men assaulted another man – first offender twice kicked victim in the head; second and third offenders kicked victim all over his body as he lay on the ground – all were drunk.	18 months; 2 years; 2 years
2	The State v Judah Lusan Piries CR 886/2007, 18.09.07, Buka	Guilty plea – three counts – offender drunk, assaulted three members of same family with guava stick, causing bruising and pain – no broken limbs.	2 years
3	The State v Irene Soso CR 149/2009, 04.03.10, Madang	Trial – female offender hit female victim – altercation in urban setting – struck twice on her left arm and broke forearm.	1 year
4	The State v Mark Mondo Bassop CR 75/2008, 25.03.10, Madang	Trial – male offender assaulted his aunt – kicked her in thigh and slapped her on the face – victim hospitalised for a short time.	2 years
5	The State v Abuc Batulik CR 284/2010, 26.05.10, Madang	Guilty plea – male offender assaulted male victim, a fellow villager, with a breadfruit tree branch, fracturing jaw.	2 years
6	The State v Carol Peter (2011) N4320, Madang	Trial – female offender assaulted female victim, neighbour, with agricultural implement – facial injuries: broken tooth.	2 years
7	The State v Peter Jai (2011) N4391, Madang	Guilty plea – victim was a female neighbour with whom the offender had had a series of differences over neighbourhood issues – assault with iron bar.	2 years

STEP 4: WHAT IS THE HEAD SENTENCE?

12. I will determine the head sentence by listing and weighing the mitigating and aggravating factors in relation to the starting point of 18 months.

13. Mitigating factors are:

· the offender was the sole attacker;

· she is a first-time offender;

· high level of de facto provocation (the offender was bitten by the victim);

· the high level of cooperation with the police, including making admissions in the formal interview only six days after the incident;

· the guilty plea;

· ...