The State v Jacob Dokta

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 14 February 2014
• Citation: (2014) N5589
• Docket Number: CR No.1 of 2013
• Court: National Court
• Year: 2014
• Judgement Number: N5589

Full Title: CR No.1 of 2013; The State v Jacob Dokta (2014) N5589

National Court: David, J

Judgment Delivered: 14 February 2014

N5589

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No.1 of 2013

BETWEEN:

THE STATE

AND:

JACOB DOKTA

Prisoner

Minj & Mt. Hagen: David, J

2013: 3 December

2014: 11 & 14 February

CRIMINAL LAW – sentence – grievous bodily harm – prisoner is step-brother of female victim – prisoner punched and kicked victim – victim sustained a fracture of left proximal ulna with no displacement - sentence of 2 years in hard labour – Criminal Code, Section 319.

Cases cited:

Goli Golu v The State [1979] PNGLR 653

Avia Aihi v The State (No 3) [1982] PNGLR 92

Public Prosecutor v Thomas Vola [1981] PNGLR 412

Ure Hane v the State [1984] PNGLR 105

Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91

The State v Frank Kagai [1987] PNGLR 320

Lawrence Simbe v The State [1994] PNGLR 38

Public Prosecutor v Don Hale (1998) SC564

Edmund Gima and Siune Arnold v The State (2003) SC730

The State v Darius Taulo (2001) N2034

The State v Albina Sinowi (2001) N2175

The State v Patrick Kimat (2005) N2947

Richard Liri v The State (2007) SC883

The State v Namba Mako, CR 48 of 2007, Unreported & Unnumbered Judgment of David J delivered on 16 October 2007 in Mt. Hagen

The State v John Komep, CR.300 of 2006, Unreported & Unnumbered Judgment of David, J delivered on 13 November 2007 at Mendi

The State v Lucy Rusa (2008) N3510

The State v Bill Simai, CR.No. 125 of 2007, Unreported & Unnumbered Judgment of David, J delivered on 18 June 2009 at Kundiawa

The State v Bill Kara (2012) N4663

The State v Rada Mau (2012) N5081

Counsel:

Joe Kessan, for the State

Philip Kapi & Maryanne Job, for the prisoner

SENTENCE

1. DAVID, J: The prisoner, Jacob Dokta appearing before me from bail, pleaded guilty to unlawfully doing grievous bodily harm to his step-sister, Serah Job and was convicted of the offence under Section 319 of the Criminal Code. The incident occurred at Koldet village, Baiyer District in the Western Highlands Province on 6th March 2012 at about 5:00 o’clock in the afternoon. The victim was with some males and females inside a house visiting a sick person and telling stories or gossiping when the prisoner who was walking past the house at the time heard what they were talking about. He entered the house and confronted the victim suspecting her of gossiping about him. An argument ensued between the two of them developing into a fight. The prisoner punched the victim three times and the victim grabbed a piece of firewood which she found inside the house and tried to strike the prisoner with it. The prisoner grabbed the piece of firewood from the victim and disarmed her. After disarming the victim, he punched her with great force causing her to fall heavily to the floor on her left side directly resulting in her sustaining a fracture of her left proximal ulna.

2. The Medical Report provided by Dr. Julieth Jacob of the Mt. Hagen General Hospital dated 8th March 2012 reports that the victim sustained a fracture of her left proximal ulna with no displacement. A Plaster of Paris (cast) was applied for 6 weeks and the victim was given a week’s supply of indocid and panadol to minimize or prevent pain. The report further reports that the victim suffered 20% functional loss of the use of her injured arm for a period of 1 ½ months.

3. The prisoner has no prior convictions.

4. On his allocutus, the prisoner apologized to the victim and her family for causing the trouble and requested that he be forgiven. He then pleaded with the Court for mercy and a lenient sentence.

5. The prisoner through his counsel applied for a pre-sentence report to be compiled and filed by the Probation Service, Mt. Hagen Branch which I granted and hearing of submissions on sentence was deferred pending the filing of the report.

6. The pre-sentence report was duly compiled and filed by the Probation Service and I thank Ms. Theresa Puk, Probation Officer for her assistance. Apart from the prisoner and the victim, local community and village leaders including Makup Tepuka, a former Provincial Government member, Raim Romba, Village Court Magistrate, Pastor Petro Mati and a Peter Paraka were also interviewed and have all expressed that despite the incident, the prisoner is well regarded in their local community and village and has performed leadership roles in the local community and village. They are prepared to assist the prisoner pay compensation to the victim with K300.00 cash and a pig within 2 weeks of sentence. The victim says that she cannot work due to the injury. She also states that despite her condition and the expense she has been put through to sustain herself under the circumstances which she puts at K3,200.00, the prisoner has not done or said anything about addressing her situation. She therefore wants the prisoner to pay to her compensation of about K4,000.00 and an additional K3,200.00 as reimbursement for her expenses and in default the prisoner be incarcerated. No evidence was produced to support the claim for reimbursement of expenses. The prisoner states that he can only pay an amount not exceeding K700.00. The prisoner is recommended for probation.

7. The maximum penalty prescribed for this offence is, subject to Section 19 of the Code, imprisonment for a term not exceeding 7 years.

8. The maximum penalty is usually reserved for the worst sort of cases of unlawful doing grievous bodily harm: see Goli Golu v The State [1979] PNGLR 653, Avia Aihi v The State (No 3) [1982] PNGLR 92 and Ure Hane v the State [1984] PNGLR 105.

9. It is also settled law that each case must be decided on its own facts: see Lawrence Simbe v The State [1994] PNGLR 38.

10. The prisoner is from Koldet village, Baiyer District in the Western Highlands Province and is now aged 35 years and subsistence farmer. He is married with 2 wives and has 8 children from these relationships. His eldest child, a male is currently in Grade 9 at the Mt. Hagen Secondary School and 4 of the remaining 7 attend Primary School. His father is deceased and is survived by his mother. His father had 2 wives and had 6 children altogether from these relationships. His mother was his father’s first wife whilst the victim’s mother was his father’s second wife. He has attained Grade 7 formal education. He is a baptized member of the Assemblies of God denomination. The prisoner was arrested and detained on 14th March 2012 and was admitted to bail 3 days later on 17th March 2012. He was committed to stand trial in the National Court on 22nd October 2012 for unlawful doing grievous bodily harm.

11. In mitigation, Ms. Job of counsel for the prisoner submitted that:

1. the prisoner pleaded guilty;

2. the prisoner was a first offender;

3. the prisoner expressed remorse and contrition;

4. the prisoner co-operated with the police;

5. the prisoner was willing to pay compensation not exceeding K700.00, but his 3 attempts to pay were rejected by the victim’s brothers;

6. there was presence of a moderate amount of de facto provocation;

7. there was no high degree of intention to harm the victim;

8. the prisoner did not use any weapon.

12. Ms. Job referred me to three cases by way of comparison namely, The State v Patrick Kimat (2005) N2947, The State v Bill Kara (2012) N4663 and The State v Rada Mau (2012) N5081 (which I will summarize later on in the judgment) and submitted that the circumstances of the present case warranted the imposition of a sentence of no more than 12 months imprisonment, all of which should be suspended on terms.

13. Mr. Kesan of counsel for the State highlighted that the fact of the victim suffering a fractured left ulna and the prevalence of the offence were strong aggravating factors in the present case. He conceded however that although no weapon was employed by the prisoner in the assault, the magnitude of the force was such that the victim sustained the injury when she fell heavily to the floor.

14. Mr. Kessan referred me to three cases by way of comparison namely, The State v Darius Taulo (2001) N2034, The State v Albina Sinowi (2001) N2175 and The State v Lucy Rusa (2008) N3510 (which I will summarize later on in the judgment) and submitted that the circumstances of the present case warranted the imposition of a sentence of at least three years imprisonment, but with no objection to the question of suspension so long as it was made on terms including the making of compensation and community work orders

15. The factors which mitigate the offence are:

1. the prisoner pleaded guilty;

2. the prisoner was the sole attacker;

3. the prisoner had no prior convictions and was a first offender;

4. there was presence of a moderate amount of de-facto provocation given the victim was gossiping about the prisoner;

5. there was no high degree of intention to harm the victim;

6. the prisoner did not use any weapon;

7. the offence was committed against a family member;

8. the prisoner expressed remorse and contrition;

9. the prisoner co-operated with the police;

10. the prisoner attempted to...