The State v Linah Sam (2012) N5179

• Jurisdiction: Papua New Guinea
• Judge: Toliken, AJ
• Judgment Date: 20 December 2012
• Citation: (2012) N5179
• Docket Number: CR 70 OF 2012
• Court: National Court
• Year: 2012
• Judgement Number: N5179

Full Title: CR 70 OF 2012; The State v Linah Sam (2012) N5179

National Court: Toliken, AJ

Judgment Delivered: 20 December 2012

N5179

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 70 OF 2012

THE STATE

V

LINAH SAM

Lae: Toliken, AJ.

2012: 27th July, 20th December

CRIMINAL LAW – Sentence – Causing Grievous bodily Harm – Multiple deep cuts to head, arms, back and thigh – Mitigating factors - Plea of Guilty - First time offender – Non-legal provocation – Offer to pay compensation – Remorse – Criminal Code Act Ch. 262, s 319

CRIMINAL Law – Sentence – Aggravating factors – Vicious and sustained attack –Multiple deep cuts to head, arms, back and thigh – Element of Pre-planning – Attack on victim while breast feeding 6 days old infant – Total disregard for life and safety of infant – Prevalence of offence – Near worst offence -Need for personal deterrence – Sentence of 4 years.

CRIMINAL LAW – Sentence – Suspension of sentence – Appropriate where it will promote reconciliation between the offender and victim – Compensation considered – Sentence wholly suspended with conditions including K1000 compensation – Criminal Code Act h. 262, s 19(6).

Cases Cited

The Public Prosecutor –v– Bruce William Tardrew (1986) PNGLR 91

Goli Golu v. The State [1988] PNGLR 193

The State –v– Bob Ananias CR 1413 of 2003, CR 1414 of 2003 (unreported and un-numbered) 20 April 2006

Saperus Yalibakut v The State (2006) SC890 (27 April 2006

The State v. Waiguma (2007) N3188

Thress Kumbamong v The State (2008) SC 1017

The State –v– Mann (2009) N4028 (23 April 2009)

The State –v– Robert (2009) N3629 (19 May 2009)

The State –v– Fidelis Kiatni (2011) N4331 (20 June 2011)

Counsel

C. Sopa and L. Kleinig, for the State

E. Wurr, for the Prisoner

JUDGMENT ON SENTENCE

20th December, 2012

1. TOLIKEN AJ: Linah Sam, on 24th July 2012, you pleaded guilty to an indictment charging that on the 08th day of 2011 at Malahang, Back Road, Lae in Papua New Guinea you did grievous bodily harm to Slendy Sam thereby contravening section 319 of the Criminal Code Act Ch. 262.

2. The brief facts upon which I am going to sentence you are as follows:

On 08th of August 2011 you had travelled several kilometres to Mrs. Slendy Sam’s (victim) block along Malahang Road, Lae from Awagasi Block, armed with a long bush knife.

On arrival you saw Mrs. Slendy Sam sitting in front of her house breast feeding her 6 days old infant. Without any warning of any sort you repeatedly struck her with the bush knife on different parts of her body.

You inflicted multiple deep wounds or cuts to her head, right and left arms upper back and left thigh. After attacking her you fled back to your place of residence. The victim was immediately taken to the Angau General Hospital by neighbours where she was treated for her injuries.

3. I entered a provisional plea of guilty. After perusing the District Court committal depositions I was satisfied that the evidence supported your plea, confirmed it and convicted you.

ALLOCUTUS

4. In your address to the Court before sentence you apologized for taking the law into your own hands. You said that the victim is your co-wife. You said that she had been provoking you over a period of 4 years by making provocative statements that you sell yourself to feed your children and that your children were bastards or illegitimate.

5. You said that your husband does not support you and your children. You are able to support them as well pay your rent yourself from your meagre wages. You are worried that if you were to be sent to prison there will no one to look after your children. Hence, you asked for probation.

6. Since you asked for probation the Court ordered for a Pre-Sentence Report.

ANTECEDENTS

7. You are originally from Torembi village, Ambunti, East Sepik Province but are now residing at Agawasi Block, here in Lae. You were at the time of the offence 37 years old. That would make you just over 38 years now. You are married to the same man as the victim and you have 3 children aged 10, 7 and 3 years. You were educated up to Grade 7 only. You are employed by Frabelle Fish Cannery.

8. You have no prior convictions.

SUBMISSIONS

9. Your lawyer Ms. Wurr submitted that there are mitigating factors to your offence. You entered an early guilty plea, you admitted your offence very early and co-operated with the police and that you are a first time offender. She also said that you were provoked in the non-legal sense.

10. She, however, conceded that there are aggravating factors against you. You used a bush knife, a dangerous knife, on the victim, inflicting her with several cuts to various parts of her body and that the offence is prevalent.

11. She further submitted that the Pre-Sentence Report is favourable to you. The victim was interviewed and expressed her desire to be compensated and that your husband is willing to assist you. He is living with the victim while you are living with your children in rented accommodation.

12. Ms. Wurr asked the Court to consider a sentence of between 3 – 4 years. She said this should then be fully suspended with strict conditions as according to her imprisonment will adversely affect your children who are already without a father as it were.

13. Ms. Sopa for the State on the other hand, submitted that the aggravating factors of your case are that you used an offensive weapon, inflicted deep lacerations on the victim and there was some pre-planning on your part in that you armed yourself in your home at Agawasi Market and travelled all the way to Malahang Road to attack the victim. Further more you also put the life of the victim’s infant whom she was breast feeding when you attacked her.

14. Ms. Sopa referred the Court to the case of The State v. Waiguma (2007) N3188 which she said has similar factual circumstances to your case. There Cannings J. formulated certain considerations to arrive at head sentence. He fixed a starting point of 3 ½ years and imposed a head sentence of 4 years none of which was suspended. Ms. Sopa asked the Court to impose a similar sentence against you.

THE LAW

16. The offence of causing grievous bodily harm is provided by Section 319 of the Code in the following terms:

319. Grievous Bodily Harm

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

Penalty: Imprisonment for a term not exceeding seven years.

17. “Grievous bodily harm’’ is defined by Section 1 of the Code as “.... any bodily injury of such a nature as to endanger or be likely to endanger life or to cause or likely to cause permanent injury to health.”

18. But while the maximum penalty is seven (7) years imprisonment the maximum is reserved for the worst of offences. Whether a case will attract the maximum penalty or otherwise will depend very much the circumstances of each particular case (Goli Golu v. The State [1988] PNGLR 193).

19. Section 19 of the Code also gives the sentencing judge or court a wide discretion to impose a sentence lesser than the maximum or impose some other form of punishment other than imprisonment or to wholly or partially suspend a sentence. So what has been the sentencing trend for this offence?

SENTENCING TREND

20. Let me now consider a few cases to see how this court had been treating offenders for this offence.

21. In The State –v– Fidelis Kiatni (2011) N4331 (20 June 2011) the offender pleaded guilty to one count of GBH. He had completely chopped off the accused right hand after intervening in an argument and scuffle between the victim and his wife (the offender’s sister). The offender was youthful, plead guilty, a firs time offender and had expressed remorse.

22. Against him however, was the fact that victim suffered permanent injury (100% loss of right hand) and the use of a dangerous weapon. Ipang AJ. sentenced the offender to 4 years imprisonment, 2 years of which were suspended and offender was placed on probation with an additional condition, amongst others, to pay K6000 compensation.

23. In The State –v– Mann (2009) N4028 (23 April 2009) the offender pleaded guilty to one count of grievous bodily harm. He attacked the victim by slashing him twice on his right shoulder, inflicting a deep and extensive wound from which the victim lost a lot of blood. The medical report stated the victim “is expected to make a steady recovery, but the offender be held responsible for near murder.”

24. The mitigating factors were that he was a man of prior good character, pleaded guilty to the charge, was a first time offender, co-operated with the police and expressed genuine remorse. Furthermore there was...