The State v Yakiniwa Maka (No 2)

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 19 November 2014
• Citation: (2014) N5817
• Court: National Court
• Year: 2014
• Judgement Number: N5817

Full : CR No.1205 of 2013; The State v Yakiniwa Maka (Prisoner) (No 2) (2014) N5817

National Court: David, J

Judgment Delivered: 19 November 2014

N5817

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No.1205 of 2013

BETWEEN:

THE STATE

AND:

YAKINIWA MAKA

Prisoner

(No 2)

Mt. Hagen: David, J

2014: 17 & 19 November

CRIMINAL LAW – sentence – unlawful doing of grievous bodily harm – conviction after trial – victim assaulted with stone and axe – multiple injuries sustained – Criminal Code, Section 319.

The prisoner assaulted the victim with a stone and axe following her refusal to give the prisoner’s request for some money. There was an existing boy/girl relationship or romance between the prisoner and the victim. The victim suffered three lacerations to the left side of the head each measuring about 1.5 cm deep and 5 cm in length and required a total of 12 stitches. One laceration required 5 stitches, another required 4 stitches and the last one required 4 stitches. The victim also lost 500 mls of blood. She also sustained a right chest injury and one of her ears was slightly severed.

Held:

1. The maximum sentence under Section 319 of the Criminal Code is 7 years imprisonment. The maximum sentence is usually reserved for the worst cases.

2. Mitigating factors were; the prisoner was the sole attacker; the prisoner was a first offender; there was de-facto provocation as it appeared from the Record of Interview that there was an existing boy/girl relationship or romance between the prisoner and the victim and the incident arose after an argument between the two of them over money; and until the offence, the prisoner was of good character.

3. The prisoner did not express remorse. This was a neutral factor.

4. Aggravating factors were; conviction was attained after a trial despite admissions or incriminating statements in the Record of Interview; the victim sustained multiple injuries to the left side of her head (3 x lacerations requiring a total of 12 stitches), right chest, and one of her ears was slightly severed and lost 500 mls of blood; an axe and stone were used; the village magistrate told the prisoner to leave the victim alone, but he did not listen; the offence was prevalent; and the prisoner was an adult with at least some formal education to tell what was right from wrong.

5. This case did not fall within the worst category of unlawful doing grievous bodily harm cases so a sentence of 3 years imprisonment was imposed less the remand period and no part of the remaining term was suspended.

Cases cited:

Public Prosecutor v Don Hale (1998) SC564

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

Richard Liri v The State (2007) SC883

The State v Ludwina Waiguma (2007) N3188

The State v Bomai Hesi (No 2) (2007) N3232

The State v Elvis Kos (2013) N5365

The State v Yakiniwa Maka (2014) N5816

Counsel:

J. Kesan, for the State

E. Sasingin, for the prisoner

SENTENCE

19th November, 2014

1. DAVID, J: On 14th of November 2014, I convicted the prisoner, Yakiniwa Maka of one count of unlawfully doing grievous bodily harm to a female victim called Win Kupiwa at Sip village in Baiyer District of the Western Highlands Province on 6th September 2013 contrary to Section 319 of the Criminal Code following a trial.

2. The prosecution case was constituted by documentary evidence consisting of the Record of Interview conducted on the 18th of September 2013 and the undated Medical Report of Nelson Tony, CHW of the Simbimale Health Centre tendered by consent of the defence. The Record of Interview contained admissions or incriminating statements where the prisoner said he struck the victim with a stone and an axe when she refused his request to give him some money. The Medical Report showed that the victim suffered three lacerations to the left side of the head each measuring about 1.5 cm deep and 5 cm in length and required a total of 12 stitches. One laceration required 5 stitches, another required 4 stitches and the last one required 3 stitches. The victim also lost 500 mls of blood. She also sustained a right chest injury and one of her ears was slightly severed. At the trial, the prisoner who was the sole defence witness raised the defence of alibi and tried to challenge the Record of Interview without filing notices of alibi and voir dire. The defence of alibi was abandoned, but the Court nevertheless found that it was a false alibi given it was delayed and belated. No application for leave to adduce alibi evidence was made. I rejected the challenge to the Record of Interview for the simple reason that no notice of voir dire was filed. My findings on the defence of alibi and Record of Interview essentially meant that the accused did not adduce before me any cogent or credible evidence challenging the prosecution case. The full reasons of my judgment on verdict are contained in The State v Yakiniwa Maka (2014) N5816.

3. The prisoner has no prior convictions.

4. On his allocutus, the prisoner only stated that he has been in custody for a long time since his arrest and incarceration and requested that he be released. It appeared to me that the prisoner was pleading to be sentenced to the rising of the Court.

5. The prisoner is a subsistence villager from Sip village in the Baiyer District of the Western Highlands Province. He is an adult, single and was aged about 28 years when he committed the offence. He would be aged 29 years now. He has completed Grade 4 formal education. He was once employed by Kuima Security Services for a period of two months at Lae. Until committing this offence, he was residing at his village. He is a member of the Baptist Church. The prisoner has been in custody since his arrest on the 17th of September 2013. He has been remanded in custody for a period of 1 year, 2 months and 2 days.

6. The maximum sentence for this offence is, subject to Section 19 of the Code, imprisonment for a term not exceeding 7 years. The maximum sentence is usually reserved for the worst cases.

7. In their respectful submissions, both counsel concur that the mitigating and aggravating factors in the present case warrant a sentence within the range of 3 to 4 years imprisonment.

8. The factors which mitigate the offence are:

1. the prisoner was the sole attacker.

2. the prisoner was a first offender.

3. there was de-facto provocation as it appears from the Record of Interview that there was an existing boy/girl relationship or romance between the prisoner and the victim and the incident arose after an argument between the two of them over money.

4. until the offence, the prisoner was of good character.

9. I am unable to consider any other factor that will mitigate the offence.

10. The prisoner did not express remorse. This is a neutral factor.

11. The factors which aggravate the offence are:

1. conviction was attained after a trial despite admissions in the Record of Interview.

2. the victim sustained multiple injuries to the left side of her head (3 x lacerations requiring a total of 12 stitches); right chest; and one of her ears was slightly severed and lost 500 mls of blood

3. the prisoner used an axe and stone.

4. the village magistrate told the prisoner to leave the victim alone, but he did not listen.

5. the offence was prevalent.

6. the prisoner is an adult with at least some formal education to tell what is right from wrong.

12. I am satisfied that the present case does not fall within the worst category of unlawful doing grievous bodily harm cases for the maximum penalty to be imposed. I will however consider an appropriate sentence according to the peculiar facts of the present case.

13. In considering an appropriate sentence for the prisoner, I have considered the following cases.

14. In The State v Ludwina Waiguma (2007) N3188, the middle-aged female prisoner stabbed the female victim with a knife after a history of bad feeling between them. The prisoner claimed that the victim was saying bad...