N2409

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 541 of 2001

THE STATE

-V-

DAVID SAUN

WEWAK: KANDAKASI, J.
2003: 23rd April
2nd May

CRIMINAL LAW – Compensation – Compensation only relevant for mitigation purposes and does not excuse criminal liability or penalty –Evidence of compensation already paid – Prepared to pay further compensation - Means assessment necessary before making any orders for compensation – Means assessment report disclosing prisoner not personally having any means to pay but has ability to borrow and meet any orders for additional compensation – Compensation ordered conditional upon prisoner repaying by provision of supervised free labour.

CRIMINAL LAW - Sentence – Grievous bodily harm out of a drunken brawl – Prisoner attacked in retaliation - Victim rendered 30% permanently disabled one of the victim’s eye - Guilty plea – No prior convictions – Customary compensation paid –Expression of remorse in Court –Probation report recommending compensation only - Sentence of 5 years part suspended imposed – Criminal Code ss. 19 and 319. 

Cases cited:
The State v. Abel Airi (28/11/00) N2007.
The State v. Isaac Wapuri [1994] PNGLR 271.
The State v. Philip Susuve Raepa [1994] PNGLR 459.
The State v. Apa Kuman (20/12/00) N2047.
The State v. Nickson Pari (N0.2) (10/01/00) N2033.
The State v. Darius Taulo (15/12/00) N2034.
The State v. Rueben Irowen (24/05/02) N2239.
The State v Henry Idab (17/12/01) N2172.
The State v. Eddie John Naopa CR 1593 of 2001 (Unreported and yet to be numbered) 24th April 2003.

Counsels:
Mr. M. Ruari for the State 
Mr. G. Korei for the Prisoner 

2nd of May 2003

KANDAKASI J:	You pleaded guilty to one charge of causing grievous bodily harm to another person, Titus Wrahambu at Maprik High School on 13th of April 2000 contrary to s.319 of the Criminal Code. Upon being satisfied that there was sufficient evidence supporting your guilty plea, I accepted your guilty plea and had you convicted of the charge.

Relevant Facts

The relevant facts are not in dispute. You were at the house of the then Headmaster of the Maprik High School on 13th of April 2000 at about 9.00 pm. There were teachers of the High School and other people. That was on an occasion of fundraising. One of the activities undertaken was the playing of a game of dart at K1.00 per play for a bottle of beer for the highest scorer. The victim, Mr. Wrahambu turned up late and whilst at the fundraising, he consumed some alcoholic drinks at a faster rate. He then started some arguments with you and a Mr. Waffi and started a fight with him. This then developed into a fight between you, Mr. Waffi and a Momba on one side and the victim with a Mr. Dingu on the other side. In the fight, Mr. Dingu used a broken piece of exhaust pipe to attack and you sustained a deep wound injury to your left side. Mr. Dingu and the victim tried to attack you with the same object and you avoided it. At the same time Momba came to your help by going for Mr. Dingu. You therefore picked up a piece of swan timber and threw it at your attackers. That caused the victim to fall on his back hurting his head from the back. 

The victim was rendered unconscious momentarily. You and the others poured water on him and regained his consciousness. The victim was eventually admitted to the hospital and was appropriately treated. He recovered but with an estimated 30% residual disability. You claimed to have paid about K5,000.00 in compensation to the victim.

A decision on sentence was therefore adjourned to allow for a pre-sentence report at your request. The report confirmed your claim of having paid K5,000.00 in compensation with the help of some of your friends and your wife. There was, however, no evidence of the amounts paid and received by the victim. The Court considered it necessary for you to produce evidence of the payment of compensation and that you take some real steps toward repayment of the assistance you received from your friends and your wife because you are personally responsible for your own criminal conduct. I therefore deferred a decision on your sentence and allowed you to remain outside on bail on some strict terms and directions for you to undertake some activities to address your drinking problem and to take steps toward repaying what you had borrowed from your friends and your wife.

I am now in receipt of further evidence confirming the payment of the compensation. The further evidence also confirms you taking some meaningful steps toward raising the funds required to reimburse the assistance you received from your friends and your wife to meet the compensation payments. Furthermore, there is no evidence before me of you having taken steps to get away from your drinking problem.

The Offence and Sentencing Trend

You have been charged under s. 319 of the Criminal Code. That section creates the offence of grievous bodily harm and directs that anyone who does such harm to another must be punished by imprisoned to a term not exceeding 7 years. A number of judgements have already dealt with offences under this section before imposing a variety of sentences. This, I believe has been the case because as I said in The State v. Abel Airi (28/11/00) N2007, the exercising of the sentencing discretion in a sentencing judge is not a matter of mathematics. Instead, it requires an exercise of judicial discretion in such a way to do justice in the circumstances of a particular case by reason of which there might well be differences of sentences.

In The State v. Isaac Wapuri [1994] PNGLR 271, a sentence of 18 months in hard labour with 5 months deducted on account of time spent in custody was given. The balance of the sentence was suspended on condition of good behaviour bond and compensation of K500 cash and pigs to the value of K800 in accordance with the victim and the offender’s custom.

That was a case in which the prisoner hit his sister-in-law with a vehicle hand brake cable on one of her eyes resulting in a 90% residual disability. This was supposedly after the victim failed to get the prisoner to have sexual intercourse with him and she scattered all of his clothes all over the place. The prisoner thought that was in retaliation for his refusal and so he reacted in the way he did. 

In another case, The State v. Philip Susuve Raepa [1994] PNGLR 459, the victim was rendered brain damage out of a drunken brawl and after a skull operation to remove internal bleeding. The Court ordered K5,000 compensation and placed the prisoner on good behaviour bond on his own recognizance with a surety of K300.00 with judgement being deferred to future sittings of the Court and for the prisoner to abstain from alcoholic drinks for 12 months until further orders.

Later, in The State v. Apa Kuman (20/12/00) N2047, a sentence of 3 years imprisonment was imposed. The prisoner after having raped the victim, cut her across her stomach to prevent her from calling out for help. That caused substantial damage to her left and right lobes, which bled profusely into the abdomen. Quick admission to the hospital prevented further bleeding and saved her from death due to loss of blood. The prisoner was a young first time offender.

On my part, in The State v. Nickson Pari (N0.2) (10/01/00) N2033, I imposed a term of 4 years and suspended part of it on terms, inclusive of good behaviour bond. That was a case in which the prisoner shot at and injured the victim on his left arm in the course of and in furtherance of an armed robbery. He was also a first time young offender.

At about the same time in The State v. Darius Taulo (15/12/00) N2034, I imposed a wholly suspended 3 years sentence on strict terms as an alternative form of punishment outside the prison system. That was in the face of genuine remorse being expressed coupled with compensation already paid for by the prisoner himself, a preparedness to undergo his wife’s (the victim’s) traditional form of compensation and restoring the relationship and a willingness to truly change his ways under supervision. I was also persuaded to arrive at that sentence because the victim preferred compensation and that the innocent children of the marriage stood to suffer if the prisoner was sent to prison. Further, the pre-sentence report supported such a sentence. I also noted that the prisoner was a grownup man and he was not a danger to the society and that the society through a pre-sentence report was prepared to help him to rehabilitate. 

In all of these cases, the prisoners pleaded guilty and that they were first time offenders. They all involved a single victim. Further, there was a good explanation for the commission of the offences although not all permitted by law. In the first case, it was a case of a sister-in-law provoking the prisoner after failing to secure a sexual intercourse from him. In the second and last cases, they were cases of drunken behaviour. As for the third case, the offence was committed to conceal another offence on the basis of which the case could be considered more serious and inexcusable. Finally, in the fourth case, it was a case of furtherance of the commission of another offence. This brings the case closer to the third case. The sentences were lenient in the first, second and last cases because of compensation payment or orders for payment of compensation.

A more serious case of grievous bodily harm is The State v. Rueben Irowen (24/05/02) N2239. In that case, the prisoner caused his two wives (victims) to strip down naked and caused serious bodily harm to them. That included the use of a bush knife to inflict serious cuts to their bodies resulting in the loss of a lot of blood rendering both of them unconscious. They had to run out of the house naked for help. If it were not for their running out and the help of third parties, they could have died. The prisoner was given the maximum prescribed sentence of 7 years each for the harm he had occasioned to the victims to be served cumulatively.

Another serious case is The State v Henry Idab (17/12/01) N2172. In that case, a group of men attacked another group mistakenly taken to be the ones responsible for verbally assaulting one of the attacking group member’s mother. The group that was attacked included a village court magistrate. He was the victim of the attack. He suffered serious bush knife wound injuries to both of his hands, resulting in an estimated 85% loss of efficient use of his hands and restricted to only light work.

I imposed a sentence of 5 years, part of which was suspended on strict terms including community work. At the discretion of the village court magistrate, I left room in the judgement for the prisoner to render services free of charge to his victim. 

Your Case

In your case, the victim was not a stranger to you. You were part of a drinking party. Both the victim and you appear to have acted under the influence of alcohol. Your case is therefore similar to the case of The State v. Philip Susuve Raepa (supra) and The State v. Darius Taulo (supra) to the extent that alcohol was involved. So the sentence may have to be similar or closer to those cases.

However, the case of The State v. Eddie John Naopa CR 1593 of 2001 (Unreported and yet to be numbered) 24th April 2003, comes a little bit closer to your case in terms of the injuries sustained by the victims. The victim in that case was left with a 100% permanent loss to one of her eyes.

I imposed a sentence of 5 years and had part of that suspended on a number of conditions, including compensation and community based work orders. That sentence was reflective of the fact that the prisoner was found to have committed the offence with the view to committing another serious offence, such as abduction and rape against an innocent schoolgirl. That was on the basis of a pre-sentence report recommending a sentence in those terms. 

In your case, I note that the facts appear to disclose a possible case of acting in self-defence but you chose not to take that up. Instead, you chose to proceed to a plea of guilty to the charge as presented. I can, therefore, only note that you fought with the victim only after he had started the fight with you. 

I also note that you pleaded guilty and that you have paid compensation and have expressed your remorse in Court. You have no prior record of any conviction or being a violent man. Further, you also indicated a preparedness to pay any further compensation the Court might order against you. 

Against these, is the fact that you are a grownup man. You were, therefore, in a position to appreciate that what you did was wrong and should have abstained from doing them but you did. Also, the injuries you brought upon the victim have resulted in an estimated 30% loss of the use of one of the victim’s eye. This is going to be with the victim for the rest of his life. Damages for injuries of this nature exceed the maximum amount of compensation payable under the Criminal Law (Compensation) Act. 

As I noted in the The State v. Eddie John Naopa (supra), the compensation already paid to the victim may be well below what the victim may be entitled to recover if a civil action was brought against you for damages.

In the particular circumstances of this case, I am of the view that this is a serious case of grievous bodily harm but not necessarily the worst kind. This does not warrant the imposition of the maximum prescribed sentence of 7 years imprisonment. Then given the fact that you pleaded guilty and that you are a first time offender, I consider a sentence of 3 years wholly suspended on conditions appropriate, less the period you have already spent in custody awaiting your trial.

The conditions on which your sentence of 3 years is suspended are as follows:

1.	you immediately enter into your own recognition to keep peace for the currency of your suspended sentence; 

2.	you abstain from any form of alcoholic drink for the whole of your suspended period; 

3.	you submit to a program of alcohol withdrawal at the direction and or control either solely in association with the probation services here in Wewak;

4.	you repay the amounts contributed toward the compensation by your friends and your wife either in cash or in kind, generated through your own efforts through formal employment or by working your land;
5.	you provide 8 hours physical labour free of charge each Thursdays, Fridays and Saturdays to the Yarapos High School or whichever other High School your wife may transfer to;

6.	the Probation Service and the Headmaster of the High School shall produce within 1 month from today a work schedule or plan for the whole of the suspended period for this Court’s endorsement;

7.	the Probation Service shall in association with the High School Headmaster supervise your performance of the work required of you;

8.	you remain indoors in your house in your village at Pagwi or the High School between the hours of 6.00 pm and 6.00 am;

9.	you do not leave the High School without first obtaining leave of this Court;

10.	you allow for and permit Probation Services to visit your home on a regular basis to monitor your compliance of these terms and to make such recommendations as they consider appropriate, either for a variation or an implementation of these terms;

11.	the Probation Officer in Wewak shall provide to this Court each quarter comprehensive reports as to your compliance of these terms;

12.	if for whatever reason you breach any of these terms, you will serve the balance of the term of the suspended sentence as at the time of the breach in hard labour;

13.	you will be at liberty to apply for a review and or variation of any of these terms supported by appropriate evidence or material;

14.	you accept that any member of your family or community will be at liberty to report to this Court of a failure to meet any of these conditions without any prior notice or warning to you; and

15.	the Police shall also be at liberty to ensure and supervise compliance of these terms at any time.
________________________________________________________________________
Lawyers for the State:			The Public Prosecutor
Lawyers for the Accused:		The Public Solicitor