State v Kassman [2004] PGNC 99; N2682 (21 June 2004)

N2682

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 669 of 2004

THE STATE

-V-

RUBERT KASSMAN

WEWAK: KANDAKASI, J.
2004: 10th and 21st June

DECISION ON SENTENCE

CRIMINAL LAW – Sentence – Unlawful wounding – Use of bush knife – Minor injuries to victim’s neck area - Prisoner attacking in retaliation but disproportionately – No residual disabilities to victim - Guilty plea – No prior convictions – Customary compensation paid –Expression of remorse in Court –Probation report recommending community based correction – 1 year suspended sentence imposed - Criminal Code ss. 19 and 319.

Cases cited:
The State v Albina Sinowi (17/12/01) N2175.
The State v Joseph Pingu (13/12/01) N2169.

Counsel:
J. Wala for the State
L. Siminji for the Prisoner

21st June 2004

KANDAKASI J: You pleaded guilty to one count of unlawful wounding of a Simon Firomo on 19th January 2004, contrary to s. 322 of the Criminal Code.

The Relevant Facts

From the brief facts put to you by the State and the depositions, the facts are straightforward. You with 2 other boys stood along the road side at the junction of the road to Moem Barracks and the Boram Correction Services between 8:00 and 9:00 pm. As you were there, the victim who then drove by said something to you and your friends. You therefore, told the victim to watch his mouth. The victim stopped his vehicle, came out of it and asked you and your friends as to what was wrong. That eventually developed into a fight, between one of your friends, David Gumbuli and the victim. You tired to stop the two of them. However, the victim threw a bottle of beer at you. This made you to grab a bush knife from your house, which was nearby, and you cut the victim around his neck area. The victim was immediately taken to the hospital.

At the hospital, the victim received appropriate treatment, that included a suturing of the cut. The medical report states that the victim was admitted extremely drunk. The cut to his neck was not a deep penetrating one. There were no damage to his neurological system or anything like that. The medical opinion was that, there was no risk of long-term disabilities or any difficulty.

Offence and Sentencing Tariffs

Section 322 creates the offence of unlawful wounding and prescribes a maximum sentence of 3 years. It is a misdemeanour and not a crime. Sentences in the past have ranged from a few months wholly suspended as in The State v Albina Sinowi (17/12/01) N2175 to 3 years with 2 years to be suspended on terms as in The State v Joseph Pingu (13/12/01) N2169. In the first of these two cases, a woman injured her co-wife who was constantly neglecting her duties as a mother of her own children. Compensation was paid and the victim and the prisoner lived harmoniously again.

In the second case, it was really a case of grievous bodily harm or attempted murder. However, due to a plea bargain an indictment was presented under s. 322 of the Code. I therefore, decided to start with the maximum of 3 years.

In the second of the two cases, I noted that the prisoner joined in a fight that was not his in these terms:

"Our society is becoming unsafe because of people like you who take the law into their own hands. They become jury, judge and executioners all at the same time in a summary manner without a proper trial and establishing of any guilt. The fight in this case as noted was between two other people both not armed. Instead of opting to help stop the fight, as did Jack Sangi, you and your friends made it extremely worse. This places your case in the worse category of unlawful wounding contrary to section 322 of the Criminal Code, even if there was no plea bargaining resulting in the guilty plea. It is this very kind of conduct that is contributing to a breakdown in law and order today. Stern punishments are therefore called for to deter others from repeating what you did. This warrants an imposition in my view of the maximum penalty of 3 years imprisonment in hard labour. I will have no hesitation to order such a sentence but would also suspend part of the sentence if customary compensation were paid in full say within 6 months from today."

The sentence ultimately imposed was 3 years with 2 years suspended conditional on K5,000.00 in compensation being paid and other conditions.

Sentence in Your Case

In your case, I note you are a young man of 20 years old. I also note that your father has left you and your mother. Your mother has done very well in bringing you up into a young man, such as you are. The commission of this offence has affected your education. Your mother and your maternal uncles and your immediate community leadership and members are supportive of you. You have not been in trouble before and this is your first ever offence and that you have freely admitted to committing the offence.

I find that the victim, who was extremely drunk, said something to you and your friends on the side of the road started the whole incident. That caused you to tell him to watch his mouth. Thereupon, he stopped his vehicle, came out and inquired as to what was the problem. This then developed into an argument and thereafter a fight between the victim and your friend, Mr. Gumbuli. You tried to separate the two of them but the drunkard victim threw a bottle at you. You then went for a bush knife and cut the victim on his neck.

Your actions of going for the bush knife and cutting the victim were uncalled for and disproportionate to the harm directed at you. No one and certainly not the victim was using any dangerous weapon such as a bush knife to fight with you or your friend. He was drunk and as such, you could have easily over powered him and bring him under control.

I note from the pre-sentence report and the affidavit of councillor Justus Hembimi sworn on 18th June 2004, that you have been a good person. Your action on the day of the offence does not reflect that. Instead, it reflects that of a most violent person. I note that there is so much violence in this Province, with the ready use of bush knives and such other dangerous weapons. There is no respect for the system which the law already provides for the peaceful resolution of situations such as those you were placed in. Instead of seeking to resolve the problem peacefully through such means, you became judge, jury and executioner at the same time.

I will therefore start your sentence with the head sentence of 3 years. Then given your guilty plea and being a first time offender, coupled with the fact that you have paid with the help of your mother K1,100.00 compensation, I will have that reduced by 2 years. This will leave you with a balance of 1 year. Of that, I order a reduction of the 4 months and 11 days you have spent in custody awaiting your trial, leaving you with a balance of 7 months and 20 days. I order a suspension of that part of the sentence on the following terms:

1. you repay your mother the sum of K1, 100.00 she has paid in compensation to the victim;
   
2. the repayment shall be in terms of working on sago for cash sale and such other activities your mother requires with the endorsement by Councillor Justus Hembimi from time to time with a report to this Court on the progress at the end of each month starting on the 21st July 2004, until the full amount is repaid;
   
3. you shall work on the activities identified under term 2 above on every Mondays, Tuesdays and Wednesdays until the K1, 100.00 is fully repaid;
   
4. during the currency of the suspended sentence you shall:
   
   • (a) render eight hours of free community service each Thursdays and Fridays excepting any public holidays to all of the churches and any other public institution including the portion of the Sepik Highway in your area;
     
   • (b) ensure that the probation service in consultation with Councillor Hembimi furnishes to this Court for its endorsement a work schedule for the whole of the suspended period within 14 days from today;
     
   • (c) be home bound between the hours of 6:00pm and 6:00am each day except in relation to the activities under terms 2 and 3 above under the supervision of Councillor Hembimi;
     
   • (d) not to leave your village Japaraka No. 2 and the East Sepik Province except with leave of this Court;
     
   • (e) allow for and permit Probation Services to visit your home on a regular basis to monitor your compliance of these terms and to report with such recommendations has he might consider appropriate either for a variation or an implementation of these terms;
     
   • (f) ensure Probation Service shall furnish a monthly report at the end of each month starting with the first one on 21st July 2004;
     
   • (g) immediately enter into your own recognition to keep peace for the currency of your suspended sentence;
     
   • (h) not be in the company of any youth except for any church activity approved by Councillor Hembimi;
     
   • (i) not take in any alcoholic drink of any sort, be it factory made or homemade; and
     
   • (j) 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
     
5. Any breach of these conditions will result in an immediate lifting of the suspension and you shall be remanded in custody to serve the balance of your sentence.
   

I consider the sentence and the terms and conditions of the sentence proposed above, sufficiently accommodates all of the comments and concerns raised in the foregoing. Accordingly, I make orders in those terms.

__________________________________________________________
Lawyers for the State: The Public Prosecutor
Lawyers for the Prisoner: The Public Solicitor