State v Jul [2005] PGNC 180; N3167 (22 December 2005)

N3167

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1839 of 2005

THE STATE

v

PATRICK JUL

Vanimo: Kandakasi, J.
2005: 19th, 21st and 22nd December

DECISION ON SENTENCE

CRIMINAL LAW - Compensation – Prisoner wishing to pay – No secure source – Attitude of victim not obtained – No input from community leaders - Inappropriate to order compensation.

CRIMINAL LAW – Sentence – Particular offence - Grievous bodily harm to superior at workplace – Provocation in non-legal sense by alleged adverse report against prisoner - Victim’s 11th rib fractured with good recovery – Guilty plea – First time offender – Prevalence of offence - No compensation paid and having no means to pay – Pre-sentence report not balanced - Custodial sentence appropriate – 2 years 6 months imposed – Criminal Code s. 319.

Cases cited:

Roger Jumbo and Aidan Awatan v The State (26/03/97) SC516.
Imiyo Wamela v. The State [1982] PNGLR 269.
Koniel Alar and Hosea Biu v. The State [1979] PNGLR 300.
The State v Vincent Naiwa (22/06/04) N2710.
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 (24/04/03) N2411.
The State v. Marety Ame Gaidi (26/0802) N2279.
The State v. Louise Paraka (2002) N2317.

Counsels:

Mr. J. Walai, for the State.
Mr. G. Korei, for the Accused.

22 December, 2005

1. KANDAKASI, J: You pleaded guilty to one charge of causing grievous bodily harm to another person, namely Dennis Weheren at the Bewani Health Centre on 13 March 2003, here in the West Sepik Province.

2. Following your guilty plea, the State admitted into evidence with your consent the District Court depositions. I was then satisfied that, there was sufficient evidence supporting the charge and your eventual guilty plea. I therefore accepted and confirmed your guilty plea and had you convicted on the charge of grievous bodily harm as presented under s. 319 of the Criminal Code.

3. After your address on your sentence, your lawyer applied for a pre-sentence and means assessment report. The Probation Services here in Vanimo have now furnished the report required of them. I note that, the report has no input from the victim and his relatives. Similarly, I noted that, there was no input from the police and any impartial leader in the community indicating their position in relation to the kind of sentence they would want to see you receive. This is important because the Court needs to know, whether they would welcome a non-custodial sentence and if so, what part they would play in a fulfilment of any terms or conditions, the Court might impose as an alternative to sending you to prison to serve your time.

Relevant Facts

4. Turning now to the relevant facts, I note that during the day on 13 May 2003, you went to the then Officer in Charge of the Bewani Health Centre, the victim of your offence. That was over your feeling bad about some confidential report concerning you and a death of a patient. At that time, you served at the same Health Centre as a Community Health Worker. There are two conflicting accounts as to how you caused the grievous bodily harm to the victim. One of them is your own account to the police in the record of interview and the other is the victim’s account supported by the other evidence.

5. The victim’s version is that when you went to see the victim, you went armed with a piece of big stick (witnesses describe it has a log). As soon as you entered the victim’s office, you stood on the other side of his table, picked up his diary and started to read his entries in it. Soon an argument between the victim and you erupted and you used the stick you walked in with to strike the victim across his mouth on the jaw line causing him to bleed right away. You struck the second time with the same stick and that landed on the left side of the victim’s rib cage. That resulted in a fracture of his 11th rib. You struck the third time, this time the victim lost his balance and fell on the floor, and you continue to hit with the stick until the stick broke off on victim’s forearm when he raised it to block of further attacks. The victim thought you were going to kill him.

6. Upon the breaking of the stick, you stopped further attacks of the victim and left. The victim in the meantime crawled out of the office with blood coming down from his face. As soon as he got out of his office, his wife went for his help and walked him home. After leaving him at the house, the victim’s wife went and arranged for the police motor vehicle, which transported the victim to the Vanimo General Hospital the same day. The victim was in a lot of pain until medically treated and he eventually recovered from the injuries you inflicted upon him.

7. Your version tells the same story with a number of variations. First, you say you went to see the victim bare handed. Secondly, you claim that, you knocked on the victim’s office door three times. On each occasion, he told you that, he was busy and he asked you to go away. You however insisted on talking to him. Therefore, on the third occasion, you helped yourself into his office, picked up his diary, and started reading the entries therein and an argument erupted between you and him. Thirdly, you say the victim armed himself with a stick and asked you to leave his office, pushing you out as he did and calling you a stupid. Fourthly, you grabbed hold of the stick and both of you pulled either way until it broke on the victim’s table and then you fought each other and both of you landed on an old safe that was in the office.

8. Clearly, therefore, there are two conflicting versions of what happened. This does not concern the commission of the offence but only in relation to factors of aggravation or mitigation, depending on from which angle, one sees it. In such a case, the law[1] provides that:

"On a plea of guilty, the plea admits no more than the essential ingredients of the offence. The plea does not in itself admit any circumstances of aggravation which may be alleged by the prosecution; nor conversely does it in itself negative any circumstances of mitigation not amounting to exculpation which may be within the knowledge of the accused alone.

If an accused disputes circumstances of aggravation alleged, he must do so by sworn evidence from himself or someone else; if on the other hand the aggravating matter is not sworn to and is only alleged on the one hand, and denied on the other, in an unsworn form, then "it is the duty of the trial judge to act upon the version of the facts which, within the bounds of reasonable possibility, is most favourable to the accused.

The right of the accused must be no less with regard to circumstances of mitigation such as those claimed in the present case. The facts normally are within the knowledge of the accused alone. Nevertheless the Court must ‘within the bounds of reasonable possibility’ accept the accused’s version. The Court can reject the explanation if it passes the bounds of reasonable possibility, but we do not think it ought to take this course without giving the accused an opportunity to support his assertion by his oath and that of any other witnesses it wishes to call."

9. In your case, the State did not allege the use of the stick or log or any of the other claims in your version of events. The State merely alleged and you accepted an allegation that, you and the victim fought over the confidential report and the victim suffered a fracture injury to his 11th rib. The State did not allege any particular aggravating circumstances against you. This was confirmed by counsel for the State that, it was presenting the indictment against you under s.319 and not s.315 of the Code. The State maintained that position up to submissions of the parties on the appropriate sentence for you. In the circumstances, I am of the view that the State has already made a decision in favour of the version most favourable to by presenting the indictment in the way it did. I will therefore proceed to consider your sentence going by the version of facts favourable to you.

Allocutus and Submissions

10. In your address on sentence, you asked the Court to note and consider your guilty plea and being a first time offender. You also informed the Court that, you are married with children. Further, you informed the Court that, your employer terminated your employment because of this offence. Finally, you told the Court that you will look for some way to resolve the matter and asked for probation or good behaviour bond.

11. Your lawyer added by informing the Court that, you are 36 years old and that you are married with 5 children ages ranging from 5 years the youngest to 12 years the oldest. You have served the State as a Community Health Worker for 20 years until your termination over the very incident for which you are in Court. He then submitted that you be given a suspended sentence and asked the Court to order a pre-sentence report.

12. In making the submission, your lawyer made on your behalf, he urged the Court to take into account, your guilty plea, being a first time offender and your personal and family backgrounds as set out above. On the other hand, the State submitted that you have not paid any compensation to demonstrate your remorse and that you have not expressed any remorse in Court either. It also submitted that, in the absence of any evidence of you having a secured means to meet any compensation order, compensation is inappropriate and asks for a sentence up between 2 years and up to the maximum part suspended without suggesting the proportion in which that should be done.

13. The pre-sentence report is now before the Court. There is no input of the victim or any one from his side in any way or aspect of the report. Similarly, there is no input from any of the members and or leaders of the community. The report restates the circumstances in which the offence was committed. It then adds other facts not found in the depositions, your arraignment and your allocaturs. Additionally, as already noted, there is no input on this from the victim. I will therefore ignore the additional facts as it would be most unfair to take note of them and more so when they have not come in the proper way of adducing evidence in Court.

The Offence and Sentencing Trend

14. Section 319 of the Criminal Code creates and prescribes the penalty for the offence of grievous bodily harm. This provision provides for a penalty not exceeding 7 years. A number of judgments have already dealt with offences under this section before imposing a variety of sentences.

15. As I have noted in a number of my judgments as in The State v. Vincent Naiwa,[2] the earlier cases on grievous bodily harm such as The State v. Isaac Wapuri[3] and The State v. Philip Susuve Raepa[4] dated back more than ten years. These cases imposed sentences from a few months to 1 or 2 years. Since then the offence has not declined but has increased over the years. Sentences have therefore started to increase to reflect the increase and prevalence of the offence. In The State v. Apa Kuman,[5] a sentence of 3 years imprisonment was imposed. There, 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.

16. I accept your lawyer’s submission that, these cases were serious cases of grievous bodily harm. I am therefore of the view that the sentence if imposed nowadays would be too lenient. This is because the offence has now become more prevalent in some cases more vicious and serious.

17. Noting the prevalence of the offence and forming the view that past sentences appear not to be deterring other persons from committing this offence, in 2003, in The State v. Nickson Pari (No.2),[6] 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.

18. One year later in The State v. Darius Taulo,[7] I imposed a wholly suspended 3 years sentence in a case of wife beating 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. The persuasion there was the fact that the victim preferred compensation. Further, a pre-sentence report supported such a sentence. I also noted that the prisoner was an adult, was not a danger to the society and that the society through a pre-sentence report was prepared to help him to rehabilitate.

19. A more serious case of grievous bodily harm I dealt with was in the case of The State v. Rueben Irowen.[8] In that case, the prisoner forced his two wives (victims) to strip down naked and effected 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. I imposed the maximum sentence of 7 years each for the harm he had occasioned to the victims for him to serve cumulatively.

20. Another serious case that I also dealt with was the case of The State v Henry Idab.[9] In that case, a group of men attacked another group mistakenly taken to be the ones responsible for verbally abusing one of the attacking group member’s mother. In the process, a village court magistrate sustained serious bush knife injuries to both of his hands, resulting in an estimated 85 percent loss of efficient use of his hands and restricted to only light work.

21. I imposed a sentence of 5 years, and suspended part of it on strict terms including community work. I also allowed at the discretion of the village court magistrate, room for the prisoner to render services free of charge to his victim.

22. Then in the case of The State v. Eddie John Naopa,[10] I imposed a sentence of 5 years part suspended because of a guilty plea and an order for compensation. The victim in that case lost one of her eyes completely from a slingshot.

23. Finally, in The State v. Vincent Naiwa,[11] I imposed a custodial sentence of 5 years. That was for grievous bodily harm caused to his sister–in–law by the prisoner. He used a bush knife to do that. There was no good reason for the attack. The attack on the victim left her left hand useless. That was on a guilty plea by a first time offender, who had not paid any customary compensation and did not have any means to pay any if the Court were to make such an order.

24. I noted in the last case that, I have dealt with a number of grievous bodily harm cases and noted that the offence was prevalent for no good reasons or for silly reasons or clearly avoidable situations. In most cases, offenders were carelessly using dangerous weapons such as bush knives and such other dangerous weapons to resolve problems even in close family relations.

Sentence in Your Case

25. In your case, the victim was not a stranger to you. He was your superior. By virtue of their position, superiors are duty bound to make reports and make recommendations as to one’s continued employment and or terms and conditions of employment. In some cases, such reports may be accurate and therefore correct. Other times they may not be correct. Where the later is the situation, there a correct and peaceful and more civilized ways to have that corrected. Violence and taking the law into ones own hand is not an option.

26. Your conduct on the day of the offence was totally disrespectful even if you had a good reason to do what you did. You have been in the health service for 20 years. During this period, I am sure you devoted your time and effort to saving human lives and where possible minimize or avoid any human sufferings. What you did went clearly in contrast of what you and the whole of the Health Department in the country stand for. Given that, this offence took place in Bewani, a rural government station, where the presence of government services and those behind them are limited and are well known in the immediate and surrounding communities, what you did prompted in my view, a very bad habit. This ought to be discouraged in the strongest way possible.

27. Your unlawful attack on the victim resulted in a fracture injury to the victim. That is a serious injury by any measure. That can only be demonstrative of an application of much force against the victim. The evidence clearly shows that, the victim missed several days of work and has been in pain for a number of days from the date of your attack of him.

28. You are no ordinary citizen or an ordinary villager. You have reached higher levels of education to make it up to the position of Community Health Worker. You served in that position for 20 years. I am thus, of the view that you have had sufficient exposure to the need to face and deal with problems in a more civilized way. Notwithstanding that, you acted like an uncivilized person. Having come to deal with a good number of this kind of cases, I can safely say that the offence is prevalent. Therefore, the sentences have to increase with a view to deterring others from committing similar offences.

29. Finally, there is no evidence of you either having paid customary compensation or otherwise taking some meaningful and tangible steps to appease the pain and suffering you brought upon the victim. Consistent with that attitude, I noticed that, you did not say sorry or otherwise express any genuine remorse in Court for what you have done.

30. In your favour however, I note that, you are a first time offender. This means you have been a good law abiding citizen until the commission of this offence. Secondly, you pleaded guilty to the charge. That saved the State from incurring further expenses of running a trial and securing your conviction in that way. Finally, I note that there is no allegation against you that you used a dangerous weapon or an object to injure the victim.

31. Carefully weighing both the factors in your mitigation as well as those against you and the sentencing trend or range, I consider a sentence below the prescribed maximum sentence of 7 years is appropriate. I consider a sentence of 2 years 6 months appropriate. I have considered compensation and suspension of either the whole or part of the sentence and have decided against them. The reason for this is simple. First the pre-sentence report does not provide sufficient and verified information in the terms I have discussed in a large number of cases as in The State v. Marety Ame Gaidi[12] for that to happen. Whilst I appreciate that the probation service has had a very short time, the problem lies with you and your counsel not making up your mind quickly and organizing the report in sufficient time in the manner, I suggested in The State v. Louise Paraka.[13] Secondly, you are an adult where suspension is not necessarily a readily available option except in exceptional circumstances. You have not demonstrated an exceptional case for suspension of either the whole or part of it. Thirdly, ordering compensation is not an option because the victim’s view has not been obtained so you miss out the usual reduction or suspension of sentence on account of compensation. Besides ordering compensation with a clear indication that victim will accept it, will give the impression that, such a violent person like you can escape appropriate punishment and thereby jeopardize the need to deter others from committing this kind of offences.

32. I note to that sending you to prison will of course affect your wife and children. That is however the direct consequence of your own criminal conduct. That is the consequence you choose when you chose a violent way to resolve your problems with your then superior. You had the opportunity to choose a peaceful way of resolving that problem and thereby avoid adverse consequences against your wife and children but you did not choose that path.

33. Ultimately, therefore, I order that you serve your sentence of 2 years and 6 months in hard labour. Of that sentence, I order a deduction of the time you may have already spent in custody awaiting your trial and now sentence. This will leave you with the balance to serve in hard labour at the Vanimo Correction Services. A warrant of commitment will issue forthwith in those terms.

_________________________________

Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused

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^[1] Per Roger Jumbo and Aidan Awatan v The State (26/03/97) SC516; See also Imiyo Wamela v. The State [1982] PNGLR 269 and Koniel Alar and Hosea Biu v. The State [1979] P.N.G.L.R. 300 at p. 307.

^[2] (22/06/04) N2710.
^[3] [1994] PNGLR 271.
^[4] [1994] PNGLR 459.
^[5] (20/12/00) N2047.
^[6] (10/01/00) N2033.
^[7] (15/12/00) N2034.
^[8] (24/05/02) N2239.
^[9] Opt. Cit note 2.
^[10] (24/04/03) N2411.
^[11] (22/06/04) N2710.
^[12] (26/0802) N2279.
^[13] (24/01/02) N2317.