State v Bola [2008] PGNC 22; N3297 (28 March 2008)

N3297

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1702 of 2006

THE STATE

-V-

JOHN BOLA

Waigani: Kandakasi, J.
2007: 6th, 13th and 21 September
2008: 28 March

DECISION ON SENTENCE

CRIMINAL LAW – Sentence – Particular offence - Grievous bodily harm – Victim knocking down prisoner’s brother – Prisoner retaliating, thinking victim killed his brother – Victim attacked with a penetrating arrow fired from a bow - Victim recovering without any residual disability – Provocation in the non legal sense -Guilty plea – First time offender – Prevalence of offence – Prisoner prepared to pay compensation - Sentence of 3 years less pre-trial custody and balance whole suspended on conditions imposed – Criminal Code s. 319.

Cases cited:

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. Nickson Pari (N0.2) (10/01/00) N2033.
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. Tamumei Lawrence, Koloata James and Tobia Thomas (08/02/07) N3117.

Counsel:

K. Popeu for the State.
W. Emeck for the Prisoner.

28 March, 2008

1. KANDAKASI J: You pleaded guilty to a charge of causing grievous bodily harm to one Barnabas Bre on 31 July 2006 at Morota No. 2 here in the National Capital District.

2. Soon after your guilty plea, the State admitted into evidence, with your consent, the District Court depositions. The evidence from the various witness statements and your record of interview provide the basis for the charge and your guilty plea. Therefore, I 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. Thereafter, both the State and you addressed the Court on the kind of sentence you should receive and I reserved a decision on your sentence to a later date. This now constitutes the Court’s decision on your sentence.
   

Relevant Facts

3. Before anything else, I turn to a consideration of the relevant facts. Both you and your victim, Mr. Bre lived in the same area, in Morota No. 2 here in the National Capital District. There was an on going dispute or disagreement between your family and that of the victim’s. On the day of the offence, your brother went to Mr. Bre’s house armed with an axe. He attacked the victim’s brother with the axe he had with him. In the process, the victim’s brother wrestled your brother down to the ground. On seeing that, you armed yourself with a bow and arrow and shot at the victim, thinking that the victim’s bother killed your brother. The arrow reached the victim on his right thigh and broke inside his body. You than ran away while other people took the victim to the hospital. The victim recovered well from the arrow wound you inflicted upon him.
   

Submissions

4. Next, turning onto a consideration of the parties’ submission, I note that, in your address on sentence, you said, it is true that you shot the victim because the victim fought with your brother and you thought the victim killed your brother because some people cried when your brother fell to the ground. You also said this is your first ever offence and that you are sorry for committing the offence. You finished off with a plea for mercy and leniency and for the Court to place you on good behaviour bond.
   
5. Your lawyer added by pointing out that, you are willing to pay compensation up to K500. He also added that, you cooperated well with police and that you acted on the spare of the moment. In other words, he submitted that, you did not plan to attack the victim in the way you did but what the victim did caused you to act in the way you acted. Further, your lawyer urged the Court to note that, you did not cause any residual disability to the victim, that you expressed genuine remorse and that the pre-sentence report supports a lenient sentence with some compensation. In the end, your lawyer urged the Court to take these factors into account in your favour before arriving at a decision on your sentence. In terms of an appropriate sentence, your lawyer asked for a sentence between 1 and 2 years partly or wholly suspended. The State does not take much issue with your submissions save only to suggest a sentence up to 4 years wholly or partly suspended because of the prevalence of the offence.
   

Offence and Sentencing Trend

6. I now turn to a consideration of the offence with which you have been charged, you pleaded guilty to and convicted. Section 319 of the Criminal Code creates and prescribes the penalty for the offence of grievous bodily harm. This provision provides for a maximum penalty of up to 7 years. A number of judgments have already dealt with offences under this section before imposing a variety of sentences from a few months to the maximum of 7 years.
   
7. I noted in a number of my decisions, as in The State v. Vincent Naiwa,[1] that, the earlier cases such as The State v. Isaac Wapuri[2] and The State v. Philip Susuve Raepa,[3] which your lawyer has drawn to my attention, imposed much more lenient sentences. Those decisions date back more than ten years. Since then however, the offence has not declined but has increased over the years. Given that, sentences have increased to correspond with the increase in the offence.
   
8. In 2003, noting the prevalence of the offence and forming the view that, past sentences appeared not to deter other persons from committing this offence, I imposed a sentence of 4 years part suspended on terms in The State v. Nickson Pari (No.2).[4] That was in a case of young first time offender pleading guilty. He shot at and injured the victim on his left arm in the course of and in furtherance of an armed robbery.
   
9. A more serious case of grievous bodily harm I dealt with and referred to by your lawyer was the case of The State v. Rueben Irowen.[5] In that case, the prisoner forced his two wives 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 prescribed maximum sentence of 7 years each for the harm he had occasioned to the victims for him to serve cumulatively.
   
10. Another serious case that I also dealt and referred to by your lawyer, was the case of The State v Henry Idab.[6] 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% loss of efficient use of his hands and restricted to only light work. 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 victim, room for the prisoner to render services free of charge appreciating that, the victim was prevented from using one of his hands.
    
11. In another case, namely, The State v. Eddie John Naopa,[7] 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.
    
12. Finally, in The State v. Vincent Naiwa,[8] 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 if the Court were to make such an order.
    
13. I note that other judges have imposed higher penalties. An example of that is the decision of Lay J., in The State v. Tamumei Lawrence, Koloata James and Tobia Thomas.[9] There, the victim had been gardening and the offenders and their friends attacked him without provocation. The victim suffered serious knife wounds. His left upper arm was cut through to the bone, the back of the left shoulder involving the shoulder joint was cut, there were cuts to the posterior upper right chest and the right forearm involving the elbow. There was a prompt compensation payment.
    
14. I noted in a number of my decisions on grievous bodily harm cases 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, rather than the peaceful means that are readily available.
    

Sentence in Your Case

15. Bearing the above sentencing trend in mind, I now need to determine the issue of what is an appropriate sentence or punishment for you. In order to determine that question, it is necessary for me to take into account what you said in your address on sentence, your lawyer’s submissions and the factors that are in your favour as well as those against you.
    
16. I turn firstly to your address on sentence. In your address on sentence, you said sorry for doing what you did to the victim, his family and the court. From your lawyer’s submission, I note that you come from Amia Village, in the Gumine District of the Simbu Province. You are aged about 28 years. You are married with 2 children aged 3 and 2 years respectively. Your family is presently resident at the Waigani Golf Course Settlement. It seems you have no formal education. You were employed as a security guard by the Port Moresby Golf Course, earning about K220 per fortnight at the time of committing the offence. You have been in custody since 8 March 2007.
    
17. In your mitigation, I take into account the fact that, you pleaded guilty to the charge. That saved the State and Court much time and expenses of running a trial to establish your guilt.
    
18. Secondly, your lawyer also pointed out and I note that you are a first time offender. This means you have not been in trouble with the law all your life. Hence, this was the first time for you to commit an offence.
    
19. Thirdly, your lawyer submitted and I accept that you expressed genuine remorse. This is confirmed by your willingness to pay compensation up to K500. Paying compensation often helps to restore any relationships that may have been broken by the commission of an offence. However, the payment of compensation cannot and does not totally excuse an offender from his punishment but operates only as a mitigating factor.
    
20. Fourthly, I note that the victim did not suffer any residual disability. Usually, where a victim of any offence suffers residual disability that becomes an aggravating factor against an offender.
    
21. Finally, I note that you acted in the way you acted, because you thought the victim had killed your brother. Hence you were provoked in the non legal sense.
    
22. Against you, I note that, you used a dangerous weapon being a bow and arrow to cause injuries to the victim. The ready use of such dangerous weapons as bows and arrows to cause the death or injuries to other people is on the increase, thereby choosing not to use the peaceful means of resolving all human conflict that are in existence. Hence there is a prevalence of this offence. Given that, sentence for people who take the law into their own hands have increased. In your case, you lived in the nation’s capital city where there is ready available, police, courts and other lawful means of resolving conflicts. You choose not to use any of these means to resolve the problem of the victim attacking your brother.
    
23. Carefully weighing both the factors in your mitigation as well as those against you and the sentencing trend or ranges I have discussed above, I consider a sentence below the prescribed maximum sentence of 7 years is appropriate in the particular circumstances of your case. I consider a sentence of between 2 and 4 years appropriate and I impose a sentence of 3 years against you.
    
24. Of the sentence of 3 years, I order a deduction of the period of 2 years and 7 days you have already spent in custody whilst waiting for your trial and now sentence. That will leave you with a balance of 11 months and 3 weeks. I order a suspension of that part of the sentence on the following conditions:
    

(1) You pay a sum of K500 in compensation to the victim within three months from today;

(2) You immediately enter into a recognizance to keep the peace for the whole of the period of your suspended sentence;

(3) You provide 5 hours free physical labour each week for 5 months to a public institution such as a church or educational and health establishment as identified by the probation officer here in the National Capital District.

(4) The Probation Officer shall in consultation with your community leaders and heads of the public institutions shall work out your work schedule and the supervisors within one month from today and forward it to the Court for its approval;

(5) Pending approval of the work schedule, you shall immediately commence your work as of next week by rendering 5 hours of free community work to a public institution near your area.

(6). You shall remain indoors in your house which is at the Golf Course Settlement between the hours of 6.00 am and 6.00 pm;

(7) You shall not leave The National Capital District except with leave of this Court.

(8) You will allow for and permit Probation Services Office to visit your home on a regular basis to monitor your compliance of these terms and to make such recommendations, as he or she may consider appropriate either for a variation or an implementation of these terms;

(9) The Probation Officer shall attend on you every two months to do a comprehensive review and report to this Court of your compliance of these terms commencing 28 April 2008;

(10) If for whatever reason, you breach any of these terms, you will serve the balance of the term of your respective suspended sentences as at the time of the breach in hard labour at Bomana Correction Service;

(11) You will be at liberty to apply for a review and or variation of any of these terms supported by appropriate evidence or material;

____________________

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

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^[1] (22/06/04) N2710.
^[2] [1994] PNGLR 271.
^[3] [1994] PNGLR 459.
^[4] (10/01/00) N2033.
^[5] (24/05/02) N2239.
^[6] Opt. Cit note 2.
^[7] (24/04/03) N2411.
^[8] (22/06/04) N2710.
^[9] (08/02/07) N3117.