State v Robert [2009] PGNC 42; N3629 (19 May 2009)

	Home \| Databases \| WorldLII \| Search \| Feedback National Court of Papua New Guinea

CRIMINAL LAW – sentence – grievous bodily harm – Criminal Code, Section 319 – guilty plea – offender cut his brother with bushknife, inflicting facial injuries – sentence of 3 years, 6 months.

A man pleaded guilty to unlawfully doing grievous bodily harm to his brother by cutting him with a bushknife, inflicting a deep wound over the right side of the face.

The following cases are cited in the judgment:
Saperus Yalibakut v The State (2006) SC890
The State v Justin Ipa (2008) N3439

1. CANNINGS J: Ben Robert has pleaded guilty to unlawfully doing grievous bodily harm to another person and has been convicted of that offence under Section 319 of the Criminal Code. The victim was his younger brother, Yuanis Tioto Robert.

2. On 18 September 2008, the victim was walking along a track at his block at Tiauru, near Bialla, when all of a sudden his big brother, Ben, approached him from behind with a bushknife in his hand. Yuanis heard Ben’s footsteps and turned around and then Ben swung his bushknife at him and cut Yuanis on the right side of his face.

3. Yuanis ran away, still bleeding, but did not get far before he collapsed, unconscious; then he was taken to hospital with a serious wound to the right side of his face.

5. The offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He told a lengthy story.

There was a reason for this happening. It all goes back to the mid 90s when my mother died. My father remarried and did not manage our block or our family properly. My brothers and I fight amongst ourselves a lot; and our father does nothing about this. He just says ‘you can kill yourselves and then I will bury you’.

The immediate cause of the problem was that one of our cousin-brothers died at Kandrian and Yuanis accused me of killing him by sorcery. The community leaders heard about this and there was an agreement reached that we should not say such things. We planted tanget and shook hands and the problem was solved. After that I went back to work at Navo. But only a month later Yuanis started saying the same sorts of things again. He took my family to mediation and the mediators found that the sorcery allegations were not true.

This all made me angry. On top of that our father did nothing to stop these problems getting worse. I did this to my younger brother so that my father would realise what has been happening, and so that the court can help us resolve these issues ourselves.

I say sorry for what I have done to my small brother. I want to resolve our differences outside the court. Please order me to pay compensation and give me adequate time to so.

6. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). In that regard, I accept as a fact the explanation he has given for committing the offence: he was frustrated by a number of family problems and his brother’s allegation that he was a sorcerer. This, of course, does not justify what he did, but it helps explain why he did it and to some extent it is a mitigating factor. I will also take into account that the offender surrendered to the police soon after the incident and made early admissions.

7. Ben Robert is 39 years old and married with five children. He is from the Menyamya district, Morobe Province. He came to Tiauru as a child. His wife is very supportive of him. She is concerned about the welfare of their children if he is given a custodial sentence. He has no formal education. He is the oldest in a family of six. His mother died in the mid 90s. His father remarried and the offender was left to bring up his siblings on the block.

8. His father neither supports nor condemns his son. He would like his sons to reconcile and appears to accept some of the blame for what has happened.

9. Ben Robert is in good health. He was previously self-supporting financially from oil palm proceeds but has been forced off his block by his brothers who appear to have sided with Yuanis. He has no adverse community record (the violence appears to have been kept within the family).

10. As for the victim, Yuanis, he has not received any compensation or even an apology from his big brother. He would prefer compensation than seeing his big brother go to jail but if no compensation is forthcoming, his brother will have to pay the consequences. The offender says he has been forced off his block by his brothers, so he has not been able to compensate the victim yet.

11. The report concludes by saying that the offender is a low risk person. He is not considered a threat to the community. He is recommended for probation.

12. Ms Maliaki highlighted the guilty plea and the fact that Ben Robert is a first time offender. There was a clearly identifiable cause of frustration that had built up in the family due to the father’s lack of leadership. The offender had been put in a very difficult situation as he was the one who had to raise his younger brothers. The father more or less deserted the family and the block and went to live with his new wife. That tension and frustration existed for more than ten years; and then there was the sorcery allegation and the breach of the agreement that triggered the commission of the offence. The favourable pre-sentence report warrants a suspended sentence of three years, she submitted.

13. Mr Kupmain asked the court to take into account that the head injuries were very serious, and could easily have been fatal. At the time of the offence the victim was innocent and harmless. It is obviously a violent family and the court’s sentence must teach the offender and other members of his family a lesson. Mr Kupmain suggested a four-year custodial imprisonment would be appropriate.

14. To determine the appropriate penalty I will adopt the following decision making process:

15. The maximum penalty under Section 319 (grievous bodily harm) is seven years imprisonment.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

17. Knife attacks of this nature, where the offender pleads guilty to a Section 319 grievous bodily harm offence, usually result in a sentence of three to five years imprisonment, depending on the circumstances. See, for example, the recent West New Britain cases summarised in The State v Justin Ipa (2008) N3439.

20. In weighing all these factors I place great weight on the fact that the offender has pleaded guilty, he is a first time offender and he surrendered to the police, made early admissions and showed a high level of co-operation. This is a less serious case than most of the other grievous bodily harm bushknife cases. The most appropriate sentence is three and a half years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

21. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is 3 weeks.

22. The favourable pre-sentence report may appear to warrant a suspended sentence. However, I agree with Mr Kupmain’s submission that this family, which seems to be a violent family, with lots of infighting, needs to be taught a lesson. The lesson being that violence of this sort – which could have easily been fatal (and the offender is lucky, anyway, not to be facing a much more serious charge such as attempted murder) – will not be tolerated. I think the only way of getting the message across to Ben Robert and his family and to the wider community (the Morobe people, the Tiauru community and the people of West New Britain) is for Ben to serve his sentence in jail.

23. I have taken into account what effect this will have on his family – it will no doubt make life very hard for them. And I have considered whether suspending some of the sentence might increase the prospects of the family sorting out these problems. However, at the end of the day, to warrant suspension, there has got to be some tangible progress towards peace, reconciliation and forgiveness. And I see nothing of that happening here.

24. The hatred that has built up in this family might best be neutralised by the chief troublemaker being out of the picture for a while. Things might cool down. The offender will have time to reflect on the gravity of his crime.

26. Ben Robert, having been convicted of one count of unlawfully doing grievous bodily harm contrary to Section 319 of the Criminal Code, is sentenced as follows:

Length of sentence imposed	3 years, 6 months
Pre-sentence period to be deducted	3 weeks
Resultant length of sentence to be served	3 years, 5 months, 1 week
Amount of sentence suspended	Nil
Time to be served in custody	3 years, 5 months, 1 week

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender

National Court of Papua New Guinea

State v Robert [2009] PGNC 42; N3629 (19 May 2009)