State v Pepa [2010] PGNC 148; N4146 (21 October 2010)

N4146

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR No. 797 of 2008

BETWEEN:

THE STATE

AND:

PETER PEPA
The Prisoner

Mt. Hagen: David, J
2010: 17 May, 15 & 21 October

CRIMINAL LAW – sentence – grievous bodily harm with intent – guilty plea – prevalence of offence – bush knife used - multiple and serious wounds - wounds inflicted on left face, right arm and right leg – surgery required on wound to right leg - radial nerve severed – several tendons lacerated – bones involved in all wounds – compensation paid promptly – first offender – previous good personal record and family background – co-operation with police – sole attacker – victim step brother - de facto provocation – no permanent disability – demonstration of remorse and contrition - premeditation - sentence of 6 years IHL – sentence partly suspended - Criminal Code s.315 (b) and (d).

PNG cases cited:

Public Prosecutor v Terrence Kaveku [1977] PNGLR 110
Paulus Mandatititip v The State [1978] PNGLR 128
Public Prosecutor v Tom Ake [1978] PNGLR 469
Goli Golu v The State [1979] PNGLR 653
Acting Public Prosecutor v Joe Kovea Mailai [1981] PNGLR 258
Avia Aihi v The State (No.3) [1982] PNGLR 92
Ure Hane v The State [1984] PNGLR 105
Public Prosecutor v Sidney Kerua & Billy Kerua [1985] PNGLR 85
John Elipa Kalabus v the State [1988] PNGLR 193
Public Prosecutor v Don Hale (1998) SC564
The State v Inapero Susure (1999) N1880
Ala Peter Utieng v The State (Unreported & Unnumbered Judgment of the Supreme Court delivered in Wewak on 23 November 2000) SCRA 15 of 2000
Edmund Gima and Siune Arnold v The State (2003) SC730
The State v So'on Taroh (2004) N2675
The State v Yale Sambrai (2005) N2886
The State v Lionel Gawi (2005) N2951
Richard Liri v The State (2007) SC883
The State v Tamumei Lawrence (2007) N3117
The State v Namba Mako, CR 48 of 2007, Unreported & Unnumbered Judgment of David J delivered on 16 October 2007
The State v Ali Kawa Job, CR 1189 of 2006, Unreported & Unnumbered Judgment of David J delivered on 15 December 2009
The State v Jenny Joe, CR 100 of 2009, Unreported & Unnumbered Judgment of Makail, J delivered on 23 September 2010

Counsel:

Mr. Joe Waine, for the prosecution
Mr. Charles Kos, for the defence

SENTENCE

21 October, 2010

1. DAVID, J: INTRODUCTION: On 17 April 2008 between 07:00 pm and 08:00 pm, the prisoner was at his village at Wala, Mul Baiyer District, Western Highlands Province, when the victim, Lucas Wan arrived in a vehicle. He disembarked and went to talk to some of his friends. Upon seeing the victim, the prisoner followed him armed with a bush knife. He confronted the victim and had an argument over some roofing iron which the prisoner alleged were taken by the victim from his house. The prisoner swung his bush knife at the victim a number of times and cut him on the left side of his face, right arm and right leg. The victim lost a lot of blood. He then fell to the ground unconscious. He was rushed to the hospital and received medical treatment.

2. On 17 May 2010, the prisoner pleaded guilty and was convicted of doing grievous bodily harm with intent contrary to s.315 (b) and (d) of the Criminal Code.

3. The prisoner has no prior convictions.

4. On his allocutus, the prisoner admitted cutting the victim as alleged. He said the victim was his brother, but animosities had arisen between them due to the victim previously stealing his coffee beans and forcibly getting his land. He was cut by the victim when they had an argument over the land and when he wanted to take his grievance up with community leaders, the victim threatened to kill him. A year after the last of his misdeeds occurred, the victim stole his roofing iron by breaking into his house. He was therefore provoked into committing the crime. He said his father is deceased and he was residing with his mother when he committed the crime.

5. Following the administration of the allocutus and at the request of the prisoner's counsel, Mr. Kos, I directed the Chief Probation Officer through the Probation Service, Mt. Hagen to provide to the Court a Pre-sentence Report. I then adjourned the matter to 27 May 2010 at 9:30 am for submissions. The Pre-sentence Report was compiled by the Probation Service as directed. Submissions were not heard as scheduled on 27 May 2010 and the proceedings were deferred generally until reconvened on 15 October 2010.

6. I have had the benefit of reading the Pre-sentence Report and I am grateful to the Probation Officer, Ms. Lilly Songoa for compiling the report. The report speaks favourably for a non custodial sentence and for the prisoner to be admitted to probation supervision. It is also reported that the prisoner is capable of meeting a compensation order within six months with the assistance of his mother hence he is willing to make a further compensation payment of K500.00 to the victim in addition to the amount of K300.00 and two pigs worth K200.00 each paid to the victim soon after the incident.

7. The prisoner's counsel submitted that the prisoner was from Wala village, Mul Baiyer District, Western Highlands Province. He was the only child in his family and is now aged nineteen years. His father died when he was an infant. He was residing with his mother when the offence was committed. He has been educated to Grade 6. He has had no formal employment. He was arrested on 18 April 2008 and has been in custody since that time, a period of more than two years. He was committed to stand trial in the National Court on 14 July 2008.

8. The prisoner's counsel further submitted that factors the Court should take into account in mitigation are; the prisoner entered a guilty plea, he was a first offender, he cooperated with the police and the court; there was no evidence of any permanent disability suffered by the victim; his expression of remorse was genuine as was demonstrated by a compensation payment made promptly after the incident to restore relations; the prisoner was the sole attacker; the victim is a relative; there was de facto provocation; and there was no premeditation.

9. The only aggravating factor in the present case was the use of a bush knife by the prisoner to assault the victim the prisoner's counsel contended.

10. Counsel for the prisoner invited the Court to consider The State v Lionel Gawi (2005) N2951; The State v Tamumei Lawrence (2007) N3117; The State v Namba Mako, CR 48 of 2007, Unreported & Unnumbered Judgment of David J delivered on 16 October 2007; and The State v Ali Kawa Job, CR 1189 of 2006, Unreported & Unnumbered Judgment of David J delivered on 15 December 2009 when suggesting that a sentence of not more than five years less the period spent in custody was appropriate for the offence and that the balance of the sentence imposed should be suspended. In addition to the proposed sentence, counsel also invited the Court to consider making an order for the prisoner to pay to the victim compensation of K500.00 within six months in line with the recommendation in the Pre-sentence Report.

11. Counsel for the prosecution, Mr. Waine generally agreed with the suggestions made by the defence as to the proposed sentence and compensation order. He however submitted that given the severity of the offence reflected by the prescribed maximum penalty, subject to s.19 of the Code, of life imprisonment and the prevalence of the offence, the Court should consider imposing a sentence that would operate both as a personal deterrent to the prisoner and a general deterrence to the public at large.

12. In the medical report authored by Dr. Jeffery Tore of the Mt. Hagen General Hospital dated 28 May 2008 which was tendered with the depositions, the learned doctor reports that when the victim was examined, he was found to be conscious, but drowsy and looked pale. The victim was bleeding heavily from multiple bush knife wounds and he was in haemorrhagic shock. There were gaping wounds to; the left side of the face measuring about 20cm x 4cm involving the maxillary and zygomatic bone; the right arm measuring about 15cm x 3cm which involved the humerus bone and the radial nerve was severed; and to the right leg which involved the archilles and bone and several tendons were lacerated. The victim was treated for shock. Two litres of N/Saline fast with 11 haemacele fast and two units of blood transfusion were administered. Antibiotics were given intravenously and a dose of tetanus toxoid was administered immediately. The wounds were cleansed and sutured under anaesthesia except for the wound on the right leg. He was later admitted to the surgical ward.

13. The maximum penalty for the offence under consideration is, subject to s.19 of the Code, life imprisonment.

14. I have considered the cases suggested by the defence and a few more.

15. In Public Prosecutor v Terrence Kaveku [1977] PNGLR 110, the trial judge imposed cumulative sentences each of fifteen months imprisonment on the offender in respect of two counts of unlawful wounding with intent to do grievous bodily harm. In the first incident, the offender cut the first husband of his wife three times with a three feet long very sharp bush knife. He was arrested, charged and admitted to bail for that offence. Some three weeks later, the offender attacked his cousin sister with a flail or mace made from a heavy battery cable attached to which was a large bolt. He struck her twice causing a deep cut to her head and a fractured skull. On appeal against inadequacy of sentences, the Supreme Court allowed the appeal and by a majority, sentences of three years were substituted for each count to be served cumulatively.

16. The case of Public Prosecutor v Sidney Kerua & Billy Kerua [1985] PNGLR 85 involves two brothers. They were each convicted and sentenced for; the killing of Sidney's estranged wife Veronica, murder in the case of Sidney and manslaughter in the case of Billy; the wounding of Veronica's boy friend, Benedict with intent to cause grievous bodily harm; and the unlawful deprivation of the personal liberty of Benedict.

17. Veronica and Benedict were forcefully taken away from a house where they were living in the night by the offenders and a number of other clansmen in a vehicle. Veronica was grabbed by Sidney and forcefully placed in the front of the vehicle. Benedict was tied with rope around his arms, legs and neck and thrown onto the back of the vehicle. He was beaten by the men at the back of the truck. When he attempted to escape when the vehicle stopped at a creek, he was caught and assaulted by Sidney; at the back and neck with a coffee stick; from the feet to the neck with a wheel spanner; and he stabbed him with a knife on his right hand, neck and other parts of his body and booted him in the face. He was further kicked and punched by the other men there. After he and Veronica were stripped naked, the offenders tried to force them to have sexual intercourse together, but did not succeed. Billy and another brother later beat him up with a big long stick. He was hit on the head and other parts of his body. His head was cut and he fell unconscious for a while. He was hospitalised for thirteen days and when discharged, he received daily treatment as an outpatient for over two months.

18. Veronica was severely beaten all over her body by Sidney with a coffee stick. She suffered multiple injuries which included a total of nine broken bones, two penetrating stab wounds on the arms and multiple bruises. She was found dead the next morning.

19. For wounding with intent to do grievous bodily harm, the trial judge imposed sentences of one year and nine months on each offender. On appeal against inadequacy of sentences, the Supreme Court allowed the appeal and sentences of four years and two years on Sidney and Billy respectively were substituted for the trial judge's sentences.

20. In The State v Inapero Susure (1999) N1880, the prisoner and the victim were good friends. On the day the offence was committed, they had beer together near a river some distance away from the prisoner's house. When they finished their beer, they departed for their respective homes. After the prisoner arrived home, he discovered that he had no fire to light his smoke so he returned to the riverside to fetch fire. During this brief absence, the victim entered the prisoner's house and went into the bedroom where the prisoner's wife was trying to sleep with their baby. The victim tried to rape the prisoner's wife and a struggle ensued. The prisoner heard the commotion as he got near to his house and enquired of his wife, who told the prisoner of what happened. The prisoner chased the victim armed with an axe. When he caught the victim, the prisoner assaulted him physically, but not with the axe. The fight was stopped.

21. The victim and the prisoner waited for the police to get there and take them to the Police Station to solve the problem. The prisoner continued to argue with the victim for breaching the trust placed on him as a friend and someone he had looked after when he was young. During these verbal exchanges, the victim said something that hurt the prisoner so badly that this time he attacked the victim with his axe and cut him twice on his head and nose.

22. On a guilty plea to a charge of doing grievous bodily harm with intent, the Court imposed a sentence of three years. Two years was suspended on terms including an order for compensation. The prisoner was; a first offender aged 37 years; married with two wives and four children; an unsophisticated subsistence villager with limited formal education; he co-operated with the police; and showed contrition.

23. In The State v So'on Taroh (2004) N2675, the offender cut the victim's hands three times with a bush knife arising from a land dispute. The victim received appropriate medical treatment and recovered without any serious residual disability. On a conviction after a trial to a charge of doing grievous bodily harm with intent and the prisoner being a first offender, the Court imposed a custodial sentence of eight years imprisonment in hard labour less time already spent in custody.

24. In The State v Yale Sambrai (2005) N2886, the offender told the victim, his brother in-law to cut some posts for him. Thereafter, an argument arose between them. The offender then left his house and went to a hamlet. A few hours later, the offender met the victim and cut him on the back of the head with a bush knife inflicting a serious injury which caused the victim to fall unconscious. On a guilty plea to a charge of doing grievous bodily harm with intent and being a first offender, the Court imposed a custodial sentence of two years imprisonment in hard labour less time already spent in custody.

25. In The State v Lionel Gawi (2005) N2951, the victim was attacked by the offender with a group of boys. The victim and the offender know each other. The offender struck him several times on his head with a home made metal axe. Another person attacked him with a piece of wood which had nails on it. The others kicked and punched him and also stole from him some money and other personal items he had with him. He managed to escape to his house and was later rushed to the hospital by his parents and relatives where he was appropriately treated and discharged. The victim sustained injuries to his scalp described as a 10-20 cm laceration and a 1x1 cm cut on his hand. He recovered without any residual disability. On a guilty plea to a charge of doing grievous bodily harm with intent, compensation having being paid and the offender having a prior conviction for dangerous driving causing death when he was unlicensed to drive, the Court imposed a custodial sentence of four years imprisonment in hard labour less time already spent in custody.

26. In The State v Tamumei Lawrence (2007) N3117, the offender, Tamumei Lawrence cut the victim on his left upper arm with a knife then he and the other offender, Tobia Thomas attacked the victim with sticks and stones. The victim received other cuts as well. He bled heavily. The cut on the left arm went through to the bone. Other cuts were inflicted on the left shoulder, right upper chest and the right fore arm involving the elbow joint as well. He was admitted to the hospital. Those injuries were life threatening and because of complications caused by the injuries, the victim had to undergo a number of operations. On guilty pleas to a charge of doing grievous bodily harm with intent, being first offenders and that compensation was promptly paid by each of them, the offenders were each given a custodial sentence of six years imprisonment in hard labour less time already spent in custody.

27. In The State v Jenny Joe, CR 100 of 2009, Unreported & Unnumbered Judgment of Makail, J delivered on 23 September 2010, the offender who is from Pausa, Wapenamanda District, Enga Province was convicted for one count of doing grievous bodily harm with intent to her husband, Mr. Waine, a senior State Prosecutor attached to the Office of the Public Prosecutor, Mt. Hagen. The offender was engaged in a fight with her husband when she struck him once on his abdomen with a piece of mirror inflicting a wound measuring 2½ cm deep. Mr. Waine was rushed to Kudjip Nazarene Hospital where he received medical treatment. The wound was sutured and he was administered with high dosages of pain killers to ease the pain. He was hospitalised for three days. He recovered without any residual disability.

28. Prior to the fight, Mr. Waine had taken another woman from Mendi as his new wife and had taken her and one of his children from his marriage with the offender without the offender's consent to Lae while on circuit duties. They spent a week there together and returned to Mt. Hagen. Mr. Waine then took his new wife and the child to Mendi and returned to Mt. Hagen without them. The offender was angry that her husband had taken a new wife and placed the children of their marriage in her custody. She went looking for them and when she spotted her husband, the fight ensued.

29. Factors taken into account in mitigation were; her guilty plea; she was a first offender; she was remorseful; there was a strong presence of de-facto provocation; she stabbed her husband once during the fight. Factors taken into account in aggravation were; the offence she committed is a serious one; the offence was aggravated by the fact that it was committed against her husband, a lawyer who is an officer of the Court and that she as a spouse of such an officer has a duty to uphold and obey the laws of this country hence cannot be oblivious and ignorant of them and misbehave; the offender used a sharp object, a piece of mirror; the offender had an intention to maim or disfigure her husband; and the offence is prevalent. The Court considered that an appropriate sentence in the circumstance of that case was three years imprisonment less time already spent in custody partly suspended on terms.

30. Coincidentally, Mr. Waine is counsel prosecuting this case.

31. In Namba Mako, the prisoner was charged with one count of unlawfully doing grievous bodily harm under s.319 of the Code. The prisoner there was the father of the victim. They had an argument over a piece of land which developed into a fight. Initially both were armed with bush knives, but the victim was disarmed by somebody. After the victim was disarmed, the prisoner attacked the victim with his bush knife and cut him on his head. The prisoner then swung his bush knife again and when the victim tried to fend it off with his left hand, it was cut off from the wrist, a permanent disability. I sentenced the prisoner to five years imprisonment in hard labour less time already spent in custody. I suspended the balance of the sentence with strict conditions including an order for the prisoner to pay compensation to the victim in the sum of K5,000.00 within three months of his release from custody. Amongst considerations which I took into account in determining sentence were; the prisoner's guilty plea; the victim was the prisoner's son; the victim took from the prisoner pigs and cash worth K4,100.00 while he was in custody which amount was deducted from the sum of K5,000.00 ordered to be paid as compensation; and the prisoner was aged 55 years.

32. In The State v Ali Kawa Job, CR 1189 of 2006, Unreported & Unnumbered Judgment of David J delivered on 15 December 2009, the prisoner was charged with one count of unlawfully doing grievous bodily harm under s.319 of the Code. The prisoner there was the victim's husband. While having dinner, they had an argument over the victim failing to cook kaukau for their pigs. The prisoner got a bush knife and chopped the victim on her right leg above the heel and below the calf. Despite receiving treatment at a hospital, the wound did not heal and the lower part of the leg had to be amputated. I sentenced the prisoner to five years imprisonment in hard labour less time already spent in custody. Four years of the remaining term was suspended on terms including orders for free community service and payment of additional compensation. Factors applied in favour of the prisoner were; the prisoner's guilty plea; he was remorseful; some compensation had been paid before; he was a first offender; there was de-facto provocation; he had permanent disabilities; his wife left him; their children were also left under his sole care; and the prisoner was aged 55 years. Factors applied in aggravation of the offence were; the prevalence of the offence; the use of a knife to commit the offence; and the prisoner was aged 55 years.

33. In the present case, I take into account in mitigation these factors. First, by pleading guilty, the prisoner has saved the Court's time and the State the expense of a contested trial to establish his guilt. Second, the prisoner is a first offender with no prior convictions; Third, the prisoner has a previous good personal record and family background. Fourth, the prisoner cooperated with the police by making early admissions in his Record of Interview. Fifth, the prisoner was the sole attacker. Sixth, the victim is the prisoner's step brother. Seventh, there was de facto provocation. Eighth, there is no evidence of any permanent disability suffered by the victim. I infer from the medical report however that the victim's wounded right leg was so serious that an operation had to be performed hence his admission to the surgical ward after the other wounds were treated. Unfortunately, no further medical report has been tendered to report on the result of the operation and the prognosis of his condition after that.

34. It is reported in the Pre-sentence Report that compensation payment consisting of K300.00 cash and two pigs worth K200.00 each was promptly made to the victim after the incident. The prosecution took no issue with such payment having been made. I will therefore apply this as another factor in mitigation of sentence.

35. Contrary to the submission of his counsel, the prisoner did not express remorse and contrition on allocutus. However, I accept that he did demonstrate remorse and contrition by his conduct after the incident: John Elipa Kalabus v the State [1988] PNGLR 193. The payment of compensation promptly after the incident is a tangible proof of the prisoner taking full responsibility for his criminal act: Ala Peter Utieng v The State (Unreported & Unnumbered Judgment of the Supreme Court delivered in Wewak on 23 November 2000) SCRA 15 of 2000. A guilty plea is by and large deemed to indicate remorse and contrition as well: Public Prosecutor v Tom Ake [1978] PNGLR 469.

36. The aggravating factors in the present case are these. First, it is not disputed that the offence is prevalent. Second, the prisoner used a bush knife, a dangerous weapon. Third, multiple and serious injuries were sustained by the victim.

37. There is one other factor that I should mention. Counsel for the prisoner submitted that there was no premeditation, but I consider otherwise. This can be deduced from the fact that animosities had arisen between the prisoner and the victim over the latter previously stealing the prisoner's coffee beans and forcibly getting his land as was alleged by the prisoner on allocutus and the stealing of the victim's roofing iron stealthily from his house aggravated the situation. It is not entirely clear from the evidence however as to when the victim might have stolen the prisoner's roofing iron, but what is clear from the evidence is that the prisoner had been looking for the victim since returning from his garden at about 05:00 pm that day.

38. After he had gone to his house, the prisoner went to the main road and met the victim's wife, Magi Wan who was returning to her house after fetching water from a river nearby. They met between 06:00 pm and 07:00 pm. In her statement dated 29 April 2008, Magi states that the prisoner enquired if she had seen the victim and she said that as a driver of a PMV, he had driven into town in the morning and therefore she did not know where he was. In the Record of Interview, the prisoner denies enquiring with Magi as to the victim's whereabouts. He states that he only told her that her husband broke into his house and stole his roofing iron and he did not understand why he had done so. The different versions of what might have been said between the prisoner and Magi does not alter the fact that the victim was the subject of their conversation. Magi left him and went to her house. The prisoner hung around that area with three young men.

39. The victim arrived at the village on a vehicle and according to his statement dated 30 April 2008, he alighted a few metres from his house. He then met his brother in-law and his friend, spoke with them for about three to four minutes and left for his house. It would appear that the prisoner was waiting for the victim along the road near his house because shortly after leaving his brother in-law and his friend, he was attacked by the prisoner. That fact that the crime was committed near the victim's house and within hearing distance is supported by the statement of Kori Want dated 29 April 2008 and that of Magi. In Kori Want's statement, he states that it was around 08:00 pm, when he heard the victim screaming that the prisoner was cutting him. He immediately ran out of his house with the boys who were with him at the time and found the victim lying on the road with multiple wounds and blood all over his body. Magi also heard the victim screaming and ran to the crime scene where he saw her husband in the state described above.

40. Whilst the prisoner was provoked in the non-legal sense into committing the crime as I have alluded to earlier, I am convinced that some premeditation was also involved.

41. It is trite law that the maximum penalty is reserved for cases of the worst category for a particular offence and this is primarily determined with reference to the circumstances of the offence which either aggravate or mitigate its commission: Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1982] PNGLR 92; Ure Hane v The State [1984] PNGLR 105. The presence of a number of mitigating or aggravating factors in any given case will either increase or lower sentence. It suffices to say that this is not a case of the worst type for this offence for the maximum penalty for the offence to be imposed.

42. The offence under consideration is more serious than other offences of violence of similar nature such as causing unlawful grievous bodily harm under s.319 of the Code and unlawful wounding under s.322 of the Code as there is an intention to do grievous bodily harm to another person. The maximum punishment for this offence is subject to s.19, life imprisonment whereas the prescribed maximum penalties for the offences under ss.319 and 322 are seven years and three years respectively. Hence sentences for unlawful grievous bodily harm and unlawful wounding will normally be lower than sentences for doing grievous bodily harm with intent given the seriousness of the offence and the penalty regime.

43. I concur with the observation made by Lay, J in Tamumei Lawrence that the court cannot treat lightly serious attacks which intentionally cause grievous bodily harm as they are far too prevalent.

44. In Paulus Mandatititip v The State [1978] PNGLR 128, the Supreme Court observed that deterrent sentences are required where the offence is prevalent and youthful offenders should not receive special treatment unless there are exceptional circumstances which call for leniency: see also Acting Public Prosecutor v Joe Kovea Mailai [1981] PNGLR 258.

45. Is the prisoner a youthful offender? In the Record of Interview, the prisoner states that he was aged 18 years at the time he was interviewed. The interview was conducted on 30 May 2008. In the Pre-sentence Report, it is reported that the prisoner was aged 19 years at the time of the compilation of the report, in late May of this year. The antecedent report does not indicate the age or date of birth of the prisoner. If the prisoner's age were 18 years as he states in the Record of Interview, he would have been more than 20 years old by now. The uncertainty as to the prisoner's age therefore calls for a determination of his age under s.63 of the Evidence Act. This is important because age can make a difference in sentencing: for example, Public Prosecutor v Don Hale (1998) SC564. I saw the prisoner when he took the plea on 17 May 2010 and the latest was when I heard submissions on 14 October 2010. My observation of him on both occasions was that he is aged 19 years or nearly so which is consistent with the age reported in the Pre-sentence Report. He was therefore aged about 17 years when he committed the crime. As a result, I will treat the prisoner as a youthful offender.

46. Are there any exceptional circumstances which call for leniency? I find no exceptional circumstances.

47. Taking into account all the circumstances of the present case, I consider that a sentence of six years imprisonment in hard labour is appropriate and I impose the same. The prisoner was arrested on 18 April 2008 and has been in custody since that time. He has been in custody for two years, six months and three days. I will deduct that period from the head sentence. The prisoner will serve the remaining balance of three years five months and twenty five days. Incarceration will be at Baisu Correctional Institution.

48. Should I suspend the whole or any part of the remaining balance of the sentence? The Supreme Court has held that there can be no suspension of sentence without the support of a Pre-sentence Report: Don Hale; Edmund Gima and Siune Arnold v The State (2003) SC730; Richard Liri v The State (2007) SC883. In Don Hale, the Supreme Court held that young offenders whose ages are between 17 to 19 years could get their sentences suspended with the support of such a report in appropriate cases. The Supreme Court stated:

"If a judge is to consider some leniency on sentence because of age, it is incumbent on him to obtain the relevant report such as a pre-sentence report, especially around the age of 17 to 19. Age considerations may of course be more obvious to a judge if an offender is under the age of 16 years. Then for such a drastic suspension of sentence a further help to the court would be a community report from the community to which the offender belongs and whether the community, seeing that the incident happened within that community, has any views on an appropriate punishment or whether the community is prepared to assist with any community management of any bond period. The Courts are bound under the philosophy of the Constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment of criminals definitely has an effect on the ordinary people. So community involvement with the punishment of offenders should be considered especially if the court wishes to return an offender to the community instead of imposing imprisonment."

49. In Edmund Gima and Siune Arnold, the Supreme Court also observed that a sentence cannot be suspended without imposing any condition because a suspension of either the whole or any part of it is not an exercise of discretion in leniency but is a form of punishment. Hence, conditions must be imposed to demonstrate that it is an alternative to punishment within our criminal justice system in appropriate cases.

50. I have seriously considered the recommendations contained in the Pre-sentence Report for a non custodial sentence and for a compensation order to be made given the seriousness of the offence and the particular circumstances of the present case. As to the question of making a compensation order, I consider that the details of the financial position of the prisoner in the Pre-sentence Report suffice for purposes of s.4 of the Criminal Law (Compensation) Act. The prisoner appears to me to be capable of meeting a compensation order.

51. In the exercise of my discretion under s.19 of the Code, I have decided to suspend three years of the remaining balance of the head sentence upon the following conditions:

1. The prisoner shall immediately serve five months and twenty five days in custody.
   
2. The prisoner shall enter into his own recognizance to keep the peace and be of good behaviour during the period of suspension.
   
3. Within one month of his release from custody, the prisoner shall pay to the victim compensation of K500.00.
   
4. The prisoner shall not leave the Western Highlands Province without the permission of the Court during the period of suspension.
   

52. In the event that any one of conditions 2 to 4 above is not complied with, the prisoner will be arrested and sent to gaol at Baisu to serve the remaining term which I have suspended.

53. A warrant shall issue forthwith to execute the sentence.

I order accordingly.

_________________________________________________
Acting Public Prosecutor: Lawyer for the Prosecution
Paul Paraka Lawyers: Lawyers for the Defence