State v Titus [2011] PGNC 232; N4671 (23 August 2011)

N4671

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 462 of 2011

THE STATE

V

THOMSON TITUS

Manus: Gabi, J
2011 : 23rd August

CRIMINAL LAW – sentencing – unlawfully causing grievous bodily harm - Criminal Code, s 319 - guilty plea –– victim assaulted by prisoner and an accomplice – victim chopped on right wrist by prisoner with a long bushknife – sentence of 7 years

Cases Cited:

John Elipa Kalabus v The State [1988] PNGLR 193
Kali Mari v The State (1980) SC 175
Paulus Mandatitop & Another v The State [1978] PNGLR 126
Public Prosecutor v Don Hale (1998) SC 564
The State v Lionel Gawi (2005) N2951
The State v Naiwa (2004) N2710T
The State v Pari (No. 2) N2033
The State v Peter Pepa (2010) N4146
The State v Redford Bubura (2004) N2577
The State v Reuben Irowen (2002) N2239
The State v Tamumei Lawrence (2007) N3117
The State v Tovita Mann (2009) N4028
The State v Tu (2008) N3306
The State v Yale Sambrai (2005) N2886
Ure Hane v The State [1984] PNGLR 105

Counsel:
P. Kaluwin, for the State
P. Moses, for the prisoner

SENTENCE

23rd August, 2011

1. GABI, J: Introduction: The prisoner pleaded guilty to unlawfully causing grievous bodily harm contrary to section 319 of the Criminal Code. The offence attracts a maximum penalty of seven (7) years.

Facts

2. On 25th February 2011, there was a fight between two (2) groups of youths from Ward 3 and Ward 4 at Lorengau town in Manus Province. The fight occurred during the day and was subsequently stopped. In the evening, between the hours of 8.00 pm and 9.00 pm, the prisoner and a friend, Geno Jonah, were walking towards Lorengau Bridge, and met the victim, Charlie Kase, on the way. The victim and the prisoner never took part in the fight during the day. The victim was going to visit relatives at Ward 4. The prisoner and his accomplice confronted the victim and started to assault him. The prisoner, who was armed with a long bush knife, chopped off the victim's right wrist. He has 100% permanent loss of his right wrist and hand due to amputation.

Antecedent Report

3. The prisoner is not a first time offender. He was convicted of drunk and disorderly behaviour on 6th August 2008 and ordered to do twenty (20) hours community work. He was supervised by the Community Correction and Rehabilitation Office and was discharged on 26th August 2008 after completion of his community work order.

Allocutus

4. The prisoner was given an opportunity to address the Court on sentence but declined the invitation.

Pre – Sentence Report

5. The prisoner is twenty-one (21) years of age and comes from Warawi village in Maprik District of East Sepik Province. He is the first born in a family of four (4) children. Both of his parents are alive but separated and his mother now lives in Kavieng Town. He is single with no dependants. He completed grade 4 at Nuwok Primary School in 2003 and has no plans to continue his education. He has never had any formal employment and earns cash income by selling garden produce and betelnuts at the market. He is in good health and is a member of the Assembly of God Church at Ward 3.

6. The report recommends that the prisoner should be placed on probation to rehabilitate him and that a custodial sentence will not help him. A probation sentence will give him the opportunity to go through the rehabilitation process and enable him to learn from community work and counselling and supervision by the Ward councillor of Ward 3, who is also a Volunteer Probation Officer.

7. Counsel for the prisoner submitted that the mitigating factors in this case are that the prisoner is a youthful offender, that he cooperated with the police by admitting the offence during the conduct of the record of interview, that he pleaded guilty and that there was de facto provocation.

8. This case was not a difficult one to prosecute as police reacted swiftly and apprehended the prisoner and his accomplice within a very short time. The depositions show that the Provincial Police Commander was near the scene of the crime and police swung into action almost immediately.

9. As for non-legal provocation, there is absolutely no evidence that the victim offered any provocation to the prisoner and his accomplice at all. The victim never took part in the fight that occurred during the day between the youths from Ward 3 and Ward 4. He was an innocent person.

10. I do not accept the submission that the prisoner is a youthful offender. He was about twenty (20) years old at the time of the offence. Generally a youthful offender is a person under the age of nineteen (19) years: Public Prosecutor v Don Hale (1998) SC 564. To treat him as a youthful offender at the time of the offence would require some special circumstance. There is none here. I will not treat the prisoner as a youthful offender for purposes of sentence.

11. The prisoner never expressed remorse at all. It is stated in the pre-sentence report that the prisoner apologised to the court and the victim's family. He was given an opportunity to speak on his own behalf in court in the presence of the victim but failed to do so. I do not consider his expression of remorse in the report to be genuine.

12. The prisoner pleaded guilty and a guilty plea is generally regarded as a mitigating factor entitling the offender some discount (see Kali Mari v The State (1980) SC 175 and John Elipa Kalabus v The State [1988] PNGLR 193). However, in this case it is rendered insignificant due to the gravity of the offence and the fact that this is not a difficult case to prosecute.

13. There are a number of aggravating factors. First, a bush knife was used in the commission of the offence. This was a vicious attack on an innocent unsuspecting person and a lot of force must have been used to chop off the wrist. If the knife had landed on the head or the neck it had the potential to kill the victim. The use of weapons such as bush knives in resolving conflicts is becoming common in the country today. Very often people are seen carrying knives around in public places. This is a serious aggravating factor because it had the potential to cause serious harm. This trend must be arrested now. Serious attacks with weapons, particularly knives, are becoming prevalent. The prevalence of the offence requires a deterrent sentence (see Paulus Mandatitop & Another vs. The State [1978] PNGLR 126).

14. The injury to the victim is permanent. In his medical report to the police, Dr. Moses Maire stated that the victim "has 100% anatomical and functional permanent loss of his right wrist and hand due to the amputation." The pre-sentence report shows that the victim had completed mechanical training at Manus Training Centre last year to become a mechanic. He was in Lorengau for an interview with the Department of Works. The victim is right handed and the nature of work as a mechanic requires lifting and handling material with both hands. He will not be able to do so. This has shattered his dreams to become a mechanic.

15. In Ure Hane v The State [1984] PNGLR 105, Bredmeyer J set out a non-exhaustive list of the most serious cases of wilful murder. His Honour said that the payback killing of an innocent person falls in the worst case category. I extend that principle to this case and consider that this offence falls in the worst case category. It was a payback attack as the victim comes from Ward 3.

16. The range of sentence for this offence is between two years and seven years (see The State vs. Yale Sambrai (2005) N2886; The State vs. Lionel Gawi (2005) N2951; The State vs. Pari (No. 2) N2033; The State vs. Tu (2008) N 3306; The State vs. Tovita Mann (2009) N4028; The State vs. Naiwa (2004) N2710; The State vs. Tamumei Lawrence (2007) N3117; The State vs. Peter Pepa (2010) N4146; The State vs. Redford Bubura (2004) N2577; The State vs. Reuben Irowen (2002) N2239).

17. In The State v Reuben Irowen (supra), the prisoner pleaded guilty plea to two (2) charges of causing grievous bodily harm to two (2) of his wives by severely assaulting them with a bush knife. One received a deep cut on her left shoulder resulting in 25% permanent loss of function of her left shoulder. The other received several cuts to her legs and her left ring and little fingers. The Court considered the case to be of the worst type and imposed the maximum penalty of seven (7) years imprisonment. The court considered that the aggravating factors including the severity of the attacks on the victims, the inhumane treatment of the victims by their own husband, the shame the victims had been put through by the prisoner, the prisoner's history of wife beating, the prisoner's failure to express remorse and the prevalence of wife bashing by husbands far outweighed the prisoner's guilty plea.

18. I hold the view that this is a serious case and falls in the worst category. I sentence the prisoner to seven (7) years imprisonment. The period in custody is deducted. The prisoner is to serve the balance IHL. The prisoner shall serve his term in Kavieng Gaol.

_________________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Prisoner