State v Timi [2012] PGNC 369; N4610 (14 March 2012)

N4610

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 265 OF 2008

THE STATE

-V-

RONALD TIMI

Kokopo: Maliku AJ
2012: 06th, 12th And 14th March

CRIMINAL LAW- Grievous Bodily Harm- Section 319 of Criminal Code Act.

CRIMINAL LAW- Sentence on guilty plea - Accused is first offender – Prevalence of crime in the community - Appropriate sentence for first offender- Sentence in any given case is to be decided on its own peculiar facts.

Cases cited:

Goli Golu -v- The State [1979] PNGLR at page 653
Avia Aihi - v- The State (NO3 [1982] PNGLR 92 at page 96
Rex Lialu - v - The State [1990] PNGLR
The State-v- Kerry Reuben Trowen (2000) N2239
The State-v- Henry Idab (2000) N2172
The State-v- David Saun (2002) N2192
The State-v- Kopiwan Pupuni N1709
The State-v- Toparan Walagur CR.1760 OF 2003
The State-v- Patrick Kiwat (2005) N2947

Counsel:

Mrs S. Cherake, for the State
Mr T. Potoura, for the Accused

SENTENCE

14th March, 2012

1. MALIKU, AJ: The Charge: The accused is charged that he on the 09th

of January of 2008 at Ganai village, Bitapaka Local Level Government, Kokopo District, East New Britain Province, Papua New Guinea did cause grievous bodily harm to one Steward Snimky, contrary to Section 319 of the Criminal Code Act.

Plea:

2. The accused having the benefit of a legal counsel pleaded guilty to one

count of unlawful grievous bodily harm.

The Facts:

3. On the 09th of January 2008 the victim Steward Snimky was walking

home with three other friends when the accused and his younger brother John confronted them. A fight started between the accused and John. The accused joined the fight and both of them assaulted the victim together. The accused had a knife in his hand which he swung at the victim Steward Snimky and cut him on his left knee. The victim realizing that he was cut ran to his house for assistance. He was later rushed to Vunapope Hospital where he received medical treatment. The State alleges the action of the accused did cause grievous bodily harm to the victim Steward Snimky and is contrary to Section 319 of the Criminal Code Act.

The central issues in contention:

1. Does this matter fall in the worst category of grievous bodily harm cases?
   
2. What is the appropriate sentence to be imposed on the accused?
   

Allocutus:

4. When administering the allocutus, the accused said:
   
   1. I asked the victim for peace reconciliation but he never agreed.
   2. I say sorry to this honourable Court for the offence I committed.
   3. I ask for mercy and leniency from the Court and also ask to be placed on Probation Orders.
      

Personal Background:

1. The accused was born on the 10th of October 1988 at Vunapope Hospital and is about 21 years old.
2. The accused is single person.
3. The accused completed grade 6 and then attended Vocational Training at Namatanai.
4. He is a baptized member of the Catholic Church.
5. He was never employed even to the time this offence was committed and have been supported by his relatives
   

Mitigating factors:

5. Mr. Potoura for the accused submits that the Court should take into

account the following when considering the appropriate sentence:

1. Provocation in non legal sense:
   

Mr. Potoura submits that the prisoner's action in attacking the victim was because he was having an affair with the prisoner's mother's sister and also the prisoner had raped the prisoner's sister. This is contained in question 16 of the record of interview when the prisoner was questioned by the police.

2. The plea of guilty:
   

Mr. Potoura submits that the prisoner having pleaded guilty to the charge had in turn saved a lot of money, time and resources for the Court to conduct a trial.

3. First time offender:
   

Mr. Potoura submits that the Court should take into account the prisoner has had no previous unblemished records against him. He is a first offender on the charge of grievous bodily harm.

4. Co operation with Police:
   

Mr. Potoura submits that the prisoner had co operated well with the police as evident from the record of interview. He had admitted to committing the offence right from the start.

5. Remorse:
   

Mr. Potoura submits that the prisoner had realized that what he did was wrong and had expressed remorse to the Court during the administration of his allocutus.

Mr. Potoura further submits that although compensation is usually to be taken as expression of remorse, the Court should take note that the prisoner and his relative did make efforts to pay compensation but the victim refused to accept let alone made any further act for the payment of compensation.

Mr. Potoura further submits that the Court should take into account the fact that there is no longer any more tension between the prisoner and the victim and his relatives.

6. Beside the above Mr. Potoura for the prisoner drew the Court's attention

to a number of cases which I discuss below. Nevertheless, counsel submits that this case is definitely not the worst type of grievous bodily harm.

7. Mr. Potoura submits that the fact that the victim was cut by the prisoner

using a bush knife is in fact serious and defence concede to that. However counsel submits that it must be noted that there were no permanent injuries. In other words the victim is at this stage has the 100% efficient use of his leg except for the scar left from the wound inflicted by the prisoner.

8. All in all the defence is strongly arguing that this case does not fall within

the worst type of grievous bodily harm as in the case of The State-v- Henry Idab (2000) N2172 whereby a group of men including the accused had attacked a village of a peace officer and inflicted 89% loss of efficient use of both hands. Counsel submits that in that case the Court imposed an imprisonment term of three years describing the circumstances of the case as "less serious one."

9. Mr. Potoura relies on the case of The State-v- Kerry Reuben Trowen

(2000) N2239. This is a case where the accused forced his two wives to strip naked and he inflicted severe permanent injuries. Counsel submits that such is not the case in this present matter.

10. The defence further rely on the case of The State-v- Toparan Walangur

CR.NO.1760 OF 2003. This is a case where the accused had earlier raped the wife of the accused and failed to pay compensation that the accused chopped his leg as a result for failing to pay compensation. The accused was sentenced to 4 years imprisonment. A pre trial custody period of 2 years and 8 months was deducted leaving the balance of 1 year and 3 months and 26 days which was suspended with conditions.

11. I have read the cases cited and relied upon by the defence and note that

the injuries inflicted on the victims were permanent. In the case of Toparan Walangur (supra) the victim received 100% loss of activities by the leg. In the case of Henry Idab (supra) the victim received 85% loss of use of both hands and in the case of The State-v- David Saun (2002) N2172 the victim received 30% loss of use of one eye.

12. I also note that the accused were given suspended sentences despite the

use of dangerous weapons and injuries inflicted on the victims which were permanent.

13. Finally the defence submits that the present case should be distinguished

from the above cases because there is no loss and permanent injuries inflicted onto the victim except for a scar on the knee and the victim nevertheless is still in use of his left leg. Neither the Medical Report is of any assistance to the Court hence it is said in the Medical Report that there was no fractures.

Aggravating factors:

14. Mrs Chirake submits the Court should take into consideration the

following when it considers the appropriate sentence on the prisoner after she had addressed the Court on the maximum prescribed penalty under Section 319 of the Criminal Code Act. The following factors are:

1. Although the offence was committed by the accused out of frustration, the accused should not have taken the law into his hand.
2. There other avenues that were opened for the matter to be amicably settled between the accused and the victim rather than resolving to violence.
3. The victim was attacked by two persons, the accused and his brother.
4. The offence of grievous bodily harm is serious and is prevalence in the community and certainly on the rise.
5. The offence was committed by the accused armed with a bush knife against an unarmed victim.
   

15. Mrs Chirake conceded to the defence on the sentencing trend developed

by the Court in the recent years on the offence of grievous bodily harm.

16. Mrs Chirake for the State cited a number of cases decided on the offence

of grievous bodily harm. The first case cited is The State-v- Enoch Koako, Ezekiel Tirang and Tade Darius. This is a case where the three accused pleaded guilty to grievous bodily harm. The victim received injuries to his head, arm and ankle. The three accused were sentenced to 12 months imprisonment which was fully suspended and the accused were placed on 12 months of good behaviour bond as well as ordered to pay compensation in the sum of K400.00 within 3 days.

17. The second case cited by Mrs Chirake is the case of The State-v-

Pennington Vuve (2007). This is a case where the accused pleaded guilty to grievous bodily harm. The accused attacked the victim with a small knife in which the victim sustained injuries to his left shoulder.

18. The accused was sentenced to 2 years imprisonment which was

suspended in full with conditions. Mrs Chirake however informed the Court that in both matters the Court also had the benefit of viewing pre sentencing reports before reaching its conclusion on the appropriate sentence.

19. Mrs Chirake submits that the injuries sustained in the two cases alluded to

by her were viewed by the Court as not serious.

Pre Sentence Report

20. In respect to the Pre Sentence Report tendered to the Court, Mrs Chirake

submits that the victim is willing to reconcile and be paid compensation for the injuries received despite that it may not be serious hence there were no permanent injuries sustained by the victim.

21. In respect of the Means Assessment Report, Mrs Chirake submits the

accused has an account with National Farmers Savings in Kokopo and does have means to pay compensation with the help of his relatives even though the accused did not disclose the amount in his savings.

22. Based on the facts before this Court and on the cases cited by Mrs

Chirake the State submits that 2 years imprisonment is appropriate sentence for this matter with condition that the victim be paid compensation.

23. Mr Potoura for the accused responded by agreeing that the Court should

consider sentences that would deter the commission of crimes of grievous bodily harm. However he submits that the Court should take into account what the defence had already put before this Court.

24. Mr Potoura concedes that the accused took the law into his hand rather

then adhering to other avenues available for reconciliation to have taken place. Mr Potoura submits that although the offence of grievous bodily harm is prevalence he submits that the present matter is nevertheless less serious.

25. There is no record of permanent injuries sustained by the victim of this

matter. Mr Potoura submits, although injuries were sustained by victims in the cases cited by the State there were no permanent injuries sustained by the victim in the present matter.

26. The defence finally submits that any sentence that is to be imposed on the

accused should be suspended with conditions.

Guideline on sentencing:

27. The guideline on sentencing is well settled in our jurisdiction in the case

of Rex Lialu - v - The State [1990] PNGLR and is: "Sentence in any given case will depend on its own peculiar facts.... the Court ought to have regard to all aggravated effects of all relevant considerations on matters which aggravate or mitigate the serious nature of the offence and then to decide an appropriate penalty". I do not intend to depart from this principle.

28. I agree that maximum prescribed penalties are reserved for the worst

category of cases. This was settled in the case of Goli Golu-v- The State [1979] PNGLR at page 653 and re stated in the case of Avia Aihi-v-The State (NO3 [1982] PNGLR 92 at page 96.

Does this matter fall in the worst category of grievous bodily harm cases?

29. Although this matter does not fall within the worst category of grievous

bodily harm cases, it is an aggravated assault because it was committed by the accused with a dangerous weapon, a bush knife which he swung at the victim and cut him on his left knee.

30. Grievous bodily harm offences are committed with some degree of

violence and are prevalent in the community and have risen in number. Many victims become preys which includes the victim on this matter. The fear of being cut again with a bush knife by the same person or another is one that this victim will not easily forgo.

31. The Court has a duty to impose appropriate sentences that will deter the

accused from recommitting and others from committing similar offences. The Court also has a duty when imposing sentence to promote a sense of responsibility to the victim by the offender.

The appropriate sentence:

32. Both counsels appear to agree that 2 years imprisonment is the

appropriate sentence for the accused on this matter less the pre trial period in custody and the balance suspended with conditions. Both counsels relied on the cases that I have alluded to above.

33. I agree that in the present case there were no permanent injuries and no

loss of use of the left leg by the victim except for the scar which may be significantly permanent.

Address to the accused:-

34. You were found guilty of the offence of grevious bodily harm contrary to Section 319 of the Criminal Code Act.
    
35. I heard what you told me in your allocutus.
    
36. I also heard what your counsel told the Court to consider in your favour.
    
37. I also heard what the lawyer for the State said about the appropriate

sentence this Court is to impose on you.

38. In considering the appropriate sentence for the accused taking into the

interest of the State and that of the accused, the accused is sentenced to 2 years imprisonment with hard labour less the pre trial custody period to be deducted, the balance of which is suspended in full with the following conditions:

1. The accused is placed on a 2 year Good Behaviour with surety in the sum of K200.00 to be paid within 1 day from this date.
2. The accused shall keep the peace and be of good behaviour for the period of two years from this date.
3. The accused shall pay to the victim compensation in the sum of K500.00 in cash within 7days.
4. Payment shall be supervised and witnessed by an officer of the Community Base Corrections (CBC) of East New Britain Province who shall submit a brief report certifying the payment of the compensation to the victim has been made.
5. The sum of K200.00 surety shall be refunded to the accused after two years from this date upon presentation of the official receipt by the accused.
   
39. The accused shall be recalled for sentence should condition 1 or 2 or 3

has been breached by the accused.
_____________________________________________________________
Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Accused