State v Johnson [2014] PGNC 221; N5544 (12 March 2014)

N5544

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 593 OF 2013

THE STATE

V

SAPAK JOHNSON

Lorengau: Geita AJ
2014: 6, 12 March

CRIMINAL LAW – Guilty plea – Grievous Bodily Harm –First time offender youthful offender – Call for pre sentencing report - No capacity to pay fine and or compensation considered - Section 319 Criminal Code.

CRIMINAL LAW — Sentencing — Grievous bodily harm — Prisoner did not contribute to the harm- He did not aid –Early guilty plea — no prior convictions — Sentence of 12 months wholly suspended on terms - Section 7 of the Criminal Code.

Cases Cited
Goli Golu v The State [1979] PNGLR 653
Public Prosecutor v Don Hale (1998) SC 564);
Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91
The State v Patrick Jul (2005) N3167
The State v Samuel Paranis N3761
State v Lemia [2012] PGNC 179; N4817
The State vs. John Kaiwa CR 988 of 2013, 11 March 2014. (Unreported):

Counsel:
Mrs Laura Kuvi, for the State.
Ms Sabenu Katurowe, for the accused.

JUDGMENT ON SENTENCE

12 March, 2014

1. GEITA AJ: You pleaded guilty to one count of doing grievous bodily harm to Glen Sawarin contrary to section 319 of the Criminal Code.

The Law
2. The offence of grievous bodily harm and its penalty is prescribed by section 319 of the Criminal Code in these terms:

"319. Grievous bodily harm.

A person who unlawfully does grievous bodily harm to another person is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years."

Brief Facts
3. I accepted your guilty plea but entered a provisional plea of not guilty and then proceeded to read the depositions handed up in support of the charge against you. In your record of interview with the police you remained silent but now admit the charge upon arraignment and proceeded to convict you on the charge. A guilty plea was then formally entered on your behalf. Your Lawyer confirmed instructions on your guilty plea. The brief facts are these: On 8 April 2011 around 2 pm at Bundrahi village in West Coast Manus Province you whilst in the company of three other boys (already convicted) took part and aided in causing grievous bodily harm to Glen Sawarin. You attempted to cut him with a bush knife but was stopped by bystanders. The State therefore invoke Section 7 of the Code.

4. Medical evidence forming part of the depositions one month later confirms excessive wounds occasioned on the victim's body.

Criminal History
5. No prior convictions have been recorded against your name and I accept that position as presented to me by the State Prosecutor.

Allocutus
6. In your allocutus or when you were asked if you had anything to say about the punishment that should be considered you said this was your first time to appear before a National Court and you asked for leniency. You further said you were the only one at home looking after your mother as all your family members were out of Manus. You also said you were sorry to court. Upon an application by your Lawyer for directions for a Pre Sentence Report and a Means Assessment Report of which I have granted I will adjourn until the reports are ready.

Mitigation Circumstances
1. No prior convictions, first time offender
2. No premeditation and or pre-planning
3. No intention to harm the victim
4. Early guilty plea

Aggravating Circumstances

1. Prevalence of the offence

Extenuating Circumstances

7. At the material time the crime was committed you were away, on the roof of your house. You only came to investigate out of curiosity, unfortunately with bush knife in hand.

Pre- Sentence Report

8. A pre sentence report prepared and submitted on your behalf by Acting Senior Provincial Probation Officer Nancy Poli 10/3/2014 amongst other recommendations pointed out your inability to either pay a court fine or even pay compensation if so ordered by this court. First is that you come from a family of seven children, you remain unemployed since leaving school with only a primary education qualification and your family members non committal in assisting you in your time of need. Your father has died leaving you with your mother in the village to care for. Ms Poli's recommendation is that you be placed on a longer probation period with some community work, attend church and attend counselling due to your inability to pay for your wrong with money. This was your first time in court and you admitted to the crime simply because you happen to be on the crime scene armed with a bush knife. She reports that you have an easy going personality and wants to be in company with your friend and that you have no complaints from your neighbours. The views of the victim were not obtained due to bad weather in the province at the time of this case. Overall I must thank Ms Poli for a well researched pre sentence report, prepared on your behalf.

Community attitudes
9. The views of your community were sought through the President of Pobuma LLG Mr Stanley Micah who confirmed that you and the victim were closely related. As I understood from his comments contained in the pre sentence report, this dispute between your two families has its origin in leadership, i.e. with the death of your father, who should be the leader? The President spoke very highly of you and questioned the impartiality of police evidence gathering at the time of your arrest. He supported your version of events in that you arrived at the crime scene after it was all over.

Submissions on sentence - Defence

10. In her oral submissions Defence Lawyer Ms. Sabenu Katurowe submitted that the matter before court was not the worst type deserving of the maximum sentence under the law (Goli Golu v The State [1979] PNGLR 653). She said the extenuating circumstances of non involvement, absence of intention and the immediate removal of the offensive weapon were justifications enough for a lesser sentence including the consideration of punishment options available to court under Section 19 Criminal Code.

11. She said the circumstances of the case do not warrant the imposition of the maximum 7 years jail sentence. Furthermore the prisoners early guilty plea, no prior conviction, youthful offender were factors favourable to her client. She submitted that court consider a starting point of 3 years. She however conceded that the crime was prevalent and is an aggravating factor against the prisoner. Ms Katurowe submitted that in light of mitigating factors together with extenuating circumstances, a head sentence of 12 months be considered and wholly suspended based on the recommendations of the Probation Officer: (Public Prosecutor v Don Hale (1998) SC 564); Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91).

12. The following cases were referred to me in support of her submissions for a lesser sentence. In the first case the prisoner pleaded on the charge of grievous bodily: A bush knife was used, prevalence and first time offender. A sentence of 4 years was imposed and wholly suspended (The State v Lemia [2012] PGNC 179; N4817). The second is in the most recent case I completed here in Manus yesterday. (The State v. John Kaiwa (2014) N5543. The prisoner entered a guilty plea, first time offender, stick used as a weapon, prevalence. I sentenced the prisoner to 2 years and wholly suspended the sentence with conditions.

Submissions on sentence - State

13. The State Prosecutor Mrs Laura Kuvi submitted that the crime was serious and in that the victim was physically assaulted by the co-accused, now a prisoner. The prisoner's part in this crime is that he aided and was seen at the crime scene. Mrs Kuvi also referred me to the case of John Kaiwa in which I imposed a 2 years sentence which was wholly suspended. Notwithstanding the sentence in the John Kaiwa case she conceded a sentence of 12 moths to be appropriate considering the facts surrounding the case including the degree of the prisoner's participation, which was barely minimal.

Issue:
14. The only issue for me to consider is whether on all the evidence presented, the prisoner can be lawfully convicted by operation of Section 7 Criminal Code. This section provides that it is possible for those who are not the main perpetrators to be also guilty however there must be some evidence of the wrong committed by that person (s) within the meaning of the provision. A single act or omission or a series of them is sufficient in Sections 7.

15. I find here that there is evidence that the accused was at the scene of the crime but he did not take part in the commission of same. He was a late comer to the scene and only came out of curiosity with his bush knife in his hand. As is the norm in our rural communities a bush knife or a stick is an accepted part of men folk's attire.

16. The question of whether the prisoner should be given the maximum sentence is easily disposed off: with ample favourable mitigating factors together with his pre sentence report and the facts surrounding the crime. In short this is the not worst type of case (Goli Golu v The State [1979] PNGLR 653).

17. In deciding the appropriateness of sentence to be imposed to the factual situation before me, I have had the benefit of submissions from both lawyers on all relevant issues. I also have had the benefit of a pre sentence report presented to me. In comparison to the two cases referred to me as opposed to the facts before me, I am of the view that the degree of seriousness in this case is very minimal. It follows that this case should attract a lesser sentence, equal to or if not below those previously ordered. Again I must commend both the State Prosecutor and Defence Lawyer for your submission which has made my job very easy in deciding on what is the most appropriate sentence.

Sentence:
18. My task as trial judge and sentencing judge is exercised judicially based on all evidence before me from both sides. Each case is different with particular circumstances and in most situations will ultimately determine the kind of sentence that must be imposed. Section 19 of the Criminal Code also gives courts wide discretion in considering sentencing offenders.

19. Due to the foregoing reasons, in particular the mitigating factors in favour of the prisoner, I consider that the appropriate sentence in respect of the crime to be 12 months which will be wholly suspended with conditions. Your bail will be returned to you

Orders accordingly.
_______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused