State v Aiyoko [2014] PGNC 239; N5936 (21 March 2014)

N5936

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 304 OF 2012

THE STATE

V

BONNY YEI AIYOKO
Accused

Porgera: Kawi-iu, AJ.
2014 : March 5, 12, 21

CRIMINAL LAW – Sentence - Plea of guilty – Grievous bodily harm, s. 319 of the Criminal Code Act -– Victim received deep cut to her left palm almost severing it – assault unprovoked – first time offender – not a habitual offender – sentence to 3 years imprisonment – sentenced reduced for strong mitigating factors - time in custody deducted – balance of the sentence suspend with conditions

Cases Cited:

The State –v- Ludwina Waiguma [2007] PGNC 80; N3188 (21 March 2007).
The State -v- Reuben Trowen (2004) N2339
The State v Ambe Tu (2008) N3306
The State v Isaac Wapuri [1994] PNGLR 271
The State -v- Apa Kuman (2000) N2047
The State v Ben Robert (2009) N3629
The State v Martin Kons (2010) N4157

Counsel:

D. Mark, for the State
R. Bellie, for the Accused

SENTENCE

21 March, 2014

1. KAWI-IU, AJ: The accused Bonny Yei Aiyoko pleaded guilty to one count of causing grievous bodily harm, pursuant to section 319 of the Criminal Code Act, Chapter 262. This offence carries a maximum penalty of seven years imprisonment, but subject to section 19 of the Criminal Code Act, where Court may impose lesser custodial sentence or non-custodial sentence.
   
2. After the indictment and the summary of facts had been read and explained to the accused, he pleaded guilty and I entered a provisional plea of guilty. The State tendered the District Court depositions which I read and was satisfied that the evidence contained therein was consistent with the accused plea of guilty to the charge of grievous bodily harm. I entered a verdict of guilty and convicted the accused.
   

SUMMARY OF FACTS

3. It is alleged that on the 8th August 2011 between 6.00 and 6.30 pm at Weigima, accused was under influence of intoxicating liquor when he tried to force his way into a DVD Movie House with three others. The guards removed him but he punched one of them. He armed himself with a bush knife and overturned tables spilling cooked food. Victim confronted accused for overturning her table where she was selling cooked chicken. Accused swung at her neck but victim put up her left hand to fend off knife. She received deep cut to her left palm almost severing it. She fell unconscious. It is alleged accused had no lawful reason to do what he did.
   

ANTECEDENT REPORT:

4. The State presented the antecedent report. The prisoner is a first time offender. He has been a good law abiding citizen until this incident.
   

ALLOCUTUS:

5. In allocutus the accused said: "I have committed the offence and asked this Honourable Court to have mercy on me".
   

OTHER MATTER OF FACTS:

6. After administrating the allocutus defence tender the Presentence Report which I have earlier directed the Probation Officer to prepare on the behest of the defence. The accused is 20 years old, married with two children. He blamed his consumption of liquor as the cause of his bad behaviour. He says sorry for what he did and showed remorse. While he was still in custody his relatives paid compensation to the victim. They paid for her medical expenses. A sum of K6000.00 cash and two pigs valued at K700.00 and K500.00 were also given as part of the compensation
   
7. The victim is the wife of the accused step father. He felt sorry and states that he will not re-offend in the future and refrain from having any contact with beer or alcohol.
   
8. The victim is from Wage in Kandep District. She acknowledged receiving the compensation of K6000.00 in cash, 2 pigs valued at K700.00 and K500.00 respectively. These compensation payments were also confirmed by the Village Court Magistrate. The victim had reconciled with the accused family and living together in peace and harmony. She has no objection if the court imposes a non custodial sentence.
   
9. The report shows that you are a suitable candidate for a non custodial sentence, such as probation or GBB.
   

MITIGATING FACTORS:

10. Accused is 20 years old, married with two children with no formal education. He has no prior convictions. He has been a good law abiding citizen until this incident. He pleaded guilty on the first available opportunity. His guilty plea has saved a lot of time and cost than had he forced the matter to trial. Showed remorse of what he did.
    

AGGRAVATING FACTORS:

11. He used a bush knife to cut the victim whilst under the influence of liquor, which caused serious injury to victim's palm of her left hand.
    

SUBMISSION BY DEFENCE:

12. Mr. Bellie for the prisoner submitted that in sentencing on a charge of causing GBH the maximum sentence is 7 years. In light of the favourable PSR and factors in mitigation a sentence of 3 to 5 years would be appropriate. The Court was referred to a case The State –v- Ludwina Waiguma [2007] PGNC 80; N3188 (21 March 2007). In that case the accused cut the victim on the lower left arm, pleaded guilty and sentence to 4 years imprisonment. The mitigating and aggravating factors appear similar in both cases except the accused in that case did not pay compensation and not a first time offender. It is submitted for the prisoner in this case that a non custodial sentence between 3 and 5 years would be reasonable.

STATE'S SUBMISSION:

13. Mr. Mark for the State agrees with defence submission that any imprisonment would be less than 7 years. He acknowledged that some form of compensation had been made to the victim. The aggravating nature of the offence was the use of a bush knife as it is a dangerous weapon and that the offence was committed when the prisoner was drunk. The State concedes to defence submission that a non custodial sentence in the vicinity of 3 and 5 years will suffice to deter likeminded offenders in Pogera and Wabag.
    

GBH CASES:

Some of the cases dealing with GBH for purposes of comparing sentences are discussed below.

14. In The State -v- Reuben Trowen (2004) N2339, the prisoner forced his two wives to strip naked and he inflicted serious bodily harm to them with a bush knife. He was sentenced to 7 years imprisonment.

15. In The State v Ambe Tu (2008) N3306, the prisoner repeatedly cut his wife with a bush knife on her back, neck and shoulder. He cut her both hands. He was sentenced to 4 years.

16. In The State v Isaac Wapuri [1994] PNGLR 271, the prisoner refused to have sexual intercourse with the victim. The victim took the prisoner's clothes and spread them all over the place. Aggrieved by that, the prisoner took a car handle brake cable and struck the victim across the face, slashing the victim's eyes causing permanent damage. She lost 90% disability. He was sentenced to 18 months with 5 months suspended.

17. And in The State -v- Apa Kuman (2000) N2047, the prisoner after raping the victim, he slashed the victim in the stomach to prevent her from shouting for help. Her right and left lobes were severely damaged and bled profusely. He was sentenced to 3 years imprisonment.

18. In The State v Ben Robert (2009) N3629, Canning J, sentenced the prisoner to 3 years 2 month on plea of guilty for cutting his brother with a bush knife.

19. Thus it can be seen from the above mentioned cases, that the present case is not a worse type. Therefore the prescribed maximum penalty should not be imposed. Both counsels agreed that this is not a serious of case and hinted that the starting point should be 3 to 5 years. And considering the mitigating and aggravating factors, it appears mitigating factors out- weighed the aggravating factors.

20. The nature of the present offence is not very serious as compared to other cases discussed above. Thus the head sentence would be at or near the midpoint. With other favourable considerations as alluded to in 7 and 8 above the head sentence should be considered below the mid point range. I consider that the appropriate head sentence should be 3 year.

SENTENCE:

21. The maximum sentence for the offence of causing grievous bodily harm is 7 years, pursuant to s. 319 of the Criminal Code Act, subject to s. 19 of the Criminal Code Act, which empowers the Court to impose sentence lesser than the prescribed maximum penalty. The cases referred to above involve the use of knives. And the sentences imposed ranges from 3 years to 7 years except the case of The State v Isaac Wapuri [1994] PNGLR 271 where sentence imposed was 18 months. The victim was assaulted with a car hand brake cable on the eye causing permanent damage. This sentence may be too low considering the nature of the weapon used and the degree of harm caused by such object.

22. In the case of The State v Martin Kons (2010) N4157, Cannings J, imposed a sentence of 3 years imprisonment on plea of guilty where the prisoner assaulted his nephew with a piece of wood fracturing his knee. He suspended the whole of the sentence with conditions.

23. In the present case the prisoner cut the victim's palm of her left hand with a bush knife and at the time he was drunk. The use of bush knives although made for good purpose has at time been transformed into a weapon of human destruction. It is now prevalent in this part of the country where carrying of such weapon in public has become accepted as cultural ornaments. The prevalent use of bush knives to harm people must be deterred by punitive means.

24. The appropriate starting point for the head sentence should be 3 years as the harm caused was not serious and not life threatening. With good mitigating factors, payment and acceptance of compensation, any sentence to be imposed will be below the head sentence.

25. The prisoner had been in custody for 8 months 20 days since his arrest on the 21st of December 2010. This period should be deducted.

26. I am of the view that this is an appropriate case to impose suspended sentence. The prisoner is not a habitual criminal offender nor is he in any way a threat to the community. The victim has reconciled with the prisoner and his relatives and does not oppose to the release of the prisoner from prison. This will allow the prisoner to rehabilitate outside of prison for his wrong doing. I understand that there are no probation officers in Pogera to supervise those that may be placed on suspended sentence.

27. That makes it difficult to supervise should the Court impose community work as one of the conditions. Face with the dilemma of such supervisory difficulty, it is inappropriate to impose community work. But that does not pose any problem in the Court imposing suspended sentence pursuant to s. 19 of the Criminal Code. As part of the condition of the suspended sentence the prisoner is required to follow certain conditions.

28. The prisoner must keep the peace and be of good behaviour towards the victim and must not cause any trouble to anyone for a period of two years.

29. The prisoner must reside at Anawe village, Pogera District and nowhere else during the period of the suspended sentence except with the written approval of the National Court.

30. The prisoner must attend his local Christian Apostolic Church and attend church services every week for worship and for counselling.

31. The prisoner must report to the Clerk of Court of Pogera District Court on Fridays of each week between 8.00 am and 12.00 noon.

32. Should any one or more of these conditions is breached the prisoner shall be arrested and imprisoned to the term of the suspended sentence which is 15 months 10 days.

COURT ORDERS:

33. You are convicted and sentenced as follows:

1. In the circumstances, I, therefore, impose a head sentence of 3 years. From this, I deduct 12 months for strong mitigating factors leaving a term of 2 years.
   
2. A further 8 months and 20 days to be deducted whilst in custody awaiting trial.
   
3. The balance of the sentence of 15 months and 10 days will be fully suspended on condition that prisoner enter into recognizance and keep the peace for a period of 2 years.
   
4. In the event that you breach your recognizance, you shall be called upon to appear before the Court to receive judgement to serve the whole period of your suspended sentence.
   

Sentenced accordingly
______________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused