State v Lawasi [2015] PGNC 40; N5964 (20 February 2015)

N5964

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 22 of 2014

THE STATE

-V-

NICKY LAWASI
Defendant

Alotau: Toliken, J.
2015: 03rd, 20th February

CRIMINAL LAW – Sentence – Grievous bodily harm – Guilty plea – Prisoner attacks victim with dry stick rendering him unconscious – Mitigating and Aggravating factors considered – Appropriate sentence – Whether to suspended – Criminal Code Ch. 262, s 319.

Facts:

The prisoner and his cousin brother and the victim who were all drunk, were returning from a dance when the prisoner's cousin and the victim got into an argument. Fearing for his cousin brother's safety who was smaller than the victim, the prisoner picked up a dry stick from the side of the road and hit the victim on the head rendering him unconscious. The prisoner stopped a motor vehicle and took the victim to the hospital and then surrendered to the police.

Held:

(1) The starting point for the offence of grievous bodily harm under Section 319 of the Criminal Code should be 3 ½ years. (The State –v- Sheekiot [2011] PGNC 165; N4454 (22 November 2011); The State –v- Konos (2010) N4157 (12 November 2010) per Cannings J. followed)

(2) Mitigating factors are; guilty plea, early surrender and cooperation with police, no prior convictions, previous good character and expression of genuine remorse, non-legal provocation and willingness to pay compensation to the victim.
(3) Aggravating factors are; under influence of liquor, use of offensive weapon and prevalence of offence.

(4) Mitigating factors slightly outweigh aggravating factors hence in the circumstances an appropriate head sentence shall be 2 ½ years. Prisoner is sentenced to 2 ½ years in hard labour less time in custody.

(5) Appropriate case for suspension of sentence. Sentence is wholly suspended with following conditions:

(i) Payment of K4000 compensation to victim within 8 months from today.

(ii) Customary reconciliation with victim and his family and relatives within 8 months. Such reconciliation shall be witnessed by the Provincial Probation Officer here in Alotau.

(iii) Prisoner to refrain from consuming, making or selling all forms of intoxicating liquor including illicit spirits or jungle juice.

(iv) Prisoner is restrained from attending any social dances whether at Ahioma village or anywhere else in the province.

(v) Prisoner to perform 100 hours of unpaid community work for the Ahioma Kwato Church and the local Primary School under the supervision of the Provincial Probation Officer in collaboration with local Pastor and Village Magistrate.

Cases Cited:

Golu Golu –v- The State [1979] PNGLR 653
Avia Aihi –v- The State (No.3) [1982] PNGLR 92
Public Prosecutor –v- Don Hale [1998] PGSC26; SC564 (27 August 1998)
The State –v- Konos (2010) N4157 (12 November 2010)

The State –v- Mann [2009] PGNC 217, N4028 (23 April 2009)
The State –v Kaminga [2011] PGNC 69; N4329 (21 June 2011)
The State –v- Sheekiot [2011] PGNC 165; N4454 (22 November 2011
The State –v- Rummits [2012] PGNC275, N4900 (21 November 2012)
The State –v- Modoreta Anataula, CR NO.568 of 2012 (unreported and numbered judgment 24th of October 2013)
The State –v- Augustine [2014] PGNC 175, N5787 (22 August 2014)
The State –v- Boala [2013] PGNC 180, N5369 (25th September 2013)
The State –v- Mais [2014] PGNC 196; N5838 (13 December 2014)

Counsel

H. Roalakona, for the State
C. Kambua, for the State

SENTENCE

20th February, 2015

1. TOLIKEN, J: Nicky Lawasi, on the 3rd of February 2015 you pleaded guilty to one count of causing grievous bodily harm (GBH) to one Bobby Iairo on the 19th day of May 2013 at Ahioma village, Alotau, Milne Bay Province. This is an offence under section 319 of the Criminal Code (the Code) which carries a penalty of a term of imprisonment not exceeding 7 years.
   
2. You admitted the following facts and these are the facts I am going to sentence you on. On the 19th of May 2013 at about 6.00am you and your cousin brother Reuben Wiki and the victim Bobby Iairo were returning from a dance at Kaloi village. You were all drunk. And as you were walking home an argument arose between your cousin and the victim. Because the victim was bigger than your cousin Rueben, you were afraid that he might hurt Reuben so you picked up a dry stick from the side of the road and hit the victim on his head causing him to fall down unconscious. Seeing this you assisted the victim by stopping a vehicle and you took him to the Alotau General Hospital. Later you then turned yourself into the police.
   
3. As I indicated, this offence carries a maximum penalty of 7 years imprisonment. However, the maximum penalty is always reserved for the worst instances of a particular offence. (Golu Golu –v- The State [1979] PNGLR 653) The actual sentence in a particular case will also depend on the particular circumstances of each case (Avia Aihi –v- The State (No.3) [1982] PNGLR 92).
   
4. My task then is to determine an appropriate sentence for you. And this means that I have to decide whether the circumstances of your case are such that they must attract the imposition of the maximum penalty or not.
   
5. When asked to address the Court on sentence you said that you knew that you had broken the law and that was why you voluntarily surrendered to the police almost immediately. You apologised to the victim for causing him grievous bodily harm. You also apologised for breaking the law and pleaded for mercy.
   
6. Your lawyer Ms. Kambua submitted that the circumstances of your offence should warrant a sentence of between 1-2 years only. And this is because of your early guilty plea, you are a first time offender, you co-operated with the police, your very low level of education, you were of previous good character and that there was some provocation in the non-legal sense. She, however, acknowledged that this offence is very prevalent.
   
7. Ms. Kambua submitted that the period you spent in custody prior to conviction – 1 year and 2 days – should be deducted from your head sentence and the balance should then be suspended and that you be placed on probation supervision because probation is supported by your Pre-Sentence Report (PSR).
8. For the State Ms. Roalakona acknowledged your mitigating factors and the fact that you have reconciled with the victim but submitted that there are aggravating factor against you. These are that you were drunk when you committed the offence, the victim had to be hospitalised, you attacked the victim with an offensive weapon and that this offence is a very prevalent one.
   
9. Ms. Roalakona called for a sentence that will deter you personally and others as well. She suggested therefore that an appropriate sentence for you should be 3 years relying on The State –v- Konos (2010) N4157 (12 November 2010) where it was held by Canning J. that the starting point for GBH should be 3½ years.
   
10. Both counsel referred me to previous sentences of this court in similar cases which they said could assist me in arriving at an appropriate sentence for you.
    
11. At your request a Pre-Sentence Report had also been filed. The Report is very much in your favour. It reveals that you and your family intend to reconcile with the victim and his family. Your have offered to pay him K2441.00 compensation in cash and kind. The victim's family on the other hand wants cash compensation of K5000.00 saying that they spent well over K4000.00 during the victim's period of hospitalization. There is community support for probation supervision. The Ahioma Kwato Church pastor, Pastor Lucas Gabia and Village Court Magistrate Mrs. Edna Gabia have offered to supervise you and give you counselling services.
    
12. The Report therefore recommends that you be placed on probation with additional conditions for compensation, community work, orders restraining you from consuming, buying and selling of all forms of alcohol and marijuana and that you be prevented from attending nightclubs and social dancing at Ahioma.
    
13. So is your case such a worst case that should attract the maximum penalty of 7 years imprisonment? I must say that it is not but it is serious enough to warrant a penalty some around the mid-range when the matter is objectively considered.
    
14. The offence of causing GBH is a very prevalent offence not only here in the Milne Bay Province but right across the country. Countless numbers of people continue to be injured and even maimed. Assailants continue to occasion harm grievous bodily harm on others with total disregard for the safety of their victims. While some have survived, many others have unfortunately succumbed to their injuries.
    
15. The courts therefore have a duty to impose sentences that will hopefully deter an individual offender from re-offending but others as well. The courts have also a duty to protect the society by ensuring that serious culpability is met with similarly stiff penalties because in a modern democratic society individuals should not be allowed to want only attack and harm or injure others.
    
16. A brief survey of recent sentences by this court yielded the following results. In The State –v- Mann [2009] PGNC 217, N4028 (23 April 2009) the Chief Justice Injia, CJ. sentenced the prisoner to 5 years imprisonment for causing grievous bodily harm to the victim. There the offender had a dispute with the victim and the victim said he would kill him. Fearing for his life the offender cut the victim twice, once on the right shoulder inflicting a deep and extensive wound from which he lost a lot of blood. The victim had to be rushed to the Port Moresby General Hospital. The medical report showed that the victim was expected to make steady recovery. His Honour was of the view that the circumstances of the case did not warrant a suspension of any part of the sentence.
    
17. In The State –v Kaminga [2011] PGNC 69; N4329 (21 June 2011) the offender claimed ownership over land on which a church had been built without him being compensated. The offender and his family went to the church and he cut down all the flowers and attempted to set the church on fire. They then attacked the victim. The offender chopped off the victim's right foot at the ample. Ipang AJ. (as he then was) sentenced the offender to 5 years imprisonment and suspended 3 years with conditions.
    
18. In The State –v- Sheekiot [2011] PGNC 165; N4454 (22 November 2011), on a guilty plea Cannings J. sentenced the offender to 4 years imprisonment for cutting his cousin sister on the neck with a bush knife. His Honour set the starting point at 3½ years and imposed a sentence of 4 years which was fully suspended based on a favourable pre-sentence report and payments of compensation and reconciliation.
    
19. In The State –v- Rummits [2012] PGNC275, N4900 (21 November 2012), the offender pleaded guilty to one count of GBH. She attacked the victim with an iron rod fracturing her skull which at time of sentence had healed but the doctor's opinion was that the victim would continue to suffer life-long post-traumatic symptoms as well as being susceptible to Post-cerebral Concussion Syndrome. David J. sentenced the prisoner to 4 years imprisonment. His Honour wholly suspended the sentence on condition that the offender paid K1000 fine and K5000 compensation within 5 months and performance of community service.
    
20. Some sentences of the lower range include; The State –v- Konos (supra.). There the offender attacked his nephew with a piece of timber fracturing his knee and caused many other superficial injuries by multiple blows. There Canning J. held that the starting point for an offence under s 319 of the Code was 3½ years. He imposed 3 years which was wholly suspended on conditions which included payment of compensation and reconciliation.
    
21. The State –v- Modoreta Anataula, CR NO.568 of 2012 (unreported judgment and undated 24th of October 2013): The prisoner there cut the victim with a bush knife on the right shoulder severing the major shoulder muscle and blood vessels and nerves. The victim lost a lot of blood. I sentenced the prisoner there to 2 years imprisonment less the pre-sentence custody period. The balance was wholly suspended on terms.
    
22. The State –v- Augustine [2014] PGNC 175, N5787 (22 August 2014): The prisoner there was sentenced by His Honour Cannings J. to 3 years with no suspension for doing GBH to his victim. The offender was drunk and was watching a soccer game. Armed with a bush knife he approached the victim and attacked him, cutting him on the head and various parts of his body.
    
23. The State –v- Boala [2013] PGNC 180, N5369 (25th September 2013). There the prisoner pleaded guilty to causing GBH to the victim, an officer of the National Maritime Safety Authority (NMSA) by hitting him with a paddle on the arm and head resulting in a fracture to the victim's left arm. The offender had no prior convictions, acted alone and acted in the spur of the moment. His Honour Geita AJ. (as he then was), however, was of the view that this was an attack on an officer of a law enforcement agency and was there serious. His Honour sentenced the prisoner to 4 years imprisonment part of which was suspended on terms.
    
24. And finally in The State –v- Mais [2014] PGNC 196; N5838 (13 December 2014), the offender inflicted GBH on his brother whom he was angry with. He cut him on the left shoulder with a bush knife. He pleaded guilty early and co-operated with the police and had no priors. He, however, used a lethal weapon on an unarmed victim. His Honour Cannings J. sentenced the prisoner to 3 years without suspension.
    
25. Let me now turn to your case, starting with your personal particulars. You are now 26 years old. You are the 2nd born in a family of three siblings. Your parents are still both alive. You are a member of the Kwato Church and only have an 8th Grade education. You're single and self employed and this is your first offence.
    
26. Turning to your mitigating and aggravating factors, I find the following factors in your favour. First, you pleaded guilty to the charge, you voluntarily surrendered to the police and thereafter co-operated with them, you assisted the victim by taking him to the hospital almost immediately after you rendered him unconscious, you have no prior convictions, you are of previous good character. You are genuinely remorseful and are willing to pay compensation to the victim and there was an element of non-legal provocations involved in the commission of the offense.
    
27. Against you I, however, find the following. You were under the influence of liquor, you used an offensive (though not lethal) weapon to attack the victim who had to be hospitalized and this offence is very prevalent.
    
28. So while I have said that this is not the worst instance of this type of offence and your mitigating factors seems to outweigh the aggravating factors, the offence of GBH is so prevalent that a stern sentence must be imposed both for personal as well as general deterrence.
    
29. This is one more case resulting from the uncontrolled use of alcohol. It is not an understatement to say that an alarming proportion of serious crimes in this country are committed by intoxicated people. Too many people are being seriously injured or killed because their assailants are intoxicated. Hence the need for stiffer sentences. What then should be an appropriate sentence for you?
    
30. I agree with my brother Cannings J. that a starting point for the offence of GBH under section 319 should be 3½ years (The State –v- Konos (Supra); The State –v- Sheekiot (supra). Hence I set a starting point for you at 3½ years.
    
31. Now taking into account your mitigating factors and those aggravating your offence, I feel that your head sentence should start slightly below the starting point because I find the mitigating factors to carry a fair amount of weight, though, they do not completely outweigh your aggravating factors.
    
32. Your case is similar to that of the State –v- Konos (supra.) where, as we have seen, the offender fractured the victim's knee by hitting him with a piece of timber. There the offender was sentenced to 3 years which was then wholly suspended. Like Konos you also used a blunt object to injure your victim, you also pleaded guilty early and there was also non-legal provocation for the assault. The differences in your cases are that Konos' victim was a known trouble maker and Konos did not reconcile with him nor offered compensation whereas you are willing to pay compensation and you went out of your way to quickly take your victim to the hospital which very likely saved his life.
    
33. The State –v- Boala (supra.) is also similar to yours where the offender hit the victim with a paddle. He got 4 years for his trouble but that was because the court took particular exception to the fact that the victim was a law enforcement officer.
    
34. So in the circumstances, I should think that an appropriate head sentence for you should be 2½ years. I therefore sentence you accordingly. You spent 1 year and 2 days in pre-sentence custody. I deduct that from your head sentence. That should leave you with a resultant sentence of 1 year 5 months and 28 days. Now should any of this be suspended, whether wholly or partially?
    
35. I think that yours is a case that is ripe for a wholly suspended sentence. Your Pre-Sentence Report supports a suspension and leaders in your community are willing to assist in supervising you provide counselling for you. Your case therefore meets the pre-requisites of a suspended sentence as laid down in the Public Prosecutor –v- Don Hale [1998] PGSC26; SC564 (27 August 1998).
    
36. Further you need to reconcile with your victim and a suspension of your sentence will allow you to do that so that you can restore your relationship with the victim and his people. Reconciliation in the Melanesian context is not complete without compensation to the victim. This then is a further reason why your sentence should be wholly suspended.
    
37. I intend therefore to wholly suspend your resultant sentence and place you on probation with conditions which will include, amongst others, compensation and reconciliation. Since alcohol played a vital role in your offence you will be restrained from dealing with alcohol and narcotics and you will have to perform unpaid community service also.
    
38. My orders are therefore as follows:
    
    1. You are sentenced to 2½ years imprisonment with hard labour less 1 year and 2 days which you spent in pre-conviction custody thus leaving you with a balance of 1 year 5 months and 28 days.
       
    2. The resultant sentence is however wholly suspended and you are placed on probation for a period of 2 years with the following additional conditions:
       
       • (i) You are to pay K4000 compensation to Bobby Iairo within 8 months from today.
       • (ii) You will also within the said 8 months reconcile customarily with Bobby Iairo and his family and relatives. Such reconciliation shall be witnessed by the Provincial Probation Officer here in Alotau.
       • (iii) You will refrain from consuming, making or selling all forms of intoxicating liquor including illicit spirits or jungle juice.
       • (iv) You are restrained from attending any social dances whether at Ahioma village or anywhere else in the province.
       • (v) You are to perform 100 hours of unpaid community work for the Ahioma Kwato Church and the local primary school under the supervision of the Provincial Probation Officer in collaboration with Pastor Lucas Gabia and Village Court Magistrate Mrs Edna Gabia.
       • (vi) Your bail of K1000 shall be converted as part payment of your K4000 compensation to Bobby Iairo.
       • (vii) Any cash sureties paid by your guarantors shall be refunded to them.
         

Orders accordingly
____________________________________________________________________
The Public Prosecutor: Lawyer for State
The Public Solicitor: Lawyer for Prisoner