State v David [2016] PGNC 155; N6346 (21 June 2016)

N6346

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1170 OF 2013

THE STATE

V

DANNY DAVID

Porgera: Auka, AJ
2016: 15^the & 21^st June

CRIMINAL LAW – Sentence – Particular offence – Plea of guilty – Unlawfully Causing Grievous Bodily Harm – Mitigation and Aggravating factors considered – Two (2) years imprisonment less time spent in pre-trial custodial term – Sentence suspended - Criminal Code S.319 and S. 19

Case Cited:
The State v. Ben Robert [2009] N3629
The State v. Gawen [2016] N6212
The State v. Kara [2012] N4663
The State v. Lemia [2012] N4817
The State v. Martin Kiros (2010) N4157
The State v. Patrick Kimat [2005] N2947
The State v. Pinda [2012] N4872
The State v. Terrence Teko & Patimos Wetuna unreported judgement dated 21^st September, 2011
The State v. Yatime Korogula (No.) N3741 & (No. 2) OF 2009

Counsel:
Mr. Joe Waine, for the State
Mr. Robert Bellie, for the Accused

DECISION ON SENTENCE

21^st June, 2016

1. AUKA AJ: The accused was committed to stand trial by the District Court at Porgera on 9^th September, 2013. On 15^th June, 2016 he pleaded guilty to an indictment containing one count of unlawfully causing grievous bodily harm under S.319 of the Criminal Code.

2. The maximum punishment for this crime is 7 years imprisonment. The court has a general discretion to impose a lower sentence with or without other forms of punishment enumerated in S. 19 of the Criminal Code.

3. The brief facts of the case are that on the morning of 11^th April 2013, the victim PIS JOANIS with village court Magistrates were at Kolombi Primary School, Paiala, Porgera District. They were there to collect bride price from his In-Law and daughter. His in-law and daughter then handed over K2000.00 in cash as bride price in front of the village court officials. After the handover, accused with his accomplices armed with bush knives and axes approached the victim. The accused as a relative to the victim asked for some of that money as his share. The victim refused and one of accused’s co-accused used a bush knife and chopped the victim on his palmer aspect of his left hand and as a result the victim received a serious cut causing heavy bleeding. Victim’s relatives saw him in blood and rushed him to Porgera hospital and were admitted. State alleged that the presence of the accused aided and abetted his co-accused to attack the victim.

4. A Medical Report of Dr. Alan Nadal dated 9^th July, 2013 confirms that victim had a bush knife wound at the palmer aspect of his left hand with the following injuries:
1) Fracture of 4^th Metacarpal
2) Fracture of 5^th Metacarpal
3) Transected flexor digitorum profundus and superficial tendons
4) Transected flexor pollces tendon; and
5) Transected Median nerve

5. Surgery was done whereby open reduction and internal fixation of 5^th metacarpal; tendon and nerve repair

6. Dr Nadal in his report stated that the victim had a 100% temporary disability of his left hand for 3 months.

7. In his address on Sentence the accused said he is a teacher by profession and was teaching at Kolombi Primary School, Paiala, Porgera District, Enga Province. On the day of the incident he was present at the gathering. After the bride price money was handed over to the victim, he as one of victim’s uncle asked the victim for his share. The victim refused to give him the money. Suddenly accused’s co-accused’s confronted the victim and one of them used a bush knife and cut him on the left hand. He said he is willing to pay K1000.00 cash as compensation. As a teacher and as a person of influence in the community he said sorry to the court and to the victim.

8. On address on Sentence, Mr Bellie of counsel for the accused said the accused is aged 35 years old. His father is from Lake Kopiago Hela Province and mother is from Paiala Porgera District, Enga Province and both parents are alive. He has 2 brothers and 2 sisters. He is the first born in the family of 5 children. In 2005 he graduated as a teacher from Balob Teachers College with Certificate in Teaching. Currently he is employed as a Community School Teacher for 10 years and currently is teaching at Kolombi Primary School. He was arrested on 17^th April, 2013 and was in Police detention for 2 weeks before released on K1000.00 cash bail by the District Court.

9. Mr. Bellie submitted that the accused was not armed at the time of the offence. He urged the court to consider that the victim was his uncle and merely asked for his share of the money and did not cause any trouble. He said accused’s presence was not a serious aggravating factor. Mr Bellie submitted that an appropriate sentence would be 3 years and whole of the sentence suspended.

10. Mr. Bellie urged the court to take into account in accused’s favour, his plea of guilty to the offence which saved court’s time, that he is a first time offender, he expressed remorse in court. He is a man of prior good character and has no prior conviction against him. He is willing to compensate the victim and make amends to their relationship and live peacefully. All these are mitigating factors and I take them into account in his favour.

11. Against these mitigating factors, I take into account the fact that the victim received a serious knife wound on his left hand.

12. Mr. Bellie brought to the court’s attention the National Court decision on Sentence in the case of State v. Gowen (2016) N6212. This is a case where the accused pleaded guilty to the charge of unlawfully doing grievous bodily harm. Accused used a bush knife and cut the victim on his ankle. His Honour Justice Cannings imposed 3 years and part of the sentence suspended.

13. Mr. Waine for the state submitted that the accused is a sophisticated person and was involved with others and applied demand with threats on the victim. There was use of bush knife with intention to do harm. This is a prevalent offence using bush knife. He urged the court to impose a custodial sentence for purposes of deterrence.

14. The trend of sentencing on Grievous Bodily Harm and similar offences depend entirely on the facts of each case. On the side of sentences on this offence, let me cite the following cases;

1. In the State v. Ben Robert [2009] N3629, the prisoner pleaded guilty to unlawfully doing grievous bodily harm to the victim who was his younger brother. The prisoner used a bush knife causing serious wound to the right side of the victim’s face. He was sentenced to 3 years, 5 months, 1 week after his 3 weeks pre- sentence custodial term was deducted. There was no suspension on any part of his sentence.
   
2. In The State v. Partick Kimat (2005) N2947, an argument arose between the prisoner and victim who are in-law and living together. The prisoner got a bush knife and cut the victim on the hand causing serious injury. There was a single Laceration of 6 cm x 0.5 cm wide and 0.5 cm deep with the frontal bone being chopped. The prisoner was sentenced to 12 months in hard labour, less time spent in pre-trial custody fully suspended with conditions including being on good behaviour bond for 2 years.
   
3. In the State v. Yatime Korogula (No.1) N3741 & (No.2) N3742 of 2009, a fight was started by the victim’s brother over a land and the prisoner retaliated and used a bush knife. The prisoner cut the victim’s left thumb almost severing it and the victim’s relatives retaliated and chopped prisoner with a bush knife all over his body. Both prisoner and victim recovered with residual scars discomfort. The prisoner was sentenced to 2 years imprisonment which was suspended fully on condition of good behaviour bond and compensation of K2080. 00 which was fully paid.
   
4. In The State v. Martin Konos (2010) N4157 where the offender pleaded guilty to unlawfully doing grievous bodily harm to his nephew by attacking him with a piece of timber, fracturing his knee and inflicting many other superficial injuries by multiple blows. Cannings J sentenced the prisoner to three (3) years. The sentence was fully suspended with stringent conditions.
   
5. In The State v. Kara (2012) N4663, Accused pleaded guilty to unlawfully doing grievous bodily harm to his female neighbour in urban setting, cutting her on her face with a bush knife, inflicting an eye injury and superficial facial injuries requiring seven (7) stiches. Cannings J imposed a sentence of four (4) years, fully suspended in view of a favourable pre-sentence report and preparation to pay further compensation.
   
6. In The State v. Lemia [2012] N4663, the offender pleaded guilty to unlawfully doing grievous bodily harm to the victim. This is a case where the offender has been looking for his wife for a number of days. His wife had escaped from the matrimonial problems. The offender met the victim who admitted that his wife was staying with her at his house. The offender then attacked the victim with a bush knife causing permanent injuries on her face. Lenalia J imposed 4 years imprisonment fully suspended and offender ordered to pay the victim K500.00 within 5 days and to keep the peace for 2 years.
   
7. In The State v. Pinda [2012] N4872. The accused was fighting with his wife and threatening to cut her with bush knife when an elderly lady place herself between them and the accused hit her on the arm with a piece of wood causing a fracture of the right forearm. Accused pleaded guilty to the charge of unlawfully dong grievous bodily harm. His Honour Batari J imposed a sentence of three (3) years fully suspended the sentence and placed on probation for a period of 3 years on condition including compensation payment of K3500. 00.
   
8. In The State v. Terrance Teko & Patimos Wetuna, unreported Judgement dated 21^st September, 2011, the 2 accused pleaded guilty to one count of unlawfully causing grievous bodily harm. This is a case where a female called the victim by phone and told him to wait for her on the road. When he came the female told him to sit on the platform near a chapel while she went to see her mother at the well. While the victim was sitting down, the accused’s approached him and attacked him. Patimos swung a tree branch at his mouth. And accused Terence swung the bush knife and hit him on his hand. The victim fell to the ground. Both accused punched and kicked him all over his body. The medical report shows the victim lost two (2) teeth and suffered minor bruises on his face. Lenalia J imposed a sentence of 2 years wholly suspended with conditions.
   

15. It is clear from the above cases that the courts have been exercising their discretion to impose sentences in terms other than the prescribed maximum of 7 years after taking into account the different circumstances of each case with respect to the factors of mitigation and aggravating, as they may be.

16. I have considered the accused’s expression of remorse during allocatus. I have considered counsels submissions on mitigation and aggravations. I conclude that this is not a serious case of causing grievous bodily harm.

17. I consider the following mitigating factors in favour of the accused;

1. He pleaded guilty and saved court’s time
2. He is first time offender
3. He has a prior good character
4. That he played a minor role in the commission of the offence
5. He expressed remorse
6. He has raised willingness to pay compensation to victim

18. Aggravating factors are;

1. The accused and his accomplices applied demand with threats on the victim.
2. That his presence encouraged his co-accused to use the bush knife and cut the victim
3. The offence is a prevalence offence

19. In weighing all these factors I place great weight on the factors that the accused pleaded guilty and saved Court’s time and that he is a first time offender. This is a less serious case than many other grievous bodily harm cases, particularly those involving bush knives.

20. The appropriate sentence is two (2) years imprisonment. The sentence is fully suspended on condition to keep the peace for 12 months and further subject to the following conditions;

1. The accused must pay K1000. 00 cash to the victim payable within two months
2. He must reside at his current residential location and nowhere else except with the written approval of the National Court.
3. He must not leave Porgera District without the approval of the National Court
4. He must attend local church every week for service and worship and submit to counselling.
5. He must not consume alcohol or drugs
6. He must keep the peace and be of good behaviour and must not cause trouble, for, or harass the victim and his family.
7. If the accused breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.
   

The Public Prosecutor : Lawyer for the State
The Public Solicitor : Lawyer for the accused