State v Magua [2016] PGNC 404; N6715 (15 July 2016)

N6715

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1105 OF 2015

THE STATE

V

STEVEN MAGUA

Tabubil: Koeget, AJ
2016 :15^th and 20^th July

CRIMINAL LAW- Sentence – guilty to causing Grievous Bodily Harm under section 319 of Criminal Code Act – sentence wholly suspended upon offender promise to keep peace and be on Good Behaviour Bond for fix period of time – exercise of court’s discretionary powers under section 19(1)(d)(i) of the Criminal Code Act.

Cases Cited:

The State –v- Mason Kinjon Karato (2012) N4832

Counsel:

D. Mark, for the State
W. Dickson, for the Accused

15^th July, 2016

1. KOEGET AJ: INTRODUCTION: The accused is charged with one count of Grievous Bodily Harm and the charge is brought under section 319 of the Criminal Code Act chapter 262.
   

FACTS:

2. On 8^th of December 2013, the victim Korry Kangu and the accused were drinking beer at Las Kona in Kiunga in the Western Province. An argument developed between the victim Korry Kangu and the accused over destruction of dried marijuana leaves belonging to the victim.
   
3. The victim and another man armed with bush knives attacked the accused and the accused retaliated and chopped the right thumb and four fingers of the victim’s left hand. The State alleged that the accused had no good reasons to injure the victim.
   

ARRAIGNMENT:

4. The accused stated “yes, it’s true” so a provisional guilty plea was recorded.
   

ISSUE:

5. The issue for the court to determine in this case is what is the appropriate sentence to impose on the accused.
   

EVIDENCE:

6. The State Prosecutor tendered into court the committal dispositions consisting of the following documents:
   
   • Police information sheet and statement of facts.
     
   • Statement of Kangu Korry.
     
   • Statement of Wiai Max.
     
   • Statement of Nancy Paulus.
     
   • Statement of Steven Anineng.
     
   • Statement of Sepola Degoe dated 29^th August, 2014.
     
   • Statement of Daniel Morris dated 30^th August, 2014.
     
   • Affidavit of accused dated 24^th December, 2014.
     
   • Medical report dated 16^th December, 2013.
     
   • Record of Interview between police investigations and the accused dated 27^th August, 2014.
     
7. I perused the committal depositions tendered to court and note the accused admitted the commission of the offence so his provisional plea was confirmed accordingly.
   

LAW:

“Section 319A. Grievous Bodily Harm.

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

Penalty: Imprisonment for a term not exceeding 7 years.”

ALLOCATUS:

“I am sorry for whatever wrong I did. I have no prior convictions. I am a first time offender.

The victim accused me of destroying his dried marijuana leaves packed in a plastic bag weighting 1 kilogramme. I was injured by the victim and relative and copy of medical report is presented to the court through my lawyer.

The victim is my nephew and we have settled the dispute and both of us are now live peacefully in Kiunga. There is no more dispute between us either in Kiunga town or in the village in the Southern Highlands Province.

I am married with three children all of tender ages. They attend school in the village and are dependent upon the proceeds of my earnings as a security guard. I ask the court to be merciful when imposing sentence upon myself.”

PERSONAL PARTICULARS:

8. The prisoner is 39 years of age and is divorced. His wife remarried whilst he was in custody for committing the offence. He is employed by Niugini Pride as a security guard after been released from custody. He has no formal education but is able to find job to earn cash to sustain lives of himself and family.
   

AGGRAVATING FACTORS:

9. The prisoner used bush knife to chop four fingers of the left palm of the victim and the fingers are permanently cut off from the left hand and so the victim cannot use his left hand effectively as before.
   

MITIGATING FACTORS:

10. The prisoner pleaded guilty to the charge and saved the busy time of the court. The victim and relatives attacked the prisoner with bush knives and he received severe injuries to the body. The defence counsel tendered to court photographs of injuries sustained by the prisoner.
    
11. The photographs tendered show –
    
    • (a) left arm wrapped with cloth consistent with the medical report of fracture.

blood pouring from right hand side of head.

(b) blood pouring from the left and right side of the shoulders.

(c) blood pouring from right inner thigh.

(d) blood on left hand.

(e) multiple cuts with blood pouring from right and left legs below the knees but above the ankles.

12. The prisoner was a healthy person prior to the commission of the offence but after the arrest and confinement at Ningerum Corrective Institute Services (CIS), he contracted T.B and is now receiving treatment at present.
    
13. The question I ask myself is “Is this the worst Grievous Bodily Harm case that warrants the courts imposition of maximum sentence”?
    
14. The prisoner destroyed dried marijuana leaves of the victim and is an illegal substance in Papua New Guinea. He destroyed the illegal substance without assistance of members of the Royal Papua New Guinea Constabulary.
    
15. The prisoner assisted the community in Kiunga town as many youths are consuming such substances regularly and causing disturbances and fights in the town. He destroyed the dried marijuana leaves as a concerned citizen in the community but “received more than he bargained for”. He contracted T.B whilst held in custody for his offence at Kiunga Police station cells and Ningerum Corrective Institution Services.
    

SENTENCE:

16. I have assessed all factors in this case and in view the personal and mitigating factors far out weight the aggravating factors. So I conclude that this is not the worst type of Grievous Bodily Harm case to warrant imposition of the maximum sentence as prescribed by the Criminal Code Act. I find that imposition of the maximum sentence is inappropriate in this case.
    
17. I consider the decision in the case of The State –v- Mason Kinjon Karato (N4832) as the facts of the case and the issues involved are similar to this case. In that case the prisoner was sentenced to be imprisoned for 3 years and part of the sentence imposed was suspended.
    
18. In this case the prisoner is sentenced to be imprisoned for period of 2 years in hard labour. The prisoner was held in custody for 1 year 6 months and 2 weeks before released on cash bail. So the pre-trial custodial period is deducted and the balance is 5 months and 2 weeks.
    
19. In the exercise of the court’s discretionary powers under section 19(1)(d)(i) of the Criminal Code Act, the balance is wholly suspended on the following conditions:
    
    • (1) The prisoner promise to keep peace and be on Good Behaviour Bond for 5 months and 2 weeks.
      
    • (2) Should the prisoner breach this condition, he shall be brought to court to be dealt with the suspended portion of the sentence.
      

ORDERS:

20. The formal orders of the Court are:
    
    • (1) The bail of K2,500.00 is refunded to the prisoner forthwith.
      

ORDERED ACCORDINGLY.

_____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused