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State v Egi [2016] PGNC 420; N6912 (8 March 2016)

N6912


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR NO. 1304 OF 2015


THE STATE


V


IFINA EGI


Kainantu: Polume-Kiele, J
2015: 6 & 20 November
2016: 29 February; 8 March


CRIMINAL LAW – Plea – Guilty - Grievous Bodily Harm, s 319, Criminal Code Act –Victim sustained lacerations to the right eye – Injuries not life threatening - Victim treated at Kainantu Rural Hospital and discharged


CRIMINAL LAW – Sentence – 3 years imprisonment – Deducted 5 months 16 days (period held in custody), s 3(2) Criminal Justice (Sentences) Act 1986 – To serve balance of term of sentence of 2 years 6 months 14 days in custody - None of the sentence suspended


Facts:


The brief facts are that on the 14th day of December 2014, at around 8 p.m. the prisoner in the company of others who were all drunk went into Basi Block and burnt down a house owned by one Solomon Wesly, the Complainant. The Complainant, Solomon Wesly is a community leader from Basi Block area. Although the Victim, Abraham Koiya tried to stop the prisoner and his brother namely Moses Waku from burning the house as the fire would lead to other homes, the prisoner refused to listen, swore at the victim and in the process swung at him with a bush knife thereby cutting him on the left side of his head and eye. The victim then fell to the ground unconscious and was rushed to the Kainantu Rural Hospital for treatment and subsequently discharged. The victim in this case suffered lacerations to the left side of his face and eye and loss of blood. None of these injuries were life threatening however the medical reports furnished confirmed that these are permanent disability suffered by the victim to the left side of his face and eye.


The State alleged that when the prisoner cut the victim on the left side of the face and eye, he caused grievous bodily harm to the victim, a charge under s319 of the Criminal Code Act.


The prisoner by his own plea, pleaded guilty to one count of grievous bodily harm under s 319 of the Criminal Code and was convicted.


This is my ruling on sentence.


Held:


(1) The starting point for sentence of 3½ years for the offence of grievous bodily harm held in (State –v- Sheekiot (2011) N4454 and State –v- Konos (2010) N4157 followed.

(2) A head sentence above the starting point to be imposed in circumstances where aggravating factors exist:

(3) The prisoner's mitigating factors are; he pleaded guilty, a first time offender, cooperated with the police and is remorseful.

(4) The aggravating factors against the prisoner are that a dangerous weapon was used, that is a bush knife by the prisoner to inflict injury onto the left side of the face and eye of the victim. The prisoner was part of a group who were supposedly drunk. The injuries inflicted on the victim have consequently resulted in permanent disability to the victim’s face and eye. Furthermore, the victim was unarmed or innocent and that there had been pre-planning by the prisoner when this offence was carried out. This type of offence is very prevalent.

(5) Sentenced to 3 years imprisonment less the period of 5 month 16 days spent in custody.

(6) None of the sentence is suspended.

Cases cited:


Aihi –v- The State (No.3) [1982] PNGLR 92
Golu –v The State [1979] PNGLR 653
Public Prosecutor –v- Tardrew [1986] PNGLR 91
The Public Prosecutor –v- Done Hale (1998) SC 564
The State v Albert Kavena (CR No.1444 of 2014) (21 September 2015) (Unreported)
The State v Epo Matao (CR NO. 168 OF 2015) (21 of September 2015) Unreported
The State –v- Konos (2010) N4157
The State –v- Mais (2014) N5838
The State –v- Sheekiot (2011) N4454
The State v Vincent Nemao (CR NO. 1106 OF 2014) (30 November 2015, Unreported,


Counsel:


B Barbara Gore, for the State
Mr Samuel Ifina, for the Prisoner


JUDGEMENT ON SENTENCE


8th March, 2016


1. POLUME-KIELE J: The accused appeared before me on the 6th of November 2015. He pleaded guilty to one count of unlawfully causing grievous bodily harm to one Abraham Koiya, an offence under Section 319 of the Criminal Code. The offence of grievous bodily harm carries a maximum penalty not exceeding 7 years imprisonment.


Section 319 of the Criminal Code reads:


“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.


Committal Court Disposition


  1. Ms Gore for the State tendered the Kainantu District Court Deposition into evidence, by consent which comprised of the following:
  2. Upon the reading of the Committal Court dispositions and being satisfied that the evidence contained in the dispositions supported the charge, the prisoner’s guilty plea was accepted and the prisoner was convicted on the charge of causing grievous bodily harm under s 319 of the Criminal Code.

Antecedent Report


  1. The prisoner is a male adult age 23 years old from Anona Village, Okapa, Eastern Highlands Province; married with a child. He is educated up to secondary level, unemployed and a member of the Seventh Day Adventist Church with no prior convictions.

Pre-Trial Detention


  1. The prisoner was remanded on the 21st of September 2015 and has been held in custody for a period of 5 months 16 days to the date of this decision on sentence.

Allocutus


  1. When administering the allocutus, the prisoner was asked if he had anything to say on the question of penalty. He then responded that he wanted to say something on penalty. In his allocutus, he apologised to the Court and asked for leniency. The prisoner asked that due consideration be given to his case as he is a young offender, married with a very young child. He also stated that he will not repeat this offence again. He asked that the Court have mercy on him and place him on probation so that he can reconcile with the victim and his family and pay compensation to the victim. He has coffee garden and will find money to pay compensation if ordered by the Court.
  2. Prior to making a decision on sentence, Mr Ifina of Counsel on behalf of the prisoner applied for directions to be issued to the Community Based Corrections Officer to prepare a Pre-Sentence Report (PSR) and Means Assessment Report (MAR) on the prisoner to determine whether or not the prisoner is a suitable candidate to be placed on probation supervision or has any means of making compensation payment if this Court was minded to make a ruling in relation to probations supervision or compensation payments.
  3. The Court in this instance, directed that the Probation Officer, prepare such Reports and have it furnished to this Court by the 14th of November 2015 for consideration. These reports have been furnished and I have had the opportunity to peruse.

Pre-Sentence Report


  1. However before I deliberate on sentence, let me discuss briefly the PSR and the MAR provided by the Probation Officer, Mr Bennet Amuino on the prisoner. According to the PSR, the prisoner is a first time offender. He has expressed his remorse by saying sorry to the court for taking the law into his own hands and wants to reconcile and make peace with the victim. The community leaders interviewed all speak of difficulties being faced by the community to bring the members of the families to come together and reconcile but are hopeful that it can occur as the relatives of the prisoner indicated that they are willing to pay compensation to the victim’s relatives and make peace within the community. In his overall assessment of the prisoner; the probation officer recommended that the prisoner is not a suitable candidate for supervisory probationary orders.

Submission on Sentence


  1. Mr Ifina on behalf of the prisoner submitted that this case is not very serious in comparison to other grievous bodily harm cases however the offence is aggravated by the fact that the prisoner used a bush knife to attack the victim and the victim had sustained injuries to his face and eye. Mr Ifina submitted further that this is the first offence committed by the prisoner, and he has expressed his remorse by saying that he is sorry for what he has done to the victim.
  2. In addition, the prisoner in his allocutus also stated that this type of incident would never happen again and that he and his family members want to reconcile and are willing to pay compensation to the victim and his family.
  3. Whilst conceding that this is a case that calls for a sentence that would have a deterrent effect, Mr Ifina submits that an imprisonment term of 3 to 5 years is an appropriate penalty to impose subject to this court exercising its discretion to suspend the whole or part of this sentence with conditions as it deems necessary.
  4. In reply, Counsel for the State, Ms Gore submitted that this type of incident is prevalent. Although Ms Gore agreed that such incidents ought to have been amicably settled between the parties, the prisoner had taken the law into his own hands and caused grievous bodily harm to the victim, Abraham Koiya by cutting him on the left side of his face and eye. Attacking an unarmed person with a lethal weapon, such as a knife in this case, the victim sustained lacerations to the face. Whilst these injuries are not life threatening, causing grievous bodily is still unlawful thus this court exercise discretion to impose an appropriate penalty as a deterrent factor. The medical report confirmed that the injuries have resulted in permanent disfiguration to the face and eye. Further the prisoner by his own plea, admitted to have attacked the victim with a bush knife, a lethal weapon.

Mitigating Factors


  1. The mitigating factors in favour of the prisoner where that he was a first time offender, pleaded guilty early in his plea, co-operated with the police and had expressed his remorse for taking the law into his own hands.

Aggravating Factors


  1. The aggravating factors against the prisoner are that a dangerous weapon was used, a bush knife, the prisoner inflicted injury on a vulnerable part of the body, was part of a group, inflicted multiple injuries on the victim and the victim suffers permanent disability; the victim was unarmed or innocent and that there had been pre-planning; this type of offence that is very prevalent.

Determining sentence


  1. The offence of unlawfully causing grievous bodily harm under Section 319 of the Criminal Code carries a maximum penalty of 7 years imprisonment. It is however, well established law that the maximum penalty for any offence is always reserved for the worst types of that offence. It is also well settled law that each case must be considered on its own merits, set of facts and circumstances as held in Golu –v The State [1979] PNGLR (653); Aihi –v- The State (No.3) [1982] PNGLR 92) and Ure Hane v the State [1984] PNGLR 105. To ascertain an appropriate sentence in this present case, regard to two factors are considered and these are firstly, whether this is a case that would warrant the imposition of a penalty of 7 years imprisonment, which is the maximum penalty for such an offence; and secondly whether the court can exercise its discretion to suspend a head sentence once fixed?
  2. In order to determine an appropriate sentence to be imposed, this Court is guided by the starting point for grievous bodily harm (GBH) established in the case of The State –v- Sheekiot (2011) N4454 and The State –v- Konos (2010) N4157 with adjustments upwards or downwards depending on the circumstances of a particular case and applying the guidelines established relating to the present case, the aggravating factors present in this case are:
  3. The offence you pleaded guilty to is causing grievous bodily harm, a very prevalent offence. However there are situations where some cases will attract sentences that will be set below the starting point of 3½ years (see The State –v- Mais (2014) N5838) where the prisoner pleaded guilty to cutting his brother on the left shoulder with a bush knife. The Court in that case, took into account his guilty plea, his co-operation with the police and no prior convictions. However, the prisoner in that case had used a lethal weapon on his brother who was unarmed. The Court consequently imposed a sentence of 3 years imprisonment. None of this was suspended.
  4. In the State v Epo Matao (CR NO. 168 OF 2015) (21 of September 2015) Unreported, the prisoner pleaded guilty to one count of grievous bodily harm under s 386 of the Criminal Code. The prisoner admitted to cutting one Philip Bao on the head with a bush knife, The Court in determining sentence took into account his guilty plea, cooperation with the police and that he had no prior conviction. In this case, a head sentence of 4 years imprisonment was imposed less the period of 12 months 5 days that the prisoner was held in custody (s 3(2), Criminal Justice (Sentences) Act). In the exercise of discretion under Section 19 of the Criminal Code, the Court suspended 2 years of the head sentence on terms. The prisoner was sentenced to serve the balance of 11 months 11 days imprisonment.
  5. In the State v Vincent Nemao (CR NO. 1106 OF 2014) (30 November 2015, Unreported, the prisoner was involved in a dispute with his fellow villagers and admitted to using a bush knife to cut one, Aisem Maku on the right hand on the morning of Monday 1st of July 2014 at Aibara Village, Obura Wonenara, Eastern Highlands Province. The Court in this case imposed a sentence of 3 years imprisonment less the period of 28 days that the prisoner was held in custody pursuant to s 3 (2) of the Criminal Justice (Sentences) Act. In the exercise of discretion, pursuant to s 19 of the Criminal Code; the balance of 2 years 11 months 2 days imprisonment term was wholly suspended on terms.
  6. The charge against you is aggravated by the fact that you in the company of others used a dangerous lethal weapon, a bush knife to inflict injury on a vulnerable part of the body of the victim (that is, his left side of head (face) and eye) thereby causing him to suffer permanent disfiguration to his face. In addition; the victim was unarmed or innocent and that there had been pre-planning on your part to cause harm. Furthermore, in applying the guidelines outlined in The State –v- Sheekiot (supra) and The State –v- Konos (supra). All the aggravating factors established in the above cases go against you. In addition, this type of offence is very prevalent and thus necessitates deterrent measures to be applied where appropriate.
  7. Although this Court noted that this is your first offence, and that you are sorry for your action; this does not absolve you from the wrong that you have committed. In addition, the community leaders views overall about your rehabilitation back into the community is uncertain as they view that you as a threat to community. Nonetheless this Court is of the view that if reconciliation and compensation were ordered then it should lead to ensuring that peace and harmony is restored in your respective communities.
  8. Payment of traditional compensation is considered a standard norm in a Papua New Guinean society and thus this aspect of maintaining harmony through the payment of compensation should be encouraged where necessary. In the case of the State v Albert Kavena (CR No.1444 of 2014) (21 September 2015) (Unreported). I echoed the sentiments that “the traditional form of compensation payment is important to maintaining peace and harmony within families, communities and the public at large. This is a gesture that should be voluntary and not Court ordered. It indicates a genuine show of remorse for the harm occasioned on a victim”
  9. In applying the principles established in the cases cited above to the facts of this case, there is evidence that the burning of the house was pre-planned and that you did pursue the victim intending to cause harm to his person when all he was trying to do is to prevent more damage to other houses within the area. You and your friends had mobilised and burnt a house belonging to Solomon Wesly and this could have escalated into a worst situation if the victim had not intervened. The victim had sustained injuries as a result. Such behaviour is unlawful and the attack on an unarmed and innocent victim is preventable in the circumstances. The act of attacking the victim on a vulnerable part of his body with a lethal weapon, in this case, a bush knife is an offence under s 319 of the Criminal Code; the penalty of which is imprisonment for a term not exceeding 7 years.
  10. However, given the principles that a case must be considered on its own merits, set of facts and circumstances (see Golu –v The State (supra); Aihi –v- The State (No.3) (supra) and Ure Hane v the State (supra); this case warrants the imposition of a sentence at the starting point of 3 years for GBH established in the case of The State –v- Mais (2014) N5838) (supra). This type of offence is very prevalent and thus imposing an appropriate sentence must be seen as a deterrent so that offenders are discouraged from re-offending and at the same time others are discouraged from committing crimes of this nature and or taking the law into their own hands.
  11. Further in a short space of time that I have been sitting, there is an increase in cases involving grievous bodily harm where victims with or without solicitation have suffered injuries of variable degrees on their persons. This type of offence has to be controlled. It is now up to individuals and communities to try and resolve their differences through peaceful means and not by taking the law into their own hands. The rule of law must prevail wherever possible.
  12. The next issue is to consider whether the balance of your sentence be suspended. Firstly, suspension of a sentence is at the discretion of the Court, to be exercised on proper principles and if it is recommended by a Pre-Sentence Report (Public Prosecutor –v- Done Hale (1998) SC 564). In your case, the Pre-Sentence Report is unfavourable.
  13. Secondly, suspension may also be appropriate if it encourages reconciliation and restoration of damaged relationships (Public Prosecutor –v- Tardrew [1986] PNGLR 91). Whilst this court agrees that some form of punishment be imposed as a deterrent factor, there is also a necessity to encourage reconciliation and peace between the parties. This will be seen as a reinforcement of the prisoner’s genuineness of being remorseful (see State v Albert Kavena (supra)). However this Court is also aware that payment of compensations is dependent on the circumstances of each and every particular case.
  14. In consideration of all the above, a sentence of 3 years imprisonment is imposed. I deduct a period of 5 months 16 days which is the time that you have been in custody pursuant to s 3 (2) of the Criminal Justice (Sentences) Act 1986. The balance of the term of sentence of 2 years 6 months 14 days to be served in custody at CIS, Bihute.
  15. None of the sentence is suspended.

Orders accordingly,

_______________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Prisoner


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