State v Shi [2017] PGNC 308; N6983 (19 June 2017)

N6983

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 441 OF 2017

THE STATE

V

YUTING SHI
Porgera: Auka AJ
2017: 15^th & 19^th June

CRIMINAL LAW – Sentence – Particular Offence – Plea Guilty – Unlawfully causing grievous bodily harm – Mitigating and Aggravating factor considered – Three years imprisonment – Sentence fully suspended with conditions – Criminal Code S.319 and S.19

Case Cited:
Goli Golu v The State [1979] PNGLR 633
Lawrence Simbe v The State [1994] PNGLR 38
The State v Bill Kara (2012) N4663
The State v Jet Kundapen, CR No. 611 of 2017 Unreported Judgement of 22 & 24^th May, 2017
The State v John Bola (2008) N3297
The State v Martin Konos (2010) N4157
The State v Rex Kimai (2017) N6689

Counsel:
Ms. Rebecca Korelyo, for the State
Mr Jeffrey Kolowe, for the Accused

DECISION ON SENTENCE

19^th June, 2017
1. AUKA AJ: The Accused pleaded guilty to an Indictment containing one count of unlawfully causing grievous bodily harm to one, Clifford Kulina pursuant to S. 319 of the Criminal Code Act.

2. The brief facts of the case were that on the afternoon of 16^th September, 2016 between 4:00 pm and 5:00 pm at Paiam Township Porgera, the accused Yuting Shi of a Chinese Nationality was at work at San Feng Trading Store, when the victim Clifford Kulina and three (3) others went into the store to seek shelter from the rain which was falling at that time. While inside the store, the victim appeared drunk and went and sat ontop of a rice bag. When accused saw that, he approached the victim and told him to get up as it was a food stuff he was sitting on. The victim argued with the accused and both became very angry. The victim then picked up a Tinned Fish from the shelf and aimed to throw it at the accused. The victim’s friends urged the victim to stop and leave the store. State alleged that the accused followed behind as the victim and his friends were leaving. Upon leaving the store, the victim kicked the door of the store which prompted the accused to attack the victim. State alleged that the accused used his clenched right hand first and punched the victim in the face in the nose area which caused injury to the left eye of the victim which started bleeding as a result of the punch.

The victim was rushed to the Paiam Hospital by his three (3) friends. State alleges that the victim lost 100% vision to his left eye as a result of the punch by the accused which was unlawful.

3. A Medical Report by Dr. Alexander Mel dated 13^th November, 2016 confirms that the victim received a server penetrating injury of the left eye. Vision in the left eye was perception of light and in the right eye was 6/6 (normal).

The prognosis for vision in the left eye was very poor. He was taken to theatre on the 5^th October, 2016 and the wound to the left eye was sutured.
The doctor reported that vision in the left eye has not improved. When last seen on the 11^th November, 2016 vision in the left eye was no perception of light and in the right eye was 6/6. The Doctor’s Report shows that the victim will not be able to see with the left eye again. As such awarded him 100% loss of vision in the left eye and 30% loss to binocular vision.

4. In his statement on Allocatus the accused said:

“I am sorry to the court for coming to hear my case. I say sorry to that victim and his family. I say sorry to my Boss who brought me into the country to work for him and may have spoilt his name. The reason why I assaulted the victim is because he was under the influence of home brew. He came into the store and sat on top of the rice bag and I went to him and told him that it is not for sitting, it is food stuff. At that time he picked up a tinned fish from the shelf and he aimed to throw at me and he said you come here and make a lot of money and in Pidgin he said “KAN FACE”, I will kill you. At that time his friends stopped him and took him out. When he went outside, he kicked the door and hit my face. Then I told him why you kicked the door and came to punch me. That’s the time we fought. And I punched him around his nose and eyes area and did not punch him on his eyes. He did not inform me about where he went and got the Medical Report. He brought the Medical Report and demanded me to compensate him with K300, 000. 00. I told him I don’t have much money and I can only give him K10, 000. 00 but he insisted me to pay him K300, 000. 00. When we fought I did not hold any object. I say sorry for the trouble I caused on his body. He was the one who instigated the fight. I ask the court to have mercy on me. I am from a different country and I came to work and ask the court to let me stay and work. I ask the court to impose a non-custodial penalty on me. That’s all”.

5. In relation to Accused’s personal particulars, Mr Kolowe submitted that the accused is 30 years old and is single. He is second born in the family of three (3) children. His parents are still alive and he supports them. He is from China and has been in Porgera for the last three (3) years.

6. On his address on Sentence, Mr Kolowe submitted and urged the Court to consider in Accused’s favour the following mitigating factors;

1. He pleaded guilty at the earliest opportunity and saved court’s time and resources;
2. He co-operated with Police and readily admitted the offence in the Record of Interview;
3. He has expressed remorse;
4. He has apologised to the victim and his family;
5. He did not use any weapon;
6. He is a first time offender;
7. That there was provocation in a non-legal sense; and
8. He is prepared to pay some compensation in form of cash.
   

7. Mr Kolowe submitted and urged the court to consider that this is not a worst type of case and as such submitted that the court imposes a term between 1 to 3 years and the sentence be wholly suspended. He brought to the court’s attention the National Court case of State v Rex Kimai (2017) N6689, where this court sentenced the accused to 3 years and the sentence was wholly suspended with conditions.

8. Ms Koralyo of counsel for the State submitted and urged the court to consider against the accused the following aggravating factors;

1. The victim sustained a very serious injury;
2. The victim lost 100% vision to his left eye;
3. The Injury has affected his schooling and future career opportunities;
4. There was no real provocation I reject that submission because I find that there is some evidence showing that the accused provoked to act the way he acted
   

9. Ms Koralyo submitted that a term of 4 to 6 years custodial sentence is appropriate. She referred the court to the case of The State v Jet Kundapen, CR No. 611 of 2014 unreportable judgement of 22^nd & 24^th May, 2017 where the accused used bush knife to cause injury to the left eye and this court imposed 4 years imprisonment which was partly suspended on conditions.

10. The maximum penalty for this offence under S.319 of the Code is 7 years. The court has considerable discretion to impose a lesser penalty by virtue of S.19 of the Criminal Code.

11. It is established principle that each case should be considered on its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.

12. Also on authority of cases like Goli Golu v The State [1979] PNGLR 633 the maximum penalty should be reserved for the worst type of cases.

13. In my view this is not a serious case of Unlawfully causing grievous bodily harm where the injury was caused by a punch and where the argument and the fight was instigated by the victim who at that time was under influence of drug or home brew.

14. The trend of Sentencing in unlawfully causing grievous bodily harm cases and similar offences depend on the facts of each case. I refer to the following cases to assist in considering the appropriate penalty.

1. In the case of 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 other injuries by multiple blows. Cannings J sentenced the accused to 3 years. The sentence was fully suspended with conditions;
   
2. In the case of The State v Bill Kara (2012) N4663, the accused pleaded guilty to unlawfully causing 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 7 stitches. Cannings J imposed a term of 4 years, fully suspending the term in view of a favourable pre-sentence report and his preparedness to pay further compensations.
   
3. In the case of State v John Bola (2008) N3297, the accused pleaded guilty to unlawfully causing grievous bodily harm. Accused used bow and arrow and shot the victim on his right thigh and the bow broke inside his body. His Honour Kandakasi J imposed 3 years and the sentence was wholly suspended with conditions.
   

15. It is clear from the above cases that respective Judges have imposed varying sentences depending on the different facts and circumstances of a particular case with respect to the factors of Mitigation and Aggravation as they maybe.

16. I have considered the accused’s expression of remorse on Allocatus. I also consider the following mitigating factors in favour of the accused namely that;

1. He made a early plea of guilty and saved court’s time and resources;
2. He readily admitted the offence to the police during investigation;
3. He apologised to the victim and his family;
4. He did not use any weapon;
5. He is a first time offender;
6. That there was a high degree of provocation in a non-legal sense in that the victim picked up a tin fish and aimed at throwing it at the accused and saying that he will kill the accused. And accused also kicked the door of the store which strucked accused’s body.
7. That he is prepared to pay compensation in form of cash to the victim;
8. That the victim instigated the situation.
   

17. Against the factors in favour of the accused, the court considered the following aggravating factors;

1. The victim sustained a very serious injury;
2. The victim has lost the effective use of the left eye in that 100% vision loss of his left eye;
3. The offence is a prevalent offence.
   

18. Going by the trend of sentences in some of the cases referred to and the particular circumstances of the present case and the maximum penalty for this offence, I consider that a sentence of 3 years is appropriate. I order a deduction of any period of time spent in custody awaiting trial. By virtue of S.19 (a) (1) of the Criminal Code, the term of 3 years is wholly suspended on the conditions that;

1. The Accused enter into his own recognizance to keep the peace and be of good behaviour for 2 years and further subject to the following condition;
   1. That he pay compensation to the victim in the sum of K5,000. 00 in cash payable within one (1) week.
      

I order that the Accused’s bail money of K1, 000. 00 be refunded forthwith.

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