State v Kennedy [2017] PGNC 91; N6661 (13 April 2017)

N6661

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1402 OF 2016

THE STATE

V

ROBERT KENNEDY

Porgera: Auka AJ
2017: 12^th & 13^th April

CRIMINAL LAW – Sentence – Particular Offence – Plea guilty – Unlawfully causing grievous bodily harm – Mitigating and Aggravating factors considered – Two (2) years imprisonment – Reduced by 10 months for pre-trial custodial term – Remaining term fully suspended on condition. Criminal Code S.319 and S.19.

Case Cited:
The State v.Martin Konos (2010) N4663
The State v. Veronica Kulina (2010) N5403
The State v. Francis Kurufher (2008) N3364
The State v. Peter Olombol (2014) N5748

Counsel:

Mr. Philip Tengdui, for the State
Mr. Jeffrey Kolowe, for the Accused

DECISION ON SENTENCE

13^th April, 2017

1. AUKA AJ: The accused pleaded guilty to one count of unlawfully causing grievous bodily harm to Ezekiel Yockopua pursuant to Section 319 of the Criminal Code Act.
   
2. The brief facts of the case were that on 25^th May, 2016 at about 7:00 am at Lukulama in Porgera Enga Province, the complainant Ezekiel Yockopua was waiting for a bus to go to the mine site. The accused, Robert Kennedy was standing behind the complainant and suddenly punched the complainant on his head which came as a surprise to the complainant. The accused then continued punching the complainant until the complainant fell to the ground when the accused got a stick and tried to hit him on his hear. The complaint raised his right hand to defend himself when the stick hit his arm and fractured his arm. The accused was stopped by other bystanders from further attacking the victim. The state says that when the accused punched the victim and hit his arm with a stick and broke his arm, he was not authorised by law to do what he did.
   
3. A Medical Report by Jerry Meku, OIC District Health Officer Porgera dated 25^th May, 2016 shows that the victim’s right hand was swollen and the right hand bone was fractured.
   
4. In this statement on Allocatus, the accused said sorry to the court and to the victim. He said he attacked the victim because the victim had earlier on insulted his mother at the market. He said sorry to the family for what he did. That he had spent 10 months in custody awaiting his trial. He asked the court to have mercy on him and send him back to the community where he can serve his punishment.
   
5. In relation to accused’s personal particulars, Mr Kolowe submitted that accused is 30 years old and he is single. He is 1^st born in the family of 5 children. Prior to the trouble he was working as plant operator for 5 years. His father is deceased and mother remarried to another man. He completed Grade 12 at Sir Tei Abel Secondary School in 2008. He is a member of SDA church.
   
6. On address on sentence, Mr Kolowe submitted and urged the court to consider in accused favour the following mitigating factors;
   
   1. He pleaded guilty and saved courts time and resources;
   2. He has expressed remorse to the court and to the victim;
   3. That victim is his own uncle;
   4. He has no prior conviction;
   5. He surrendered to police straight after committing the offence;
6. That the circumstance giving rise to the offence was that his mother was at Porgera market on the previous day and the victim went and assaulted her. That is why he did what he did.
   

Mr Kolowe asked the court to consider a term of sentence between 1 and 3 years and reduce the term by 10 months for pre-custodial term and the remaining term be suspended with condition under S.19 of the Code.

7. Mr Tengdui of counsel for the state submitted that the following factors should be considered against the accused on sentence;
   
   1. The accused used a weapon in the form of a stick;
   2. The injury is to some extent serious in that it caused the victim to stay away from work for 6 months;
   3. The offence is a prevalent offence and;
   4. The accused took the law into his own hands. He should have reported the matter to the village court and be amicably solved.
      

He submitted that it is not a serious case and submitted that a term between 1 to 3 years is appropriate.

8. The trend of Sentencing on unlawfully causing grievous bodily harm and similar offence depends entirely on the facts of each case. I refer to the following cases for purposes of comparing the type of sentences imposed on similar offences;
   
   1. In The State v. Martin Konos (2010) N4157, the accused pleaded guilty to 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. His Honour Cannings J sentenced the prisoner to 3 years. The sentence was fully suspended with stringent conditions.
      
   2. In The State v. Veronica Kulina (2010) N5403, the accused during an domestic agreement used a knife and inflicted injuries on victims fingers and caused fractures to his fingers. A sentence of one (1) year imprisonment was imposed with time spent in custody deducted and the balance wholly suspended on conditions.
      
   3. In The State v. Francis Kurufher (2008) N3364, the accused strucked a young man in the back with a coconut palm frond. The victim sustained a broken rib. The accused was sentenced to 3 years imprisonment. The sentence was wholly suspended with conditions.
      
9. In considering the appropriate sentence, I considered the following mitigating factors in favour of the accused;
   
   1. He pleaded guilty and served courts time and resources;
   2. He is a first time offender;
   3. That he expressed remorse to the family members;
   4. He surrendered to police and readily admitted the offence;
      
10. Against the factors in favour of the accused, the court considered the following aggravating factors;
    
    1. The victim sustained a fractured bone on his right hand;
    2. That a weapon in the form of stick was used to cause injury to the victim;
    3. That the victim did not expect the attack;
    4. That the offence is a prevalent offence and
    5. That accused showed some intention to do harm
       

11. Going by the trend of sentences imposed in some of the cases I referred to and the particular factors and circumstances of this case, I consider that a sentence of 2 years is appropriate. Accordingly, I impose a sentence of 2 years imprisonment. I order a deduction of 10 months already spent in custody whilst awaiting trial. The remaining term is fully suspended on condition that the accused shall keep the peace and be of good behaviour for 2 years.

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