State v Mai [2018] PGNC 109; N7182 (27 February 2018)

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CRIMINAL LAW – Criminal Code Act 1974, Part V-Offences Against the Person and Relating to Marriage and Parental Rights and Duties, and Against the Reputation of Individuals-Division 4-Offences Endangering Life or Health-Section 319 Grievous Bodily Harm subsection (1)-Plea of Guilt-Youthful Offenders attacked a man-Mitigating and Aggravating Factors – Genuine Expression of Remorse–Prevalent Offence.

CRIMINAL LAW-Sentence-Guilty Plea-De facto provocation considered-Self-induced intoxication not a defence in law-PSR favourable to Youthful offenders for suspended term with strict conditions-Deterrence and Personal Rehabilitation considered-Incarceration for First Time and Youthful Offenders not viable option and disservice to community.

CRIMINAL LAW- Sentence-Sentencing Guidelines discussed-Starting point-Relevant considerations are identified and considered.

CRIMINAL LAW- Usual purposes of criminal sentencing such as Deterrence, Restitution or Rehabilitation are also relevant factors for consideration-Not worst type of offence-Aggravating factors and Mitigating factors balance out-plea, reason for attack, request by victim for compensation and PSR considered-Sentence wholly suspended-Criminal Code Ch.262, section 19 (1) (d) (6)- Criminal Justice (Sentences) Act 1986, Section 3 (2)

CRIMINAL LAW- It is incumbent on criminal sentencing courts to exercise the people's power vested in them by the Constitution to impose sentences that are in touch with the aspirations and attitudes of the people of PNG.

Two youthful male offenders pleaded guilty to one count of grievous bodily harm and the matter was for sentence.

[1] Suspension of sentence whether wholly or partially is warranted if there is recommendation for the same in the Pre-Sentencing Report: Public Prosecutor-v-Don Hale (1998) SC 564.

[2] Incarceration for First Time and Youthful Offenders is not viable option and a disservice to the community.

[3] It is a trite law that the maximum penalty is reserved for the worst type of offence.

Gima v The Independent State of Papua New Guinea [2003] PGSC3, SC730
Public Prosecutor-v-William Bruce Tardrew (1986) PNGLR 91
R v Evi [1975] PNGLR 30
Saperus Yalibakut v The State SCRA No. 52 of 2005, 27/04/200
State v Francis Wangi (2007) N5057
The Acting Public Prosecutor v Don Hale (1998) SC564
The State v Abel City Ka Kund CR No. 1268 of 2009 & The State v Wali Pyakai CR No. 1269 of 2009 Makail. J
The State v Bill Kara [2012] PGNC 19; N4663
The State v Boi [2012] PNGNC 204; N4781
The State v David Carol [2009] PNGNC 143; N3762
The State v Darius Taulo (15/12/00) N2034
The State v Eddie John Naopa (2003) N2411
The State v Heni [2008] PGNC 200; N3541
The State v Irox Winston (N2347) [2003]
The State v Jason Dungoia (2000) N2038
The State v Joachim Otto Bare CR No. 638 of 2015
The State v Michael Kamban Mani (21/05/02) N2246
The State v Nickson Pani (No.2) (10/01/00) N2033,
The State v Rueben Irowen (2002) N2239
The State v Ria Bennard CR 374/2005 (20/05/05)
The State v Ray Sheekiot [2011] PGNC 165; N4454
The State v Vincent Naiwa [2004] PGNC 58; N2710
Tom Longman Yaul v The State (2005) SC 803

Constitution of Papua New Guinea
Criminal Code 1974
Criminal Justice (Sentencing) Act 1986

1. KAUMI AJ: This is a decision on sentence for two male youths who on the 13^th February 2018 were found guilty of one count of Grievous Bodily Harm contrary to Section 319 of the Criminal Code Act Chapter 262.

3. State alleges that on the 09^th of January 2017, between 7:00pm and 7:30pm, the accused persons were at Casuarina Avenue, Lae, Morobe Province. Both men were drunk and standing along the road side when the victim Michael Rex walked past them towards his house. The accused persons stopped him and asked him for a lighter, which the victim gave to them to use.

4. After this the victim continued on his way but both accused called to him and asked where he was from. The victim replied saying he lived along the street, but the accused persons assumed that he was from Boundary Road and suddenly attacked him by punching him. The victim fell face down and was repeatedly kicked and booted on his face. The victim sustained various injuries to his face particularly on his jaw and mouth.

5. The State alleges that the accused persons acted together and unlawfully caused grievous bodily harm to the victim, thereby contravening section 319 of the Criminal Code Act.

6. After having read the committal depositions and being satisfied that the evidence therein supported the elements of the charge and that their respective pleas of guilt was in order I proceeded to confirm their pleas and convicted them as charged.

7. The Antecedent Reports of both offenders provided to the Court by the State show they have no prior convictions recorded against them.

8. When I administered allocatus to the offenders i.e. allowing them the opportunity to say what matters they would like the court to take into account when contemplating what kind of punishment to give them, the following is a paraphrased summary of their response:

“I want to say sorry to God for what I did, my first time and to the victim, and I will not do it again and Michael Rex for punching him. I say sorry to my parents for bringing them to Court. I say sorry to the parents of Michael, if I didn’t drink that time I would have not done that. If Michael didn’t swing knife I wouldn’t do that. I am sorry for that and ask for the mercy of the Court. I ask for a Good Behaviour Bond so I can continue my schooling”.

“I say sorry to Rex for assaulting him. Sorry to my parents for coming to Court. This is my first time in Court House, never before. I am sorry in the eyes of God. Alcohol did it. I am sorry to Rex’s family.

9. The offenders pleaded guilty and so I will give them the benefit of the doubt on mitigating matters raised in the committal depositions, the allocatus in submission that are not contested by the prosecution: Saperus Yalibakut v. The State (2008) SC890). In his allocatus the offender Gaudi Mai stated that he wouldn’t have assaulted the victim if he hadn’t swung a knife at him and I accept this reason.

10. Ms Katurowe highlighted the offenders’ pleas of guilty and that the aggravating factors and mitigating factors of the case to point out that the case did not fall into the worst case category. She submitted as well for a head sentence of 3 years to be wholly suspended with conditions though there was no PSR as the matter involved youthful offenders.

11. Further that the offender Gaudi Mai was 19 years old and from Miaru Village, Malalaua District, Gulf Province. He completed grade 12 at Lae Secondary School in 2016. He was currently upgrading his marks at the Department of Distance Learning (DODL) at Papua New Guinea National Polytechnic Institute (Polytech) Study Centre. He resided at the Lae Secondary School campus where his father is the school bursar. He is a non-denominational Christian.

12. The offender Kaminiel Lau Jnr on the other hand was 18 years old and comes from Bitava Village, Kokopo, East New Britain. He was the last born in a family of three children. He completed grade 10 at Malahang Technical School in 2010 and went on to study at St Francis Vocational School in 2011 where he graduated with a Certificate in Welding in 2012. He is a member of the Catholic Church.

13. That the maximum penalty for Grievous Bodily Harm is 7 years imprisonment by virtue of Section 319 of the Criminal Code. This Court has a wider sentencing discretion under Section 19 of the Criminal Code to impose a lesser sentence than the prescribed penalty. Also, it is a trite law that the maximum penalty is reserved for the worst type of offence.

14. Ms. Tamate stressed the prevalence of the offence amongst youth and the prevalence of alcohol related offences on the streets of Lae and Port Moresby and its effect on neighbours. She further highlighted that victims are being hospitalized with permanent injuries such as in the immediate case. That the medical report confirmed this. That the court should consider the victim’s Victim Impact Statement and his request for compensation for the injuries he suffered. She did not object to a suspension of a term of imprisonment from the starting point of three years but that the court should order compensation and a Good Behaviour Bond also be ordered.

15. Counsel for the offenders referred the court to Public Prosecutor-v-Don Hale (1998) SC 564 which stated that suspension of sentence is warranted if there is recommendation for the same in the Pre-Sentencing Report. However she did not request for an order for a PSR to be furnished and alluded to its absence in this matter yet submitted that there should be a suspension of a term of imprisonment solely on the basis that the offenders were youthful offenders.

16. I note from 15 Supreme and National court cases that suspension of sentences either wholly or partially have only occurred on the basis of a provision of Pre-Sentence Report by Community Based Corrections office. (I will refer to these cases later in my judgment)

17. My understanding of what the Supreme Court said in Public Prosecutor v Don Hale is that there should be no suspension of a sentence without a PSR. Further that sentencing is a community responsibility. Courts in the discharge of this duty are obligated to impose a non-custodial sentence only where there is an input from the community. The PSR is the vehicle through which the community (if the offender is going to be released back into) puts in their input.

18. The court on its own volition ordered the CBC office in Lae to furnish a PSR to court for its consideration as the offenders were youthful and first time offenders.

19. The offenders both pleaded guilty to one count of Grievous Bodily Harm contrary to section 319 of the Criminal Code Act:

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

20. In arriving at a penalty that befits the offence for which the prisoner has pleaded guilty to, I adopt and apply parts of the process His Honour Cannings. J adopted in State v Francis Wangi (2007) N5057 in determining the appropriate penalty at paragraph 8:

“To determine the appropriate penalty I will adopt the following decision making process:

21. Section 319 (grievous bodily harm) of the Criminal Code Act provides a maximum penalty of seven years imprisonment. Section 19 of the Criminal Code Act allows the court considerable discretion in deciding whether to impose the maximum penalty

22. His Honor Kandakasi. J outlined guidelines on sentencing in State v Michael Kamban Mani (2002) N2246 and which I respectfully adopt are as follows:

24. Both the Supreme and National Courts have stated that not only is sentencing a community responsibility but that it is incumbent upon the sentencing Courts in the discharge of this duty when exercising this people’s power to reflect their attitude towards a particular offence and impose a sentence that is correspondent to it. See Acting Public Prosecutor v Don Hale (supra), The State v Irox Winston (2000) N2304, State v Jason Dungoia (2000) N2038, Edmund Gima v The State & Siune Arnold v The State (2003) SC730

25. Kandakasi.J in State v Jason Dungoia (supra) stated that “The usual purpose of criminal sentencing such as deterrence, restitution or rehabilitation are also relevant factors for consideration and so are requirements to carefully consider and take into account the factors for and against a prisoner before sentencing him or her.”

Case	Details	Sentence
The State v Nickson Pani (No.2) (10/01/00) N2033, (Kandakasi. J)	Offender shot and injured victim on his left hand in the course of an armed robbery.	4 years imposed, partly suspended on terms, inclusive of Good Behaviour Bond- First time offender.
The State v Darius Taulo (15/12/00) N2034 (Kandakasi .J)	Offender attacked victim (wife)	3 years imposed-wholly suspended on strict terms-compensation already paid-a preparedness to undergo his wife’s (victim’s) traditional form of compensation-Adult offender-was not a danger to society-Pre-sentence report supported rehabilitation of offender.
The State v Henry Idab (2001) N2172 Kandakasi. J	Guilty plea-Group of men attacked another group mistakenly and a village Court Magistrate sustained serious bush knife injuries to both hands, 85% loss of efficient use of hands.	5 years imposed- partly suspended on strict terms.
The State v Rueben Irowen (2002) N2239 (Kandakasi .J)	Offender forced his two wives (victims) to strip naked and effected serious bodily harm to them.	Maximum 2x sentence of 7 years imposed cumulatively.
The State v Eddie John Naopa (2003) N2411 (Kandakasi J)	Guilty plea-Victim lost one of her eyes completely from a slingshot.	5 years imposed-partly suspended because of guilty plea and order for compensation.
The State v Vincent Naiwa [2004] PGNC 58; N2710 (22 June 2004) Kandakasi. J	Guilty plea- Offender attacked sister-in-law with bush knife for no good reason-Left hand rendered useless.	Prevalent Offence –No compensation paid and having no means to pay-Pre-sentence report not balanced-custodial sentence appropriate-5 years imposed
The State v Ria Bennard CR 374/2005 (20/05/05)	Guilty plea-29 years old-Offender was under the influence of alcohol-Cut his brother with a bush knife-then cut his father when he came to his brother’s aid-Life threatening injuries.	4 years each count total 8 years cumulative sentence.
The State v Heni [2008] PGNC 200; N3541 (11 December 2008) Cannings. J	Guilty plea-Offender attacked man with a bush knife.	4 years imposed- None of which suspended.
The State v Abel City Ka Kund CR No. 1268 of 2009 + The State v Wali Pyakai CR No. 1269 of 2009 Makail. J	Guilty plea-multiple offenders-Attack on unsuspecting victim-Serious injury-Permanent loss of teeth-No use of offensive weapons.	Non-custodial sentence imposed-2 years imposed-4 month deducted for pre-trail custody- Balance wholly suspended.
The State v David Carol [2009] PNGNC 143; N3762 (23 September 2009)	Guilty plea-Offender punched victim (wife) hard on the mouth causing injuries to her mouth.	12 months imposed-fully suspended as appropriate sentence with 2 years good behaviour bond.
The State v Ray Sheekiot [2011] PGNC 165; N4454 (22 November 2011)	Guilty plea-Offender cut his cousin-sister on the neck and cheek with a knife.	4 years imposed, fully suspended in view of a favourable pre-sentence report and payment of compensation and reconciliation.
The State v Bill Kara [2012] PGNC 19; N4663 (10 May 2012) (Cannings .J)	Guilty plea-Offender cut his female neighbour in an urban setting, cutting her on the face with a bush knife, inflicting an eye injury and superficial facial injuries requiring seven stitches.	Starting Point- 3 ½ years- 4 years imposed- fully suspended in view of a favourable pre-sentence report and preparedness to pay further compensation.
The State v Boi [2012] PNGNC 204; N4781 (31 August 2012)	Offenders repeatedly assaulted victim with the use of fists causing injuries to facial area, teeth, head and back.	3 years imposed-wholly suspended with conditions-2 years good behaviour bond and case surety paid to Registrar.
The State v Joachim Otto Bare CR No. 638 of 2015 (Murray .J)	Guilty plea- Offender was intoxicated and punched the victim on his jaw resulting in lacerations and a broken tooth in the lower right jaw.	3 years imposed-Less pre-trial custody of 2 years, 8 months and 4 days-Balance wholly suspended with conditions.

27. It is apparent from the above 15 cases that in 11 of them where weapons were used to inflict injuries on the victim the head sentence was four to five years and suspension of these periods ranged on average from wholly to 2 to 4 years depending on the peculiar circumstances of the matter. In the 4 cases where the fists were used to inflict injuries to the victim head sentences up to three years were imposed and wholly suspended on terms. I note that suspension of sentences either wholly or partially have only occurred on the basis of a provision of Pre-Sentence Report provided by Community Based Corrections office. I note also where the circumstances dictate the head sentence or maximum was not suspended. And where there were multiple victims cumulative sentences imposed accordingly.

28. In order to arrive at an appropriate sentence for the offenders the sentence can be decided by having regard to the sentence prescribed by Parliament, the sentencing guidelines and trends per the judgments and the particular circumstances in which they committed the offence from which come the factors in their aggravation as well as those in their mitigation.

29. In order to arrive at a head sentence I have to consider the particular circumstances in which the offenders committed the offence and the result of which will come the factors in their aggravation as well as those in their mitigation.

[ii] both cooperated with police from initial stages of investigation and made admissions;

[vi] genuine expressions of remorse.

31. I take into account your respective family backgrounds, matters raised in your respective allocatus and antecedent reports in your favour.

[v] Permanent damage done to victim will account for 95% loss of functions. Victim’s mastication, speech and aesthetics have been affected.

33. I note that the offenders’ respective pleas of guilty saved the State the time and money it could have spent to successfully have the prisoners tried and convicted. It also saved the Court the time it could have spent in conducting a trial on the issue of their innocence or otherwise. Further, it avoided the need for the relevant witnesses to bear the inconveniences of going to Court to testify against them. It is for these reasons that I find their pleas a substantial mitigating factor. On the same token I find the aggravating factors substantially strong as well. Whilst I accept that the attack on the victim did not involve the use of a weapon I note that such was the extent and viciousness of the attack to the victim’s face that he suffers today of as per the medical report a 95% loss of functions including his mastication, speech and aesthetics. I find the aggravating factors and mitigating factors balance out.

34. For the aforementioned reasons I give this case on scale of one to ten a rating of five out of ten on a scale of criminality or seriousness and this categorization places it in the middle of the range category of cases. A head sentence of 3 years is appropriate.

There may be deducted from the length or any term of imprisonment imposed of any court any period before the sentence was imposed during which the offender was in custody in connection with the offence for which the sentence was imposed.

36. This provision allows the court discretion to decide whether or not to deduct the period an offender has spent in custody in remand awaiting trial. It is not an automatic right of the offender to have this period deducted.

37. The offender, Gaudi Mai spent 2 days in pre-trial custody whilst Kaminiel Lau Junior spent 2 weeks in pre-trial custody.

38. So it is proper to deduct these respective periods spent in pre-trial custody.

39. In Acting Public Prosecutor v. Don Hale (supra) the Supreme Court said sentencing is a community responsibility. For the courts exercise a power that belongs to the people by virtue of s. 158 (1) of the Constitution. The Supreme Court in that case said:

"If a judge is to consider some leniency on sentence ... it is incumbent on him to obtain the relevant report such as a pre-sentence report, especially around the age of 17 to 19. ... Then for such a drastic suspension of sentence a further help to the court would be a community report from the community to which the offender belongs and whether the community, seeing that the incident happened within that community, has any views on an appropriate punishment or whether the community is prepared to assist with any community management of any bond period. The Courts are bound under the philosophy of the Constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment of criminals definitely has an effect on the ordinary people. So, community involvement with the punishment of offenders should be considered especially if the court wishes to return an offender to the community instead of imposing imprisonment."

40. In The State v. Irox Winston (supra) Kandakasi.J going by the authority of the Don Hale case held that:

“...If the Court is minded to give a lenient sentence because of tender age or other good mitigating factors, it must first have before it a pre-sentence report supporting such a sentence. This is because criminal sentencing is a community response to an offence and has to reflect the community’s view of the kind of sentence an offender should receive. Without such a report supporting either the suspension of a sentence or the imposition of a lenient sentence, a Court cannot arrive at such a sentence."

41. The above views were endorsed by the Supreme Court in two subsequent judgments in Edmund Gima v The State & Siune Arnold v The State (03/10/03) SC 730.

42. Cannings. J held in the case of The St v Raka Benson (2006) CR 447 & 450 that:

“...where there is no pre-sentence report supporting a suspension of sentence, no Court can suspend either the whole or a part of any sentence. The question then is, should the Court proceed to suspend any sentence merely because a PSR speaks in favor of it. In my view, that would not be in line with the intent and purpose of requesting and considering a PSR, which is to ensure that there is basis in the report for a suspension of any sentence. It follows therefore that, where there is no proper foundation for a recommendation for suspension of sentence, the Court cannot proceed to suspend because there is no basis for any suspension of sentence”.

43. The Supreme Court in the case of Public Prosecutor-v-William Bruce Tardrew (1986) PNGLR 91 when considering suspension of sentencing held that suspension of sentence was appropriate in three categories:

44. I note in this matter that alcohol was involved and both offenders were in a state of inebriation when they occasioned grievous bodily harm on the victim. In fact both offenders in their respective allocatus blamed alcohol for their actions at the material time. The National Court has spoken on the matter that self-induced intoxication is no defence in law: R v Evi [1975] PNGLR 30.

45. I note that the two parts of the medical report of the victim cover the Extra-Oral Examination and the Intra-Oral Examination and are as outlined:

48. As a result of the injuries sustained the victim suffered permanent damage caused to his mastication, speech and aesthetics and it would take an open reduction procedure to assist with loss of function back to normalcy. The permanent damage done to him accounted for 95% of loss of functions.

47. I note with particular concern that the injuries suffered by the victim centered on his facial region and no other part of his bodily. The victim was repeatedly attacked by the use of the offenders’ feet even while he was on the ground and the nature of the attack was callous and vicious to say the least. There were others (not charged) as well involved in this attack on the victim and in what I can only describe as a cowardly mob attack, a preferred method of attack so prevalent in our communities today. The days of a “one on one” fair fight are history.

49. I agree with the State Prosecutor that offences of this nature are prevalent in the suburbia of cities and towns of our country, not a single weekend goes without law abiding citizens and non-citizens alike being subject to loud noise, use of profanities, aggressive drunken youths and mob fights and this aggravates their case.

50. All too often these fights end with persons being hospitalized and death, and in the immediate case the end result of that fight was the victim sustained serious and permanent injuries and had to be hospitalized, a further factor of aggravation.

51. I have found that the aggravating factors and mitigating balance out as I have found the offenders’ offence not to be in the worst category of cases.

52. Both offenders are 18 and 19 years of age and are considered youths by the law and imprisonment would not be a viable option for their personal and general deterrence. If I was to sentence these youthful offenders to imprisonment without considering the option available to me by section 19 (1) of the Criminal Code I could very well be condemning these youths to a life of crime as our prisons are full of hardened criminals who could wrongly influence them resulting in them coming out hardened criminals after their stint in prison and worse for the community. I am not willing to take that risk.

53. I have considered the aforementioned factors and decided in the present case to suspend the sentence wholly as that would in my view serve the purposes of personal and general deterrence and would be a service to society.

54. I suspend the three years head sentence subject to the following conditions:

[i] Upon release the offenders will keep the peace and be of good behaviour for the period of their suspended sentence (3 years);

[ii] The offenders shall reside at their respective residences in Lae, Morobe Province;

[iii] The offenders shall not leave Morobe Province without the written approval of the National Court;

[v] Within a period of three months both offenders on 08/06/18 at the CBC office in Lae pay compensation to the victim of K1000.00 each in the presence of Mrs Kwam the CBC officer in Lae.

[vi] If the offenders breach any one or more of the above conditions, they shall be brought before the National Court to show cause why they should not be detained in custody to serve the rest of the sentence: see Tom Longman Yaul v The State (2005) SC 803.

Sentence accordingly,
___________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender

Length of Sentence imposed	3 years
Pre-sentence period to be deducted	2 days are deducted from Gaudi Mai’s sentence. 2 weeks are deducted from Kaminiel Lau Junior’s sentence.
Resultant length of sentence to be served	Gaudi Mai-2 years 11 months 3 weeks and 5 days. Kaminiel Lau Junior-2 years 11 months 2 weeks
Amount of sentence to be suspended	Resultant Sentences for both offenders wholly suspended
Time to be served in custody	Nil
Bail	Refunded forthwith

National Court of Papua New Guinea

State v Mai [2018] PGNC 109; N7182 (27 February 2018)