State v Kula [2018] PGNC 190; N7282 (6 June 2018)

N7282

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 620, 621, & 622 OF 2016

THE STATE

V

JOHN KULA

Kimbe: Miviri AJ
2018 : 9 May,
5 & 6 June

CRIMINAL LAW – PRACTICE AND PROCEDURE – GBH S319 CCA – Plea – broke arm of first victim & stabbed second victim – PSR MAR favourable to prisoner – concurrent or cumulative sentence – Totality principle – victims prepared to accept compensation – no residual injuries –suspended sentence with conditions for compensation.

CRIMINAL LAW – PRACTICE AND PROCEDURE – Arson s436 CCA – Plea – semi permanent dwelling house – PSR MAR favourable to prisoner –– concurrent or cumulative sentence –Totality principle – victims prepared to accept compensation – suspended sentence with conditions for rebuilding house.

Facts

Prisoner attacked and broke arm of first victim. And stabbed the second victim. Then he unlawfully and wilfully set fire to the semi-permanent house of third and fourth persons after assaulting them.

Held

Plea of guilty
First offender
Aggravated offence
Lawlessness upon lawlessness
Custodial sentence appropriate.

Cases:

Acting Public Prosecutor v Haha [1981] PNGLR 205
Public Prosecutor v Kerua [1985] PNGLR 85
State v Steven Tumu [2017] N6768
The State v Irowen [2002] PGNC 99; N2239
The State v Mase [1991] PNGLR 88
The State v Kongian [2007] PGSC 45; SC928
The State v Ogi Songe [2017] N6759
The State v Philip Piapia [2017] N6763

Counsel:

L. Jack, for the State
R. Bellie, for the Defendant

SENTENCE
06^th June, 2018

1. MIVIRI AJ: This is the sentence of a man who pleaded guilty that he assaulted a couple injuring them and then assaulted a second couple who ran away from their semi-permanent dwelling house that he set on fire destroying it.
   

Short facts

2. The Prisoner was seriously effected by consumption of home brewed alcohol on the 30^th December 2015 at section 4 and 6 at Buvussi. He attacked a couple William Endiando and Augusta William and chased them out of their house. Then he attacked another Welline Poro and broke his arm. He also attacked one John Poro stabbing him on his right upper arm with a scissors. After which he returned to the house of William Endiando and Augusta William and wilfully and unlawfully set it on fire destroying it. He had intended this to happen.
   

Charge Grievous Bodily Harm

3. The charge was laid pursuant Section to 319 of the Criminal Code that, “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.”

And Section 436 that he wilfully and unlawfully set fire to the dwelling house of William Endiando and Augusta William thereby destroying it. The penalty prescribed was subject to Section 19 of the Code imprisonment for life years.

4. Prisoner entered a guilty plea confirming his admissions to police. The file tendered confirmed. Defence counsel made application for presentence and means assessment reports under the Probation Act to be furnished in particular to confirm if both sets of victims and prisoner had settled the matter amongst themselves.
   
5. Both these reports have been filed now, and I take due consideration of all relevant matters within both for and against in the determination of this sentence upon the prisoner. He is 19 years old from Okamou Ku village in Simbu Province. And a first offender educated to grade 4 at Buvussi Primary School. He is the only male child out of three children. Other two are females who have married and gone on in life. He has no formal employment is a subsistence farmer and derives cash K1200 fortnightly from sale of Oil Palm from the family 11 hectares block. Also K70 to K80 from the sale of cocoa wet beans.
   
6. The victim John Poro resident at section 4 Block 1216 Buvussi stated that his right hand is not functioning well. There is medical report dated the 25^th May 2016 by Doctor Lawrence Warangi stating that, John Poro is a right hander. He has a scar over the right poster lateral aspect of the arm. He has a wrist drop which is permanent and is a result of injury to the right radial nerve. He has 100 per cent loss of function of the right wrist and fifty per cent loss of the right hand.
   
7. The victim Welling Poro has a medical affidavit signed dated the 25^th January 2016 by Health Extension Officer John Sipa stating that he has a fractured mid radius bone and will take six weeks to heal back up.
   
8. The victim Augusta William has a medical affidavit deposed to by Health Extension Officer John Sipa dated the 25^th January 2016 that she has soft tissue injury of the left shoulder. The affidavit also depicts that she has injury to the right eye 2 cm in length and 1 cm deep. Left lower Jaw bone 2 cm in length and half a centimetre in dept. And left collar bone 1 cm cut and half a centimetre deep very painful.
   
9. The victim William Endiaundo has 7 spikes and thorn broken inside his arm with massive swelling and very painful.
   
10. By this it is clear that all four victims have suffered grievously as a result. And all were assaulted on the same day but at different locations by the defendant. In law there are separate and distinct offences of Grievous Bodily Harm and that of arson against the prisoner. Because they are separate and distinct offences by time and location the sentences will be considered individually. The sentences for Grievous bodily harm will be cumulative to that of the arson: Acting Public Prosecutor v Haha [1981] PNGLR 205.
    

Allocutus

11. Prisoner pleaded to be sentenced leniently and to be given a chance to compensate the victims. He expressed remorse for what he did that he was effected by alcohol at that time.
    

Aggravation

12. He acted unlawfully assaulting each of the victims and causing serious grievous injuries set out above by the medical affidavits. He was affected by self-induced intoxication of alcohol which did not excuse his criminal conduct. It was a prevalent offence and the victims had permanent injuries as a result. He acted without any justification in law.
    

Issue

13. Given all what is the appropriate sentence for the prisoner here?
    

Appropriate Sentence

14. I start with the maximum sentence prescribed by that section which is 7 years imprisonment. At the outset this offence poses the element of grievous bodily harm usually associated with murder charge, and in that regard is a very serious offence. The facts set out here do not depict the imposition of the maximum sentence. And relevant in this regard are the fact that he pleaded guilty and has expressed remorse and willingness to compensate the victims for the injury caused to them. They also have expressed positively to accept compensation rather than see him off to jail for the crime. He has demonstrated that he has the means to ensure payment and has indicated positively to that in the presentence and means assessment reports. Though there are serious residual injuries emanating from what he did to them. It was wrong for him to take the law into his own hands as he did against fellow human beings resident at the same area. But an offence denounced because it broke law and order. And it was necessary to ensure there was protection of the law accorded and in so doing deterrence against the prisoner personally and any others with similar inclinations. Reformation of the prisoner and maintenance of the relationship was important and fundamental to stop reoccurrence of similar incidents. Balanced out with the fact that he was a first time offender who was 19 years old and single.
    
15. Also that similar cases that had come before the court of family members or close knit members often drew sentences at mid range of 3 to 4 years suspended with conditions for compensation reformation and rehabilitation of the prisoner. Where there is use of a weapon with serious life threatening injuries as in State v Irowen [2002] PGNC 99; N2239 this court imposed the maximum penalty of 7 years cumulative where both wives were cut with a bush knife almost killing them but they survived because they were taken quickly to the hospital but came out with serious residual injuries. That is the extreme which isn’t the case here. But close knit members must be protected like any other person by the law and this court has imposed similar.
    
16. Where a nephew attacked an uncle with a bush knife cutting him causing a life threatening injury this court imposed 3 years IHL part custodial and part non custodial with conditions for payment of compensation: State v Ogi Songe [2017] N6759 (27^th May 2017). Where there is demonstrated by clear evidence to mend family or relationship and there is means to ensure compliance of compensation orders this court has gone ahead to impose sentence giving effect: State v Philip Piapia [2017] N6763; see also State v Steven Tumu [2017] N6768. The sentence has been in the mid-range of 3 to 4 years part custodial and part suspension in each case.
    
17. In the present case there has been demonstrated by the presentence and means assessment reports and the facts and circumstances of the case which I set out above. And it would be disproportionate to consider otherwise then to follow suit because like cases should be treated alike. Due regard must also be paid to the fact that what is just and proportionate is depended on each case by its facts and circumstances and the sentence is swayed accordingly.
    
18. Here I determine that the just and proportionate sentence given all set out above is 4 years IHL and I so impose that upon the prisoner for the crime of Grievous Bodily Harm committed upon Welline Poro contrary to section 319 of the Code.
    
19. For the crime of grievous bodily harm contrary to section 319 of the victim John Poro committed on the same day at the same place I determine that the proportionate sentence is 4 years IHL concurrently as both are committed at the same time and place. I am fortified in so dealing by Public Prosecutor v Kerua [1985] PNGLR 85 and Mase v The State [1991] PNGLR 88 where the Supreme Court made the following in deciding whether sentences should be cumulative or concurrent the court should be guided by the following principles;
    
    • (i) Where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent;
    • (ii) Where the offences are different in character, or in relation to different victims the sentences should normally be cumulative;
    • (iii) When a court has arrived at an appropriate sentence and decided whether they should be concurrent or cumulative, it must then look at the total sentence to see if it is just and appropriate. If it is not it must vary one or more of the sentences to get a just total.
      
20. He is therefore sentenced to 4 years IHL which is cumulatively to the sentence for arson because both offences are separated by time and place. I determine given all set out above the proportionate sentence for arson is 5 years IHL
    
21. Effectively that would give a head sentence of 9 years IHL applying the totality principle I consider that to be disproportionate. In accordance with the law set out above I vary that so that a fair and proportionate sentence given all above would be 6 years IHL applying the principles of totality.
    
22. The sentence of the court is therefore 6 years IHL for the crime of two counts Grievous Bodily Harm and the Arson. Time in custody will be deducted forthwith.
    
23. Further in the exercise of my discretion in the light of all set out above and taking account of Kongian v The State [2007] PGSC 45; SC928, I consider that a non custodial sentence is not appropriate given the gravity of the offence. He was prepared to cause Grievous Bodily Harm upon the victims and then upon the victims of the arson who were not only beaten up but had their house burnt down with no reason of theirs except that prisoner was drunk and effected by self induced home brewed illicit alcohol abuse of which has seen many serious and prevalent offences before this court. It is time the court inform that it will not tolerate lawlessness upon lawlessness. Strong and punitive sentences will follow suit accordingly, the sentence of the court is 6 years IHL and I so impose that sentence. Time in custody is deducted forthwith. He will spend the remainder in jail.
    

Ordered Accordingly,
__________________________________________________________________Public Prosecutor: Lawyer for the State
Public Solicitor : Lawyer for the Defendant