State v Sinkil [2018] PGNC 386; N7509 (18 September 2018)

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CRIMINAL LAW – Sentence - Causing grievous bodily harm, Section 319 Criminal Code – Guilty – Power of court to order that the offenders be placed on probation with conditions, Section 16 & 17 Probation Act Ch. 381

Gimble v The State [1988 – 89] PNGLR 271
Goli Golu v The State [1979] PNGLR 653
Saperus Yalikabut v The State (2006) SC 890
State v Dua [2013] PGNC 8; N4957
State v Kurufher [2008] PGNC 60; N3364
State v Maru [2007] PNGC 117; CR 1632
The State v Fhryle: CR No.233 of 2014.
The State v Kanapio, Kining, Pasokio, Lipilaas and Nowar [2005] N2800
The State v Tom Keroi Gurua & 3 other [2002] N2312
Tom Longman Yaul v The State (2005) SC 803
Ure Hane v The State [1984] PNGLR 105

Counsel:

Mr. Raphael Lumen, for the State
Mr. Kennedy Masket, for the Accused

2. The facts as agreed to by the Prosecution and Defence on the depositions for the plea of guilty are these: On 29 March 2017 between 6.00pm and 6.30 pm whilst offender Josephine Sinkil was gambling at Warastone Settlement Vanimo, the victim Joycelyn Amilawan arrived and questioned Josephine over the hitting of her grandson with a stick by Josephine’s daughter. Josephine stood up and punched the victim. She wrestled with the victim and locked both her hands from the waist down. It was then that accused Marie-Jean Sinkil assisted her sister and punched the victim on her mouth and also bit her left fingers. As a result the victim suffered three broken lower front teeth and swollen fingers.

Antecedents
3. No prior convictions were recorded against both offenders
Allocutus
4. Both offenders were given an opportunity to say what matters the Court should take into account when deciding on punishment:

Marie Jean Sinkil 32 years	I am sorry for what happened between me and the victim. The problem was caused by the children and we parents got involved. This is my first time in Court and I ask for leniency.
Josephine Sinkil 29	I am sorry for what had happened all because of our children. I ask for leniency and to be put on probation.

5. The offender Marie Jean Sinkil is about 33 years old and is married to John Ume and have two male children. She completed her grade 10 education at St. Ignatius Secondary School. She has a certificate in Wood Machine Operator but remains unemployed and depends on her husband’s earnings. Her husband is self-employed. She regrets going out to stop the fight and blames her younger sister Josephine for getting physical to resolve their problem. The offender Josephine Sinkil is about 31 years old and is married to Fredrick Tira and have two children, a boy aged 7 years and a girl aged 2 years. She completed her grade 10 education at Vanimo Secondary High School. She does not have any formal work experience but survives on small marketing to support her family. Her husband is unemployed.
As I understood from their report both offenders have since reconciled with the complainant however remain distanced because of the complainant’s demand for K2000 as compensation for the injuries suffered. The community views have been sought and they remain very favourable to the offenders. The report recommends her suitability for probation with conditions. On this note I must thank the Probation Officer Ms Marilyn Binjari for a job well done in preparing this report.

Aggravating Factors
6. Permanent injury caused; loss of front teeth, assault unprovoked; group attack; no serious remorse shown.

Mitigating Factors
7. Guilty plea; First time offenders, co-operated with police.
Defence Submissions

8. He further submitted that the Court should also take into account several mitigating factors in favour of the accused in determining the appropriate sentence. They include the guilty, remorse shown, and no prior convictions. In the final analysis, Mr Masket submitted that a head sentence of three years (3) be considered with suspended sentence as appropriate in the circumstances of this case. In support of his submissions he referred me to three previous cases which dealt with grievous bodily harm under section 219 of the Criminal Code. They are summarised hereunder:

State v Maru [2007] PNGC 117; CR 1632 (19 April 2007)	Unlawful grievous bodily harm. S.315 Code.	3 years, wholly suspended with conditions.
State v Kurufher [2008] PGNC 60; N3364 (25 April 2008)	GBH- victim sustained broken ribs	3 years, wholly suspended with conditions
State v Dua [2013] PGNC 8; N4957 (31 January 2013)	GBH – Guilty plea- bush knife injuries due to extra marital affair.	5 years- Sentence suspended with conditions.

9. Comparing the three cases referred to the Court today Mr Masket argued that those cases were very serious in nature but were given wholly suspended sentences. He submitted that the offenders’ case was not that serious and asked for suspended sentences for each offender.

10. Mr Lumen for the State submitted that the crime committed was not very serious and that the mitigating and aggravating factors equally weigh out under the circumstances. He correctly pointed out that the maximum sentence for any particular offence must be reserved for cases that fall under the worst type category; Goli Golu v The State [1979]PNGLR 653;Ure Hane v The State [1984] PNGLR 105. Mr Lumen referred this court to the case of the State v Fhryle: CR No.233 of 2014. The prisoner was sentenced to 5 years. The prisoner punched the victim, an elderly man which resulted in 3 lower front teeth broken and also permanent injury to the left eye. The victim did not want the prisoner to be sent to goal but only asked for compensation. In the final analysis Mr Lumen submitted that a head sentence of 3 years be considered with conditions.

Court

11. I have said it on many cases that I have decided that offender(s) who plead guilty ought to be given the benefit of reasonable doubt on mitigating matters raised in depositions, the allocutus or in submissions that are not contested by the prosecution. Saperus Yalikabut v The State (2006) SC 890. I do not consider this crime to be of the worst category although the victim will now remain with a permanent loss of 3 front lower teeth. Under the circumstances I will not impose the maximum sentence but will suspend the sentence with stringent conditions as part of their probation.

12. It is often said in these types of cases where two or more offenders are involved that they all should receive the same type of penalty. Another school of thought is that offender(s) who played a major part in the same crime committed by a group should receive the most serious penalty. . The Supreme Court case of Gimble v The State [1988-89] PNGLA 271 held that the general rule when sentencing all active participants in the crime is that they be sentenced on the same basis. All are equally guilty because without each playing his full part the crime could not be perpetrated. However in the case of The State v Tom Keroi Gurua & 3 others, [2002] N2312 the Court departed from what now appears to be the general rule in sentencing co offenders stated in Gimble v The State. The Tom Keroi Gurua (supra) case talks about each prisoner to be punished according to the degree of his criminality in the overall circumstances of the offence committed including his personal background and circumstances. (Per Kirriwom J). In view of the offenders varying degrees of involvement in this crime, I have opted to follow and apply the Tom Keroi Gurua approach ahead of the Gimble approach, that is the offenders must each be punished according to the degree of their criminal behaviour, culpability and personal circumstances.( The State v Kanapio, Kining, Pasokio,Lipilaas and Nowar [2005] N2800).

13. In the exercise of my discretion under section 19 of the Criminal Code, I sentence the both of you as follows:

Josephine Sinkil

Convicted and sentenced to 3 years, to be wholly suspend on the following conditions.

1. Ordered to pay a Court fine of K200;

You are ordered to pay a fine of K200 each and severally forthwith and placed on Probation and to be of good behaviour for 3 years with the following conditions:

Marie Jean Sinkil

Convicted and sentenced to 3 years, to be wholly suspend on the following conditions.

Ordered to pay a Court fine of K200; Balance to be refunded to you.

NB: You both must remember that if any of these conditions is breached, any person may report the matter to the Police or to the Probation Officer or the Office of The Public Prosecutor who may bring the matter to the attention of National Court. A warrant for your arrest can be issued for arrest and you will be made to serve the rest of your sentence. (Tom Longman Yaul v The State (2005) SC 803).

_______________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused

National Court of Papua New Guinea

State v Sinkil [2018] PGNC 386; N7509 (18 September 2018)