State v Ambai [2018] PGNC 74; N7154 (16 March 2018)

N7154

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR N0. 597 OF 2017

THE STATE

V

KEVIN AMBAI

Kokopo: Susame AJ
2018: 23 February, 16 March

CRIMINAL LAW – Sentence - Offence of grievous bodily harm –s 319 Criminal Code -Early plea – Sentencing range -Use of bush knife life threatening- Injuries sustained- Left wrist slashed and tendons severed - Prisoner not acting in self defence or on provocation- Offence prevalent - Current Penalty regime inadequate – Need for change for effective deterrence – S 2 Criminal (Compensation) Act 1991 – Court’s discretion to award compensation – Maximum allowable under the Act. – Destruction of house and property in act of retaliation is no reason for Compensation to be disregarded – 5 years sentence wholly suspended upon probation with conditions.

Cases cited:

Anna Max Marangi v The State (2002) SC702
R v Meauri [1969-1970] PNGLR 254
The State v Kariat (2017) N6904
The State v Konos (2010) N4157
The State v Lawasi (2015) N5964
The State v Simon Tagi (2017) N7027
The State v Sheekiot N4454" title="View LawCiteRecord" class="autolink_findcases">(2011) PGNC N4454

Counsel:

Miss. Batil, for the State
Ms. J. Ainui, for the Prisoner

DECISION ON SENTENCE

16^th March, 2018

1. SUSAME AJ: The prisoner has pleaded guilty to a charge of grievous bodily harm on arraignment of indictment and agreed facts presented to the court on 23^rd February 2018.
   
2. Prisoner was initially charged with the offence of attempt murder but after plea bargaining it was reduced to the charge of grievous bodily harm.
   
3. The charge on the indictment was that on 6^th day of July 2017 at Warangoi Market, East New Britain Province the prisoner of Sein village Nuku, Sandaun Province unlawfully did grievous bodily harm to William Togie.
   

FACTS

4. The facts agreed by the prosecution and defence are these. On 6^th February 2017 between 9.30am and 10.00am the prisoner was at Warangoi High School, East New Britain Province. Complainant William Togie approached the prisoner and asked him whether the prisoner had reported him to police about him being involved in some trouble that occurred at the prisoner’s house the night before. The prisoner and the complainant started arguing about this and were walking towards the Warangoi market. The prisoner then took out a bush knife from his bag and swung it at the complainant. Complainant lifted his arm to block the knife, but the knife cut his wrist. Prisoner swung the knife twice again but the complainant was able to avoid being cut. Complainant went to Warangoi Health Centre to seek medical help. He was later admitted to the Nonga Base Hospital, Surgical Ward, where his arm was operated upon and treated.
   
5. The facts were put to the prisoner on arraignment. To satisfy myself I had to read the committal file. I noted the evidence and the confessional statements in the record of interview by the prisoner. I was satisfied evidence in the committal file supported the essential elements of the charge. Accordingly, I found the prisoner guilty of the offence.
   
6. Defence counsel then sought an adjournment to file means assessment report, pre-sentence report and submission on sentence. Adjournment was granted and matter returnable for hearing of submissions on 9^th March 2018 at 9.30 am. When court resumed again on 9^th March 2018 prisoner was heard on allocutus followed immediately by hearing of submissions. Sentence was deferred and is now delivered.
   

PENALTY REGIME

7. The offence of grievous bodily harm is provided in section 319 quoted below:
   

“S. 319 GRIEVOUS BODILY HARM.

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.”

ARGUMENTS

8. Arguments have been heard and considered. For the State Miss Batil’s argument in a nut shell is that aggravating factors substantially outweigh the mitigating factors in this particular case. Therefore a punitive and deterrent sentence should be imposed. Any suspension of sentence would be within the discretion of the court by authority of s.19 of Criminal Code.
   
9. Ms. Ainui’s argument is that the present case is not the worst type of offence of unlawful grievous bodily harm. Starting point of 5 years should be applied but sentence to be wholly suspended.
   

AGRAVATING FACTORS

1. Use a bush knife which is offensive and life threatening
2. Evidence agreed and accepted show that use of bush knife on the complainant
3. Was unnecessary and unjustified.
4. No provocation from the complainant. He did not attack the prisoner for the prisoner to act in self defence
   

MITIGATING FACTORS

1. Prisoner is a first time offender
2. He has pleaded guilty to the offence
3. He has cooperated well
4. He has a good character report with no known negative or criminal records in the community.
   

ALLOCUTUS

10. Prisoner pleaded it was his first time in court. He was sorry for causing the injuries but he said he acted in self defence. He asked for mercy of the court and to be placed on probation.
    

PRE SENTENCE AND MEANS ASSESSMENT REPORTS

11. The reports compiled and filed by the CBC Officer have been read and taken note of. Views from both sides have been obtained. There was a desire for payment of compensation to bring peace between the two conflicting parties and to be considered as a condition of probation sentence if considered. Prisoner was remorseful and was willing to pay compensation to make peace and reconcile with the complainant.
    
    12. However, Ms. Ainui pleaded for the prisoner for no compensation order to be made because of the loss of home and property prisoner and his family suffered in an act of retaliation.
        

PAYMENT OF COMPENSATION

13. Court’s power to order compensation is derived from section 2 of the Criminal (Compensation) Act 1991 which read:
    

“COMPENSATION AS PUNISHMENT.

(1) Notwithstanding that payment of compensation is not specified as a punishment for an offence, a court may, in addition to any other punishments imposed, order an offender to pay compensation in accordance with this Act.

(2) When a court is considering the punishment or punishments to be imposed for an offence, it shall also consider whether in the circumstances of the case, compensation should be ordered.”

14. Maximum Compensation allowable under the Act is K5, 000.00. [s.5 (3)]
    
15. Whether or not order for compensation is to be made is matter of discretion of the court depending on the circumstances of the case. In this particular case complainant has received injuries and suffered severely.
    
16. It is open for him to commence civil proceedings to seek damages. There is willingness from the prisoner to pay some form of compensation. The destruction to prisoner’s dwelling and properties in an act of retaliation although unlawful was an isolated incident. It is actionable both under the criminal and civil process. Hence, loss of property suffered by the prisoner and his family should not be a valid reason for the court not to award compensation.
    

COMPARABLE JUDGMENTS

17. Sentencing is one of the important task of the court. Sentencing is a matter of judicial discretion vested in the court by law. There are few sentencing options available at law. Court is often guided by well-established principles and sentencing tariffs or case precedence in arriving at a sentence to be imposed.
    
18. In that regard, Miss. Batil for the state cited three cases to assist the court. These are; The State v Simon Tagi (2017) N7027, The State v Kariat (2017) N6904, The State v Lawasi (2015) N5964, The State v Sheekiot N4454" title="View LawCiteRecord" class="autolink_findcases">(2011) PGNC N4454 & The State v Konos (2010) N4157.
    
19. These were all early plea cases with distinct set of facts. But at least they will serve as valuable guide. My search revealed sentencing trend for grievous bodily harm ranged from 3 years to 4 years and were wholly suspended.
    
20. Ms. Ainui made reference to a pre-independence case of R v Meauri [1969-1970] PNGLR 254. It was a trial case involving three accused jointly charged on indictment for offences of grievous bodily harm and unlawful assault causing grievous bodily harm under ss. 320 and 339 respectively of the old version of our Criminal Code. This was a case in which His Honour was considering alternative verdict available to the court by the authority of s 575 of the Code depending on the availability of a person charged with offence under s 317 which is now s 319. With respect I do not find any assistance from that case in respect of sentencing consideration.
    

COURT’S VIEW ON THE CASE

21. This is a case involving use of a bush knife. In the circumstances use of bush knife was unjustified. There may have been couple of incidents earlier on involving the complainant and the prisoner. Those complaints may have been reported to police and pending police investigation. That was indeed the right thing to do. But for the prisoner to resort to a life threatening act over few verbal exchanges was unnecessary and senseless.
    
22. Without exercising some restraint and controlling his emotions prisoner drew a bush knife from an empty rice bag he was holding and swung at the complainant slashing his left forearm which required surgical operations at Nonga Base Hospital. The prisoner swung bush knife twice at him again but complainant avoided.
    
23. This is a life threatening case whereby complainant received severe injury leaving him with a permanent scar. Medical report dated 22^nd March 2017 states complainant received a huge laceration to his left forearm with severed tendons.
    
24. Use of knives whether bush-knives or kitchen knives in arguments and conflicts which can amicably be resolved with the involvement of community leaders or lawful authorities is on the rise nowadays. Lives are lost. In some cases victims are left with serious permanent injuries which they have to live with for rest of their life. At this modern day and age we are supposed to be positively influenced by education and Christian teachings to respect one and other and value life. But the opposite is happening. Man is just like another tree to be chopped down or cut all over and left to live with marks.
    
25. The Supreme Court bench in Anna Max Marangi v The State SC702, 8/11/2002 Miss. Batil cited, expressed similar concerns and I quote:
    

“We endorse His Honour’s emphasis on the use of a knife as a lethal weapon to kill another person as unacceptable under any circumstances. To our knowledge, there are increasing instances of manslaughter and murder killings coming before the Courts in which a knife is used to settle domestic differences, with fatal consequences. The use of readily available kitchen knife to settle one’s domestic grievances is prevalent in this country. It is becoming a silent lethal weapon, far more dangerous than other potentially dangerous weapons like axes, bush knives or even guns. The reason for this is because the knife is readily available, it can be easily concealed, and used on unsuspecting unarmed victims who are usually taken by surprise, and used in a calculating and precise manner, that the human body is easily penetrated and vital organs are damaged or even severed. It seems to us that more lives are being lost in this country today from the use of the knife than with any other weapon. Therefore, a strong punitive and deterrent sentence is required.”

26. Those words were said in an appeal on sentence of a murder case by the National Court and the Supreme Court endorsed the trial judge’s obiter. Whether it is in a murder case the concerns are also relevant in cases involving knives.
    
27. In view of the changing trend and increasing instances of use of knives, seriously I think time has come for parliament to increase the current penalties for offences of unlawful wounding and grievous bodily harm. The present penalty regime is inadequate for effective deterrence.
    

SENTENCE

28. Having said the above, what sentence should the court impose on the prisoner? To start with, the offence under consideration carries a maximum prison term of seven years. At the outset maximum sentence is inapplicable to the circumstances of this case. I have considered the sentencing trend on early plea cases which sentences ranged from 5 years and down to 3 years.
    
29. With respect in consideration of what I have expressed above to serve as deterrence not only to the prisoner but like minded persons who may end up in court for similar offences.
    
30. Accordingly, this sentence is passed:
    
    1. Prisoner is sentenced to a term of five years imprisonment.
    2. 1 year 1 month is discounted for period in custody since 14^th February 2017.
    3. Remainder of the sentence is suspended upon the prisoner being placed on Probation for a period of 4 years.
    4. Additional conditions ordered are;
       • - Prisoner to report to Senior CBC officer, Kokopo forthwith upon release and thereafter on first Monday of each month.
       • - Prisoner shall not leave Kokopo while under supervision of Senior CBC Officer except by order of the court on application.
       • - Prisoner is restraint from resorting to violent and criminal behavior in the community.
       • - Prisoner to maintain peace between himself and the complainant and his family at all times.
       • - Prisoner is restrained from consumption of alcoholic beverages and other illicit substance.
       • - Prisoner to pay compensation of K3000.00 within period of 6 months to be witnessed by the Senior CBC officer in Kokopo, ENBP at a reconciliation ceremony to be arranged by the CBC officer in consultation with the Prisoner, the Complainant, Ward member and a Church Pastor in the community.
         

Sentenced accordingly
________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Accused