State v Kramar [2019] PGNC 127; N7848 (10 May 2019)

N7848

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1375 OF 2018

THE STATE

V

MORRIS KRAMAR

Kerevat: Susame AJ
2019: 12, 13 14 March, 9, 12 April & 10 May

CRIMINAL LAW – Sentence After Trial - Offence – Grievous Bodily Harm - S319 Criminal Code - Use Of Bush Knife – De facto –Provocation – Payment Of Compensation Discretionary – Mitigating Factors Outweigh Aggravating Factors – Four Years Sentence Wholly Suspended – Prisoner Placed On Probation With Conditions.

Cases Cited

The State v Konos (20110) N4157
The Sate v Sheekiot (2011) N4454

Counsel

Mr G. Tugah, for the State
Ms Katosingkalara, for the Prisoner

DECISION ON SENTENCE

10 May, 2019

1. SUSAME, AJ. : Prisoner is in court to receive his sentence. Facts upon which the prisoner was convicted are found in the judgement on verdict delivered on 12 April 2019. I set them out below.
   

Basic Facts

2. The incident occurred during a bride price ceremony on 2 April 2016 between 2.00pm and 3.00pm.
   
3. Prisoner and the complainant hail from East Sepik Province. Prisoner is from Wosera, Maprik District. Complainant is from Yangoru, Yangoru Sausia District. They were residents at Warangoi. Back in 2012 prisoner’s daughter had a relationship with the complainant’s younger brother when she was doing her Grade 12 at Warangoi Secondary School. She became pregnant and quit school.
   
4. The couple continued to live together as husband and wife. Prisoner then demanded K10 000.00 bride price from the husband and his family. That was not met and it was reduced to K8000.00. Again that amount was not met. Prisoner took the matter to the Village Court. In the village court proceeding bride price was mutually settled at K6000.00. Date was fixed on 2 April 2016 for the ceremony to be held.
   
5. Parties were present at the ceremony at about 2 to 3pm on 2 April 2016. At the commencement of the gathering complainant announced that they came up with only K5000. He asked the prisoner to accept that amount and the remainder will be paid at a later date. That irritated the prisoner and his brother and they refused to accept the payment. In their protest words to the effect “fucking you are con people” were directed at the complainant and his brothers. That prompted the complainant and his brother to approach the prisoner and his brother to enquire they had uttered such insults at them.
   
6. Prisoner and his brother had at all material time had in their possession grass knives. Perceiving that complainant and his brother were trying to fight them prisoner and his brother reacted and threatened to cut them with their grass knives. During the confrontation prisoner attempted to cut the complainant’s brother. Seeing that complainant raised a piece of stick to defend his brother. But the knife cut through the stick cutting the complainant’s right hand.
   
7. Complainant sustained an open wound through his extensor tendons of his fingers and a fracture of his right ring finger DIP joint. He suffered loss of sensation on the ulna of his fingers due to damaged nerve which is considered permanent. The loss of function to his right hand was assessed to be 75% with disability assessed at 25%.
   

Issue

8. The primary task of the court is to decide the appropriate penalty to impose upon the prisoner
   

Allocutus

9. In his address on sentence prisoner had this to say. This problem arose because of non-payment of charged bride price. The delay took long until 2016 I brought them to court. In court they set the date for payment of bride price. I saw the payment was not good so I cancelled it to go home. After that I had nothing to say. It was Patrick who called out. They rushed in to fight and problem arose. If they did not fight he would not have received what he got. My story is clear as that. Lastly I would like to say I am married. My wife and I are from Sepik. I have 5 children, 2 in grade 9, one in grade 8 at Warangoi High School. I look after my 2 grandchildren. I ask the court for its mercy and put me on good behaviour so I can stay outside and solve the problem and look after my wife and children. This is not my place. I stay with my small brother sharing the same block. The cocoa block does not yield well due to the disease. So I am working as a security and fend for us all. I have not completed my children’s school fees. That is all.
   

Mitigating Factors

• Prisoner is a first time offender
• Prisoner acted out of de facto provocation.
  

Aggravating Factors

• Prisoner put the case to trial at great expense
• A grass knife which is considered a lethal weapon was used
• Victim suffered 75 % loss of function of his right hand which is permanent.
• Prevalence of the offence
  

Submissions

10. I have considered the submissions. In a nutshell these are the main trust of the submissions. Mr Katosingkalara considered the mitigating factors outweighed the aggravating factors. He submitted the long delay and empty promises made by the complainants and failure to come up with the agreed bride price are to be considered extenuating circumstances. Mr Katosingkalara considered the case was not the worst type to attract the maximum 7 years imprisonment sentence. He submitted considering the circumstances of the case and mitigating factors favourable to the offender a two years head sentence was appropriate. And that prisoner’s sentence is suspended with condition to pay K1000, 00 compensation to the victim.
    
11. Mr Tugah of the State considered the starting point for the present case should be three and half years following The State v Konos (20110) N4157 and The Sate v Sheekiot (2011) N4454. Mr Tugah submitted offence is serious and is a direct breach of freedom from inhuman treatment guaranteed under s 35 of the Constitution and the dignity of the human person. Court should also order compensation for the injury.
    

Court’s view

12. Firstly, the prisoner is liable to be imprisoned for 7 years, which is the maximum prescribed penalty for the offence of grievous bodily harm. The facts and circumstances of the case do not warrant the maximum penalty. Instead a lower penalty will be considered in the exercise of my discretion under s 19 of the Criminal Code. Both Mr Katosingkalara and Mr Tugah concede to that.
    

Prisoners Particulars

13. Information about the prisoner and his family background are contained in the pre-sentence report prepared by the Probation Officer. The report also contains prisoners own views about the offence, his wife Madeline, his brother Greg and Patrick the victim and Darius, victim’s in-law. Prisoner indicated to pay K1000.00 compensation within two months. Prisoner’s wife and his daughter asked for a non-custodial sentence.
    
14. Victim expressed that due to the injury he received on his right hand he no longer does heavy work. And relies heavily on his other members of his family. For that he asked for compensation of K100, 000.00 and wanted the prisoner to go to jail.
    
15. Prisoner was employed as a security guard with Anitua Security Services. He earns around K 430.00 to K600. 00 per fortnight. He is married and has 5 children. He is about 50 years of age.
    

Comparable Judgements

16. Few decided cases were referred to court for guidance. There is no need for me to cite them all here. I have read the brief facts of the case and taken note of the sentences that were passed in those cases. Most of the cases involved victims being slashed with bush knives. The decisions are not binding on this court but offer guidance. Starting sentence in those case fell midpoint around 3 to 4 years from the maximum penalty.
    
17. The present case involves victim being slashed with a grass knife. Grass knives and bush knives are working tools. Nowadays they are becoming lethal weapons to injure and kill. They cause a lot of havoc and are menace to lives. Use of such lethal weapons in brawls is becoming so prevalent in Papua New Guinea (PNG)
    
18. Prisoner had no lawful excuse to take along with him a grass knife. In fact, no weapons or offensive tools like knives should have been allowed at the bride price customary. Tempers may flare up and confrontation may ensue if there were disagreements. And the tendency to use them in a brawl fight is inevitable. That is exactly what happened.
    

Sentence

19. Starting sentence for the prisoner should be four years imprisonment. There are no special or extenuating factors to allow for a discount. Neither are there any serious aggravating factors for me to go up higher from the base sentence.
    
20. Four years imprisonment will be the sentence prisoner will serve with hard labour at Kerevat Jail for personal deterrence and for deterrence of would be offenders in society.
    
21. Twenty-eight days period in custody pending sentence is deducted from 4 years. Prisoner to serve the resultant sentence of 3 years 11 months 2 days.
    
22. Suspension of portion or whole of the sentence is discretionary. The discretion must be exercised properly and not arbitrary.
    
23. Prisoner had expressed his willingness to pay some compensation. Complainant has also expressed the same. However, they differ in the figures as alluded to above. Payment of compensation is discretionary. It cannot operate as a substitute for a penalty court is entitled to impose. Any compensation ordered would be fair and reasonable within the means and ability of the prisoner to afford.
    
24. In the exercise of my discretion I suspend whole of the sentence and release the prisoner on probation with these conditions:
    
    1. Prisoner shall pay K5000.00 compensation to the complainant within one year from the date of this sentence.
    2. If compensation is not paid within one year on report by the Probation Officer to this court for non-compliance prisoner to be taken into custody forthwith to serve out his resultant sentence of 3 years 11 months 2 days.
    3. Prisoner shall maintain peace and good conduct in the community.
    4. Prisoner shall not leave East New Britain Province without the leave of this court.
    5. Prisoner shall provide his residential address to the Probation Officer and shall not change his address without informing the Probation Officer.
    6. Prisoner shall heed to all instructions given by the Probation Officer.

________________________________________________________________
Office of the Public Prosecutor: Lawyer for the State
Office of the Public Solicitor: Lawyer for the Prisoner