State v Komit [2019] PGNC 256; N8059 (25 September 2019)

N8059

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR . NO. 501 -503 of 2018

THE STATE

V

MATTHEW KOMIT
ELIAKIM KUNAI
KOMIT KUNAI

Kokopo: Susame AJ
2019: 15 August, 4, 25 September

CRIMINAL LAW – Sentence on plea – Offence of grievous bodily harm, s 319 Criminal Code – Aggravating factors weigh slightly higher than mitigating factors – Punitive deterrent sentence appropriate – 4 years starting sentence –Prisoners punished according to degree of blameworthiness – 3 years imposed on 1^st and 2^nd prisoners – 4 years imposed on 3^rd prisoner - sentence wholly suspended with conditions

Cases Cited:

Goli Golu v The State [1988-1989] PNGLR 643
John Elipa Kalabus v The State [1988] PNGLR
Secretary of Law v Kaibug Jimbum [1976] PNGLR 288
The State v David Matalau CR993 of 2016 (23 September 2019)
The State v Morris Kramar Cr N0. 1375 of 2018 (10 May 2019)

Counsel:

Miss. J Batil, for the State
Ms. C Pulapula, for the Accused

DECISION ON SENTENCE

25 September, 2019

1. SUSAME AJ: Prisoners were convicted upon their plea on a charge of grievous bodily harm under s 319 of the Criminal Code on 15 August 2019. They appear today to receive their sentence.
   

Facts

2. The assault occurred at Boisen Secondary School, Rabuana village Rabaul East New Britain Province (ENBP) at about 6.00 o’clock in the afternoon of 14 July 2017. Supporters of Dr. Allan Marat who was returned as Open Member of Rabaul Open were shouting and singing, celebrating his election victory. Prisoner Matthew Komit and some other boys were then playing rugby at the school oval. Mathew Komit who was a non- supporter of Dr. Allan Marat became angry. He then led other boys and started shouting insults at the crowd.
   
3. Complainant Bata Wartovo was the employed driver of the school. When he heard Matthew Komit and the boys uttering insults he approached Matthew and told him and the boys to leave the school grounds. Matthew Komit refused to leave and started throwing punches at the complainant. Prisoner Eliakim Kunai aided Matthew and both assaulted the complainant. As they were assaulting him Prisoner Komit Kunai joined them. He came with a piece of timber plank which had a nail on it and directed it at the complainant’s head. Complainant raised up his left arm to block it. The timber landed on his arm and the nail penetrated it fracturing his ulna bone.
   
4. Following day complainant went to Nonga Hospital and received medical treatment. Medical report dated 18 July 2017 confirmed complainant had a swollen and tender left forearm with fluid oozing out from the puncture wound due to infection. X-ray examination revealed there was a mid-third fracture of the ulna bone with minimal displacement.
   

Address on Sentence

5. Each of the prisoner were given an opportunity to address the court on their punishment.
   
6. Matthew Komit said: You were a first time offender. You said sorry to God, Secondly, You said sorry to court for what you have done. The victim is from the same village and you want to compensate him.
   
7. Eliakim Kunai said: You said thank you to God. Secondly you said sorry to the court for what you have done. Thirdly, you would like to say sorry to the victim. You are from the same village and want to compensate him.
   
8. Komit Kunai said: You said you are a first time offender. You said sorry to God, to the court and the victim who is your relative and neighbour. He is a member of your clan. You asked the court to place you on good behaviour bond and you will pay compensation.
   

Submissions

9. Submissions have been considered.
   

Sentencing Considerations

10. Maximum penalty provided for offence of grievous bodily harm is imprisonment for a term not exceeding 7 years. Court may impose the maximum penalty if the case consists of very grave circumstances and features to be rated as the worst case. Unless those features are present maximum penalty should never be imposed. This sentencing principle is settled by judicial pronouncement. (Goli Golu v The State [1988-1989] PNGLR 643)
    

Aggravating Factors

• Excessive force used. A lone victim assaulted by three persons.
• Use of fists and a piece of timber which had a nail on it.
• Unprovoked assault.
• Victim received a fracture of ulna bone on his left hand
• No compensation has been paid nor any reconciliation
• Offence prevalent
  

Mitigating Factors

• Offenders’ early plea save court’s time and resources from running a trial
• Offenders are first time offenders
  

Sentencing Guidelines & Tariffs

11. Several cases were referred by counsels to assist the court. I will not list them all here. I have taken note of them. They were all plea matters under different facts and circumstances. Bush knives and objects such as timber and piece of wood were used in causing the injuries victims suffered. Various sentences were imposed from 2 years to 4 years. Most of the sentences were wholly suspended.
    
12. In this case a piece of wood with a nail fixed to it was used. Maximum penalty will not be considered in this case. Facts and circumstances of the case are not very grave for it to be rated as the worst type of case. A sentence lower than the maximum will be considered.
    

Parity Principle

13. Mr. Tugah was of the view this principle applies in sentencing of co-offenders. I do not concur. I think he got himself confused. The principle means that a sentence should be “similar to sentences imposed on similar offenders committed in similar circumstances.” The principle ensures fairness between similar situated cases. In other words treat like cases alike and different cases differently.
14. That is different from principle of sentencing of co –offenders in accordance with their degree of participation, blameworthiness or culpability. No offender should be punished more than he deserves or more than his culpability or blameworthiness with the qualification that there should not be a big disparity of sentence between the actual assailant and those who by their conduct abetted or encouraged by operation of section 7 of the Criminal Code.
15. Example the case Secretary of Law v Kaibug Jimbum [1976] PNGLR 288 involved more than one offender were convicted for wilful murder. Those who used axes and killed the victim received 13 years sentence. The two respondents who were shown the victim and present at the scene of the murder received a sentence of 2 years 6 months by operation of s 7. The State appealed against the inadequacy of the sentence of the two accomplices to that received by the principle actors. The appellate court allowed the appeal and substituted the sentence to 8 years for the respondents to serve.
16. Mr Tugah submitted the offenders should be punished in accordance with their degree of participation. Matthew and Eliakim although they started the fight their role was of a lesser degree to that of Komit who played a major role in the injury victim sustained. I agree. That will be the approach court will take in sentencing the offenders.
    
17. The motive of the assault on the complainant is clear. It was an election related incident on the winning declaration of the current sitting member of Rabaul Open Dr. Allan Marat. Supporters of Dr. Marat were celebrating the victory which did not go down well with the offenders. They were family members and supporters of Komit Kunai who had also contested and lost. Matthew Komit and the others were not happy and shouted insults at cheering crowd. Complainant heard the insults and approached them. He told them not to use insults and leave the school ground. Emotionally agitated by the cheering crowd Mathew refused to leave the school ground and started throwing punches at the complainant. His uncle Eliakim joined him and both fought him then came Komit Kunai. He was armed with a piece of timber which had a nail fixed to it. He struck the complainant on the left arm which he had raised over his head to block the timber from landing on his head.
    
18. There were views expressed by one or two members of the offenders’ family in the pre-sentence report accusing the complainant for provoking the situation. I do not accept their views. I say this for the following reason. There had been a lot of awareness and publicity about trouble free and violence elections up to declarations were made. Like in a game there is always a winner and loser at the turnover of an election. You will expect jubilations from supporters of winning candidates. There is no reason for you to be upset about the outcome because majority of the people in the electorate have decided.
    
19. I see no fault or provocative act demonstrated by the complainant. He had simply voiced his concern against use of insulting language and told them to leave the school grounds. It was for that reason I held that factor against the offenders. As a leader and elder in the community Komit should have intervened and stopped the fight.
    
20. Furthermore I endorse what Kidu CJ said in John Elipa Kalabus v The State [1988] PNGLR at 197: Remorse and contrition are factors weighed in the matter of sentence in favour of the accused persons, particularly if they are manifested in a plea of guilty.” It depends upon the circumstances and time the plea is advanced. If expressed earlier after the offence was committed it would weigh more favourable to the offender. When expressed some years later at the trial is of less significance.
    
21. In this case offenders have expressed remorse in court. Their expression of remorse came two years after the offence was committed. No form of compensation has been paid; there has been no reconciliation. Yet parties are neighbours and live in the same community. Hence, less weighed will be given. If that had been expressed earlier in time after the assault court would have given regard to that and held that in favour of the prisoners.
    
22. Having made the above observations though I give value to the parties’ mutual concern for payment of compensation and reconciliation which is outstanding as expressed in the probation report.
    
23. I have held the view in past decided cases, view shared by some judges in this jurisdiction payment of compensation is a noble customary practice. It eases tensions between conflicting parties and brings peace and reconciliation. But payment of compensation cannot be taken as a means for one to buy his personal liberty from being incarcerated if circumstances warrant. Order for compensation cannot be a substitute for a punishment court is entitled to impose in criminal law. (s 2 Criminal Law(Compensation ) Act 1991.
    
24. The offence is quite prevalent in our communities. A punitive deterrent sentence is appropriate for personal and general deterrence.
    
25. Starting sentence of 4 years is appropriate following my earlier decisions in The State v Morris Kramar Cr N0. 1375 of 2018 (10 May 2019) and followed recently in The State v David Matalau CR993 of 2016 (23 September 2019).
    
26. Whether I should go any higher or lower depends on my assessment of the factors in aggravation and mitigation. Mr Tugah considered aggravating factors outweighed the mitigating factors while Ms. Pulapula thought otherwise. Mr Tugah considered sentence between 3 – 4 years would be appropriate in the light of comparable cases referred.
    
27. I concur with the State. I consider factors in aggravation weigh slightly higher than the mitigating factors. Guided by the tariffs in the cases referred sentence between 3-4 years would be appropriate.
    
28. This is the sentence offenders will receive.
    
    1. Matthew Komit and Eliakim Kunai are sentenced to 3 years.
    2. Komit Kunai is sentenced to 4 years.
       
29. In the exercise of my discretion sentence is wholly suspended upon prisoners being released on Probation for 4years. The following additional conditions are ordered:
    
    1. Prisoners shall report to the Senior Community Based Correction Officer, Kokopo within 24 hours to receive further instructions.
    2. Prisoners shall K2000.00 compensation with 100 fathoms of shell money equivalent to K500.00 in equal percentage to Wartovo ToBata by 25 November 2019
    3. That prisoners are ordered to organise a reconciliation gathering for payment of compensation ordered to be witnessed by the Village Court Magistrate, Probation Officer, local Church Pastor and community leaders.
       
30. Prisoners shall have their bail monies refunded forthwith.

________________________________________________________________
Office of the Public Prosecutor: Lawyers for the State
Office of the Public Solicitor: Lawyers for the Prisoners