State v Taroa [2019] PGNC 28 (15 February 2019)

N7688

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 360 OF 2018

THE STATE

V

VALENTINE TAROA

Kimbe: Miviri J
2018: 04^th December
2019: 13^th 14^th February

CRIMINAL LAW – PRACTICE AND PROCEDURE – GBH S 319 CCA– Plea–Bush knife cut – left hand– cut & fracture – no residual injuries – argument over land – PSR MAR ordered – favourable to prisoner – prevalent offence – deterrent sentence.

Facts
Prisoner argued with victim over land in the course of which he swang a bush knife at him cutting and fracturing his bones as a result.

Held
Prevalent offence
Guilty plea
No permanent injuries
Strong and deterrent sentence
4 years IHL

Cases Cited
The State v Aihi (No 3) [1982] PNGLR 92
The State v Irowen [2002] PGNC 99; N2239
The State v Waimba [2016] PGNC 430; N6954
The State v Philip Piapia [2017] N6763
The State v Steven Tumu [2017] N6768
The State v Kialo [2008] PGNC 290; N5467
The State v Tupulit N6185" title="View LawCiteRecord" class="autolink_findcases">[2015] PGNC N6185
Public Prosecutor v Tardrew, [1986] PNGLR 91

Counsel:

J Apo, for the State
D Kari, for the Defendant

SENTENCE

15^th February, 2019

1. MIVIRI J: This is the Sentence upon Valentine Taroa of Kilu Ward 3, Talasea LLG who pleaded guilty to cutting another with a bush knife causing him grievous bodily harm.
   

Short facts

2. On the 26^th June, 2017 at around 9, 0 clock and 10, 0 clock in the morning Paskalis Kura raised his left hand to block off the swing of the bush knife by the prisoner. It landed on his left hand cutting and fracturing both his bones. It was a climax of an argument over land. He was taken to Kimbe General Hospital treated and has since survived. It was a life threatening injury.
   

Charge

3. He was charged with Grievous Bodily Harm pursuant to Section 319 of the Code. It read, “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.”

Aggravation

4. Grievous bodily harm is defined under section 1 Interpretations as, “means any bodily injury of such a nature as to endanger or likely to endanger life, or to cause or be likely to cause permanent injury to health;” There is no doubt that that is the case here a bush knife is a lethal weapon if used as did the prisoner. And the injuries it caused are by that fact life threatening set out by the medical report. He is presented with compound forearm wound cleaned debrided and sutured at emergency. He had midshaft radius and ulna fracture. There are no residual injuries emanating. This is the medical evidence of Doctor Jackson Nuli senior Medical Officer Surgeon of the West New Britain Health Authority dated the 11^th July 2017 relating.
   
5. The maximum sentence is 7 years imprisonment attracted in a worst case, Aihi v The State (No 3) [1982] PNGLR 92 (5 March 1982). The present is not. What is a worst case is depended on each case, an example on record is State v Irowen [2002] PGNC 99; N2239 (23 May 2002) where this court imposed the maximum penalty of 7 years cumulative under section 319 upon the prisoner for cutting both wives victims stripping them torturing them over accusation of extra marital affair. He almost killed both but they survived because they were taken quickly to the hospital by a Pastor but came out with serious residual injuries, see also State v Waimba [2016] PGNC 430; N6954 (18 May 2016).
   
6. Here common is that the Prisoner unnecessarily resorted to the bush knife. He a grade 10 student resorted to the use of a dangerous and lethal weapon. It was a dispute that could have been resolved by process of law. He elected to breach the law over it landing him in court with grave consequences facing. The life of the victim was threatened by the injury that he received with a bush knife wielded and swang which could have easily led to more serious offences know to law against the him. But the victim is surviving the ulna and radius healed. There is no residual after effects lingering. It is a very prevalent offence that must be deterred by the Courts with strong punitive deterrent sentences.
   

Mitigation

7. The Prisoner is 22 years old single from Kilu village, Ward 3, Talasea LLG, West New Britain Province. He has no record of any prior conviction. He was a grade 10 student at the Talasea High School when he committed the offence. And was removed there upon. He has intentions to transfer to Poinini Secondary and to continue and finish his education there. He is employed now with a private security company Kaula Security as a guard to raise his school fees. He has very good character references from his local village court magistrate from Kilu who says that he is a very quiet boy and this is his first time in a criminal offence. Who has no objection to releasing him back into the community as he is not a threat there. Three other community leaders, Joe Kondi, Otto Batari village Peace officer and Youth Leader, and Michael Panga catechist all make similar observations of the prisoner. Prisoner is also confirmed as a regular church goer and is a member of a prayer devotional group by the Catechist. All confirm that Prisoner has paid K1000 to the victim. Which has been independently confirmed by the victim who also wants to be properly compensated and does not object to the release of the prisoner back out. This is also the recommendation of the presentence report and the means assessment confirming that indeed he has the means to settle further compensation if ordered. He is assessed as suitable for probation. Both reports are very comprehensive and would fall in well with Tardrew, Public Prosecutor v [1986] PNGLR 91 (2 April 1986).
   
8. It would be proportionate to give effect to suspension of the sentence upon this material to promote personal deterrence, reformation, rehabilitation of the offender. That the suspension will promote repayment or restitution. And imprisonment will be disproportionate given the facts and circumstances set out above. It would fall in with what this court has done in State v Philip Piapia [2017] N6763 (17 May 2017); see also State v Steven Tumu [2017] N6768 (23 May 2017). The sentence there were mid-range of 3 to 4 years part custodial and part suspension including State v Tupulit N6185" title="View LawCiteRecord" class="autolink_findcases">[2015] PGNC N6185 (28 July 2015) 5 years was imposed K2500 was paid as compensation time in custody was deducted and the balance was suspended on a probation order. Prisoner has strong intention to continue his education and has started employment as a guard with a security company to earn fees to pay. In itself it is good basis of the intent overt to change for the better coupled with his guilty plea initially to Police and now in court. Given this it would be proportionate to impose sentence but to suspend so as to give this opportunity to the prisoner.
   
9. It would therefore be appropriate to sentence the prisoner given to 4 years IHL. That further under section 19 of the code taking account of all set out above the 4 years will be wholly suspended on a Probation order for the same period on conditions as follows:
   
   • (i) You shall enter into a probation order for 4 years on conditions;
     
   • (ii) You shall within 48 hours report to the Probation Officer;
     
   • (iii) You shall be resident at Kilu village, Ward 3, Talasea LLG, Talasea District at all times in the course of your probation period.
     
   • (iv) You shall not leave this place of resident or Kimbe without leave of this court during the course of your probation period;
     
   • (v) You shall perform 600 hours of community work at a worksite to be approved by the by the Probation Office;
     
   • (vi) You shall keep the peace and be of good behaviour at all times;
     
   • (vii) You shall not take liquor or any form of intoxicating substance or drugs during the period of your probation;
     
   • (viii) You shall attend your local Catholic Church Kilu every Sunday for Mass and worship whilst on probation;
   • (ix) You shall undergo counselling from your local Parish Priest or the Catechist Michael Panga for number of times as may be determined by the counsellor;
     
   • (x) You shall within 5 months or by or before Tuesday the 16^th July 2019 make restitution to Paskalis Kura in the sum of K1000 in cash and a live pig valued at K500 with garden food in the value of K200.
     
   • (xi) The restitution shall be witnessed by your probation officer, the police informant Thomas Ombul, Kilu Village Court Magistrate Kasmir Tangole, Otto Batari Village Peace officer and Catechist Michael Panga.
     
   • (xii) The occasion for the reconciliation and compensation payment is to be recorded and a report filed at the National Court registry by the probation officer within 14 days after discharge which is Friday 2^nd August 2019;
     
   • (xiii) The Probation officer shall file a report on the responses and progress of the probationer every four months and at any other time or interval as the National Court may order upon application;
     
   • (xiv) In breach of any of these Probation Orders your Probation shall lapse and you shall be arrested to serve the whole term of your sentence now suspended.
     
   • (xv) Bail Money is ordered refunded forthwith
     

Ordered Accordingly

__________________________________________________________________Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant