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State v Kura [2019] PGNC 76; N7735 (6 March 2019)

N7735

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR No. 229 & 292 OF 2017


THE STATE
V


JOE KURA & NASON KURA


Kimbe: Miviri J
2019: 14th February


CRIMINAL LAW – PRACTICE AND PROCEDURE – GBH S 319 CCA – Plea–Bush knife cut – right forearm & head – cut & fracture – no residual injuries – Gang attack – PSR MAR ordered – favourable to prisoners – prevalent offence – deterrent sentence.

Facts
Prisoner teased and lured the victim into a fight, he pulled out a bush knife and cut him on his hand then chased him accompanied by others and further cut him.


Held
Guilty plea
Prevalent offence
Group attack
Serious injuries
Strong and deterrent sentence
4 years IHL


Cases Cited
Allan Peter Utieng v. The State Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000
Pauta & Susuve v The Commissioner of CIS his servants & agents [1982] PNGLR 7
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 Jimmy [2018] PGNC 161
The State John v Elipa Kalabus [1988-89] PNGLR 193


Counsel:


A Bray, for the State
B Kari, for the Defendant

SENTENCE

06th March, 2019

  1. MIVIRI J: This is the sentence upon Joe Kura and Nason Kura brothers both of Patanga, Talasea, West New Britain Province, who both pleaded guilty to cutting another with a bush knife causing him grievous bodily harm.

Short Facts


  1. On the 2nd December, 2016 at about 5.00 pm at Patanga Elementary School Francis Tuka arrived back from Kimbe on a PMV and got off. Joe Kura called to see him. He didn’t answer, so the Prisoner went to see and talk to him. He mocked him about a previous incident where Francis Tuka was allegedly cut by him. Francis Tuka punched him. He pulled out a bush knife and cut him on right forearm. Francis Tuka ran away and was chased by the Prisoner joined by Nason Kura and others who caught up and cut him on the head when he fell down. He was admitted to the Kimbe General hospital and recovered after undergoing treatment.

Charge


  1. The State indicted for grievous bodily harm pursuant to Section 319 of the Code. It reads:

“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


  1. Evidence showed it was, 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 consistent with section 1 of the Code. Francis Tuka sustained cuts to his right forearm and his head and could have easily bled to his death if he wasn’t quickly taken to the hospital and treated. An unwarranted and unjustified attack that climaxed into a group attack on the victim alone. He was not attacking them nor was he threatening them in any way at all. He had merely come back from Kimbe and was getting off the PMV. Whatever may have happened on the previous day was not called for in the way that the prisoner exerted here. Prisoners picked a fight in a cowardly manner and then come out with a bush knife later in a group in response to a punch. Prisoners could not stand up as real man in life and in their society. They did not settle their differences by law or process thereof given their background set out in the presentence and means assessment reports.

Respect for Rule of Law


  1. Respect and the rule of law were not there in the way that they acted. This attitude ought and must be stopped by strong punitive and deterrent sentences. The prisoners may have pleaded guilty, but that did not outweigh the seriousness of the offence that they both committed. It was in a public frequented area undeterred by that fact. A very prevalent offence in that part of the Province that was undeterred despite the stern sentences that were handed down. It did not mean that the prisoners would be treated harshly for the offence but a proportionate sentence called by their facts and circumstances would be given certainly not the maximum which was reserved for the worst case: Aihi v The State (No.3) [1982] PNGLR 92 (5 March 1982).

Medical Evidence


  1. The medical evidence dated 7th December, 2016 under hand of Doctor Willie Toua (Medical Registrar) established that Francis Tuka aged 33 years old was seen at the hospital on 2nd December 2016 with multiple bush knife wounds mostly to the head and right forearm. The latter had a horizontal wound depth of 6cm and the length of about 7cm. It was actively bleeding. The head had a de-gloving wound that exposed the skull which was actively bleeding with a depth of 5 cm and the length was 10cm. Both were sutured under local anaesthesia. And kept under observation for any neurological injury. X-ray of the forearm revealed a fracture of the Ulna. Both were vulnerable parts of the body borne out by two photographs showing the victim heavily bandaged on the head entwining the neck round the back up and around. The right arm was heavily bandaged at the elbow.

Presentence report


  1. The presentence report disclosed that Prisoners were intoxicated by alcohol and acted the way they did. It wasn’t mitigating to self-induce oneself with alcohol and to behave as did the prisoners. To guise and to attack grievously injure the victim. There was preplanning involved because the victim was incited and lured into a fight which was persisted and sustained in a mob undeterred. This begs whether the local leaders of that community by their word in the presentence reports of each prisoner were genuine. It is clear by the persistence and prevalence of this offence that local leaders either of the village court or of the church have no bearing to deter or to control persons in their communities to behave and comply with the law. These include the parents who are in no position to control grown up adult children. The totality of the matter is that what is in the presentence report is without substance independently and does not outweigh the seriousness of the attack upon the victim. He was a single person attacked in a group. He stood no chance to save himself except to run but that did not save him either. The setting of the attack is such that it could have easily prompted serious reprisal and the peace orderliness of that community could have been easily disrupted by their conduct.

Allocutus


  1. When given opportunity on allocutus, Joe Kura stated: “When I was attending call overs Francis Tuka did this to me he cut me shows right shoulder. I want the court to arrest him and to deal with him. For Police to arrest him for what he did to me. I went to Jail and came back he must follow the same. My hand is not moving my wife and children are suffering. That is all”
  2. This is a criminal allegation against the victim and remains to be proved on that balance at another hearing should that matter eventuate. It is an assertion by the prisoner against his victim that he has paid in part for what he did by the injury he has shown in court. He has an interest in the outcome of this proceeding. It is proper in law that the assertions that he makes must be corroborated. By itself, it will not be the basis to deviate what is due in law upon the facts and circumstances for his wrong. Certainly, it would not be on the same footing as in Pauta & Susuve v The Commissioner of CIS his servants & agents [1982] PNGLR 7 (19 February 1982). And for the purposes of sentencing it will not be on the same footing with the injury to the victim here. There is no medical evidence accompanying nor a police report or charge sheet relating. It would be the word of the prisoner and would not bear much weight in the sentence determined against.
  3. Nason Kura stated, “I would like the mercy of the court to serve my sentence outside of the court and to come and sign. My future is with the court. That is all and I ask for probation”

Mitigation


  1. The Prisoners have both pleaded guilty to the offence. Presentence report before the court depicted Joe Kura was the elder of the two. He was 26 years old from Patanga village Talasea, married with four children. He was educated to grade 10 in 2009 and continued on to secure a certificate in motor mechanic from Poinini Technical School in 2010. At the time of sentence he was employed for three years with a local security company as a guard. He had no prior criminal record and had good references from his community leaders in the village. These are not strong in view of the observations made above and will not seriously effect the sentence intended against the prisoner. Personal circumstances antecedents are adequately covered in the presentence report and the essentials are set out in this Judgement. The victim has refused outright to receive any compensation and reconcile with the prisoners. He contends that both are sons of the Ward Development committee member and ought to behave. They have not and should be imprisoned.
  2. Nason Kura is 22 years old and is the younger of the two brothers from a family of 6 siblings of which he is the sixth. He is a first offender educated to grade 10 in 2015 at Kimbe Secondary School. After which he went on to the Moramora Technical School where he is presently undergoing auto electrical trade and is in his second year on that course. That he would be going for practical at the end of June for 6 months. He expressed concern about his education and the opportunity if a custodial term was imposed. He is also of the Catholic faith. He had similar references from his local community leaders. He compounds the offence by joining in with the initiation of the offence by his brother co prisoner.

Compensation


  1. Expression to pay compensation is merely that only and not substantiated by any sound action prior to the matter coming into court. It would weigh more if this genuineness is substantiated at the outset by the prisoners without the hand of the court. To wait until plea and to invoke on the eve of sentence in my view is not a genuine attempt to reconcile but is more of a futile attempt to avoid incarceration of a very serious and prevalent offence. On another level one’s personal circumstances ought to deter the commission of serious criminal offences as is the case here. It would be late in the day to invoke that to avoid what is due in law upon the facts and circumstances of the case: Allan Peter Utieng v. The State Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000.
  2. This is more so in the light of the community leaders who have stepped forward to give references for the prisoners. These are Joe Bio Kura the father and Ward Development committee man, Ward three Talasea LLG member Peter Muto, Paul Tiu the Catechist of Patanga Catholic Sal Parish Bitokara, and Joe Batari Deputy Chairman East Bakovi Village Court. Both prisoners were on bail for the offence emanating from 2017 up to the date of sentence would be 2 years or more. No attempt was made to reconcile given the backdrop of the leaders who were intent to give favourable references for the prisoners they could have been easily available to witness.
  3. The facts and circumstances presented do not equate State v Irowen [2002] PGNC 99; N2239 (23 May 2002) or State v Waimba [2016] PGNC 430; N6954 (18 May 2016) nor could it be treated as full suspension on probation because of the reasons set out above. Some time must be spent in custody to take account of the seriousness of the offence: State v Jimmy [2018] PGNC 161 which is consistent with counsel’s submission that sentence must educate reform and deter: John Elipa Kalabus v The State [1988-89] PNGLR 193 (27 October 1988). In this regard protection of the public and safety is also paramount in any sentence passed. The public is the general community at large as opposed to interests of the two prisoners here. The balance proportionate to the facts and circumstances here is that the prisoners Joe Kura and Nason Kura are sentenced to 4 years IHL for the crime of grievous bodily harm committed upon Francis Tuka on the 2nd December 2019 at Patanga, Talasea.
  4. Given the facts and circumstance set out in the presentence and means assessment reports and under Section 19 of the Code I order that 2 years IHL will be served in jail forthwith.
  5. The remaining 2 years IHL will be suspended on 2 years Probation order for the 2 years on conditions as follows:

Ordered accordingly
__________________________________________________________________Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant

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