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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 748 OF 2014
THE STATE
V
MICHAEL CHRIS
Kokopo: Suelip AJ
2020: 9th, 12th & 25th June
CRIMINAL LAW - Sentence - Plea - Guilty- grievous bodily harms. 319 of the Criminal Code Act- prisoner punched complainant to the ground then lifted him and threw him face down to the ground again - complainant fractured his right jawbone and lost his back right tooth - sentence of 3 years, balance partly suspended with, conditions.
Cases Cited
Goli Golu v State [1979] PNGLR 653
The State v Wak [2014] PGNC 72; N5598
The State v Carol [2009] PGNC 143; N3762
The State v Kundu [201 l] PGNC 42; N4262
The State v Peter [2011) PGNC 345; N4320
The State v Lawasi [2015] N5964
The State v Sheekiot [2011] PGNC 165; N4454
The State v Konos (2010) N4157
The State v Songe (2017) N6759
State v Sam [2018] N7512
State v Sinkil [2018] N7509
The State v Tardrew [1986] PNGLR 91
Legislations
Section 319 of the Criminal Code
s. 3(2) of the Criminal Justice (Sentences) s. 19(l)(d) of the Criminal Code Act.
Counsel
J Batil, for the State
N Katosingkalara, for the Prisoner
SENTENCE 25th June, 2020
1. SUELIP AJ: On 9 June 2020, Michael Chris, a 41-year-old male of Dreikikier Village, Maprik, East Sepik Province, was indicted on one count of unlawfully causing grievous bodily harm to one, Marcus Lomele. It is alleged that the offence was committed on 4 January 2014, at Tovuru Plantation, Kokopo District, East New Britain Province.
2. The prisoner’s personal particulars are that he was born and raised in the East New Britain Province, he is married with 3 children, ages between 11 and 19, he is a member of the Revival Church, he completed education at grade 8 and worked as a security guard and then as a butcher when he was rearrested on a bench warrant.
Facts
6. The State alleged that on 4 January 2014 at around 8 pm and 9 pm, the
accused was at Tovuru plantation compound at Tokua, East New Britain Province. At the same time, date and place, the complainant namely Marcus Lomele was in front of his house. The accused came to him and punched him hard on his face causing him to fall on the ground. As the complainant was getting up from the ground, the accused held him on his waist, lifted him up, and with his head and face facing the ground, he threw him hard on the ground. The complainant landed on his jaw. He felt great pain. He told the accused to stop and so the accused stopped and left him.
7. The complainant was taken to the hospital the next day with a swollen
and painful jaw. Medical examination revealed a fracture to the complainant's right jawbone and loss of a tooth at the back right side of his mouth.
8. The State alleges that the actions of the accused contravened Section 319
of the Criminal Code in that he caused grievous bodily harm to Marcus Lomele.
Issue
9. What is the appropriate sentence?
Antecedent report
10. The prisoner has no prior convictions.
Pre-sentence term
11. The prisoner was arrested on 26 February 2014. He was detained but
escaped from custody and was rearrested on 15 August 2019 on a bench warrant. It is unclear as to how long he was in custody prior to his escape however, if he was rearrested on 15 August 2019, then it would have been anywhere between 4 to 5 years. Due to this uncertainty, his lawyer submitted that the pre-sentence term should commence from the date he was rearrested. Hence, he would have been held in custody for a period of 10 months and 10 days to date.
Allocutus
12. The prisoner admitted to committing the offence. He apologized firstly to the victim and his family. He says that whilst he was in custody, he realized that he is not from here and he was sorry that this has caused hardship to his own family. He begged that if he can come out of prison, he will sort out the wrong he has done.
Mitigating factors
13. The mitigating factors in the prisoner's favour are that he pleaded guilty and there are no priors. Further, when committing the offence, he used no weapon and there was little degree of provocation where he was trying to intervene and stop the victim from bashing his wife. In expressing his remorse, he apologised to the relatives of the victim. The prisoner also acted spontaneously and he never pre-planned to commit the offence.
Aggravating factors
14. The prisoner is mindful of the aggravating factors against him which are the permanent loss of third molar tooth and a fractured jaw. He also absconded bail once, was rearrested and such offence is prevalent in society.
The offence
S.319 GRIEVOUS BODILY HARM
A person who unlawfully does bodily harm to another person is guilty of a crime. Penalty: Imprisonment for a term not exceeding seven years.
Submission on sentence
18. Mr Katosingkalara, on behalf of the prisoner submitted that although the Criminal Code Act imposes a maximum penalty of seven years for the offence of grievous bodily harm, the nature of the offence committed by the prisoner is not of the worse type and therefore it does not warrant the penalty of seven years. He relies on the case of Goli Golu v State [1979] PNGLR 653 that the maximum penalty must be reserved for the worst type case. He asked the Court to invoke its discretion under s. 19 of the Code to impose a sentence lesser than the maximum penalty.
19. As regards the proper head sentence, Mr Katosingkalara submitted that in light of the circumstances of the offence committed, the appropriate sentence is two years.
20. In comparing the weight of mitigating factors against the aggravating factors, the prisoner's counsel considers that the mitigating factors balance out with the aggravating factors. It was submitted that the offender pleaded guilty and saved this Court and the State from unnecessary expenses of resources on trial of his case, therefore, this should be considered in his benefit. He is also a first-time offender, as he does not have any prior criminal conviction.
21. It is also submitted that the prisoner used no weapon against the victim and there was slight degree of provocation on the part of the complainant when he charged at the offender, whilst offender was attempting to intervene to stop complainant from bashing the complainant's wife.
22. Mr Katosingkalara submitted that during allocutus the prisoner also sincerely expressed remorse to the victim and his family for the injuries he caused to the complainant. His remorse is genuine since he pleaded guilty thus accepting responsibility for the injury he caused to the complainant.
(iii) In The State v Kundu [201 l] PGNC 42; N4262 (18 April 2011), the two offenders pleaded guilty to GBH, s.319 of CCA. Offenders physically assaulted victim after mistaking him for a rapist. Victim sustained multiple bruises and swelling over his body with 3 broken teeth. First time offenders, expressed remorse, paid substantial compensation, and used no weapon. Victim permanently lost 3 teeth. Makail J sentenced the offenders to 2 years imprisonment, less pre-sentence custody term and balance wholly suspended on recognizance of good behaviour bond.
(iv) (iv) In The State v Peter [2011] PGNC 345; N4320 (22 June 2011), Cannings J found the offender guilty after trial for occasioning bodily harm, s.340 (1) of CCA. The offender hit victim's face with stick-hook, during an argument. Victim lost one tooth and suffered severe pain. Offender acted alone, injury not extensive, no priors, imprisonment would impact on offender's children, use of dangerous weapon, no reconciliation, and offender denied offence. He was sentenced to 2 years imprisonment, less pre-sentence custody term, balance partly suspended with probationary conditions.
24. The prisoner's counsel submitted that the injuries sustained in this matter is similar to that sustained in State -v- Carol and State -v- Peter, and that the proper head sentence in this case in light of the case precedents is 2 years.
25. When I enquired as to when the prisoner was granted bail, his counsel replied he was not aware of the exact date bail was granted to his client. When 1 enquired with the prisoner, he confessed that he was not given bail. He said he escaped with the other prisoners. The prisoner's lawyer then formally withdrew previous submissions he made on his client being granted bail and asked the Court to disregard these submissions.
26. The prisoner's counsel submitted that the prisoner is also willing to pay compensation to the victim if his sentence is suspended, and in concluding, counsel says the injuries caused to the victim, although serious, is of a lesser degree and therefore, any penalty should also be less.
27. Ms Batil for the State, in her reply, firstly presented the Victim's Impact Statement which describes the extent of the pain the victim is suffering from. He has lost 3 more teeth from the injury and he continues to feel great pain and cannot eat well. He also cannot do heavy work and others because it affects his jaw. This has also affected earning an income for his family and he depends entirely on his wife to bring in the family's income to sustain the family domestically and for his children home and school expenses.
28. Ms Batil refuted the prisoner's submission that the prisoner was provoked and caused the injuries to the victim as these facts were not presented to Court. Ms Batil further submitted that there is no Pre-sentence Reports or Means Assessment Report presented by the prisoner to show history of the prisoner and his earning capacity. The failure to provide these reports do not favor the prisoner in determining the appropriate sentence.
29. Counsel however, conceded to the following mitigating factors which are that no weapon was used, the plea of guilty has saved the court and the parties' time and resources, and that the prisoner is a first-time offender with no prior convictions.
30. As regards the aggravating factors, the State submits the following as aggravating factors in this case:
(i) An important part of human body was injured. There was a fracture to the victim's jawbone. His jaw was swollen. He had to struggle to sustain himself for 6 to 8 weeks with a liquid diet. For worse, he lost a tooth which is a permanent injury.
(ii) The victim is still suffering long term effect of the injury he sustained. His jaw is now dislocated. He feels pain all the time. He has lost three more teeth. He cannot eat well these days and cannot work to sustain his family.
(iii) No form of compensation or reconciliation has been done to the victim since the incident which happened six years ago.
(iv) the prevalence of the offence in the society.
(i) In The State -v- Lawasi N5964, the prisoner had pleaded guilty to a charge of Grievous bodily harm under s.319 of the Criminal Code. In that case, the prisoner and his cousin brother and the victim who were all drunk, were returning from a dance when the prisoner's cousin and the victim got into an argument. Fearing for his cousin brother's safety who was smaller than the victim, the prisoner picked up a dry stick from the side of the road and hit the victim on the head rendering him unconscious. The prisoner stopped a motor vehicle and took the victim to the hospital and then surrendered to the police. It was held in that the starting point for the offence of grievous bodily harm under Section 319 of the Criminal Code should be 3 '½ years. See The State vs Sheekiot [201l] PGNC 165; N4454 (22 November 2011) and The State v Konos (2010) N4157 (12 November 2010).
(ii) In The State v Songe N6759, the prisoner and the victim lived close by to each other. The victim was complaining that the prisoner did not compensate his wife for assaulting her. Frustrated, the prisoner approached the victim, threw a stone assaulting him on the face and a confrontation took place between the two. The prisoner then confronted the victim and threw a rock that landed on his face causing some of his teeth to fall off and he fell to the ground, the prisoner then came with a bush knife and cut the victim on his head and back causing him grievous bodily harm. On a plea of guilty, he was convicted. The aggravating factors submitted were the fact that two offensive weapons were used and that the offence was prevalent. Mitigating factors submitted were the prisoner's early admission and guilty plea, injuries inflicted were a result of provocation and that compensation of Kl 000 was already paid. Miviri AJ (as he was then) sentenced the prisoner to three (3) years imprisonment IHL less pre-trial custody. The balance was suspended wholly on conditions.
(iii) In the State v Sam [2018] N7512, the prisoner pleaded guilty to GBH under Section 319 of the Criminal Code. The prisoner had an argument with the victim at a hotel. The prisoner then broke a bottle of mosko spirit on the victim's hand. The shattered pieces caused a deep cut to the victim's hand and she was rushed to the hospital. Koeget J sentenced the prisoner to 3 years imprisonment but it was wholly suspended on conditions.
(iv) In the State v Sinkil [2018] N7509, the two offenders were charged under Section 319 of the Criminal Code and pleaded guilty. In that case, the first offender and victim got into an argument which led to the first offender punching the victim and then wrestled with her by locking both her hands from the waist down. The second offender came and assisted the first offender (her sister) and punched the victim on her mouth and bit her lip. The victim suffered three broken lower teeth and swollen fingers. Geita J sentenced the offenders to 3 years, wholly suspended on conditions.
Determining sentencing
33. This Court notes that "The general principle is that the maximum
punishment should be awarded only in the worst cases" as discussed in Golu Golu -v- The State (supra) and that each case should be considered on its own set of facts and circumstances.
34. Furthermore, the Court has considerable discretion whether to impose the maximum penalty or a lesser sentence under Section 19
of the Criminal Code. Section 19 of the Criminal Code provides among others, the following penalty that can be imposed: a shorter term may he imposed [subsection
(l)(a)J, a fine not exceeding K2,000.00 in addition to, or instead of, imprisonment may be imposed [subsection (l)(b)J, a good behavior
bond in addition to, or instead of, imprisonment may be imposed (subsection (l)(d)J, the offender can be discharged and the sentence
postponed [subsection (I)( f)] or a part of or all of the sentence can be suspended subject to conditions [subsection (6)].
35. The issue before the Court is the appropriate sentence for the prisoner.
Whilst Mr Katosingkalara for the prisoner submitted that although the offence committed by the applicant is serious, it is not of
the worse case type warranting the maximum penalty prescribed under s. 319 of the Criminal Code Act. On the other hand, Ms Baril for the State, submitted that the State submitted that the offense committed by the prisoner is serious
especially when considering the permanency of the injury sustained by the victim and the long terms effects of the injury he is still
suffering from today. The offence of grievous bodily harm is prevalent in the society therefore this case warrants a deterrent penalty,
and any suspension of the sentence is within the Court's decision,
36. Are the facts of this case so serious that the maximum penalty must be imposed? If not, what is the lesser penalty? The Court has a very wide discretion to impose a sentence below the maximum penalty under Section 19 of the Code based on proper judicial principles as submitted by the prisoner's counsel.
37. There is no Pre-Sentence Report with views of the community where the prisoner comes from including the overall justice administration relating to sentencing principles and its objective in making our society safe and secure in which every man, woman and child is free to live and not be afraid. There is also no Means Assessment Report to show the earning capacity of the prisoner which helps especially when he is asking for non-custodial sentence so he can pay compensation to the victim, Hence, I am not assisted in this regard.
38. Counsels have assisted this Court in citing some relevant cases to determine penalty. These have been discussed briefly above.
39. In consideration of the facts and the circumstances of this case with the case precedents cited by both counsels, I am of the view that this is not a worse case and so, I will impose a lesser penalty to the maximum penalty of 7 years imprisonment.
40. In summary of the prisoner's submissions, the offence committed by the prisoner is serious, however not extensive. Injuries sustained by victim is one of fractured right jawbone and loss of a tooth. Prisoner is willing compensate the victim. He also has young family at home needing his support. If his sentence is suspended with condition to be complied with at home, it would best serve rehabilitation in the interest ofjustice.
41. An important matter of consideration is the conduct of the offender and how the offence has been dealt with. He has shown genuine
remorse. However, his escape from prison for an unknown period does not favor granting him a non-custodial sentence.
Application of facts to the law
42. The mitigating factors in the prisoner's favour are that is pleaded guilty and there are no priors. When committing the offence, he used no weapon and there was little degree provocation where he was trying to intervene and stop the victim from bashing his wife. In expressing his remorse, the prisoner included apologising to the relatives of the victim. The prisoner also acted spontaneously and he never pre-planned to commit the offence. He also intends to pay compensation to the victim. The prisoner is mindful of the aggravating factors against him which are the permanent loss of third molar tooth and sustained a fractured jaw. He also absconded bail once, was rearrested and such offence is prevalent in society.
43. From the Victim's Impact Statement, he has lost 3 more teeth from the injury and he continues to feel great pain and cannot eat well. He also cannot do heavy work and others because it affects his jaw. This has also affected earning an income for his family and he depends entirely on his wife to bring in the family's income to sustain the family domestically and for his children home and school expenses.
44. Further, the prisoner's submitted that he was provoked and caused the injuries to the victim however, the State asked that Court to disregard this submission as these facts were not presented to Court. The State further says that in the absence of a Pre-sentence Reports and a Means Assessment Report, it does not favor the prisoner in determining the appropriate sentence.
45. The State however, conceded to the following mitigating factors which are that no weapon was used, the plea of guilty has saved the court and the parties' time and resources, and that the prisoner is a first-time offender with no prior convictions. Further, this type of offence is prevalent and the prisoner must face the consequences of his actions.
46. Having considered all of the above, I am satisfied that the appropriate penalty for grievous bodily harm under Section 3 I 9 of the Criminal Code for this prisoner is a sentence for 3 years.
Should all or part of the head sentence be suspended?
47. Counsel for the prisoner submitted that this Court that the circumstances of the prisoner's case warrant a head sentence of2 years and that pre-sentence custody should be deducted under s. 3(2) of the Criminal Justice (Sentences) Act. It is also submitted that the balance of the sentence should be suspended upon probationary conditions under s.19(1)(d) of the Criminal Code Act.
48. Mr Katosingkalara relied on The State v Tardrew [1986] PNGLR 91, wherein the Supreme Court set out three broad, but now exhaustive, categories in which it may be appropriate to suspend a sentence, namely: where it will promote the general deterrence or rehabilitation of the offender; where it will promote the repayment or restitution of stolen money or goods; or where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health.
49. I am a bit reluctant to wholly suspend any sentence imposed on the prisoner for reasons twofold. Firstly, he had escaped custody for an unknown period until he was rearrested on a bench warrant on 15 August 2019, which time spent outside of prison was at his leisure and his liberty was not restricted to conditions .. How do I know that whilst outside, he was deterred from committing another offence or he was rehabilitated? Further, whilst outside after his escape, why did he not attempt to pay compensation to the victim, when he had that opportunity?
50. Whilst there is no Pre-Sentence Report, there is an affidavit of Freddy Ningi to support the prisoner's good character and assist towards his rehabilitation. Mr Ningi is Ward Member for Malakuna No. 5 and lives in Kabagap Village which is adjacent to Block 15 where the prisoner's family lives. He says the prisoner is of good character with no bad reputation or
misbehaviour except for this offence. His ward has set up programs in relation to agricultural activities for his people and he is ready to engage the prisoner in those activities as a way of rehabilitating him if this Court grants him suspended sentence. Mr Ningi says he is ready to receive the prisoner into the community and for the prisoner to participate in his rehabilitation.
51. When asked if the prisoner has the means to pay compensation, his counsel submitted that the prisoner has 2 brothers who are employed and will assist him.
52. In consideration of all the above factors, I make the following orders:
(1) The prisoner is sentenced to 3 years imprisonment.
(2) His pre-sentence term of 10 months and 10 days is deducted from the head sentence.
(3) He will remain in custody at CIS Kerevat until 15 August 2020 to serve a third of his sentence.
(4) The balance of his term after 15 August 2020 is suspended on the following conditions: -
(a) that he pays the sum ofK5,000 as compensation with customary reconciliation to the victim and his family by 25 December 2020, which reconciliation shall be witnessed by the Ward Member and the Probation Officer in Kokopo.
(b) he must reside at Block 1.5 at Malukuna No. 5 Ward and nowhere else except with the written approval of the National Court;
(c) he must not leave East New Britain Province without the written approval of the National Court;
(d) he must perform at least six hours unpaid community work each week at a place notified to the Probation Office under the supervision of his Ward Councilor;
(e) he must attend his local Church every weekend for service and worship and submit to counselling
(f) he must report to the Probation Office at Kokopo on the first Monday of each month between 9.00 am and 3.00 pm;
(g) he must not consume alcohol or drugs;
(h) he must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim and his family.
(i) he must have a satisfactory probation report submitted to the National Court Registry at Kokopo every six months after the date of sentence.
_____________________________________________________________
Public Prosecutor: Lawyer for State
Public Solicitor: Lawyer for Prisoner
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