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State v Dede [2021] PGNC 103; N8844 (14 May 2021)

N8844

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR NO. 647 OF 2017


THE STATE


V


RONALD DEDE


Kimbe: Numapo J
2021: 13th April & 14th May


CRIMINAL LAW – Particular Offence – GBH – Plea of Not Guilty – Use of offensive weapons – Victim suffered permanent injuries - Prevalence of the Offence - Payment of compensation – Non-custodial sentence, s 19 of Criminal Code.


Held:

(i) Sentencing is influenced by various factors that include the gravity of the offence and its prevalence and public opinion about the particular offending.

(ii) Some degree of de facto provocation on the part of the victim.

(iii) Use of offensive weapon in any attack could result in serious injuries including death.

(iv) Permanent injuries suffered as a result of the attack calls for both specific and general deterrence.

(v) Some compensation has been paid to the victim for the injuries sustained.

(vi) Prisoner sentenced to three (3) years IHL.

(vii) Sentence to be wholly suspended upon payment of further compensation with conditions.

Cases Cited:


Avia Aihi v The State (No 3) [1982] PNGLR 62
Goli Golu v The State [1979] PNGLR 633
Mase v The State [1991] PNGLR 88
State v Iori Veraga (2005) N2921
State v Kund [2011] PNGNC 42, N4246
State v Martin Konos [2010] N4157
State v Heni Meakoro Cr. No. 428 of 2011
State v Joachim Otto Bare Cr. No. 638 of 2015
State v Jessie Kaia (2018) N7341
The Acting Public Prosecutor v Aumane & Ors [1980] PNGLR 501
Ure Hane v The State [1984] PNGLR 105


Counsel:


M. Tamate/A. Bray, for the State
D. Kari, for the Defence


SENTENCE

14th May, 2021


  1. NUMAPO J: This is the decision on sentence. On arraignment the accused Ronald Dede of Bagum village, Talasea, West New Britain Province pleaded not guilty to one count of Grievous Bodily Harm (GBH) contrary to Section 319 of the Criminal Code. The matter went to trial and he was found guilty and convicted accordingly.
    1. THE LAW

Section 319: GRIEVOUS BODILY HARM


‘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.


  1. The maximum penalty for grievous bodily harm (GBH) is seven (7) years imprisonment, however section 19 of the Criminal Code gives the court a wider sentencing discretion to impose a lesser sentence than the prescribed maximum penalty. It is also trite law that maximum penalty is reserved for the worst type offence. See Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No 3) [1982] PNGLR 62 & Ure Hane v The State [1984] PNGLR 105.
    1. THE FACTS
  2. The brief facts were that; on the 21st January 2018 between 5pm and 6pm the accused in company of two other persons attacked the victim. One of the accomplice threw a spear at the victim first but missed. The accused then swung a bushknife at the deceased and cut him on his left eye and forehead area.
  3. On arraignment the accused initially pleaded guilty however, upon an application by the Defence a plea of not guilty was entered pursuant to section 563 of the Criminal Code.
    1. SENTENCING
  4. Sentencing is influenced by various factors that includes the gravity of the offence and its prevalence and public opinion about the particular type of offending. The wishes of the victim and society and the interest of the prisoner are also taken into account. It’s a balancing act. The type of penalty to be imposed on a prisoner and the purpose that penalty will achieve such as deterrence, rehabilitation, restitution or retribution are also matters for consideration. See; The Acting Public Prosecutor v Aumane & Ors [1980] PNGLR 501 and The State v Iori Veraga (2005) N2921.
  5. Considerations such as payment and acceptance of compensation including reconciliation between the offender and the victim are also taken into account.
  6. The head sentence is determined by the factual circumstances of each case being the aggravating factors, the mitigating factors and the extenuating circumstances. In the present case, the aggravating and mitigating factors and circumstances are as follows:
(a) Aggravating factors

(b) Mitigating factors

(ii) Some degree of de facto provocation. Victim attacked the Offender’s younger brother earlier that prompted his retaliation.

(iii) Offender expressed remorse.

(iv) Cooperated well with the police.

(v) Paid compensation to the victim and his relatives.
  1. SENTENCING TREND ON GRIEVOUS BODILY HARM (GBH)
  1. Both Counsels cited to me a number of recent comparable case laws reflecting the current trend on sentencing in GBH cases which I find very helpful. I refer to some of them below:
  2. The victim was mistaken for a rape suspect and assaulted by the relatives of the victim. He suffered multiple bruises and lost three of his tooth. A PSR report showed that the offenders have paid compensation to the complainant. The offenders were sentenced to 2 years imprisonment less 4 months for pre-trial custody with the balance of the sentence suspended and the offenders were required to enter into their own recognizance and be of good behaviour bond during the period of suspended sentence. The court noted that no offensive weapon was used during the attack.
  3. The prisoner was sentenced to 3 years IHL less the pre-trial custody period and the balance to be served in custody. The offender pleaded guilty to doing grievous bodily harm to his nephew by attacking him with a piece of timber fracturing his knee and other superficial injuries.
  4. The offender pleaded guilty to doing GBH to his wife. The offender hit her with the mobile phone on her right eye which caused her permanent damage. He was sentenced to 3 years which was wholly suspended on the condition that the offender enters into his own recognizance and be of good behaviour.
  5. The offender pleaded guilty to GBH. He was chasing two small children when he was intercepted by the victim. He punched the victim on his jaw resulting in laceration and a broken tooth to the lower right jaw. He was sentenced to 3 years imprisonment, less pre-sentence custody period of 2 years, 6 months and 4 days. The balance of the sentence was wholly suspended with conditions.
  6. The offenders pleaded guilty to attacking the victim by cutting him on his right forearm and further on his head. The victim suffered serious injuries. The Court sentenced the offenders to 4 years imprisonment with partial suspension in that they serve 2 years IHL and 2 years suspended on probation with conditions.
  7. The offender was a police officer who pleaded guilty to two counts of grievous bodily harm. He abused his police powers by brutally attacking the two victims. He was sentenced to 3 years on each count partially suspended on payment of compensation to the two victims.
    1. ALLOCUTUS
  8. In his allocutus, the prisoner told the court that:

“I say sorry to the Court. I also say sorry to the victim. I say sorry to other people sitting in the court now. Since I graduated from school I have never committed any offence. This is my first time in court. I already paid compensation to the victim and his family which includes; a live pig valued at K1, 500; shell money (param) K2, 300, cash money of K2000 and the victim’s medical expenses of K200. I already paid a total of K6000 to the victim and his family. My small brother Elizah Pinda is a student here at the Nursing College in Kimbe and I usually help him with his school fees. My father is a subsistence farmer and lives in the village. I am a teacher and current teaching Grade 7 at Dagi Primary School and have 54 students in my class. This is my first year teaching at Dagi. Before that I taught at Gigo Primary School for 2 years.


I ask the Court to have mercy on me and give me probation. I am happy to pay further compensation to the victim if ordered by the Court. I am currently supporting my small brother who is attending school at the moment. That is all.”


  1. MEANS ASSESSMENT REPORT
  1. According to the Pre-Sentence Report, the prisoner is currently working as a teacher and earns a forthnightly salary of K627.00 and also owns a cocoa and coconut blocks at his Bagum village that is looked after by his parents. He is prepared to pay a further compensation if ordered by the Court on top of what he has already paid to the victim and his family. The victim and his family initially demanded for K10, 000 in which he has already paid K6000 both in cash and in kind according to custom.
    1. PRESENT CASE
  2. Ms Tamate for the State submitted that taking into consideration the aggravating and mitigating factors and the need for both specific and general deterrence and given the prevalence of the offence, an appropriate sentence would be between 4-5 years imprisonment. However, the prisoner had already paid some compensation to the victim and that should also be taken into consideration as a mitigating factor.
  3. Mr. Kari for the prisoner submitted for a head sentence of 3 years which would be appropriate given the aggravating and mitigating factors. However, in the light of the mitigating factors and the favourable pre-sentence report, the sentence to be wholly suspended upon the payment of full compensation ordered by the Court pursuant to s.2 of the Criminal Law (Compensation) Act.
  4. I find that the victim suffered injuries from the attack carried out by the prisoner. There was no reason for the attack. The amount of force used was so strong that it raptured the victim’s eye globe that caused him permanent blindness to his left eye. It also fractured the victim’s temporal bone (skull) and he is now carrying a permanent scar on his left forehead. The use of an offensive weapon, a bushknife and the amount of force used in the attack showed that the prisoner intended to cause serious injuries to the victim. I take into account the prevalence of the offence in the province. People are resorting quickly to violence rather than resolving their dispute through peaceful means. The Court must take a strong stand on such offence that sends a message not only to the prisoner himself but also to other like-minded people that those who committed the similar offence would face the same punishment.
  5. The prisoner is a teacher by profession and is a well-educated and intelligent person. He should have known better. He was very remorseful and apologized for what he has done and has paid some compensation to the victim and is prepared to pay further compensation if ordered by the court to avoid imprisonment. He is currently teaching at Dagi Primary School here in Kimbe, WNBP. He also supports his younger brother who is attending the Nursing School and also his father who lives in the village. It became obvious to me that there are many people who relied on the prisoner for financial support and if he goes to prison this would all be lost and they would all suffer.
  6. The victim and his relatives demanded K10, 000 as compensation and the prisoner has already paid K6000 both in cash and kind. Prisoner has indicated that he is willing to pay further K4000 if ordered by the Court. Victim and his relatives are willing to accept further compensation from the prisoner. It seems to me that compensation is preferred by both parties to restore peace and harmony within the community. Given that, it will not, in my view, serve any useful purpose by incarcerating the prisoner.
    1. SENTENCE
  7. I make the following Orders:

Orders accordingly


Public Prosecutor: Lawyers for the State

Public Solicitor: Lawyers for the Defence

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