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State v Suitawa [2021] PGNC 104; N8845 (14 May 2021)

N8845


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR NO. 1368 OF 2018


THE STATE


V


ELIZAH SUITAWA


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


CRIMINAL LAW – Particular Offence – GBH – Guilty Plea – Victim suffered injuries - Prevalence of the Offence- Non-custodial sentence – s 19 of Criminal Code.


Held:


(i) Use of dangerous object to carry out the attack could result in serious injuries including death.

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

(iii) Compensation to be paid to the victim for the injuries sustained.

(iv) Prisoner sentenced to two (2) years IHL to be wholly suspended with conditions if compensation is paid.

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. The prisoner ELIZAH SUITAWA of Lavongai, Kavieng, New Ireland Province pleaded guilty to one count of Grievous Bodily Harm (GBH) contrary to Section 319 of the Criminal Code.
    1. BRIEF FACTS
  2. The brief facts to which the prisoner pleaded guilty were that in the early hours of the 27th June 2018, the prisoner and the victim were at the Kimbe Police Barracks. They had been drinking together the previous night with some other friends until 2:00 am in the morning when they dispersed. The prisoner and the victim are known to each other and are good friends.
  3. The victim went to his house but the prisoner was causing nuisance along the public street within the police barracks area. He was also swearing and making a lot of noise. The victim went to check the prisoner and saw him lying in the middle of the road. Victim tried to wake him up to take him home, but the prisoner suddenly woke up and struck the victim on the face with a stone he had in his hand. The victim sustained serious injuries to his nose and mouth, including loss of his two front teeth and a fracture to his nasal bone.
    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. FACTUAL CIRCUMSTANCES
  2. The factual circumstances of the case is determined by its aggravating and mitigating factors and circumstances as follows:
(a) Aggravating factors

(b) Mitigating factors

(ii) Offender expressed remorse.

(iii) Cooperated well with the police.

(iv) Offender is willing to pay compensation.
  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 victim.
    1. ALLOCUTUS
  8. In his allocutus, the prisoner told the court that:

“Your Honour, I want to say sorry for what I have done. I say sorry to the victim. I will compensate the victim as he is my friend. I want the court to give me probation so I can spend my time outside.”


  1. MEANS ASSESSMENT REPORT
  1. According to the Pre-Sentence Report, the prisoner is currently unemployed and is living with his elder sister who is a primary school teacher at Ruango Primary School. His parents and sister are willing to help him pay compensation to the victim.
    1. PRESENT CASE
  2. Ms. Tamate for the State submitted that there is a need for both the specific and general deterrence given the prevalence of the offence and therefore, an appropriate sentence would be between 2 – 3 years imprisonment. However, the prisoner has indicated to pay compensation and that should be taken into consideration as a mitigating factor.
  3. Mr. Kari for the prisoner submitted for a sentence of between 2-3 years less the pre-trial period which would be appropriate given the aggravating and mitigating factors. However, in the light of the mitigating factors and the favourable pre-sentence report, Counsel further submitted that the sentence to be wholly suspended upon payment of compensation pursuant to s.2 of the Criminal Law (Compensation) Act and the prisoner be placed on probation with conditions imposed.
  4. The victim suffered serious injuries to his mouth and nose resulting in the loss of his two front teeth. The attack was carried out for no apparent reason at all. Both the prisoner and victim were good friends and had been drinking together the night before. Victim went to help the prisoner and take him home only to be attacked. It does not make any sense.
  5. Again, I take into account the prevalence of the offence in the province. I have, over the last 12 months dealt with more GBH cases here in the West New Britain Province than in the past. People are resorting to violence more quickly rather than trying to resolve the dispute through peaceful means. We do not live in a lawless society where every little dispute must end up in a fight or where people attack other people for no apparent reason. 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 commit similar offence would face the same punishment.
  6. In his Victim Impact Statement, the victim stated that he suffered permanent injuries to his mouth and is finding it difficult to eat well. He has also lost two of his front teeth which is making it difficult for him. He is suffering physically, emotionally and psychologically from the injuries he sustained. He wants the prisoner to compensate him for his sufferings.
    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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