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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR. NO. 1193 AND 1206 OF 2021
BETWEEN:
THE STATE
AND:
BETTY RUSSEL and STEWARD RUSSEL
Waigani: Ganaii, AJ
2021: 25th October, 11th, 15th, 16th November
CRIMINAL LAW – SENTENCE – Assault Occasioning Bodily Harm – Section 340 of the Criminal Code –Guilty Plea
–Use of bamboo branch - Fracture of right arm - Sentencing principles – Relevantly Comparable cases - Denouncement –
Deterrence – Aggravations outweigh mitigations – Head Sentence of two years and 18 months fully suspended – Good
Behaviour Bond - Compensation orders
Cases Cited:
Papua New Guinea Cases
Aieni v Tahain [1978] PNGLR 37
Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
State v Abuc Batulik Cr. No. 284/2010, 26.05.10
State v Aiwa [2008] PGNC 321; N3330
State v Carol Peter [2011] PGNC 131; N4299
State v Donald Moses Mariota, Cr. No. 1222 of 2017, (Decision 12th July 2018)
State v Hotsia Geria [2008] PGNC 295; N3868
State v Iona, Cr No 463 of 2018, N7480
State v Irene Soso Cr. No. 149/2009, 04.03.10
State v Judah Lusan Piries Cr. No. 886/2007, 18.09.07
State v Kagai [1987] PNGLR 320
State v Kara [2012] PGNC 19, N4663
State v Kiaro [2020] PGNC 277; N8610
State v Kogen [2016] PGNC 39 N6211
State v Mathew Sabuin, Gabriel Pinia & Philip Kit Cr. No. 921-922/2006
State v Penge [2002] PGNC 90; N2244
State v Peter [2011] PGNC 345; N4320
State v Peter Jai [2011] PGNC 118; N4391
St v Sinowi [2010] [2001] N2175
State v Tom Koroi Garua & 2 Ors (2000) N2312
State v Wamingi [2013] PGNC 329 N5723
Overseas Cases
R v Doran [2008] VSCA 271 [15] [16]
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Legislation
The Criminal Code Act, Chapter 262 of 1974, Section 319
Criminal Law Compensation Act, Chapter No 26 of 1991, Section 5 (3) (b)
Counsel
Ms. S. Suwae, for the State
Ms C. Bomai, for the Defendant
DECISION ON SENTENCE
16th November, 2021
1. GANAII, AJ : This is the sentence for Betty Russel and Steward Russel who have been convicted after a guilty plea to one count of Assault Occasioning Bodily Harm contrary to section 340 of the Criminal Code.
2. The relevant facts are that the offenders are parents of Alphonse Russel. On the night before the incident, Alphonse had gone to the home of the victim, Eddie Joe and had used obscene languages on the victim’s family members. On the morning of 01st January 2020, the victim, approached the offenders’ home, asking why their son Alphonse had used obscene words on his family members. The offenders heard and saw him and they came out of their house. There was a fight. In the process, Betty Russel armed herself with a dry bamboo branch and swung it at the victim. The victim lifted his right hand to fend off the bamboo branch. The bamboo branch hit his right hand and fractured the bone (ulna). The victim suffered from a 55% loss of effective and efficient use of his right hand.
Antecedent and Allocutus
3. The offenders have no prior convictions. They were given the opportunity to say what matters the court should take into account when considering their punishment (Aieni v Tahain [1978] PGNC 13 applied). They said the following:
Betty Russel:
“Sorry to the lawyers for their time and efforts, Sorry to the victim and his family and also I say sorry to my families for what had happened”
Steward Russel:
“Sorry to my lawyer and State lawyer for their time. I say sorry to the victim for what has happened. I say sorry to my families for their time”.
4. The offender Betty Russel is 43 years old and comes from Bonanamu Village, Rigo District of the Central Province. She is the first born out of a family of four brothers and seven sisters. Her parents have passed on. Her siblings are married and live their own lives. The offender Steward Russel is 51 years old and comes from Pukari village, Malalau District of the Gulf Province. He is the first born out of a family of six sisters and two brothers. His siblings are married and live their own lives. Both parents are still alive, live at home and in their old age.
5. Both offenders reside at Vadavada Settlement, New Block. Since their settlement there in 2012. They live in their six-bedroom permanent home built by the offender Steward Russel. Both offenders are members of and active participants of the Foursquare Gospel Church at Taurama Valley.
Education and Employment history
6. The offender Betty Russel was educated up to Grade 6 at Taurube Primary School in Rigo Central Province. She has never been formally employed. The offender Steward Russel was educated from Grades 1- 6 at Ilakaraeta Primary School in Kerema, Gulf Province, and Grades 7- 10 at Okapa High School, EHP. He then graduated from Mt Hagen Technical College as an Electrician in 1998. He worked as an Electrician with then PNG Electricity Commission (PNG Elcom) now PNG Power, until his resignation in 2017.
7. The views from five members of the community including a community leader demonstrated that the offenders are both persons of good character, and they are not a threat to their community. They are quiet, humbled, nonviolent and peace-loving people. The community sources say that the victim is a threat to the offenders’ family and the community as he usually is provocative, intimidating and would harass the offender’s family. Through his behaviour of continuous drinking, playing of loud music and use of obscene and vulgar words, the victim has demonstrated a behaviour that is seen as often disturbing of the peace and quiet that other members of the community want to have and enjoy.
8. A community source says the offender Betty Russel helps him to run community sporting programs which is aimed at keeping people busy and out of law-and-order problems. Another community source said the offender Steward Russel is a good family man who was able to build his home and look after his extended family of eight children and two grandchildren.
Financial Situation and attitude towards Compensation and Reconciliation
9. The offenders sustain their own living plus that of their extended family through informal marketing. The offenders say that due to ongoing harassment from the complainants they have stopped informal marketing. They are willing to mediate with the victim so that they can go back to usual life and to informal business to sustain themselves.
Health and Future
10. The offender Betty Russel complains of heart burns and back pains when carrying heavy loads but there is no medical report to substantiate this. The offender Steward Russel is of good health and has no major health problems. Both practice Christianity do not take alcohol or drugs.
Victim’s Views
11. The victim didn’t say much in the PSR except to say that he wanted to be compensated. I have read his Victim Impact Statement (VIS). He says he will need K15, 000 to undergo a surgical operation to place plates in his hand. That is not substantiated with any evidence.
Circumstances of the offence and Offender’s attitude towards the Offence
12. The offenders said that the incident started when the victim and his in-law Michael approached their home and wanted to fight as they were having morning tea. Their son woke up and went out and he got into a fight with the victim and Michael. They say their son was stabbed and so they stepped in to stop the fight. The victim approached the offender Betty. Betty thought that the victim would assault her. She hit him with the dry bamboo branch. Both say they are truly sorry for what had happened and are willing to make peace and reconcile with the victim and his family.
Potential Danger to the community and Suitability for Probation Supervision
13. The offenders do not have any prior criminal records with the police. They also do not have a prior probation supervisory record. They are not a threat to their community. The community sources however say that the victim is a threat to the offenders and the community as he can be provocative.
Defence Submission on Penalty
14. Defence submitted that the following mitigating factors are present: nil prior convictions, cooperation with police; early admission and guilty plea; old age, offenders son sustain injury; remorseful, victim is using hand on daily basis to do normal activities. The following aggravating factors are present: the offence is prevalent, the victim sustained injury and was hospitalized. Defence also submitted that the following extenuating circumstances are present: the offenders were told at the Police station that the injury is worth K15, 000 and they were told to pay K15, 000. They did not pay. Their son was injured, and the offender Steward Russel was charged for an offence he did not commit.
15. Defence relied on the following comparable cases:
victim all over body and head during a drunken brawl and sustained injuries. He was sentenced to 18 months which was fully suspended with conditions and orders for compensation.
female neighbour on the head and face with an iron bar resulting in loss of two teeth. A sentence of 2 years was imposed, and fully suspended with conditions and compensation.
biting the victim’s ear. She was sentenced to18 months imprisonment, with no suspension.
hitting the victim with a piece of wood, fracturing the ulna of her arm. She was sentenced to 2 years, with no suspension.
16. Defence submitted that in comparison to the above cases, this is not a worst case and a sentence of 18 months is appropriate and should be wholly suspended with conditions for compensation pursuant to s 2 of Criminal Law Compensation Act 1991. The victim has indicated willingness to participate in reconciliation and compensation.
Prosecutions Submission
17. State submitted that the following comparable cases are applicable for consideration:
with iron rod and broke left arm. Sentenced to 6 months, wholly suspended with orders for compensation.
18. The mitigations are: first time offenders; cooperation with police, plea of guilty, provoked assault, self-defense. The aggravations are prevalence, use of dangerous weapon, dry bamboo branch, permanent injury.
19. The Victim Impact Statement (VIS) show loss of use of right hand. Offence is prevalent. Sentence should emphasize need for specific deterrence.
20. State submitted that based on the sentencing trend as reflected in the cited comparable cases, this case attracts a penalty of between 2-3 years.
Application
The purpose for sentencing
21. The purposes for sentencing are: to ensure that the offender is adequately punished for the offence, to prevent crime by deterring
the offender and other persons from committing similar offences, to protect the community from the offender, to promote the rehabilitation
of the offender, to make the offender accountable for his or her actions, to denounce the conduct of the offender, and to recognise
the harm done to the victim of the crime and to the community. Sentencing principle in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 is adopted and applied.
Maximum penalty is reserved for the worse case
22. A consideration which the courts must have regards to is the Section 19 Criminal Code discretion of the courts. This provision of the law provides for the wider discretion of the courts to impose lesser penalty than the maximum. The principle in the case of Goli Golu v The State [1979] PNGLR 653 is applied where it states that the maximum penalty is reserved for the worst type of case.
23. The punishment should be in proportion to the harm inflicted and the level of responsibility of the offender. Where society needs to be protected, an offender is entitled to be punished to the extent commensurate with the seriousness of the crime. The sanction should not be too severe or too lenient. State v Kiaro [2020] PGNC 277; N8610 (30th October 2020), Narokobi, J, applied.
Relevant Consideration
24. In State v Hotsia Geria [2008] PGNC 295; N3868, Kandakasi, J posed the following questions which are pertinent to determining an appropriate penalty: what the relevant facts pertinent to the case are; what the relevant sentencing trends applied by the courts are; what the aggravating and mitigating factors are and what the appropriate head sentence should be and should any or part of it be suspended.
25. The following five cases are considered as relatively comparable cases and are applicable. State v Aiwa [2008] PGNC 321; N3330 (7 May 2008); State v Mathew Sabuin, Gabriel Pinia & Philip Kit Cr. No. 921-922/2006, 25.08.06; State v Judah Lusan Piries Cr. No. 886/2007, 18.09.07, State v Irene Soso Cr. No. 149/2009, 04.03.10 and State v Abuc Batulik Cr. No. 284/2010, 26.05.10. A summary of each of these cases is stated below:
1) State v Aiwa [2008] PGNC 321; N3330 (7 May 2008) - the offender pleaded
guilty to using a metal rod to hit the victim on her right pointer finger. The victim suffered a fracture. The offender and victim
were known to each other. The offender was aggrieved over the refusal of the victim to assist her recover debts or what is termed
as ‘dinau mani’. The victim was a middle-aged woman who had introduced the borrowers to the offender. The injury was
sustained when the victim raised her hand to defend herself. Offender is a first-time offender. The prisoner was sentenced to 14
months imprisonment and the balance of the sentence was wholly suspended with conditions and orders for compensation.
2) State v Mathew Sabuin, Gabriel Pinia & Philip Kit Cr. No. 921-922/2006,
25.08.06 - the offenders pleaded guilty. The first offender kicked victim twice in the head and second and third offenders kicked victim all over his body as he lay on the ground. All were drunk. The first offender was sentenced to 18 months and two others to two years each.
guilty to three counts of assaulting three members of same family with a guava stick, causing bruising and pain, there were no broken limbs. Two years sentence was imposed.
after trial. The offender struck the victim twice on her left arm and broke the forearm. A head sentence of one year was imposed.
Relevantly Comparable cases
26. I am mindful of the main features and considerations that the courts in these cases took into account in arriving at the head sentence and suspension thereof. The main considerations that make those cases ‘relevantly comparable’ to the present case are: type of weapon used; part of body injured; findings in the medical report and main reasons for the head sentence and suspension thereof. Other relevant facts demonstrating that case precedents are relevantly comparable are: the charge, in this instance, is Assault Occasioning Bodily Harm under section 340 of the Criminal Code; guilty pleas (except in one case, i.e. Soso, supra) and being first time offenders.
Summary of all cases
27. One case (Sabuin, supra) said the starting point for a sentence in cases of Assault Occasioning Bodily Harm is halfway or 18 months. A majority of these cases including those cited by the counsels show the courts imposing a head sentence of two years imprisonment as appropriate for the use of metal rod, wood, and kicks to the head, face, and other parts of the bodies of the victims, namely the hand and arm, causing significant injuries. Where the courts imposed less than two years i.e., 12 months, 14 months and 18 months respectively in three cases, those cases involved fracturing a finger, kicked in the head and use of timber to facture the arm.
28. Three other cases involving a charge of Grievous Bodily Harm are cited
for purposes of considering principles for suspending sentences. They are: State v Iona, Cr No 463 of 2018, N7480; State v Peter [2011] PGNC 345; N4320 and State v Kara [2012] PGNC 19, N4663.
29. In the State v Iona, Cr No 463 of 2018, N7480, the court considered that where there was no evidence that the victim accepted compensation and reconciliation, it did not suspend a sentence of four and a half years imprisonment. In the State v Peter [2011] PGNC 345; N4320, the court can provide motivation based on circumstances of the case to order compensation and encourage reconciliation. In the present case, given that the offenders and victim are neighbours and will continue to live closer to each other for a long time, and where the victim and offenders have indicated willingness to accept and pay compensation, the court is mindful to impose a penalty that will encourage compensation and reconciliation.
30. As in all cases, the sentence in this matter will be determined having regard to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38. The offenders have pleaded guilty to one count of Assault occasioning bodily harm, contrary to section 340 of the Criminal Code. The state had invoked section 7 of the Criminal Code to include Steward Russel as a principal offender. The offenders face up to a maximum penalty 3 years imprisonment.
Compensation and Guilty Plea
31. The offenders pleaded guilty and made apologies in open court during the administration of allocatus. These demonstrated genuine remorse. Willingness to reconcile and pay compensation and their early guilty plea enhance the prospects for rehabilitation which when considered should reduce the need for considering a sentence aimed at specific and general deterrence.
32. I am mindful that efforts and undertakings made to pay compensation and guilty plea considerations should always be balanced against the gravity of the offence. R v Doran [2008] VSCA 271 [15] [16].
Court’s response to other matters raised in submissions
33. Steward Russel’s involvement is through section 7 of the Criminal Code. His willed presence at the crime scene, and non-communication of dissent to Betty Russel’s involvement resulted in him aiding and abetting Betty Russel in committing the offence. Hence, Steward Russel is punished as a principal offender and according to his level of involvement.
34. Both offenders say in the PSR that the victim was assaulted on the left hand and not the right hand and that the victim is using his hand to do normal daily activities. I will go by the evidence in the Medical Report which is that the fracture was on the right hand and the report shows that the victim now suffers from 55% loss of effective and efficient use of his right hand.
Head Sentence
35. I consider that a head sentence of 18 and 24 months is appropriate in the circumstance for the offenders in their individual roles in the commission of this offence and sentence them according to their degree of participation. (Principle in case of State v Tom Koroi Garua & 2 Ors (2000) N2312, and State v Donald Moses Mariota, Cr. No. 1222 of 2017, Alotau: Toliken, J, (Decision on 2016th March, 7th June, 12th July 2018), is applied.
36. The head sentences therefore are:
Suspension
37. Some case law principles on suspension of head sentences say that suspension is not an act of leniency but is in the interest of the community and to promote rehabilitation and prevent recidivism (tendency of a convicted prisoner to re-offend): The State v Kagai [1987] PNGLR 320. Evidence of good character supports suspension. There must be actual evidence and not based on submissions that the offender has good character: State v Kagai (supra). In violent offences, the views of the victim are important when considering suspending sentence: State v Kogen [2016] PGNC 39 N6211 and State v Wamingi [2013] PGNC 329 N5723.
38. I am mindful that the PSR promotes both offenders’ prior good character which means they have never been in trouble with the law before or all through their lives until they committed this offence. I accept that they did not go looking for this trouble. The situation they found themselves in came about because of their son’s behaviour. Both offenders are church going and peace-loving citizens as shown in the view of their community members. They have always been good law-abiding citizens. These factors weigh heavily in their favour in consideration for suspension.
39. Consequently, serving time in prison for deterrent purpose is not strongly called for. This court must give them an opportunity to reconcile and pay compensation. Pursuant to section 5 (3) (b) of the Criminal Law Compensation Act, and the principle in the case of State v Penge [2002] PGNC 90; N2244 (24 May 2002), I will consider compensation to encourage reconciliation considering both the victim and offenders are neighbours.
40. In consideration of compensation as a form of punishment, I am minded to fully suspend the head sentence of 2 years and 18 months imprisonment in light labour and order that the offender be placed on good behaviour bond for 2 years and 18 months with conditions.
41. I am mindful that the period in which the offender will be ordered to make compensation payments will be shorter. The offenders
are not formally employed, and they will face some hardship in trying to find K2, 000 to pay compensation. That is a form of punishment
for them. Their interest must be balanced against the interest of the victim, the neighbourhood and the community at large. The punishment
that this court imposes is aimed at deterring the offender from reoffending and resorting to violence as a means of conflict resolution.
This sentence also recognises the harm done to victim, who has 55% loss of effective use of his right hand.
42. The respective head sentences of 2 years and 18 months is fully suspended on the condition that the offenders will enter into
own recognition and be of good behaviour for their 18 months and two years respectively.
Orders
43. The orders of the court on sentence are:
Orders accordingly.
__________________________________________________________________
Public Prosecutors: Lawyers for the State
Public Solicitors: Lawyers for the Defendant
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