State v Patrick [2021] PGNC 653; N9903 (28 July 2021)

N9903

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1120 OF 2020

THE STATE

V

DANNY PATRICK

Kokopo: Suelip AJ
2021: 20^th May & 1^st, 28^th July

CRIMINAL LAW – sentence – plea – grievous bodily harm s.319 – offender and complainant under influence of alcohol – complainant swore at offender – offender assaulted and broke complainant’s left arm – sentence of 2 years – placed on probation for 12 months with conditions

Cases Cited

State v. Ray Sheekiot (2011) N4454
State v. Martin Konos (2010) N4157
State v. Albert Kavena [2015] N6085
State v. Gordon Robert [2019] N8060

Legislations

Criminal Law (Compensation) Act 1991

Counsel

G Tugah, for the State
S Pitep, for the Prisoner

SENTENCE

28^th July, 2021

1. SUELIP AJ: On 20 May 2021, the prisoner pleaded guilty to one count of grievous bodily harm to Rebecca Kiama, thereby contravening section 319 of the Criminal Code.

2. This is my decision on sentence.

3. The facts on which the prisoner pleaded guilty to and was convicted upon are these. On 18 July 2020 between 7:30pm and 8pm, the prisoner and the complainant were at Kokopo Business College, Kokopo District, East New Britain Province. Both are residents at the college. During that time, the prisoner had just returned in the complainant’s vehicle from a drinking spree with families and friends at Takubar Beach Resort. Him and his wife, Racheal had brought their kids, so they all went to their house to settle them. The prisoner and his wife also asked the complainant for her vehicle to drop his friends off. The complainant and her driver Chris Ken waited at the carpark for a while as the prisoner and his wife cooked some food for them. Then, his wife went to the complainant to check on them. However, since the complainant had waited for a long while, she recklessly uttered some insulting words to the prisoner and his wife in front of his wife. She said “Danny Patrick, kan asshole”, and some other insulting words. The prisoner overhead these insulting words and was unhappy. He then approached the complainant and assaulted her and as a result she sustained a fractured left ulna on her left arm. She was then taken to the Vunapope hospital for medical treatment. A complaint was laid at Kokopo Police Station, and the prisoner was arrested and charged with one count of causing grievous bodily harm to another person under section 319 of the Criminal Code Act.

4. Section 319 of the Criminal Code states: -

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.

5. The penalty under that section is imprisonment for a term not exceeding seven years.

6. For purposes of sentencing, the prisoner’s personal particulars taken into consideration are these. He is 35 years old and come from Kami village, Goroka, Eastern Highlands Province. He has 7 siblings, and one has recently passed away. Only 3 of them including the prisoner are employed and support their parents, who are still alive. He is married and with 3 children. His highest level of education was at Divine Word University, and he is currently employed by Agmark Gurias as the assistant team doctor. He attends the Christian Life Centre church.

7. Further, he has no prior convictions and during allocutus, he sincerely apologized to the Court and to the victim. He acknowledged what he did was wrong and is against the law. He said he was never sworn at before and when the complainant swore at him, he was offended and reacted without thinking. He says he is willing to pay compensation.

8. Let us now weigh out the aggravating and mitigating factors. Against him, the aggravating factors are these. He used force when he punched the complainant and broke her left arm. This incident happened in a domestic setting where they all were under the influence of alcohol. As a result, the complainant suffered physical and emotional trauma. Finally, this offence is prevalent in the society.

9. In his favor, the mitigating factors are these. He is a first-time offender and pleaded guilty early to the charge. He co-operated with police, and he is willing to pay compensation to the victim. He has also expressed genuine remorse and acknowledged the wrong he had done. Another mitigating factor that stands out in his favor is that there was de facto provocation when the complainant swore at him.

10. To find the appropriate sentence in the circumstances of this case, some past cases will be discussed to see the sentencing trends. In the case of State v. Ray Sheekiot (2011) N4454 and State v. Martin Konos (2010) N4157, the Court held the starting point for grievous bodily harm under section 319 of the Criminal Code is 3½ years. Further in State v. Albert Kavena [2015] N6085, Polume-Kiele J said that the starting point of 3½ years is subjected to adjustments upwards or downwards depending on the relevant facts and circumstances such as: -

(i) the use of a lethal weapon
(ii) the offender inflicts injury on a vulnerable part of the body
(iii) offender part of a group
(iv) offender inflicts multiple injuries on the victim

(v) offender attacks victim with a lethal or non-lethal and the victim suffers permanent disability or life-threatening injuries

(vi) victim is unarmed or innocent

(vii) there is pre-planning

12. Both counsels referred to the local case of State v. Gordon Robert [2019] N8060, where 2 prisoners pleaded guilty to a similar charge of grievous bodily harm under s319 of the Criminal Code. Both prisoners were drunk and assaulted the victim while he was walking on the road. They punched his face and he fell unconscious to the ground. The victim received injuries to his face and mouth. They were sentenced to 2 years in prison, less pre-trial custody and the balance of their sentence was wholly suspended, and they were placed on probation for 2 years. The Court also ordered them to pay compensation for K1000 cash and 100 fathoms of shell money which is equivalent to K500 in equal percentage. Reconciliation was further ordered.

13. Counsel for the prisoner says the starting point should be 3½ years and the proper head sentence should be 3 years after weighing the mitigating factors against the aggravating factors. The State, on the other hand, argues that starting point should be 3 years and the proper head sentence should be 3 to 4 years less time spent in custody. The State also submits that some sentence can be suspended, and the prisoner should be placed on probation for at least 12 months.

Sentence

14. When considering the appropriate sentence for the prisoner, I see that the mitigating factors balance out the aggravating factors. I also consider that the prisoner is remorseful and willing to pay compensation to the victim, who is also from his province of origin. I also take into account the fact that the victim swore at him, and this provoked him to react towards her with aggression.

15. I also note the absence of a pre-sentence report from the Probation Office although they were requested to prepare that report with a Means Assessment Report. However, there is a Victim Impact Statement from the victim. In her statement, the victim says she is unable to drive around to get stock feed for her poultry business and collect money for her money lending business. She also says she is unable to do household work for her family. Further in her statement, she says she has spent K5,000 on medical and associated expenses. The particulars of these expenses are outlined in her statement, but I note with interest that the victim is also seeking compensation for loss of business, fuel, dietary requirements, and emotional stress. These heads of damages will ordinarily require proof before they can be assessed. For this purpose, I can only order compensation pursuant to the Criminal Law (Compensation) Act 1991. Accordingly, I consider K3000 as adequate compensation to be paid to the complainant.

16. As it is, this is not a worse type case and so the maximum penalty of 7 years will not be imposed. However, in my view and in the circumstances of this case, it warrants a sentence of 2 years, less the 10 days spent in custody. I am also prepared to place the prisoner on probation for a period of 12 months from today on the following conditions: -

(i) he will pay the sum of K3000 cash as compensation within 3 months from today.

(ii) he will enter into his own recognizance and promise to keep the peace and be of good behavior for the duration of his probation.

(iii) he will not commit another or similar offence.

(iv) he will not consume alcohol or drugs for the duration of his probation period.

(v) if he breaches any of these conditions, he will be brought before this Court to show cause as to why he should not serve the remainder of his sentence in prison.

17. The Orders of the Court are therefore: -

(i) He is sentenced to 2 years imprisonment.

(ii) His pretrial custody period of 10 days is deducted.

(iii) He is placed on probation for 12 months with strict compliance on conditions imposed.

(iv) The balance of his sentence is wholly suspended.

_______________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner