State v Madiring [2021] PGNC 678; N9962 (12 November 2021)

N9962

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 591 & 592 OF 2019

THE STATE

V

AUGUSTINE MADIRING & BENEDICT LEBA

Kokopo: Suelip AJ
2021: 21^st September & 4^th, 12^th November

CRIMINAL LAW – sentence – pleas – grievous bodily harm with intent s.315(b) Criminal Code –– offenders and victim related – aggravating factors outweigh mitigating factors – genuine remorse – intention to pay compensation – provocation by victim in the non-legal sense – presentence report favorable to offenders – sentence of 5 years – custody time deducted – bail monies refunded and put towards compensation – balance wholly suspended with strict conditions.

Cases Cited

State v. Greg Kialo [2008] N5467
State v. Michael Dau [2018] N7518
State v. Peter Pepa (2010) N4146
State v. Pokira Kadog [2015] N5904
State v. Brian Delga Kiap & Anor [2015] N6102
State v. Gideon Gart (2020) N8533
Goli Golu [1979] PNGLR 653
Avia Aihi v. State [1982] PNGLR 92

Counsel

J Noma, for the State
S Pitep, for the Prisoners

SENTENCE

12^th November, 2021

1. SUELIP AJ: On 21 September 2021, the two prisoners pleaded guilty to the charge of grievous bodily harm with intent pursuant to Section 315(b) of the Criminal Code.

2. This is my ruling on sentence.

3. The facts upon which they pleaded guilty to and were convicted upon are these. On 26 December 2018 between 8pm and 9pm, they both were at Rapikus village, Ulaulatava ward, Vunamami/Kokopo District, East New Britain Province. At the same time, date and place, the two prisoners and their friends approached the complainant, Tommy Balbal who was drinking alcohol with his friends in front of a trade store and assaulted him by kicking him on his abdominal area and smashing a 10mm tiles on his head, then cutting him on the side of his body (from the back to the left rib cage) with a bush knife. The complainant then fell unconscious as he sustained chest wound causing shortness of breath and excessive loss of blood. The complainant was taken to the hospital where he was admitted and underwent surgery. The State says that when the prisoners kicked the complainant on his abdominal area and cut him with a bush knife on the side of his body, they both intended to cause grievous bodily harm on the complainant and their actions contravened section 315(b) of the Criminal Code. The State also invokes section 7 of the Criminal Code.

4. Section 315(b) of the Criminal Code provides as follows:

315. Acts intended to cause grievous bodily harm or prevent apprehension.

A person who, with intent–

(a) ...

(b) to do some grievous bodily harm to any person;

(c) ...

does any of the following things is guilty of a crime...

d) unlawfully wounding or doing a grievous bodily harm to a person;

(e) ...

(f) ...

(g) ...

(h) ...

(i) ...

(j) ...

Penalty: Subject to Section 19, imprisonment for life.

5. I note the indictment presented against the two prisoners charged both only under section 315(b) of the Criminal Code. After reading the provision again, I noticed that that section is incomplete without stating the specific unlawful act provided in subsection (d) to (j). The State has correctly stated section 315(b) and (d) in its submission. Since their lawyer did not take any issue, I will proceed on the basis that the correct and complete provision was cited.

6. The maximum penalty for the crime the two prisoners committed is imprisonment for life subject to section 19 of the Criminal Code.

7. For purposes of sentencing, the prisoner’s personal particulars are these. For Augustine Madiring, he is 28 years old, married and has 2 young sons. He lives with his family in his own home. He is the second born in his family of 8 children of which 2 are female and the rest are male. He completed a Trade Certificate in Metal Fabrication at Vunamami Farmers Training Centre after he completed grade 10 at Kokopo Secondary School. He has worked for Central Mart, Rapopo Plantation Resort and in 2018, he worked for Kokopo Plant Hire for 4 months.

8. For Benedict Leba, he is 36 years old, married and have 3 young children. He also lives with his family at Ulaulatava village, Kokopo District. He is the second child in a family of 9 children of which 3 are female and the rest are male. He completed a Trade Certificate in Auto Mechanic at Woolnough Vocational School after he completed grade 12 at Kokopo Secondary School. He worked for Rapopo Plantation Resort before he was employed by the Internal Revenue Commission from 2018 to date. He has an underlying condition where he had undergone surgery to remove her hernia.

9. During allocutus, Augustine Madiring, apologized to God and to this Court for what he did. He also apologized to the family of the victim and to his family. He said that what he was wrong but there was a reason why he did what he did. He said he had a wife and children and when he left them, they were struggling with life. He wants to assist his parents who are old, and he also want to work for school fees for your siblings. He said there is overcrowding in prison and there is a high risk of being infected with coronavirus. He said further that he will accept whatever the Court’s decision is but he seeks mercy of the Court to give him probation and good behavior bond where he can stay at home to serve his sentence and also pay compensation to the victim.

10. For Benedict Leba, he said he is sorry to God and to this Court. He said what he did is not right, and he is sorry. He said further that the prisoner looked after the victim and when he heard what he did to two of his cousin sisters, the prisoner was angry and assaulted him. He said he is married with 4 children, and he works for IRC. He also said if he goes to prison, the welfare of his family will be affected. He said further that he can pay compensation and asked for mercy of the Court, and to be placed on probation.

11. In their favor, the mitigating factors are these. They both pleaded guilty which saved the Court’s time and resources. They both are also first-time offenders and do not have any prior convictions. They also have co-operated with police. Further, they said they all are now on talking terms with the complainant, who has fully recovered from his injuries. It is known that there were others who were part of the group who contributed to the assault however, the two prisoners are the only ones who were arrested and charged. The factor which stands out for the both of them is that the complainant, who is a relative, did something inappropriate to two of his cousin sisters, which enraged the prisoners and others to assault him. Hence, there was de factor provocation on the part of the complainant. Finally, both prisoners expressed remorse and were sorry for the wrong they did.

12. Against the two prisoners are these aggravating factors. This was a pre-planned group attack at an unsuspecting and unarmed victim. Further, there was a lethal weapon used and this vicious attack was committed in the night. In fact, Benedict Leba initiated kicking the victim on his side while Augustine Madiring stabbed him with a bush knife. This offence is prevalent in society and they both failed to make attempts to compensate the victim earlier to show their genuine remorse.

13. To determine the appropriate sentence, I take into account case precedents which shows the trend in sentencing of the same offence. Their counsel referred to the case of State v. Greg Kialo [2008] N5467 where Justice Cannings held that 7 years is the starting point for grievous bodily harm with intent. Counsel submits that the Court can adjust upwards or downwards subject to the mitigating and aggravating factors.

14. Only two of the four (4) comparable cases referred to by counsel for the prisoners are nearly similar to the circumstances of this case. The first is the case of State v. Michael Dau [2018] N7518 where the accused speared the victim with a spear in the thigh and then cut him on his left wrist and his right leg. The accused had the intent to cause bodily harm to the victim because the victim had taken his solar panel to his house. The victim is now without his left wrist and the accused was sentenced to 5 years less time spent in custody. The balance of his sentence was suspended with strict conditions.

15. The other case referred to by their counsel is State v. Peter Pepa (2010) N4146 where the offender cut the victim several times on his face and on his right arm and right leg. He was rushed to the hospital and received treatment. The offender was sentenced to 6 years, partly suspended with conditions.

16. The State agreed that the starting point in similar cases is 7 years and also referred to State v. Greg Kialo (supra). Counsel also agreed that adjustments in sentences are subject to the weight of the mitigating and aggravating factors. The State referred to a few cases, but the more relevant ones are State v. Pokira Kadog [2015] N5904 and State v. Brian Delga Kiap & Anor [2015] N6102. In the former case, the accused pleaded guilty to causing grievous bodily harm with intent to his younger brother, whom he suspected of having an affair with his wife. He cut the victim several times with a bush knife, deep wounds of 8cm long and 6cm deep on the shoulder blades. He was sentenced to 6 years less pre-sentence custody time with no suspension. In the latter case, the offenders attacked the victims with bush knives and inflicted multiple life-threatening injuries to the victim. They pleaded guilty and were sentenced to 7 years in hard labor, partly suspended on terms.

17. In my decision on sentence in State v. Gideon Gart (2020) N8533, the offender pleaded guilty to one count of causing grievous bodily harm with intent to the victim by cutting off his right small finger and slashing his knee with a bush knife. This was because a few years earlier, the victim had broken into the prisoner’s house and stolen some properties. This offence was committed on 24 June 2019 at Raniolo, Kokopo, East New Britain Province. He was sentenced to 4 years, mostly suspended with strict conditions.

18. Both the presentence reports are favorable to the prisoners. Their local ward member Philip Tale has personal knowledge of them and said that if the Court considers a non-custodial sentence, he has capabilities to monitor and supervise them. He said both prisoners were at times, used as part of his law-and-order committee. He says further that if compensation was ordered, he is certain it will be paid on time and immediate peace will be restored.

19. Also, in the report, the church catechist Otto Tobing said both prisoners are regular church goers and take part in most of the church organized activities. He says that if both prisoners are placed on probation, he is happy to mentor them.

20. Additionally, in the report, the wife of each prisoner spoke highly of her husband. They say they have young families, and the prisoners are not abusive husbands. They say they both need their respective husband to support the family with their basic needs and they both want them both to be placed on probation.

21. Finally, the victim says in the report that all he wants is peace amongst all, and since he had a near death experience, he wants K6,000 and 600 (K3,000) fathoms of shell money each from the prisoners. He said he wants compensation paid and no jail time for them as they are family.

Consideration

22. It is trite law that the maximum penalty is reserved only for the worst type case, as held in the case of Goli Golu [1979] PNGLR 653. Further, sentence is subject on the merits and circumstances of each case as held in Avia Aihi v. State [1982] PNGLR 92.

23. Comparable cases referred to with some similar circumstances to this case have sentences ranged from 4 to 7 years. In this case, the victim sustained injuries to his chest, his abdominal area, his head, and cuts from the back to the left rib cage. The victim underwent surgery and has recovered with no permanent injuries. During the assault, he had fallen unconscious as he sustained chest wound causing shortness of breath and excessive blood loss. This is a life-threatening situation.

24. Counsel for prisoners argued that the circumstances of this case are less serious than those comparable cases referred to in her submissions. She says the mitigating factors outweigh the aggravating factors and so the starting point of 7 years should be considered. She also says the victim is not totally innocent as he had been inappropriate with two of his cousin sisters. Hence, there was provocation in the non-legal sense. She submits further that a sentence below 7 years is warranted in the circumstances of this case and that both prisoners should be sentenced to 5 years imprisonment minus time spent in custody pursuant to section 3(2) of the Criminal Justice (Sentence) Act which gives this Court the power to suspend.

25. For the State, counsel argues that the aggravating factors outweighs the mitigating factors, and the Court should be guided by the presentence report and its recommendations. He says it is within the Court’s discretion to suspend sentence with strict conditions. Counsel therefore submits that a sentence of 6 – 8 years imprisonment is appropriate subject the Court’s discretion under section 19 of the Criminal Code.

26. This is not a worst type case and so the maximum penalty will not apply. However, I consider the seriousness of the injuries sustained by the victim as an important factor in determining his sentences. During the attack, the victim fell unconscious, but both prisoners continued to assault him. That was when Augustine Madiring, cut him from the back across to his left side rib. He was taken to the hospital and was admitted for a week and half where he was operated on and stitched. This and the other aggravating factors weigh strongly against both prisoners. On the other hand, there was provocation by the victim in the non-legal sense when he was being inappropriate with his two cousin sisters. This factor is in the prisoners’ favor. His inappropriateness must be very serious for them and others to react the way they all did. Nevertheless, the aggravating factors still outweigh the mitigating factors.

27. I note the presentence reports are favorable of both prisoners and recommends each of them as suitable candidates for probation. In the Means Assessment Report, Augustine Madiring, has very little savings whilst the other Benedict Leba is employed with a stable income.

28. I am mindful that section 315 offence is serious and is prevalent in our society, hence it calls for both personal and general deterrence, thus it warrants an immediate custodial sentence. In doing so, a warning is sent out to the general public and any wanna be offenders out there that such an act should not be accepted and should be tolerated in our society.

29. For Augustine Madiring, he had stabbed the victim on his back across to his left rib and caused him the most serious of his injuries. However, I am on the view that the prisoners have served time in prison which has not only rehabilitated them but deterred them from committing such an offence. The others who also took part in the attack but were not arrested and charged are more likely to be fearful of spending time in custody like he did. The law will eventually catch up with them if they do not deter from committing the same offence again. The prisoner has limited savings. Because the prisoner has spent over 2 years in prison, the amount of compensation, if ordered, will be lesser. For Benedict Leba, he initiated the attack and kicked the victim on his right rib. He has been on bail due to his medical condition and since he is working and has a regular income, he will be expected to pay more, if compensation was ordered.

30. In the circumstances, I am therefore satisfied that a sentence of 4 years imprisonment is warranted for each of the prisoners. I am also satisfied that both were acting together, and pursuant to section 7 of the Criminal Code, they both are principal offenders and are equally responsible for committing grievous bodily harm with intent on the victim. For Augustine Madiring, he served served 2 years and 4 months in prison and this period is deducted from his 4 years sentence, leaving a balance of 2 years and 8 months. For Benedict Leba, he has only served 6 weeks in prison and this period will also be deducted from his 4 years sentence, leaving a balance of 3 years, 10 months, and 2 weeks.

31. The balance of each of his sentence is wholly suspended on the following conditions:

(a) Augustine Madiring, he shall pay the sum of K1,000 cash and 300 fathoms of shell money (equivalent of K1,500), and Benedict Leba, he shall pay the sum of K2,000 cash and 300 fathoms of shell money (equivalent of K1,500) to victim and his family within 6 months from his release to be witnessed by the Ward Member, the Probation Officer in Kokopo and the community.

(b) they shall enter into their own recognizance without surety to keep the peace and be of good behaviour during the period of suspension.

(c) they shall perform 100 hours each of (unpaid) community or church work during the period of suspension.

(d) they shall not change your residential address at Ulaulatava village, Kokopo during their suspended sentences.

(e) they shall not leave the province without the leave of this Court during the period of suspension.

(f) they shall attend their local Catholic Church every Sunday and submit to counselling.

(g) they shall not consume alcohol or drugs.

(h) if any of them breach any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

(i) For Benedict Leba, the bail fee of K1,000 will be refunded and will go towards his compensation payment.
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Public Prosecutors Office : Lawyers for the State
Public Solicitors Office: Lawyers for the Prisoners