State v Kay [2022] PGNC 218; N9643 (2 June 2022)

N9643

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 94 OF 2020

STATE

V

JUNIOR KAY

Waigani: Wawun-Kuvi, AJ
2022: 22^nd March, 27^th May & 2^nd June

CRIMINAL LAW–SENTENCE – Intention to cause grievous bodily harm, S315(b)(d) of the Criminal Code – Guilty plea – Group attack on lone victim over domestic violence dispute- Offender hit victim with iron bar– Sentence of years of imprisonment imposed.

Cases Cited

State v Makapu [2017] PGNC 118; N6761

State v Luke Paip (2021) Cr 430 of 2021(Unnumbered)
State v Roga [2012] PGNC 223; N4804
State v Taroh [2004] PGNC 104; N2675
Public Prosecutor v Tardrew [1986] PNGLR 91

Reference

Criminal Code(Ch 262)
Criminal Justice (Sentences) Act 1986

Counsel

Ms Lilly Jack, for the State
Mr Malcom Sumbuk for the Defence

DECISION ON SENTENCE

2 June 2022

1. WAWUN-KUVI, AJ: Junior Kay (offender) is a 32-year-old male from Hese Henagaru Village, Okapa District, in the Eastern Highlands Province.
   
2. Iviro John Kay(victim) was the in-law of the offender. He is married to a member of the offender’s family.
   
3. The offender and his family were angry because the victim had assaulted his wife. They gathered and approached the victim. When they saw the victim at his house, they started assaulting him. They used hammers, axes, machetes (bush knives), and iron bars. As a result, the victim fell to the ground. As he attempted to rise to his feet, the offender struck him with an iron bar.
   
4. These are the facts to which the offender pleaded guilty to.
   
5. I must now decide the appropriate penalty.
   

Purpose of Sentencing

6. Sentencing has many purposes, some of which include the punishment of the offender, rehabilitation, specific and general deterrence and communicating clearly that the community and society does not condone the conduct of the offender. In cases of violent and serious offences, considerations such as the protection of the community become paramount.
   

The Charge

7. The offender was convicted following a guilty plea to the charge of Intention to cause grievous bodily harm under section 315(b)(d) of the Criminal Code.
   

Penalty

8. The maximum penalty is life imprisonment subject to section 19 of the Criminal Code.
   
9. I remind myself that the maximum penalty is reserved for the most serious case: Goli Golu v The State [1979] PNGLR 653. This is not such a case.

Submissions

The Defence

10. The Defence submits for a term of imprisonment between 2-4 years. That the Court should exercise its discretion and wholly suspend the sentence.
    
11. In mitigation, defence submit that the offender has no prior convictions, the offender has pleaded guilty, and the attack was retaliation for the assault on the offender’s sister.
    
12. Mr Sumbuk for the defence submitted the cases of State v Kennedy [2017], State v Ben [2013], State v Bola [2013], State v Kos [2013], State v Wan Minibi, Cr 599 of 2012 Unreported, State v Konos [2010], and State v Piapin [2009].
    
13. All the cases are in relation to guilty pleas for the offence of causing grievous bodily harm under section 319 of the Code, which attract the maximum penalty of 7 years imprisonment. The offender in this case was convicted for the offence of intention to cause grievous bodily harm which attracts the maximum of life imprisonment. Whilst some of the factual circumstances may be similar, the penalty cap is different.
    

The State

14. The State submits for a term of imprisonment between 8-10 years.
    
15. In mitigation, the State submits that the offender has no prior convictions. In aggravation, is that it was a vicious assault, offensive weapons were used, the victim suffered multiple injuries to various parts of his body, the victim was outnumbered, and he received life threatening injuries.
    
16. The State submits the following comparable cases.
    
17. State v Makapu [2017]^[1], Miviri AJ (as he then was): The offender pleaded guilty. The victim had approached him regarding allegations of sorcery. The offenders’ relatives held the victim down while the offender proceeded to cut his leg and hand. The victim was thrown into a rubbish pit and left to die. He was rescued and taken to hospital. The victim’s leg and hand were amputated. The offender was sentenced to 8 years imprisonment.
    
18. State v Roga [2012]^[2], Gauli, AJ: The offenders pleaded guilty. The offenders had a land dispute with the victim and his family. They approached the victim and his family armed with a firearm and bush knives. The victim was cut several times on various parts of his body including his head. He was also stoned. The offenders were each sentenced to 8 years imprisonment. 4 years of the sentence was suspended with conditions.
    
19. State v Taroh [2004]^[3], Kandakasi, J (as he then was): The offender was convicted following a trial. The victim and the offender had an argument. The offender cut the victim three times in the hand with a bush knife. The offender was sentenced to 8 years imprisonment.
    
20. The case of State v Roga [2012] bears closer similarities to the present case, in that, it involved multiple perpetrators. The perpetrators were also armed with offensive weapons. However, there was no de facto provocation.
    

Comparable cases

21. The case of State v Luke Paip (2021)^[4] bears some similarities to the present case. In that case, the offender pleaded guilty to slashing his brother-in-law on the head, shoulder, and hand. He was a first-time offender and there was de facto provocation. The victim had assaulted his sister in front of him on a previous occasion and on the date of the offence he had gone to get his wife and child when he fired gun shots and swore at members of the community. The offender approached him from the back and cut him with a bush knife on his head, shoulder, and hand. He pleaded guilty, was a first-time offender, there was de facto provocation. He was sentenced to 8 years imprisonment less time spent in custody.
    

Personal Particulars

22. The offender is 32 years old and comes from Hese Henagaru Village, Okapa, Eastern Highlands Province.
    
23. He is single and has three sisters. His mother is deceased and his father alive. His older sisters are married and the last sister attends school in the village.
    
24. The offender completed Grade 10 at Asaroka Secondary School and undertook plumbing training at the Kamiliki Vocational School in Eastern Highlands Province.
    
25. He was working with China Railway Construction at the time of his arrest.

Allocutus

26. The offender apologized to the victim and explained that his actions were a result of what the victim had done.
    
27. I accept his statement as a genuine sign of remorse.
    

Pre-sentence Report

28. The Probation Officer interviewed the offender, the offender’s uncle Kay Komine and a community leader one Tom Tasi.
    
29. The offender’s uncle and community leader speak of the offender’s prior good character and that he committed the offence because his sister was assaulted by the victim.
    
30. The uncle and community leader stated that the offender has some form of disability which was also observed by the Probation Officer.
    
31. The Probation Officer made attempts to obtain the victims views however visits to his home and workplace were unsuccessful.
    
32. The Probation Officer recommends a non-custodial sentence.
    

Mitigating Factors

33. I accept in mitigation that the offender pleaded guilty, that he has no prior convictions and that he has apologized to the victim.
    
34. I accept also that there was de facto provocation in that the victim had assaulted the offender’s sister or female relative.
    

Aggravating Factors

35. In aggravation, I find that it was a group attack on a lone victim. The offender struck the victim when he was already on the ground and severely injured. He used an iron bar to strike the victim.

Consideration

36. Retaliatory attacks in our society are far too common. The offender in this case would not be in Court today, if he had allowed the law to take its course or encouraged his family to resolve the issue in a peaceful manner.
    
37. I accept that the facts that the offender pleaded guilty to, do not disclose that he took the lead in the attack or was the person who made the decision to assault the victim. He nonetheless was not a mere passive observer but rather an active participant. He struck the victim with an iron bar when the victim was severely injured and helpless on the ground.
    
38. In violent offences, the views of the victim are important. However, attempts to obtain the views of the victim were unsuccessful. The Probation Officer made efforts to go to the victim’s home and workplace.
    
39. The State did not obtain a view impact statement. The Court does not know whether the injuries are permanent.
    
40. The offender’s uncle and a community leader have described the offender as a peaceful member of his community. That the offence was committed because of the domestic violence committed by the victim on the offender’s sister.
    
41. I consider the case of State v Luke Paip (2021), similar. However, in Luke Paip the offender acted alone. In the present case it was a group attack on a lone victim.
    
42. Having considered all the factors as they pertain to this case and the comparative cases, the offender is sentenced to 9 years imprisonment.
    
43. The offender was previously on bail. He failed to appear in Court and a warrant of arrest was issued. He was apprehended on the 15 November 2021. He has been in custody for 5 months, 2 weeks and 4 days. I exercise my discretion under section 3 (2) of the Criminal Justice (Sentences) Act 1986, and deduct the time spent in custody prior to sentence.
    
44. Should any part of the sentence be suspended? I consider the factors in Public Prosecutor v Tardrew [1986] PNGLR 91 relevant; in that the offender was an otherwise a contributing member of society and additionally he has a disability which would cause him some level of hardship. The disability was observed by the Probation Officer and is supported by his uncle and the community leader.
    
45. I balance these aspects with the factor that this was a violent and prevalent offence. A wholly suspended sentence would not be appropriate.
    
46. In the exercise of my discretion, I suspend 2 years of the sentence on the condition that the offender enter into his own recognizance without sureties and to be of good behavior for 2 years.
    
47. The balance shall be served.
    

Orders

48. The Orders are as follows:
    
    1. The Offender is sentenced to 9 years imprisonment.
    2. Time spent in custody prior to sentence of 6 months, 2 weeks and 4 days is deducted.
    3. The offender shall serve 8 years, 5 months, 1 week and 3 days
    4. 2 years of the sentence is suspended, and the offender placed on a good behavior bond without surety for the period of the suspended sentence.
    5. The offender shall serve the balance of 6 years, 5 months, 1 week and 3 days.

_______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender

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^[1] PGNC 118; N6761 (19 May 2017)
^[2] PGNC 223; N4804 (16 August 2012)
^[3] PGNC 104; N2675 (13 September 2004)
^[4] Cr 430 of 2021, (reported in PNGSDB)