State v Kaita [2022] PGNC 355; N9896 (15 September 2022)

N9896

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 62 OF 2022

BETWEEN:

STATE

AND:

ZACCHAEUS KAITA
Popondetta: Wawun-Kuvi, AJ
2022: 14^th & 15^th September

CRIMINAL LAW-SENTENCE-Convicted following a trial-Assault occasioning bodily harm, 340(1) Criminal Code-Use of knife-Victim cut on the forehead

Cases Cited

State v Dusava [2021] PGNC 281; N9117
State v Anton (2021) Cr No 88 of 2021 Unnumbered (published in PNGSD)
State v Andrew [2017] PGNC 314; N6987
State v Kutumano [2017] PGNC 50; N6673
State v Kogen [2016] PGNC 39; N6211
State v Pari [2015] PGNC 43; N5962
State v Wamingi [2013] PGNC 329; N5723
State v Peter [2011] PGNC 345; N4320
State v Batulik [2010] NCSO 72
State v Aiwa [2008] PGNC 321; N3330
State v Piries [2007] PGNC 186; N4982
State v Sabuin [2006] PGNC 76; N4475
Gima v The State [ 2003] SC730
State v Winston [2003] PGNC 146; N2347
Public Prosecutor v Hale [1998] SC564
Goli Golu v The State [1979] PNGLR 653
State v Kagai [1987] PNGLR 320
State v Tardrew [1986] PNGLR 91
Public Prosecutor v Thomas Vola [1981] PNGLR 412
Public Prosecutor v Sima Kone [1979] PNGLR 294

References

Criminal Code Ch 262
Criminal Justice (Sentences) Act 1986

Counsel
Mr A Kaipu, for the State
Mr E Yavisa and Mr S Kuruwalo, for the Offender

15^th September, 2022

SENTENCE

1. WAWUN-KUVI, AJ: The coconut tree or palm is not merely a tree. The whole tree has many uses that plays a significant part in the lives of many coastal and island societies. Tragically for this case, it divided two brothers to the point that it has seen one brother in prison and the other dead.
2. The facts, show that Zacchaeus Kaita put into motion events that led to his nephew killing his own father. A senseless killing over an argument about a coconut tree.
3. On that fateful day, Zacchaeus Kaita argued with his brother over a coconut tree. His brothers’ younger children had merely wanted to drink Kulau or coconut water. He cut his brother on the head. Although superficial, it drew the wrath of his brother who assaulted him severely. He then called out to his nephew, his brother’s older son, for assistance. His brother then left him. As he was walking around the toilet, his son approached from the other side of the toilet and swung a knife. The knife sliced off the fresh on the top part of the deceased head. The fresh was completely severed leaving the skull exposed. The deceased fell instantly and never regained consciousness.
4. Whist society might place blame on Zacchaeus Kaita and say that he killed his brother, the law does not have the same concept on culpability. Zacchaeus Kaita as such was convicted for the unlawful assault of his brother and not his killing.
5. I must now decide the appropriate penalty.

Purpose of Sentencing

6. Before I proceed any further in determining the sentence of the offender, I must and do remind myself that sentencing is not only about punishing an offender. It involves many purposes which include but are not limited to specific and general deterrence to the offender and others, it acts to communicate that the community and society at large does not condone the behaviour and in cases of violent and serious offences for the protection of the community.
7. Sentencing is not an exact science that can be reached by a certain formula. Sentencing is a discretionary matter derived from the consideration of the peculiar circumstances of the case, the sentencing trends, and other relevant factors.

The Charge

8. The offender was convicted of the charge of Assault Occasioning Bodily Harm pursuant to section 340(1) of the Criminal Code.

Penalty

9. The maximum penalty is 3 years.
10. The maximum penalty is reserved for the most serious case: Goli Golu v The State [1979] PNGLR 653.

Submissions

State submission

11. The State submits for a sentence of 18 months imprisonment.
12. It is submitted that the mitigating factors are that the offender has no prior convictions, that he acted alone and that he has expressed remorse for his actions.
13. In aggravation, the State submits that he instigated the events that led to the killing of his brother, that the offence is prevalent and that there was some element of pre-planning in that he went to the scene armed with a knife.
14. The State submits the following comparable cases:
15. State v Piries [2007]^[1]Cannings J: the offender went to his in-law’s house in search of a friend. He was informed that the friend was not there. He was drunk at the time. He was aggrieved by the response he received from his in-laws and uttered some words at them. His brother-in-law confronted him. He hit his brother-in-law with a guava stick. His sister-in-law went to her brother’s aid and was also hit with the same guava stick. His mother-in-law went to the aid of her children and was also hit with the same guava stick. The offender pleaded guilty to all three counts of assault causing bodily harm. This was a first offence. He was sentenced to 8 months for each count. The sentence was cumulative, and the resultant sentence was 2 years. Time spent in custody was deducted and the balance was suspended with conditions including compensation.
16. State v Sabuin [2006]^[2],Cannings, J: the offenders pleaded guilty to assaulting the victim. The first offender kicked the victim twice in the head and walked off, whilst the second and third offenders were responsible for the rest of the serious injuries to the victim. They were all drunk. The victim accused the first offender of stealing his outboard motor. He punched the 1st offender twice which caused the offender to assault him. The victim had pre-existing conditions but suffered serious injuries that required hospitalization. The first offender was sentenced to 18 months whilst the 2nd and 3rd offender were sentenced to 2 years each. Time spent in custody was deducted and the balance of the sentences were wholly suspended on conditions including compensation. They were all first-time offenders.
17. State v Batulik [2010] NCSO 72; Unreported and Unnumbered decision, Cannings J: The offender was 54 years old at the date of offence. He pleaded guilty to hitting the victim several times with a timber. The victim suffered a broken jaw. The Court found that the blows were significant. He was a first-time offender who cooperated with police. There was a favorable pre-sentence report. He was sentenced to 2 years imprisonment. Time spent in custody was deducted and the balance was suspended with conditions.
18. The present offence is distinguished as the offender used a knife and had it not been for his nephews’ actions, the deceased may not have even required hospitalization. That is, the injury was not as serious as the cases submitted by the State.

Defence Submission

19. The defence on the hand submit for a sentence of 2 years imprisonment.
20. The defence rely on the same mitigating and aggravating factors as the State. It is further submitted that the pre-sentence period in custody be deducted, and the balance be suspended.
21. The defence did not provide any comparable cases.

Comparable cases

22. I have also found the following comparable cases:
23. State v Dusava [2021]^[3], Wawun-Kuvi, AJ: The offender pleaded guilty to the assault of a medical doctor. He was a solider and was drinking with a group of friends. He punched the door and one of his friends threw a bottle of beer on the doctor’s head. The doctor sustained injuries to his eye. His other friends then assaulted the doctor as well. He was sentenced to 18 months imprisonment. Time spent in custody was deducted and the balance was ordered to be served.
24. State v Anton, (2021)^[4], Liosi, J: the victim was drunk and insulted the offender. The offender punched the victim until he lost consciousness. He pleaded guilty and was a first-time offender. The victim suffered a lacerated lip and lost three of his lower front teeth. He was sentenced to 2 years imprisonment which was wholly suspended on him entering into his own recognizance. He was ordered to compensate the victim.
25. State v Andrew [2017]^[5], Auka, AJ: This is a case that involves two victims. The offender pleaded guilty to assault occasioning bodily harm under section 340 of the Code. The offender assaulted his wife’s friends by punching and kicking them. He had heard stories by the community that his wife was having an affair and so he took it out on her friends when they failed to assist him in uncovering the veracity of the information. He was sentenced to a concurrent sentence of 2 years. The sentence was wholly suspended and was placed on a good behavior bond.
26. State v Kutumano [2017]^[6], Ipang J: The offender pleaded guilty to assaulting the victim over allegations of sorcery. There were two charges. One of deprivation of liberty and the other for assault occasioning bodily under section 340 of the Code. The victim was kicked and punched and taken to another location where he was rescued by police. The Court sentenced him to 18 months imprisonment. The sentence was wholly suspended.
27. In State v Kogen [2016]^[7] Cannings J, the offender hit the victim with a piece of wood resulting in the victim suffering from a fracture. She was angry over the victim holding her child. She endangered the child. There was no lawful justification. The victim did not want compensation. The Court said that the victim’s views must be considered. The offender was a first-time offender. The offender was sentenced to 2 years imprisonment. Time spent in custody was deducted and the balance was not suspended.
28. In State v Pari [2015]^[8]Toliken, J, the offender and the victim were consuming alcohol. The offender became disorderly, and the victim attempted to calm him. The victim’s elbow was fractured when he blocked a pipe that the offender swung at him. He was a first-time offender. He was sentenced to 18 months imprisonment. The pre-sentence custody was deducted, and no part of the balance was suspended.
29. In State v Wamingi [2013]^[9],Cannings, J, the offender bit off part of her sister-in-law’s ear during a fight. The injury caused permanent disfigurement. There was de facto provocation as the victim bit the offender also. She was a first-time offender. The offender offered to pay compensation however the victim refused. The Court found that in violent offences, the Court must consider the views of the victims. The offender was sentenced to 18 months imprisonment. No part of the sentence was suspended.
30. In State v Peter [2011]^[10], Cannings, J: the offender was found guilty after a trial for assaulting a female neighbor with whom there was a series of neighborhood disputes. The mitigating factors were that she was the sole attacker, the victim's injuries were not that serious, the attack was one off and there was going to be adverse effects on her children. The aggravating features were that there was a dangerous implement, facial injuries, lack of remorse and no evidence of reconciliation with the victim. The court held that the aggravating factors outweighed the mitigating and imposed a sentence of two years. The pre-sentence period of one month was deducted. The sentence was partially suspended. The offender was ordered to pay compensation and comply with other conditions upon release.
31. In State v Aiwa [2008]^[11] David, J: the offender pleaded guilty to using a short 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 woman who had introduced the borrowers to the offender. The injury was sustained when the victim raised her hand to defend herself. This was the offenders first offence. The prisoner was sentenced to 14 months imprisonment. Time spent in custody was deducted and the balance of the sentence was wholly suspended with conditions including compensation.

Personal Antecedents

32. Mr. Yavisa submits that the offender is 62 years old. He is from Embogo Village, Oro Bay LLG in Northern Province. He has never married but has adopted children. He comes from a family of 12 and is the second child. His parents are deceased. He attends the Anglican Church.
33. He was not employed but supported himself through subsistence farming, hunting, and fishing. He owns a coconut and cocoa plantation.

Allocutus

34. The offender states in Allocutus:
    

“I Zacchaeus Kaita in front of the Court say sorry to the deceased family. Secondly, I say sorry to all the Court officials and thirdly I want the court to have mercy on me.”

35. I accept the offender’s statement as a genuine sign of remorse. Whilst he did not plead guilty, I had observed him when I had convicted him and his actions as I had explained his conviction demonstrated that he had acknowledged responsibility.

Victim Impact Statement

36. The deceased wife gave her impact statement under oath in Court. She stated that she still feels the impact of the loss of her husband. She and her children are displaced and find life difficult. Financially she struggles to support her family. She asks the Court to impose a suitable sentence.
37. I had the opportunity to observe her during her evidence in the trial and as she gave her impact statement and accept that she still suffers emotionally from the loss of her husband. I accept that it is difficult in a village settling to be a single mother with young children.

Aggravating Factors

38. The aggravating features are that the offender used a knife and it was a senseless and unnecessary attack. Whilst he did not kill his brother, his actions put into motion the events that led to his brother’s death. He cut his brother on his forehead, a vulnerable part of the body.
39. I do not accept that the attack on his brother was pre planned. There is nothing to suggest that he had taken the knife to the scene to attack anyone.

Mitigating Factors

40. The offender has no prior convictions. He expressed genuine remorse. I accept in mitigation also that following his assault on the deceased, he was severely assaulted by the deceased. This was what prompted him to call to his nephew for assistance.
41. The injury to the deceased was also superficial. There was no medical evidence that the injury required any stitches or hospitalization.

Consideration

42. This is a serious and prevalent offence in our society. Most people now choose to arm themselves with knives during conflicts. Trivial arguments now lead to death and serious bodily injuries because of this unwarranted needed to carry knives to arguments.
43. The present case is a demonstration of this. An argument over children fetching Kulau has resulted in the unnecessary, tragic, and senseless death of one brother. Another tragic outcome of this case also, is that a young man is also imprisoned for the better part of his young life because he heeded the call to aid his uncle. And a far more tragic consequence is that young man now will live with the knowledge that in his haste to assist his uncle, he killed his father.
44. I have given due consideration to the peculiar circumstances of this case, the sentencing trend, the mitigating and aggravating features, and all of the foregoing and find that the appropriate sentence is 20 months imprisonment.
45. The offender has been in pre-trial custody for 1 year and 5 months or 17 months. In the exercise of my discretion under section 3 of the Criminal Justice (Sentences) Act 1986, that period is deducted. The offender shall serve the balance of 3 months.
46. I have considered the relevant principles as they apply to suspension and am of the view that suspension is not appropriate^[12]. The offence is a violent and prevalent offence.
47. The offender shall serve the balance of his sentence.
    

Orders

48. The Orders of the Court are as follows:
    1. The Defendant is sentenced to 20 months imprisonment.
    2. Pre-sentence custody period of 1 year, and 5 months is deducted.
    3. The offender shall serve the balance of 3 months in light labor at the Biru Correctional Institution.
       

The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Defence

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^[1] PGNC 186; N4982 (18 September 2007)
^[2] PGNC 76; N4475 (25 August 2006)
^[3] PGNC 281; N9117 (3 September 2021)
^[4] Cr No 88 of 2021, Unnumbered (published in PNGSD)
^[5] PGNC 314; N6987 (30 October 2017)
^[6] PGNC 50; N6673 (16 February 2017)
^[7] PGNC 39; N6211 (19 February 2016)
^[8] PGNC 43; N5962 (5 March 2015)
^[9] PGNC 329; N5723 (20 June 2013)
^[10] PGNC 345; N4320 (22 June 2011)
^[11] PGNC 321; N3330 (7 May 2008)
^[12] Gima v The State [ 2003] SC 730, State v Winston [2003] PGNC 146; N2347, Public Prosecutor v Hale [1998] SC 564, State v Kagai [1987] PNGLR 320, State v Tardrew [1986] PNGLR 91, Public Prosecutor v Thomas Vola [1981] PNGLR 412 and Public Prosecutor v Sima Kone [1979] PNGLR 294.