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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR 162 OF 2021 & CR 163 OF 2021
BETWEEN:
THE STATE
AND:
SYLVIA KENGEMAR & JOSEPHA KENGEMAR
(No 2)
Waigani: Ganaii, AJ
2022: 11th, 18th, 21st January
CRIMINAL LAW – SENTENCE – Grievous Bodily Harm – Section 319 of the Criminal Code – Trial – Punches
with use of Fist – Permanent Injury to Eye – 45% Loss of Visibility - Sentencing principles – Relevantly Comparable
cases - Denouncement – Deterrence – Aggravations and mitigations – Offence committed During Mediation - Head Sentence
of three years partially suspended – Good Behaviour Bond – No Compensation orders
Cases Cited:
Papua New Guinea Cases
Aieni v Tahain [1978] PGNC 13; [1978] PNGLR 37
Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
Luga v Sikani, Commissioner of Correctional Services (No 2) [2002] PGNC 60; N2286
Public Prosecutor v Don Hale [1998] PGSC 26; SC564
Rex Lialu v The State [1990] PGSC 16; [1990] PNGLR 487
State v Heni Meakoro Cr No 428 of 2011
State v Hotsia Geria [2008] PGNC 295; N3868
State v Kagai [1987] PNGLR 320
State v Kogen [2016] PGNC 39; N6211
State v Kaia [2018] N7341
State v Kara [2012] PGNC 19; N4663
State v Kiaro [2020] PGNC 277; N8610
State v Kund [2011] PGNC 42, N4246
State v Kura [2019] PGNC 329 N7735
State v Mol [2008] PGNC 239; N3707
State v Oa (No. 2) [2021] PGNC 527; N9385
State v Saun [2011] PGNC 110; N4390
State v Shi [2017] PGNC 308; N6983
State v Suitawa [2011] N8845
State v Wamingi [2013] PGNC 329; N5723
State v Wapuri [1994] PGNC 87; N1212
Overseas Cases
R v Doran [2008] VSCA 271 [15] [16]
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Legislations Cited
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. J. Bibilio, for the Defendant
DECISION ON SENTENCE
21st January, 2022
1. GANAII, AJ : This is the sentence for Sylvia Kengemar and Josepha Kengemar who have each been convicted after trial on one count each of Grievous Bodily Harm contrary to section 319 of the Criminal Code.
Relevant Facts
2. The relevant facts are that the offenders are mother and daughter. Sylvia Kengemar is the daughter of Josepha Kengemar. Sylvia is in a relationship with Elvis Toba, who is Jenny Toba’s son. Jenny is the victim. Elvis Toba had been married previously and has children from his previous marriage. Elvis was divorced with his wife and was in a relationship with the offender Sylvia Kengemar. On the 12th of August 2018, the victim Jenny had gone to her son Elvis’ house. When she arrived there, she saw Sylvia’s babysitter in the house. She became upset that her grand children from Elvis’ first wife had only just left the house and it wasn’t long before Sylvia moved in. She said the following offensive words to Sylvia: “pamuk (prostitute), aids carrier” and she also said, “take your bastards to your parents”. Sylvia was in the house and heard what Jenny said. She became upset and went to her parent’s house and reported to them. She also complained to Elvis. Elvis called his mother Jenny and told her to attend to a community mediation regarding this complaint.
3. On the 19th of August 2018, a mediation was called and was held at the Four Mile Works Compound, NCD. Jenny attended together with her husband and other family members, including her daughter in-law Marie Rena. The offenders and their family members also attended. Elvis was not there.
4. Mr. Toba, Jenny’s husband offered to lead the mediation saying it was a family matter and there was no need for mediation officials to officiate. Mr Toba told his wife Jenny that they would set a date and Jenny would apologise to Sylvia and pay her compensation for swearing her. Jenny agreed to that. Before the mediation properly started and ended, the offenders and their relatives tried to assault the victim, Jenny. Jenny saw this and wanted to leave. Jenny tried to leave to prevent herself from being harmed. There could not have been any provocation. She was walking away when Josepha approached her from the back. Josepha grabbed Jenny by the hair and punched her in the face and head. Sylvia also joined her mother Josepha and punched the victim Jenny on the head and face resulting in injuries to her nose and eyes. The offenders had gone to the mediation with vengeance. They were angry and were ready to assault Jenny which they did.
5. Jenny suffered from loss of blood. As a result, and through the various clinical notes and medical reports, Jenny sustained cuts
and bruises to her face and head. She also suffered from swollen and painful face (eye and nose), forehead, scalp and shoulders and
experienced headache and pain on the face and jaw. Through the Eye Doctor’s Report, both written and oral evidence, Jenny suffered
from 45% loss of efficient use of her left eye due to blunt eye injury. The blunt eye injury was due to the punches thrown on her
on the face and head by the offenders.
Comments on the writing of the Pre-Sentence Report
6. At the outset and in passing, I wish to comment on the way the Pre-Sentence Report (PSR) in this matter was done. I say this with good intention of helping this process. I have had some difficulty reading and understanding the report mainly because all the tenses in the sentences are incorrect. The report is bad grammatically that it makes it hard to understand with ease what the writer is saying. It seems that the author either did not edit his draft and just didn’t care at all or that he just cannot write good and simple English. I urge the Probation Office to improve in future on their report writing. For now, I will do my best to read and understand this report in the light of counsels’ assistance in referencing the report in their submissions, and in consideration of this sentencing task.
Antecedent and Allocutus
7. The offenders have no prior convictions. They were both individually 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:
Sylvia Kengemar
“I want to say sorry to the court for wasting its time. Sorry to Jenny Toba and her family. I say sorry to God for what I have done. I ask the Court to have mercy on me because I have two infants, a 31/2 and 2 years old.
We live on our own. The children’s father is posted to Manus and he is now with a new wife. I am mindful of my job because I work and look after my two children. I am happy to pay compensation to Jenny Toba. That is all.”
Josepha Kengemar:
“I say sorry to the court for my actions. I say sorry to Jenny Toba, her husband and all their children. I ask the court for mercy. I have a seven-year-old child whom I have adopted when she was two weeks old. She is now 7 years old. I cannot let her go.
I am happy to say sorry to Jenny Toba and to compensate her. I ask if this court can have mercy on me. I ask for a non-custodial sentence. That is all.”
8. The offender Sylvia Kengemar is 29 years old and comes from Megende Village, Kerowagi District of the Chimbu Province. She is the only child in the family. Her father is still a serving soldier and had been employed by the PNG Defence Force (PNG DF) for 30 years to date. Her mother is a stay home mother. Both are alive and well. Her mother is Josepha Kengemar and she is the co-offender to her in this case. The offender Sylvia Kengemar sometimes lives with her partner in their house at Murray Barracks.
9. Josepha Kengemar is 49 years old and comes from Megende Village, Kerowagi in the Chimbu Province. She is the second born out of a family of four. Her parents are subsistence farmers and have passed on a long time ago. The offender lives with her husband who is a senior Defence Force soldier, at their single quarters at PNG DF Head Quarters, Murray Barracks. Sometimes the offender Josepha Kengemar goes to live with her daughter, Sylvia.
Education and Employment history
Sylvia Kengemar:
10. The offender Sylvia Kengemar attended elementary primary schooling at Ted Diro Primary School, in NCD. She then attended Caritas Technical High School, also in NCD, obtaining a Grade 10 Certificate. She then attended the Port Moresby Technical College and obtained a Technical Trade Certificate in Electrical. Currently, she is a Lance Corporal serving under the Force Support Battalion (FSB) of PNG DF.
11. The views from community sources were taken from Mr. Andrew Levi. He is a warrants officer attached to the Force Support Battalion (FSB) of the PNG DF. He spoke highly of the offender Sylvia Kengemar. He described her as someone who is respectful towards others and their properties. He said she has an outstanding personality and is friendly to everyone. He also said she is humbled, is committed to her work and family and always serves the people of PNG in the work she does with pride and distinction. She is a valuable member of FSB and has contributed immensely to her unit. Her absence will cause a major inconvenience to the unit. He has asked that the court be lenient on her and impose a suspended sentence. He is ready and happy to supervise her rehabilitation and reintegration.
Josepha Kengemar:
12. The offender Josepha Kengemar has not had any formal education. She however can read and understand simple English. Offender Josepha is a stay-at-home mother and is a community leader. Mr. Andrew Levi described her as one who has dedicated her life looking after her family and home. A humbled mother and grandmother. She is a leader in the community and a role model to other women and girls, wives and daughters of soldiers in Murray Barracks. She has a good character, and it was surprising that she is now in this court. Mr. Levi believes that she may have been provoked.
Financial Situation and attitude towards Compensation and Reconciliation
13. The offender Sylvia Kengemar sustains her own living and that of her children from her salaries. If unemployed, she has support for the maintenance of her children from her own father and Elvis Toba, her partner. Josepha is unemployed but is well supported by her husband and daughter Sylvia Kengemar. If ordered to pay compensation, her husband, daughter and family are willing to assist her.
Health and Future
14. The offender Sylvia Kengemar and her partner and children are healthy and there are no health issues. The offender consumes alcohol occasionally. The offender has plans to further her education through distance learning so that she can get a better job that will help her to look after her children. She has planned on holding a reconciliation ceremony to restore peace with the victim according to local custom. Although not in evidence at trial, but as per the contents of the PSR, at paragraph (h) page 4, the offender Sylvia Kengemar says the victim has an issue with her son where he failed to live up to his promise to pay her K200 per fortnight for raising him. Sylvia says that was Jenny Toba’s motive for the attack on her. I do not accept that as part of the facts for consideration on sentence as these were not adduced in evidence. For Josepha Kengemar, she is healthy and well and experiences only minor body aches. She does not take alcohol or drugs. She plans to do compensation so that her daughter can be accepted into her husband’s family, and she can find peace and love in her home with her husband and his family.
Victim’s Views
15. In the PSR, the victim Jenny also made some statements that did not come out in the evidence at trial. These stories relate to her reason for calling the offender a prostitute. The court will not rely on those statements when considering punishment. Jenny also reiterated on what was said in her evidence by saying that the assault has affected her. She said the assault on her has caused a permanent left eye injury, resulting in her being unable to sew and sell clothes to sustain their living. She asked for imprisonment. The complainant Jenny also said Josepha is a good woman. It is the co-offender Sylvia whom the complainant says if she is not sent to prison, she will escalate the problem that is already existing. She asked for the maximum punishment and imprisonment for the co- offender Sylvia Kengemar,
Circumstances of the offence and Offender’s attitude towards the Offence
16. The offender Sylvia Kengemar maintains her innocence and said she was not involved. Despite that she takes ownership of the issue and is willing to make peace and reconcile in the true Melanesian way. She said the victim Jenny provoked Josepha.
Potential Danger to the community and Suitability for Probation Supervision
17. The offenders’ immediate family members say that the parties are families and in order to make peace, the offender must be place on suspended sentence with probation orders. The writer assessed that both offenders are not a threat to the community. Sylvia Kengemar is not a threat to the community but can become defensive if her professional and personal life is threatened. The writer recommends that the offenders are suitable for probation.
Defence Submissions on Penalty
18. Defence relied on the following comparable cases: State v Kund (2011) PGNC 42, N4246; State v Heni Meakoro Cr No 428 of 2011; State v Kura (2019) PGNC 329 N7735; State v Jessie Kaia [2018] N7341 and State v Suitawa [2011] N8845. In summary, sentences in these cases ranged from 2 - 4 years where offenders pleaded guilty, and where weapons were used (except in case of Kund (supra)). Injuries ranged from permanent loss of tooth, permanent loss of use of eye and fracture of arm and nasal bone. Higher Sentences of 4 and 3 years respectively in Kura and Kaia (supra) cases were only partially suspended on the guilty plea as the Court considered nonpayment of compensation in Kura case and police brutality in Kaia case as aggravating factors.
19. Defence submitted that the following circumstance of the offence should mitigate penalty: defector provocation, that is instead of saying sorry, the victim swore again and walked away and that no weapons were used. In the above comparable cases, weapons were used and therefore head sentences in those cases are not applicable. The case of State v Kund (supra) is relevant where no weapons were used, and a non-custodial sentence was imposed on the guilty plea. Defence submitted that the appropriate starting point is 2-3 years.
20. On suspension of the head sentence, Defence submitted that the case of Public Prosecutor v Don Hale [1998] PGSC 26; SC564 (27 August 1998), is applicable. In considering suspension, the court must be assisted with community views, through a PSR, where the community is able to take responsibility and supervise punishment.
21. For the offender Sylvia Kengemar, the PSR speaks favorably for a suspended sentence. The immediate supervisor of the offender Mr. Andrew Levi speaks highly of her as a friendly and respectable officer and her absence from work will affect them.
22. The offender Josepha Kengemar, according to the victim is a good woman, is a respectable person in the barracks community and is a dedicated mother and wife towards her family and husband. She is humbled and a leader in the barracks community. According to the report, both are not a threat to the community.
23. Defence is seeking compensation under the Criminal Law Compensation Act.
24. In conclusion, Defence submitted that the court impose a sentence of between 2- 3years; fully suspended with conditions for Good Behaviour Bond.
Prosecutions Submissions on Penalty
25. State submitted that the maximum penalty is reserved for worse case, principle in Goli Golu v The State [1979] PGSC 9; [1979] PNGLR 653 (14 December 1979) is applied, and each case is to be determined on its own merits Lawrence Simbe [1994] PGSC 18; [1994] PNGLR 38 (2 March 1994).
26. State submitted that the following comparable cases are applicable for consideration: State v Naopa [2003] PGNC 89; N2411 (24 April 2003); State v Kara [2012] PGNC 19; N4663 (10 May 2012); State v Mol [2008] PGNC 239; N3707 (19 March 2008); State v Shi [2017] PGNC 308; N6983 (19 June 2017); State v Saun [2011] PGNC 110; N4390 (15 September 2011); and State v Wapuri [1994] PGNC 87; N1212 (26 April 1994).
27. In these cases, sentences of 18 months to 5 years were imposed on guilty pleas. Injuries ranged from 25 - 100 % loss of visibility
and use of eye. In two out of the six cases, partial suspension was made to the head sentences of 5 and 3 years respectively (Naopa
and Mol (supra) cases). In considering partial suspension of the head sentence, the court considered that some compensation was made
showing genuine-ness and willingness to reconcile.
28. The above cases are similar to the present case where victims in those matters suffered permanent injury to one eye, weapons were used except in Shi case (supra) where punches were thrown. The distinguishing factor is that the above cases were all plea cases and this matter went to trial. An aggravating factor present in this case, is that there were two attackers or a gang attack.
29. The court is urged to consider the mitigations and aggravations present in the case. Rex Lialu v The State [1990] PGSC 16; [1990] PNGLR 487 (30 November 1990) is applied. Both are first time offenders and did not use weapons. In aggravations, the offence is prevalent,
Sylvia Kengemar continued to say she is innocent despite the court finding her guilty; there was a gang attack; the fight occurred
at mediation and the injuries sustained were serious leading to permanent disability.
30. Further, State submitted that there was no genuine remorse given that no efforts were made to pay compensation; the fight occurred
in a domestic setting making the case a domestic violence offence which is prevalent, and the offender Sylvia Kengemar is a member
of the disciplined force of the PNG DF.
31. The PSR is favourable to offenders however, through the Victim Impact Statement (VIS), the victim has suffered from permanent loss of sight as a result of the injuries and seeks that the court imposes a custodial sentence. State submits that a sentence of 3-4 years is appropriate.
Application
The purpose for sentencing
32. 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
33. 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 (supra) is applied where it states that the maximum penalty is reserved for the worst type of case.
34. 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
35. In State v Hotsia Geria [2008] PGNC 295; N3868 (17 November 2008), 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.
36. The above cases sighted by counsels and considered by this court demonstrated that courts have imposed on guilty pleas, sentences of between 18 months to 5 years with full and partial suspension. Considerations such as genuine-ness of efforts to pay compensation and or reconcile played a part in considering suspension. Where no real efforts were made to compensate and where the offence was committed in a domestic setting, only partial suspension was ordered by the courts (Naopa and Mol cases (supra)).
Relevantly Comparable cases
37. In considering whether the above cases are relevantly comparable, I am mindful of the main facts and considerations that the courts took into account in arriving at the head sentence and suspension thereof. The main considerations are whether weapons were used; part of body injured; permanency of injury and per centage of loss of use of eye. Other relevant facts demonstrating that these case precedents are relevantly comparable are the charge itself, in this instance, is section 319 of the Criminal Code; whether the matter went to trial, whether the prisoners were first time offenders and whether parties were serious in paying compensation and reconciling.
Compensation
38. The offenders were found guilty after trial, and they apologized in open court during the administration of allocatus. For Josepha, her apologies demonstrated remorse however there were no efforts made in reconciliation. Later, I will comment on Sylvia’s allocatus and what she said about compensation and reconciliation. Whilst one’s willingness to reconcile and pay compensation enhances the prospects for rehabilitation which when considered should reduce the need for considering a sentence aimed at specific and general deterrence, I am mindful that efforts and undertakings made to pay compensation, 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 the PSR and Submissions
39. I consider that the PSR for Sylvia Kengemar says at page 8, paragraph (iii) that Sylvia Kengemar’s maintenance of her innocence will continue to create issues between her and the victim. Whilst the offender Sylvia Kengemar is seeking suspension of sentence with orders for compensation, her indication to exercise her legal right in law to appeal against conviction, confirms that she continues to maintain her innocence. The promise to pay compensation may not be genuine in the sense that it may not be intended at restoring any relationships. It therefore, can be seen as an effort to avoid punishment. I doubt that there can be genuine and peaceful resolution and settlement of this existing conflict in the true Melanesian spirit.
40. I consider that both offenders have young children and have asked the court to take that into account. Sylvia has two infants and Josepha has an adopted 7-year-old child, whom she adopted at birth. The courts have expressed that people who have young children should have thought about them first before committing serious offences. There, the offenders obviously have not. They cannot now use the children to seek the court’s leniency. What role models will they be for their children if they think and behave like criminals in front of their children? I do not think using the children now to ask for leniency is fair on the children. It is a selfish act.
Other contents of the Pre- Sentence Report
41. Both PSRs for the two offenders contain a lot of other things being said by both the victim and the offenders. They talk about circumstances surrounding the commission of the offence. However, those were not in evidence. It is only proper that only those facts found in evidence at trial can be considered by the court in its sentencing task. Those that were not in evidence at trial are ignored. The court in this instant, will not take those other reported statements into account when determining an appropriate penalty. A Probation Officer must be aware, and should, in their PSRs, avoid statements obtained during interviews that may be inconsistent with the court’s findings of facts on the evidence.
Suspension
42. Some case law principles on suspension of head sentences say that suspension is not an act of leniency, but it is in the interest of the community to order suspension to promote rehabilitation and prevent recidivism (tendency of a convicted prisoner to re-offend). The principle in the case of State v Kagai [1987] PNGLR 320 is applied. Where there are submissions on prior good character supporting suspension, there must be actual evidence and not mere submissions that the offender has had a 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 (19th February 2016) and State v Wamingi [2013] PGNC 329 N5723 (20th June 2013).
43. I am mindful that both PSRs have promoted both offenders’ prior good character demonstrating that they have never been in trouble with the law before and all through their lives until they were found guilty by this court. I accept that they did not go looking for this trouble. It was brought about because the complainant first went to Elvis Toba’s house and used offensive words on Sylvia. However, six days later, when the victim owed up to her actions, agreed at the mediation that she will say sorry, and walked away to prevent any harm on herself, it was not necessary for Josepha to follow her. It was wrong for both offenders to assault her. The court made findings that the victim was walking away because she felt threatened by the offenders and their family members who had tried to assault her even before the mediation started. Court made findings also that the victim did not use any offensive words again at the mediation arena. The victim had the right to walk away from fear of being harmed. Where Josepha said she assaulted Jenny because Jenny refused to listen to her and return to the mediation, that was wrong and is not provocation. The offenders were already angry. They followed her and attacked her.
44. For Sylvia, I find the comments in the case of State v Oa (No. 2) [2021] PGNC 527; N9385 (31 December 2021) more applicable and relevant to her case. His Honor the Chief Justice said:
“Officers in the PNG Defence Force who behave like that have no place in the Defence Force. They are a disgrace to the uniform they wear and should be sternly dealt with”.
45. In that case, what the Chief Justice said to the offender, a soldier with the PNG DF, also applies to Sylvia. I say the same to you. You, Sylvia, are a Defence Force officer. The Defence Force is a disciplinary force. You are expected to have discipline in your veins, blood and head before you take any actions. You would have been trained to be disciplined in all aspects of life, and to have more self-control.
46. What Sylvia had done to her mother-in-law demonstrated disrespect for her mother-in-law and disregard for all that Sylvia has
been taught and trained in as a disciplined officer, and as a true Papua New Guinean for peace and the peaceful means of resolution
of conflict that genuine Papua New Guineans believe in. This is especially so when the victim voluntarily went to the mediation,
owned up to her wrong and agreed to pay compensation. Instead of allowing her time to pay compensation, both offenders gained up
on her and assaulted her, causing her serious and permanent injury to her left eye. She was elderly and it is a sad case. I am
mindful also that Sylvia’s maintenance of innocence after the court had found her guilty, and where she had asked to pay compensation,
does not promote her genuine-ness to accept blame, pay compensation and reconcile. It makes me wonder if reconciliation can be achieved.
47. What makes this offence more serious to the other relevantly comparable cases discussed above is the circumstance in which this
offence was committed. It was during a mediation process, the very mechanism employed by the parties seeking a peaceful and amicable
resolution of their existing conflict. I see this almost like a case involving trickery whereby the victim being summoned to a mediation,
and willing to participate in the peaceful resolution is then ganged up on and assaulted by the offenders and their relatives. It
is an aggravating factor. This is criminal behaviour and must be stopped. People who do not have regard for the mediation processes
or the law and who want to display their criminal mindsets must be severely punished and strongly deterred. In the city of Port Moresby
today, community or settlement mediations and ‘bungs’ (gatherings) in public arenas are a common sight because people trust the Melanesian way and system of resolving disputes, rather
than laying a criminal complaint with the Police. The formal Courts, and especially the District Civil Courts through its enabling
legislations, have given recognition to the mediation process as a means of settlement of family and domestic disputes. Sometimes,
the Police are also involved in these mediation processes. It is for this reason and in the light of the strong stance by the National
Government against domestic violence, and violence against vulnerable members of our society including the elderly, that a strong
and deterrent punishment is called for to deter other likeminded persons who want to abuse the mediation process and display their
criminal intent and behaviour. This deterrent sentence must also be aimed at safeguarding the rights of genuine citizens who want
to use the true Melanesian way to resolve their conflicts.
48. Further, this court is mindful that the interest of the offenders must be balanced against the interest of the victim, the State or the public at large, which includes the neighbourhood and the community in which the parties live in. In Luga v Sikani, Commissioner of Correctional Services (No 2) [2002] PGNC 60; N2286 (4 October 2002), in a contempt proceeding, and relevantly, Sakora J stated that in sentencing:
“... the public interest; and interests of individuals concerned (the victim, if any, and the offender or perpetrator) are to be considered, weighed up against each other. All these factors or circumstances need to be taken into account in the proper exercise of the sentencing discretion”.
49. The community at large are those who use the true Melanesian culture to seek peaceful resolutions of problems and the community must be protected against people who want to abuse that mediation process. In my respectful view, in the whole of the circumstance of this case, it will be lenient a sentence if this court were to fully suspend the head sentence. A part custodial sentence is called for and aimed towards deterrence.
50. In light of the above discussions, considering the purposes for sentencing, (Veen v The Queen, supra), the punishment that this court must now impose, is aimed at deterring the offender from reoffending and resorting to violence as a means of conflict resolution and especially during a mediation process. This sentence also recognises the harm done to the victim, who has permanent damage to her left eye, namely 45 % loss of visibility.
Head Sentence
51. A head sentence of three years imprisonment in light labour is appropriate in the circumstance of this case. I impose this head sentence accordingly. I order that half of the head sentence, that is one year and six months be suspended. The offenders are each to serve one year and six months imprisonment in light labour. Upon release from prison, the offenders will be placed on Good Behaviour Bond for a period of one year and six months.
Orders
52. The orders of the court on sentence are:
Orders accordingly.
__________________________________________________________________
Public Prosecutors: Lawyer for the State
Public Solicitors: Lawyers for the Defendant
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