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Independent State of Papua New Guinea v Prabon [2022] PGNC 609; N10326 (24 June 2022)

N10326


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR NO 16 OF 2021


THE INDEPENDENT STATE OF PAPUA NEW GUINEA


V


WARREN PRABON


Vanimo: Thoke, AJ
2022: 4th & 24th June


CRIMINAL LAW – Guilty plea -Sentence – s.319 of the Criminal Code – Grievous Bodily Harm – Conviction upon Guilty Plea – Mitigating factors outweigh the aggravating factors- De facto provocation- Suspended sentence with conditions.


On 7 January 2020, between 12.11 PM to 2.00 PM, the Prisoner, Warren Prabon, unlawfully occasioned grievous bodily harm to one Joseph Babia by the use of a bush-knife. The Defendant pleaded guilty upon indictment.


Held:


  1. The victim initially acted violently against the accused, which led to the offence.
  2. The Prisoner’s affidavit clearly sets out the facts leading to the fight.
  3. Mitigating factors outweigh the aggravating factors.
  4. The nature of injury sustained by the victim was serious, but the accused was provoked.
  5. Grievous bodily harm does not warrant custodial sentence.
  6. Prisoner is willing to pay compensation.
  7. Sentence to 3 years, 5 months in pre- trail custody be deducted.
  8. Balance of year fully suspended with conditions.

Cases Cited:


Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
State v Wanpis Bony (2020) PGNC 321; N8534
State v Paranis (2009) PGNC 145; N3761
State v Hilary Lemia (2012) PGNC 179; N4817
State v. Timi [2012] N4610
State v Tokenaki [2015] N5960
State v Dirona [2019] N7985
State v Kariat (2017) N6904
State v Darius Taulo (2000) N2034
State v Ruben Wake [2022] PGNC 425; N9795
State v Sheekiot (2001) N4454
State v Kronos (2010) N4157
State v Namaliu [2020] PGNC 234; N8506
State v Tardew [1986] PNGLR 91
State v Frank Kagaii [1987] PNGLR 320
Kumbamong v The State (2008) SC1017
Public Prosecutor v Don Hale (1998) SC564


Counsel:


Ms. Linda Maru, for the State
Mr. Moses Paul, for the Accused


DECISION ON SENTENCE


24th June, 2022


  1. THOKE AJ: On 7 January 2020 at about 12.11 PM, the victim, Joseph Babia, (victim), rode his motorcycle back to his home at Lido Village to get petrol for the motorcycle.
  2. The Prisoner alleged that he was under the influence of alcohol and drove recklessly at high speed through the village.
  3. Upon reaching his home and acquiring the petrol, as he was riding his motorcycle back out onto the road, the Prisoner, Warren Prabon, and a friend of his called out to the Victim. Responding to the call of the Prisoner and his friend, the Victim stopped.
  4. The Prisoner and his friend approached the Victim whereupon, the Prisoner, in particular, demanded that the Victim hand over the motorcycle to him. The Victim refused and an altercation ensued. The Prisoner, in anger, punched the Victim, who at this time was still seated atop the motorcycle. The Prisoner fell down, motorcycle and all.
  5. Realizing that he had just been punched and attacked, the Victim stood up and fled to his house on foot leaving the motorcycle behind. The Defendant and his accomplice gave chase to the Victim pelting him with stones, sticks, and other projectiles.
  6. The Victim entered his house and brought out a grass-knife to defend himself. The mother of the Victim yelled at the Victim and wrestled with the Victim for the grass-knife.
  7. The Prisoner, then realizing that the Victim had harmed himself, rushed out to another villager’s house, referred to as Takran, and harmed himself with a one-meter long bush-knife.
  8. While the Victim and his mother were wrestling over the grass-knife, the Accused, now harmed with the bush-knife, sprung up from behind the Victim and his mother and swung the bush-knife at the Victim aiming at his neck.
  9. The Victim lifted both his hands in defense as the bush-knife was swung, primarily to protect his head and neck. The bush-knife lacerated the Victim’s left hand. The Victim immediately fell to the ground. While the Victim was on the ground, immobile and in anguish, the Prisoner swung the bush-knife a second time on his right leg just below the knee.
  10. Immediately thereafter, the Victim’s uncle came onto the scene and chased the Accused away before any more harm could be done.
  11. The Victim was taken to Vanimo General Hospital for medical attention and treatment.
  12. During arraignment, the Prisoner pleaded guilty to one (1) count of manslaughter under Section 319 of the Criminal Code 1964 (Criminal Code). The Defendant was convicted accordingly.

LAW ON SENTENCING TARIFFS FOR CONVICTION OF GRIEVOUS BODILY HARM


  1. Section 319 of the Criminal Code imposes a penalty of “a term not exceeding seven years” for the crime of grievous bodily harm.
  2. In Goli Golu v The State [1979] PNGLR 653 [and many other cases that have followed on its heels], it has been well fortified in our jurisdiction that the maximum penalty is only reserved the worst case and that each case should be determined on its own particulars.
  3. Despite sentencing tariffs and comparative precedents, Section 19 of the Code provides the Court with a broad discretion on sentence and every sentence should be determined according to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.

SUBMISSION BY THE STATE


  1. The State in its submission set out the following aggravating and mitigating factors:
  2. The State assisted the Court with the following cases for comparison:

The Offender, brother-in-law of the Victim, and the wife of the Victim, his sister, were found sitting together and conversing at the house of one David Aleida. The Victim, acting out anger in what stemmed from a domestic issue with his wife, angered with his brother-in-laws prodding into his marital issues, got a bush-knife and swung at the Offender. Fortunately, the Victim missed. The Offender got up and tackled the Victim wrestling with him to get the bush-knife. They were held off by Mr. Aleida. Some minutes later, he got the bush-knife and swung it at the Victim. The Victim blocked the attack with his right arm. He sustained serious injuries to his right hand, in particular, his second, third, fourth, and fifth fingers.


Upon arraignment, the Offender pleaded guilty to one (1) count of grievous bodily harm.


The Prisoner was sentenced to 2 years in hard labor. Of this, the Prisoner had served 2 months 2 days in pre-trial custody. The balance of 9 months 28 days were wholly suspended with conditions.


(ii) State v Paranis (2009) PGNC 145; N3761

A party of three persons went in search of a person name June. The Victim and his friends directed them to, allegedly, June’s house. The party of three returned in anger on not finding June at the house referred to by the Victim and his friends. The party swore at the Victim and his friends. Upon hearing the cursing, one of the Victim’s friends assaulted two of the party of three. Sometime later after being assaulted, the two returned together with the Offender. Without saying a word, he approached the Victim and attacked him with a bush-knife. The Victim ducked to avoid the swing all the while putting his right hand up to protect himself. The Victim sustained injuries to his right hand, consequently he lost 25% functional use of his affected hand.


On arraignment, the Prisoner pleaded guilty to one count of grievous bodily harm. He showed remorse and apologized to the Court and the Victim. He pleaded with the Court with regard to himself being a first-time offender.


The Prisoner was sentenced to 2 years which was wholly suspended with conditions.


(iii) State v Hilary Lemia, 2012) PGNC 179; N4817

The Prisoner had ongoing marital problems with his wife. As a consequence, she sought refuge at the house of the Victim. Upon hearing that his wife had taken refuge at the Victim’s house, the Prisoner harmed himself with a bush knife and went in search of the Victim with several of his friends. Upon locating the Victim, he approached him and swung the bush-knife at the Victim. The Victim sustained three deep cuts on the right side of his head and one deep cut on the left side of his face. The Doctor commented that the Victim would suffer permanent disability and functional losses on the affected regions of his body.


On arraignment, the Prisoner pleaded guilty to one count of grievous bodily harm. His Defense argued provocation as the Victim had committed adultery with his wife. He was a first-time offender. Further, he showed remorse to the Court and the Victim.


The Prisoner was sentenced to 4 years in hard labor which was wholly suspended with conditions.


  1. The State submitted that the appropriate sentence would be a term of 3 years in hard labor given the aggravating factors.
  2. Further, the State added that should the Court consider suspended sentence, the conditions should be similar to the ones imposed in Wanpis Bony with respect to the serious nature of the injury and that a strong sentence is required to deter would-be offenders as grievous bodily harm is now prevalent in the county. More, that it would be appropriate for an order for compensation in monetary terms to the Victim by the Prisoner.

SUBMISSION BY THE DEFENCE


  1. The Defense set out the personal particulars of the Prisoner as 24 years of age, single lad from Lido village of Vanimo Green District, of West Sepik Province, and a member of the Revival Centers of Papua New Guinea. He comes from a family of two brothers. He is the first born. His father is deceased and his mother remarried, and still alive. He was only educated up to Grade 9 at Vanimo Secondary School and currently doing his Grade 10 through FODE. The Prisoner does not have a formal job. He relies on his mother for his daily survival.
  2. The Defense in its submission set out the following mitigating and aggravating factors:
  3. The Defense assisted the Court with the following cases for comparison:

The Victim was walking home with three other friends when the Prisoner and his younger brother confronted them. The Victim and the younger brother engaged in a fight. The Prisoner joined the fight and both he and his younger brother assaulted the Victim together. The Prisoner was armed with a knife which he swung at the Victim and cut him on his left knee. The Victim ran away to his house for assistance.


Upon arraignment, the Prisoner pled guilty to one (1) count of grievous bodily harm.


The Court in ruling sentenced the Prisoner to 2 years imprisonment with hard labor which was wholly suspended with the Prisoner placed under a good behavior bond to keep the peace for 2 years including K500.00 compensation to the Victim.


(ii) State v Tokenaki [2015] N5960

The Prisoner and his friends, armed with bush-knives and sticks, were on the road between Okeboma and Okuyoukopu Villages on Trobiand Island, waiting for the Victim. They were angry over something that the Victim had allegedly done. When the Victim finally arrived, they attacked him. The Victim suffered three major lacerations and three minor lacerations to various parts of his body. However, none of the injuries were life threatening. After discharge from the local health center, no permanent injury or disability was diagnosed.


Upon arraignment the Prisoner pled guilty to one (1) count of grievous bodily harm.


The Court in ruling sentenced the Prisoner to 4 years in hard labor which was wholly suspended.


(iii) State v Dirona [2019] N7985

The Victim was on his way back from the creek where he had gone to fetch water when he met the Offender on the road. The Offender was drunk and disorderly and harassed the Victim. The Victim tried to stop him but the Offender lashed out and attacked him with a bush-knife. He cut him on the left arm and also cut the bucket full of water which the Victim was carrying.


Upon arraignment, the Prisoner pled guilty. He was remorseful and apologized to the community, the Victim, and the Victim’s family.


The Court sentenced the Prisoner to 3 years which was wholly suspended. He was placed upon probation with orders to pay compensation to the Victim, on a good behavior bond to keep the peace, to not consume alcohol or any other drugs, and to perform community service.


(iv) State v Kariat (2017) N6904

The Offender and the Victim, his elder sister, had an altercation which escalated into the Victim chasing him and pelting him with stones. During the chase she fell down and dropped the bush-knife that she had. The Prisoner picked up the bush-knife and cut her on her left shoulder and ankle.


The Court sentenced the Prisoner to 3 years in hard labor which was wholly suspended and the Prisoner entered into recognizance to be of good behavior for 3 years on conditions to pay compensation to the Victim, to not take any liquor or drugs, to attend church consistently, undertake counselling, and to perform community service.


(v) State v Darius Taulo (2000) N2034

The Offender and Victim were husband and wife. The Offender was charged with grievous bodily harm for a consistent pattern of wife beating for over a period of years.


Upon arraignment the Prisoner pled guilty but argued for suspended sentence.


The Court in ruling sentenced the Prisoner to 3 years in hard labor which was wholly suspended with respect to the Prisoner’s guilty plea, having no prior convictions, that had paid compensation to the Victim, that children of the marriage stood to suffer if he would be imprisoned, and that the Court had a view to rehabilitate the Defendant.


(vi) State v Ruben Wake [2022] PGNC 425; N9795

The Prisoner was an employee of the Victim’s company. The Victim was attacked by the Prisoner when he was about to pay his employees of Guriaso Camp of Amanab Sawmill. The Prisoner, who was unhappy with his pay, without hesitation went straight up to the Victim, armed with a bush-knife, and swung it at the Victim. The Victim tried to defend himself by putting up his hands. The bush-knife landed on the left forearm of the Victim. He sustained a deep laceration to his left -hand elbow. The injury was serious and the Victim went for further medical treatment at Pacific International Hospital in Port Moresby.


The Court in ruling sentenced the Offender to 3 years in hard labor which was wholly suspended. The Court stated that the aggravating factors were outweighed by the mitigating factors, and that the Prisoner’s attack of the victim arose from a valid concern and that is was far-fetched from pre-meditation.


  1. The Defense agreed with the State that this case falls within Category 1 of the Manu Kovi tariff guidelines and should attract a sentence range of 8 – 12 years in hard labor.
  2. The Defense argued strongly for a suspended sentence on very strict conditions, primarily on the basis that the Prisoner needed rehabilitation as he had not been reared under the guidance of his biological parents but under his grandmother. Thus, such upbringings were tough.

CONSIDERATIONS ON SENTENCE


  1. In State v Tokenaki, a comparative case provided by the Defense, I agree with the position taken by, his Honor Cannings J:
  2. However, I am also of the view that as per the unfettered discretion of the Courts under Section 19 of the Criminal Code, the mitigating factors should also be considered in placing a starting point and the same should be done on a case-by-case basis with respect the facts and circumstances peculiar to each case.
  3. I have noted that the facts as alleged by the State are brief and leave out some crucial and noteworthy elements on how this crime occurred. More, some facts are contrary to the version of the events as set out by the Prisoner in his affidavit.
  4. The Defense Counsel would have done better in its submission by highlighting these differences as the environment in which a crime occurred is as important as the crime itself. In this it has disadvantaged the Prisoner who, to his credit and his own good, has pled guilty to the crime.
  5. The Prisoner’s in his affidavit accounts the Victim’s de facto provocation as follows:

“Warren kan yu! Kaikai kan blo mama blo yu!”


(xii) In anger the Prisoner came out and gave chase to the Victim in order to assault him. The Prisoner got exhausted in the chase and stopped midway as the Victim ran into his house. The Prisoner, at this point, had decided to stop the chase and go back to his house.

(xiii) The Victim went to his house, got his grass-knife, and immediately came back to assault the Prisoner. The Prisoner upon seeing the Victim armed with the grass-knife told the Victim to drop the grass-knife, that if he wanted a fight they could fight with fists and hands. The Victim feigned by leaving the grass-knife with his little uncle, Linus Goble.

(xiv) As soon as the Prisoner approached, the Victim immediately retrieved the grass-knife from his little uncle and swung at the Prisoner. The Prisoner evaded the attack by moving backwards. The Victim swung a second time at his chest and belly which was also evaded by the Prisoner. When he swung the third time, the Prisoner turned around and ran away. The grass-knife got wedged into a new wooden power post at the third swing.

(xv) By then the Prisoner decided that the Victim was out to kill him. He went and got his bush-knife.

(xvi) When the Victim saw the Prisoner with the bush knife he tried to run away but due to his intoxication miss-stepped and fell down. While he was down, the Victim lifted his hands and his feet to defend himself. The Prisoner admitted that by then he released his anger and cut his legs and hand.

(xvii) The Prisoner alleges throughout all the events that occurred, there were several witnesses, the primary witnesses which he named.
  1. As per this account by the Accused, the degree and extent of provocation by the Victim is overwhelming and is not light in any way. Any reasonable person, given the attitude and violent onslaught of the Victim against the Accused, would have had his fires of wrath and aggression kindled against the Victim.
  2. I lean more towards the rendition of events given by the Accused than the one given by the State and the Victim.
  3. However, I also a note a few in congruencies in the account of the Prisoner also, in particular, his intoxication or non-intoxication. In his submission, he claims to have been sober at the time but in his recollections to the Senior Probation and Parole Officer, Ben Kasanda, he admits that he was intoxicated at the time. The Village Court Magistrate, Bernard Nehu, supports the Prisoner’s recollection to Mr. Kasanda, stating that both the Accused and the Victim were intoxicated during the events. Thus, I remind myself not to rely entirely on the Accused’s account regardless of my leaning towards the same.
  4. Next, I do find the injuries suffered by the Victim are serious. He has not fully recovered with two of his fingers still paralyzed, a metal rod was inserted into his wrist which is yet to be removed, and he has recurring sores on his knees due to the injuries sustained. The victim mist be compensated by the Prisoner given the fact the nature of injuries and compensation should be more than K5,000.00 but limited by the Criminal Compensation Act to K5,000.00 only. This will be offered by use of his figures.
  5. At the same time, I also find that the injuries are not life threatening.
  6. I establish the following aggravating and mitigating factors from my findings:
  7. From the above, the mitigating factors outweigh the aggravating factors. I am minded to give a sentence above 3 years but less than 3 years and 6 months as set in State v Tokenaki.
  8. Regarding the Defense’s submissions on a suspended sentence, I find that the law has not been fully addressed on the same.
  9. In State v Namaliu [2020] PGNC 234; N8506, Her Honor Berrigan J referenced State v Tardew [1986] PNGLR 91, State v Frank Kagaii [1987] PNGLR 320, and Kumbamong v The State (2008) SC1017 at par. 63:

“63. In The State v Tardrew [1986] PNGLR 91 the Supreme Court set out three broad, but not exhaustive, categories in which it may be appropriate to suspend a sentence, namely: (i) where it will promote the general deterrence or rehabilitation of the offender; (ii) where it will promote the repayment or restitution of stolen money or goods; or (iii) where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health. Suspension is not an act in leniency but a form of punishment that is to be served outside the prison system in the community interest to promote restitution or rehabilitation: The State v Frank Kagai [1987] PNGLR 320; affirmed Kumbamong v The State (2008) SC1017.”


[Insertion of Roman numerals mine.]


  1. I find that the nature of the Defense’s submission on behalf of the Prisoner fall in the first category. That is, suspended sentence is appropriate “where it will promote the general deterrence or rehabilitation of the offender”.
  2. Also in Public Prosecutor v Don Hale (1998) SC564 the Supreme Court iterated that a sentence may only be suspended if it is supported by a Pre-Sentence Report. Thus, I have taken into account the Pre-Sentence Report by Mr. Kasanda where he has recommended a suspended sentence. He also highlighted that since the Prisoner lives near town, there is a probation volunteer in the village to oversee the Court orders.
  3. I have also taken into account that the Prisoner is not a danger to others in the community unless is he drunk and provoked. Thus, for the purposes of this recurring, the Prisoner will not be allowed to be intoxicated during his sentence.
  4. Further, I have taken into account the Prisoner’s family’s willingness to compensate the Victim and the Victim’s family. This will allow the Prisoner’s family to hold him to task not to commit the same offence, and will allow the Prisoner to be reconciled to the Victim and the Victim’s family.

ORDERS


  1. Accordingly, I make the following orders:

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner

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