N10298

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 667 OF 2018

BETWEEN:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

AGAINST:

LUKE JOHNNY
-Accused-

Waigani: Tamade AJ
2023: 30th March; 18th April

CRIMINAL LAW – offence of grievous bodily harm – Criminal Code, Section 319 – victim refused to give her phone to the accused – victim’s neck and voice box slashed with a knife – victim sustained severe injuries – accused pleaded guilty – sentence – Criminal Code, Section 19 – principles of sentencing applied – Pre-Sentence Report does not correspond to admissions given by the prisoner 

Cases Cited
Goli Golu v The State [1979] PNGLR 653 
State v Geria [2008] PGNC 295; N3868
State v Sinawi [2020] NCSO 670
Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91

Legislation
Criminal Code Act

Counsel	
Mr Jonathan Siminji, for State
Ms Kim Watakapura, for the Accused

18th April, 2023

1.	TAMADE AJ: The prisoner was charged with one count of grievous bodily harm under section 319 of the Criminal Code to which he pleaded guilty. Section 319 of the Criminal Code is in the following term:

319. GRIEVOUS BODILY HARM. 
A person who unlawfully does grievous bodily harm to another person is guilty of a crime.
Penalty: Imprisonment for a term not exceeding seven years.

2.	The Court is therefore guided by section 19 of the Criminal Code as to sentencing. Counsels have made submissions on sentence and this is the Court’s decision.

3.	The facts of the case in which the Accused pleaded guilty to is that on 11 September 2018, the victim, a young girl and her sisters were travelling to school from 8 Mile to Hohola when whilst the victim was looking at her phone, the Accused came from behind and grabbed her hand and demanded that she give over her phone.  The victim refused to give her phone and as a result there was a tussle, the Accused took out a knife and tried to cut the victim’s neck. The victim moved back to avoid the strike and the knife penetrated her neck, voice box, mouth and tongue. The victim was rushed to the Port Moresby General Hospital and survived but suffered serious wounds.

4.	 The Office of Community Based Correction has prepared a Pre-Sentence Report for the Accused however the State has objected to the views in the Pre-Sentence Report in that it is premised on a different set of facts then what was admitted to by the Accused as the Facts presented in support of the Indictment. The Pre- Sentence Report states that the Accused had a romantic relationship with the victim though it also states that the Accused is married with two children. The Pre Sentence Report paints a picture that the victim is known to the Accused and therefore as they have a romantic relationship, he did not intend to injure or cause harm to the victim. The facts in which the Accused pleaded guilty paints a contrasting story of the Accused as a stranger to the victim who tried to grab and take her phone and, in the process, he wounded her with a knife in which she suffered serious injuries nearly costing the victim’s life.

5.	 In Goli Golu v The State, the Supreme Court has set the guiding sentencing principle as follows:

“In sentencing, the basic principle to be observed is that the punishment to be awarded should be strictly proportionate to the gravity of the offence.”

6.	It has therefore been applied in numerous cases that the maximum penalty should be awarded to the most severe instances of offences.

7.	In State v Geria, the Court commenced its enquiry into sentencing by considering the following questions as appropriate in sentencing cases:

(1) What are the relevant facts or the particular circumstances in which the offence was committed?
(2) What is the nature of the offence with which the offender has been charged with and its relevant sentencing trend?
(3) What are the factors in aggravation and mitigation of the offender?
(4) Are there any special features attending the commission of the offence?
(5) After carefully considering all of the relevant factors, what should be the appropriate sentence? and
(6) Whether the whole or any part of the sentence should be suspended and if so on what terms?
8.	 Counsels have submitted comparable cases on punishment and having considered those cases, the mitigating and the aggravating factors are too far apart to the facts of the current case. Using the PNG Sentencing Database has assisted me to narrow the most relevant case in terms of the facts and considerations on sentencing on the offence pleaded to. The case that draws quite close to this case is the case of State v Sinawi [2020] NCSO 670. In that case, the age of the offender, a male at the time of the commission of the offence was 28, the current offender was 27 at the time he committed the offence. It was an early guilty plea, the offender had no record of criminal history, he demonstrated genuine remorse, he cooperated with the Authority and the offence was not premeditated. The aggravating factors were that the offence involved a knife and there was some consumption of alcohol involved however it was not significant. In that case the victim suffered injury to his thigh as the Accused stabbed him on the thigh. In State v Sinawi, the offender was sentenced to 4 years imprisonment.

9.	 The injuries the victim sustained in this case is quite severe.  The Offender has offered compensation through his family however there has not been any compensation since 2018 when the offence was committed, and the victim’s family have refused compensation. The Court is also aware that the Accused pleaded guilty after two miss trials. The Defence has submitted that the extenuating circumstance in this case is that the offender’s case had been delayed for two years as the first time the matter was on trial, it was before the Late Justice Koeget and therefore on His Honour’s passing, there was a mistrial and the matter had to be retried. On the second time, upon presentation of an indictment in which the previous indictment was not withdrawn, the Court had to declare the second trial a mis trial and the matter finally came before me in which upon a plea bargain, the offender pleaded guilty to a lower charge of grievous bodily harm. The offender therefore blames the Court for the delay in his case and asks for a wholly suspended sentence.

10.	I am of the view that the delay in the process of the Court is not an extenuating circumstance to the commission of the offence and to a factor in sentencing. The sentencing principles is that the sentence must be proportionate to the offence. An accused pleading guilty to an offence should not be dependent upon the Court process, it is dependent upon his guilt in the commission of the offence. The Accused had attempted to portray a different story in the Pre-Sentence Report and that he had known the victim as his girlfriend which is contrary to the facts he pleaded guilty to.  This goes to show that he is not entirely truthful about the facts and puts into question his remorse. Considering this as an important consideration with the serious injury to the victim in my view as an aggravating factor, I would order a sentence of 5 years as the head sentence.

11.	I then ask this question, should part of this sentence be suspended? In Public Prosecutor v William Bruce Tardrew, the Supreme Court held that there are three broad categories where a sentence can be suspended. The Court said that:
“Suspension of part of a sentence under s 19(6) of the Criminal Code (Ch No 262) is, or may be appropriate, in three broad categories. The categories are not exhaustive:
(i)       Where suspension will promote the personal deterrence, reformation or rehabilitation of the offender.
(ii)      Where suspension will promote the repayment or restitution of stolen money or goods.
(iii)     Where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of his bad physical or mental health.

12.	Category 2 and 3 do not apply to this current case. In  regard to category 1 above, though a suspended sentence may promote personal deterrence, reformation and or  rehabilitation, the State has objected to a suspended  sentence in that there is nothing in the Pre Sentence Report (apart from the Character Reference from the Acting  Chaplain of Bomana CIS) to say that the community will receive the  offender and he will be part of a community to work with him to rehabilitate him back into the community. I find that given that the Offender had given a completely different story to the officers preparing his Pre-Sentence Report, it diminishes his genuineness in his remorse and that should be seen as an aggravating factor. I will therefore refuse any suspension of his sentence of 5 years. The Offender has served time in excess of 4 years and 6 months, he shall serve the balance of his 5 years without any suspended period.
______________________________________________________________
Office of the Public Prosecutor 	: Lawyers for the State
Office of the Public Solicitor: Lawyers for the Accused