State v G O (A Juvenile) [2023] PGNC 314; N10477 (20 September 2023)

N10477

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (JJ) NO. 1093 OF 2023

THE STATE

V

G O (A JUVENILE)

Mt Hagen: Toliken, J.
2023: 10^th, 18^th May, 20^th September

CRIMINAL LAW – sentence – grievous bodily harm – guilty plea – juvenile offender – offender punches victim on mouth with knuckle buster – permanent injury – loss of 4 front teeth –Criminal Code Ch. 262, s 319.

CRIMINAL LAW – juvenile justice – objectives, guiding principles, principles of sentencing and sentencing options under Juvenile Justice Act 2014 discussed – Juvenile Justice Act 2014, ss 6, 20, 75, 76, 77, 78, 79, 80, 81, 85.

CRIMINAL Law – appropriate sentence – mitigating and aggravating factors considered – deferred sentence considered most appropriate – probation with conditions including restriction of movement.

Cases Cited:

Avia Aihi v The State (No.3) [1982] PNGLR 92
Golu v The State [1979] PNGLR 653
Ure Hane v The State [1984] PNGLR 105
The State v AB (Juvenile) (2016) N6440

Counsel:

T Kagl, for the State
F Timbi, for the Prisoner

SENTENCE

20^th September 2023

1. TOLIKEN, J: On 10^th May 2023, the juvenile prisoner here pleaded guilty to one count of unlawfully causing grievous bodily harm to one Semi Tinga on the 01^st day of January 2022 at Kimininga Police Barracks, Mt. Hagen, Western Highlands Province. This is an offence under Section 319 of the Criminal Code.
   

FACTS

2. The prisoner admitted the following facts on arraignment. On 01^st January 2022, he was with other youths at Kimininga Police Barracks at around 2.00 p.m. They were under the influence of alcohol and got into a fight with another group of youths. The victim Semi Tinga, a police officer and other policemen intervened and stopped the fight. He told the prisoner and his group to go home but the prisoner swore at him. Hearing this the victim alighted from the police vehicle he was in to ask the prisoner why he swore at him. As soon as he stepped out of the vehicle, the prisoner punched him in the mouth with a clipper (knuckle buster), knocking him unconscious. The prisoner then fled the scene. The victim lost 4 of his front teeth as a result of the assault.
   

THE OFFENCE

3. The offence of unlawfully causing grievous bodily harm carries a maximum penalty of 7 years imprisonment.
   

ISSUES

4. My task is to determine what an appropriate sentence ought to be.
   
5. Generally, whatever a sentence will be determined by the following settled principles of sentencing. First, the maximum penalty is usually reserved for the worst instances of offending. Secondly, an offender will be sentenced according to the peculiar circumstances of his case so that punishment fits the crime. Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1982] PNGLR 92; Ure Hane v The State [1984] PNGLR 105).
   
6. However, since the prisoner was a juvenile (17 years old) when he committed the offence, he must be sentenced according to the objectives of sentencing and guiding principles under the Juvenile Justice Act 2014. (JJA)
   

SENTENCING JUVENILES: THE GUIDING PRINCIPLES

7. The Juvenile Justice Act provides comprehensively for the objectives, sentencing guidelines and sentencing options for juvenile offenders. I adopt my discussions on these in the case of The State v AB (Juvenile) (2016) N6440. The offender there pleaded guilty to one count of rape simpliciter. There I relevantly said:

10. Section 20 (3) of the Juvenile Justice Act provides that as far as is practicable, the National Court shall sit and conduct its proceedings in accordance with that Act.

11. Section 6 of the Juvenile Justice Act provides for the general principles that must guide a court or persons exercising jurisdiction or power over a juvenile. Among other things, special considerations apply in respect of proceedings against juveniles because of their youth and vulnerability, and therefore, they must be treated separately from adults. They are entitled to enhanced protections to ensure that they are treated fairly and that their rights are respected. The best interests of the juvenile are the primary or paramount consideration. Juveniles must be held accountable for their actions, but emphasis should be rehabilitation and reintegration, while acknowledging the juveniles’ lack of maturity and their limited capacity to appreciate the consequences of their actions. They must be dealt with in an individualized manner and there must be proportionality between the circumstances of the juvenile, the nature of the offence and the interest of society. And within the limits of proportional accountability, measures to be taken against a juvenile must ones that reinforce respect for societal values, encourage restorative justice for harm done to victims and to the community. Where appropriate, parents, the juvenile’s family, the community, and other agencies must be involved in rehabilitating and reintegrating a juvenile. (Section 6(a) (b) (j) (k) (l)).

12. The Juvenile Justice Act (PART VII: SENTENCING OF JUVENILE OFFENDERS), provides for the powers, purpose and factors to be taken into consideration when sentencing juvenile offenders against the general principles under Section 6 of the Act.

13. Section 75 of the Act provides in mandatory terms that juvenile offenders shall be sentenced according to Part VII of the Act. Section 75 provides: -

“75. JUVENILES TO BE SENTENCED IN TERMS OF THIS PART

(1) Notwithstanding any other Act or law, if a Court is satisfied that

an offence has been proven against a juvenile, or if the juvenile

pleads guilty to the offence, the Court shall impose sentence on
the juvenile in accordance with this Part.

(2) A Court that sentences a juvenile for an offence shall disregard

a requirement under any other Act or law that an amount of money

or term of imprisonment shall be the minimum penalty for the offence”.

14. This provision cannot be any clearer – juveniles, because of their special status, will be treated entirely differently from adult offenders. Minimum penalties have no application when it comes to sentencing juveniles. To that end, a sentencing court is also not strictly bound by precedents (Section 77 (2)).

15. Section 76 provides for the purpose and principles of sentencing juvenile offenders in the following terms: -

“76. PURPOSE AND PRINCIPLES OF SENTENCING

(1) The purposes of sentencing juvenile are to -

(a) Encourage the juvenile to understand the consequences of and be accountable for the harm caused by his or her actions; and

(b) Promote an individual response which is appropriate to the juvenile’s circumstances and proportionate to the circumstances surrounding the offence; and

(c) Promote the rehabilitation and reintegration of the juvenile into the family and community; and

(d) Ensure protection of the public.

(2) A Court that imposes a sentence on a juvenile shall determine the sentence in accordance with the principles set out in Section 6 and the following principles:

(a) The sentence shall be proportionate to the seriousness of the offence and the degree of responsibility of the juvenile for that offence; and

(b) the sentence shall –

(i) be the least restrictive sentence that is capable of achieving the purposes set out in Subsection (1); and

(ii) be the one that is most likely to rehabilitate the juvenile and reintegrate him o her into society; and

(iii) promote a sense of responsibility in the juvenile, and an acknowledgement of the harm done to the victim and the community; and

(c) the sentence shall have regard to the juvenile’s age and limited capacity to appreciate the consequences of his or her actions; and

(d) the sentence shall and result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances; and

(e) if appropriate, juveniles shall be permitted to remain in the community; and

(f) deprivation of liberty shall be used only as a measure of last resort, for the shortest period necessary to achieve the purposes set out in Subsection (1).

16. Section 77 provides for the factors which sentencing a juvenile. These include:-

(a) The seriousness of the offence and the circumstances in which it was committed.

(b) The juvenile’s degree of participation in the commission of the offence.

(c) The harm done to the victim and whether it was intentional or reasonably foreseeable.

(d) The age, maturity, education, health character and attitude of the juvenile.

(e) The juvenile criminal history (if any) and his response to previous orders in respect of past offences.

(f) The availability of community services and facilities to assist the juvenile and his willingness to avail himself to such services and facilities.

(g) Any proposal offered by the juvenile or his parents for the future improvement of the juvenile.

(h) The views of a Juvenile Officer or other persons who are involved in the education or custody of the juvenile.

(i) Information contained in a Pre-Sentence Report.

(j) Any time spent in custody while awaiting trial.

17. And as I have noted above, the court is not bound by preceden[ce].

18. The Juvenile Justice Act also provides that a court may before imposing sentence, refer a juvenile offender to a Community Based Conference (established under Part III – of the Juvenile Justice Act) for the purpose of making recommendations to the court on an appropriate sentence (Section 78).

19. It is also mandatory that a written pre-sentence report be filed before a court imposes sentence (Section 79).

20. Section 80 of the Act provides for what appears to me to be an exhaustive list of sentencing options. These include:-

(a) An Order discharging the juvenile without further action.
(b) Good behaviour not exceeding 12 months.
(c) Reprimand.
(d) Counselling.
(e) Supervision and guidance order not exceeding 12 months by a specified adult or mentor.
(f) Attendance of a non residential vocational training or rehabilitation programme.
(g) Order for restitution.
(h) Compensation by way of personal service to the victim.
(i) Restitution in kind for loss, damage or injury suffered by victim not exceeding K5,000.00.
(j) Community work.
(k) Fine not exceeding K500.00.
(l) Probation not exceeding 3 years.
(m) Commitment to a juvenile institution chosen by the Director of Juvenile Justice Service.
(n) Term of imprisonment at the juvenile section of a Corrective Institution for period not exceeding 6 years if order is made by a Juvenile Court or a court of summary jurisdiction and where order is by National Court for a period prescribed for an adult offender in similar circumstances.
(o) Defer passing sentence for a specific period and subject to conditions.

21. And in sentencing a juvenile, a Court is obligated to ensure that he understands the purpose and effect or the consequences if he breaches the Order (Section 80 (5)).

22. Section 81 restricts the use of Custodial Sentences. It provides that imprisonment may be imposed only if the Court has considered all the alternatives under the Act (Section 80) and determines that there is no reasonable alternative or a combination therefore is available to it.

23. Furthermore, a juvenile shall not be sentenced to a term of imprisonment unless he is 14 years of age or older and has committed an indictable offence (Section 81(2)).

24. I have gone into some detail on the general guiding principles set out in Section 6 of the Act, the purpose and principles of sentencing, and the court’s sentencing powers and options (Sections 75, 76, 77, 80, 81 of the Act) because I feel that it is important that you be accorded the protection that the Act provides. So let me now get back to your case.

8. It is therefore on the above principles that I must impose a sentence that is most suitable for the prisoner. The sentence must necessarily seek to impose and impress on him that he must take full responsibility and accountability for his offence while acknowledging his vulnerability as a juvenile who must be guided away from delinquency and criminal behavior.

PERSONAL PARTICULARS

9. The prisoner is now 19 years old according to his presentence report (PSR). He was 17 years old when he committed the offence and was doing Grade 10 at Mt. Hagen Secondary School. He is now in Grade 12 at the same school. The prisoner is the second born in a family of seven, five of whom are boys. His parents are both still alive and living at the Kimininga Police Barracks. His father is a police officer holding the rank of Sergeant and is attached to the Criminal Investigation Division at the Mt. Hagen Police Station. The prisoner is a member of the Nazarene Church. He has no prior conviction.

ALLOCUTUS

10. On allocutus, the prisoner apologized for his offence and said that he had paid K3000.00 cash and a live pig valued at K2500.00 to the victim. He said he is a first-time offender and a juvenile and hence pleaded for mercy.

SUBMISSIONS
11. Ms. Kagl submitted on behalf of the State that the prisoner caused serious injury to the victim who lost 4 of his front teeth as a result of being assaulted by the prisoner. This is a permanent loss to the victim. Furthermore, the prisoner used excessive force, was under the influence of alcohol and this offence is prevalent. Counsel acknowledged that the prisoner is a juvenile and must be given individualized treatment. While further acknowledging that the offence is not a worst case, counsel nonetheless submitted that given the seriousness of his offending, an appropriate sentence for him ought to be 2 years imprisonment which may then be fully suspended with strict conditions.

12. Mr. Timbi submitted on behalf of the prisoner, among other things, that the Court is not bound by precedence (s 77(2) of JJA) but must determine a sentence that promotes an individualized response by the prisoner to his offending. His sentence must be proportionate to the circumstances of his offending while eliciting from him personal responsibility for the harm he had caused to the victim. Such a sentence must, however, be one that is less restrictive so that the prisoner can be rehabilitated and reintegrated into the community.

13. In the circumstances, counsel submitted that an appropriate sentence for the prisoner ought therefore to be 2 years imprisonment which may then be wholly suspended.

14. The prisoner’s PSR is balanced and comprehensive. Those whose views were gauzed for the report were the prisoner himself, his parents Sergeant James Opa and Joanne Opa, and the victim Mr. Semi Tinga. The author of the report, Juvenile Justice Officer Theresa Puk, speaks well of the prisoner but left it to the Court to impose an appropriate sentence understandably given the fact that the victim despite having received compensation already (incidentally above the maximum of K5000 allowed under the JJA) refused to accept any further compensation, insisting instead that the prisoner be given a custodian sentence as a lesson for him and other youths.

MITIGATING AND AGGRAVATING FACTORS

15. The following factors aggravated the offence:

• The prisoner used a dangerous weapon – a clipper or knuckle buster – to inflict serious harm on the victim.
• The victim suffered permanent injury – losing 4 of his front teeth.
• The prisoner was under the influence of alcohol.
• The offence is prevalent.
  

16. In his favour, I find the following factors:

• The prisoner pleaded guilty early.
• He surrendered to and co-operated with the police by making early admissions in his record of interview.
• He was of prior good character.
• He appeared to be genuinely remorseful for his offence.
• Compensation comprising of K3000.00 and a live pig valued at K2500.00 was paid to the victim.
• There was some de facto provocation involved.
  

SENTENCING TREND

17. Both counsels cited several cases to me in their submissions. However, as we have seen, I am not bound by case precedence. Rather my sentencing powers are circumscribed by Part VII of the Juvenile Justice Act and guided by the general guiding principles under Section 6 of the Juvenile Justice Act. Therefore, I must impose a sentence that is most appropriate for this prisoner, so the objects of the Juvenile Justice Act are achieved when considered and applied in the context of the circumstances under which the prisoner committed this offence. In doing so the prisoner is accorded individualized treatment and justice. What then should be an appropriate sentence for the prisoner here?

APPROPRIATE SENTENCE

18. I agree with both counsel that this is not necessarily a worst instance of offending. That notwithstanding, the prisoner inflicted serious injury on the victim. He permanently lost 4 of his front teeth, thus, causing him much pain and discomfort initially, but also much inconvenience because he will have had difficulty chewing. While this may be alleviated by the use of dentures, this will and have come at a cost to him, probably much earlier than anticipated.

19. Apart from the physical injury and the pain and discomfort associated with the assault and injury, the victim also suffered loss of dignity. He is a policeman. He was assaulted and knocked unconscious within a Police Barracks by the juvenile son of another policeman. Understandably he would have been extremely embarrassed and angry. One can therefore appreciate and understand the victim’s insistence on a custodial sentence for the prisoner.

20. The prisoner must therefore be held to account. He must appreciate the harm he has caused, not only physically and emotionally to the victim, but also for causing disharmony between his policeman father and his colleague the victim and within the greater barracks community.

21. The prisoner should not take solace of the fact that compensation was paid to the victim. He is a student and obviously does not have the means to have contributed anything. In fact, it was his father who had to bear the financial responsibility of compensating the victim. That can hardly be said to be an act of assuming responsibility by the prisoner for his own action.

22. There is no doubt that the prisoner has learned a lesson here. He will have learned that criminal behavior has consequences even for a juvenile like him. He must therefore be held personally liable for this behavior.

23. The prisoner is still in school and according to his PSR he aspires to be a lawyer someday. That is a legitimate aspiration, but lawyers are, foremost, servants of the law. With the kind of behavior exhibited by the prisoner I cannot see how he can achieve his dream more so if he gets a conviction, which he will get in this case.

24. I have a lot of options available to me under Section 80 of the Act, apart from imprisonment. I can dischargee the prisoner without ordering anything further, reprimand him, place him on probation or good behaviour bond, or defer sentence, among others.

25. I have considered the submissions by counsel and agree that a sentence of 2 years would be appropriate for the prisoner. This will, however, be a huge blow for him. His education will be disrupted, and he may never be able to get back to school ever again and for all we know may become a hardened criminal when he comes out.

26. A court or judge who sends a juvenile to prison on his first offence takes on a grave responsibility and may be contributing the destruction of the juvenile’s moral character. A custodial sentence in such a situation is a sure condemnation to a life of criminality for there is no assurance that a juvenile who is incarcerated on his first offence will come out a reformed person.

27. In this case, I do not wish to take that risk. I would rather that this prisoner is redirected to the right path so that he can make something good out of his life – something that his parents can be proud of. I would rather that he becomes and remains a law-abiding citizen, a useful member of society in general and to his community and family in particular.

28. I am therefore of the considered view that the option that will best promote and serve his interest and welfare while at the same time impress individual responsibility on the prisoner will be probation supervision with strict conditions. To that end I propose therefore to defer sentencing the prisoner upon his entering into a period of probation with conditions including reasonable restriction of movement.

SENTENCE/ORDERS

29. The sentence of the Court is therefore as follows:

1. The prisoner’s sentence is differed upon his entering into probation for a period of 2 years with the following conditions:
   
   • (a) He will reside at his parents’ residence at the Kimininga Police Barracks, Mt. Hagen, Western Highlands Province.
   • (b) He is to report to the Provincial Community Based Correction Office, Mt. Hagen, WHP with 2 days from today.
   • (c) He is to keep the peace and be of good behavior.
   • (d) He shall not change his address referred to in paragraph (a) without the permission of the Probation Officer; and where such permission is granted for him to move to another place, he shall within 48 hours of arrival report to the Probation Officer in that place.
   • (e) He shall not consume any form of intoxicating liquor or narcotics.
   • (f) He shall attend Church Service at his local Nazerene Church with his parents every Sunday.
   • (g) He shall for the next six (6) months remain indoors at his parents’ residence between the hours of 7.00p.m and 6.a.m except for church and school night activities specifically approved by his parents in consultation with his Probation Officer.
     
2. The prisoners bail and any sureties paid by guarantors (if any) shall be refunded.

Ordered accordingly.

Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Juvenile