N10579

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 946 OF 2021

THE STATE

V

RENDY AMOS

Vanimo: Miviri J
2023	: 21st & 23rd November

CRIMINAL LAW – PRACTICE AND PROCEDURE – GBH S319 CCA – Plea – Cut with Butcher Knife – Close Relative – PSR MAR favourable to prisoner –Prior Conviction GBH – Residual Injuries – Reacted To Victim Drunken – Destroyed His Properties – Law Into Own Hands – 2 Years IHL Suspension On Conditions. 

Facts
Accused cut the victim a relative over his shoulder in retaliation for the relative pulling out a plank that had his water containers broken as a result.

Held
Plea of guilty
First offender
Relatives
No residual injuries
Suspended sentence with conditions for compensation.

Cases Cited: 
Prosecutor v Haha [1981] PNGLR 205
Kerua and Kerua, Public Prosecutor v [1985] PNGLR 85
State v Irowen [2002] PGNC 99; N2239
The State v Ogi Songe [2017] N6759
The State v Philip Piapia [2017] N6763
The State v Steven Tumu [2017] N6768

Counsel:
F. Popeu, for the State	
O. Himore, for the Defendant

SENTENCE

23rd November 2023

1.	MIVIRI J: This is the sentence of Rendy Amos who reacted with a knife to the victim who had removed a plank falling on his water containers breaking all.

2.	On the afternoon of the 10th August 2020, between 2.00pm and 3.00pm Willie Tai was consuming alcohol with friends at Wesan Settlement and decided to go home passing Rendy Amos before going to his house. As he passed Rendy’s Place, he pulled a piece of plank used for holding buckets and dishes with water which made them fall to the ground and breaking them. He continued to his house and slept. A short while later he heard People shouting and looking up, he saw the Accused Rendy Amos standing before him holding a small axe and a butcher knife. He went and pulled off the small axe, but Rendy Amos cut him on the shoulder with the butcher knife. Then he ran away. Willie Tai got a bush knife and chased after him. But Peter Amos father of the accused stopped him with the bush knife and pulled him to the ground. And their other relatives came and speared him to the ground. Whilst he was on the ground, they continued to cut him with the bush knives that they held. He came to his senses when he woke up in the hospital. 

3.	The Indictment was preferred pursuant to section 319 of the Criminal Code that, “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.”

4.	Prisoner entered a guilty plea confirming his admissions to police. The file tendered confirmed. Defence counsel made application for presentence and means assessment reports under the Probation Act to be furnished to confirm if there were means to settle the matter between the prisoner and the victim.

5.	Both these reports have been filed now in the consideration of this sentence upon the prisoner. And I take due consideration of all relevant matters within both for and against in the determination of this sentence upon the prisoner. In particular by Paul Silo Wesan Camp Ward 4 Urban LLG Village Court Magistrate Damili VC Zone who described that the prisoner’s weakness is alcohol. But he does not have any bad records with the village court. I also take due account of Mark Amos Wesan Camp Ward 4 who is the prisoners uncle, as the reason for the actions of the Prisoner. It is the same thing from one Benita Eno also resident there who gives the same account that the prisoner stood up against the complainant for what he was doing to the Community there whilst under the influence of steam. The complainant has taken to his heels into his own village because of another allegation against him. He could not be interviewed. The aggregate of the presentence report is that the prisoner is suitable for probation supervision. He should be given an opportunity to continue with the plea with his sentence back into the community.

6.	Prisoner is 24 years of age originally from Pos Imonda Vanimo West Sepik Province. He is resident at Wesan Camp here in Vanimo at the time of the crime. He is married with two young children. He has been educated at the Mapex Training Institute. He has no record of employment or work experience. He has a prior conviction of grievous bodily Harm sustained before this Court today 23rd November 2023. And also, of escaping from lawful custody convicted by this Court. And has been sentenced for that offence committed on the 10th August 2020. Which was committed that same month of August 2020. It is a separate offence of its own drawing what penalty it sustained. But both matters are considered for sentence at the same time. Each will draw cumulative sentences because the offences are separated by time and date and involve different victims who deserve Justice independently one from the other. This is very clear from Acting Public Prosecutor v Haha [1981] PNGLR 205 where it is clear that, “Where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent. Where the offences are different in character, or in relation to different victims, the sentences should normally be cumulative. When a court has arrived at appropriate sentences and decided whether they should be concurrent or cumulative, it must then look at the total sentence to see if it is just and appropriate. If it is not, it must vary one or more sentences to get a just total,” Kerua and Kerua, Public Prosecutor v [1985] PGSC 8; [1985] PNGLR 85 (1 April 1985). 

7.	This is not a single transaction, but two different offences over time, against different complainants. The sentences by law will be cumulative. And given all it is relevant to consider the totality of the sentence imposed against. Particularly where the prisoner has of his own volition pleaded guilty. He has taken responsibility for the wrong that he has committed. It must be accorded in his sentence his sense of Justice for the other he has wronged. Yes, he has a prior conviction which is just apart from each other. This crime was committed in response to the actions of the victim upon him. He did not initiate. His water containers and dishes were unceremoniously taken to the ground, when the plank they rested on were pulled out from under them by the victim, who was drunk. 

8.	It is not the prisoner who has instituted this crime against the victim. But the victim who instituted by his drunken action upon the prisoner. It was wrong of the victim to do what he did, but the use of the force against him in the hands of the prisoner was excessive, considering that he was cut with a butcher knife on the back. Which was sustained when the axe that he had was pulled off him. But then the force is excessive against the victim when other members of the family of the prisoner joined the fight. Even then it was in response to the actions of the victim. So, there is either side at fault and there must be a balance drawn out in the sentence due to the prisoner. He is not outright the author of the crime. He was prompted by and in response to the actions of the victim. 

9.	Section 319 prescribes seven (7) years imprisonment as the maximum sentence for that offence. That is reserved for the worse case of that offence. Which this court has imposed in State v Irowen [2002] PGNC 99; N2239 (23 May 2002). Seven (7) years cumulative where both wives were stripped down naked. Then he picked an argument with them and proceeded to cut both with a bush knife almost killing them, but they survived because they were taken quickly to the hospital but came out with serious residual injuries. It is the extreme which isn’t the case here. 

10.	At the outset this offence poses the element of grievous bodily harm usually associated with murder charge, and in that regard is a very serious offence. The facts set out here do not depict the imposition of the maximum sentence. And relevant in this regard are the fact that he pleaded guilty and has expressed remorse. Coupled with the presentence report now filed in Court 23rd November 2023, overall is favourable to him.
 
11.	Where a nephew attacked an uncle with a bush knife cutting him causing a life-threatening injury 3 years IHL part custodial and part noncustodial with conditions for payment of compensation was imposed: State v Ogi Songe [2017] N6759 (27th May 2017). Here there is clear evidence by the presentence report of the intention to make good the wrong and settle. It would not be wrong to go that path given. And this Court has in like situation made similar, State v Philip Piapia [2017] N6763 (17 May 2017); see also State v Steven Tumu [2017] N6768 (23 May 2017). The sentence has been in the mid-range of 3 to 4 years part custodial and part suspension in each case. Given the facts and circumstances posed as set out above, it would not be erroneous to follow suit in this case.

12.	Accordingly, I determine that the just and proportionate sentence given all set out above is 2 years IHL, and I so impose that upon the prisoner for the crime of grievous bodily harm committed upon Willie Tai contrary to section 319 of the Code. But in the exercise of my discretion particularly with the observations and recommendations in the presentence report, pursuant to section 19 of the Criminal Code Act, I order that sentence to be wholly suspended on 2 years Probation order for the same period on conditions as follows:

(i)	You shall enter into a probation order for 2 years on conditions;

(ii)	You shall within 48 hours report to the Probation Officer;

(iii)	You shall be always resident at Wesan Camp Vanimo in the course of your probation period.

(iv)	You shall not leave this place of resident or Vanimo without leave of this court during the course of your probation period;

(v)	You shall perform 300 hours of community work at a worksite to be approved by the Probation Office;

(vi)	You shall keep the peace and be of good behaviour at all times;

(vii)	You shall not take liquor or any form of intoxicating substance or drugs during the period of your probation;

(viii)	You shall attend your local PNG Revival church every Sunday for service and worship whilst on probation; 
(ix)	You shall undergo counselling from your local PNG Revival church Pastor for number of times as may be determined by the counsellor;

(x)	The restitution shall be witnessed by your probation officer, the police informant, Your PNG Revival church Pastor, and village court magistrate where you live.

(xi)	The Probation Officer shall file a report on the responses and progress of the probationer every six months and at any other time or interval as the National Court may order upon application;

(xii)	In a breach of any of these Probation Orders your Probation shall lapse and you shall be arrested to serve the whole term of your sentence.

Ordered Accordingly.

__________________________________________________________________
Public Prosecutor:  Lawyers for the State	
Public Solicitor: Lawyers for the Defendant