State v Akwila [2024] PGNC 258; N10923 (6 June 2024)

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Bulolo/Lae: Polume-Kiele J
2023:4^th August, 2^nd, 5^th, 13^th, 25^th & 26^th October, 27^th November,
2024:7^th February, 19^th March, 30^th April, 6^th June

CRIMINAL LAW – Guilty Plea – Grievous Bodily Harm, s 319, Criminal Code Act – Plea – Guilty –Victim sustained lacerations to the right hand – Injuries not life threatening - Victim treated at Wau Rural Hospital and discharged – State invoked s 7 (1) (a) (b) (c ) – Criminal Code

CRIMINAL LAW – Sentence –starting point of 3½ years and head sentence considered – Suspension considered – Criminal Code, s 19, Mitigating and aggravating factors considered.

CRIMINAL LAW – Sentence – 3½ years imprisonment less 10 months pre-trial custody period, s 3 (2) Criminal Justice (Sentences) Act – Sentence of 2 years 8 months to serve – 1 year of which is suspended- balance of 1 year 8 months to serve in custody.

On Friday, 10 February 2023 between 7.00 a.m. and 8.00 a.m., the prisoner was drunk and seen at 6 Compound, Wau, Market. The complainant Wilson Jepsy was walking with three other persons toward the prisoner and his friends, whilst he was sitting at his home.

The prisoner then confronted the complainant and demanded for the return of his money. The prisoner whilst confronting the complainant pulled out a grass knife from the victim and slashed the complainant on both knees. The complainant sought refuge in a nearby house. However, the prisoner and his accomplices gave chase, surrounded him, and continued to punch, cut him all over his body and then used the grass knife to cut his left hand and knees. Members of the community intervened and took the complainant away to safety. The matter was reported to the police and the victim was taken to the hospital for medical attention.

The prisoner was charged for one count of grievous bodily harm contrary to s 319 of the Criminal Code.

Cases Cited:
Ure Hane v The State [1984] PNGLR 105
Goli Golu v The State [1979] PNGLR 653
Avia Ahi v The State (No.3) [1982] PNGLR 92
Lawrence Simbe v The State, [1994] PNGLR 38
The Public Prosecutor –v- Done Hale (1998) SC564
Public Prosecutor –v- Tardrew [1986] PNGLR 91
State v Ambai [2018] N7154
State v Bupei [2016] N6848
State v Mapah [2008] N3869
State v Nemao [2015] N6131
The State -v- Yawing [2022] N10340
Saperus Yalibakut v The State (2006) SC890
Thress Kumbamong v The State (2008) SC1017
State v Nelson [2005] N2844
The State v Kavena (2015) N6085
State –v- Konos (2010) N4157
State –v- Sheekiot (2011) N4454
The State –v- Mais (2014) N5838

“ Section 319 -A person who unlawfully does grievous bodily harm to another person is guilty of a crime.

(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it: –

(a) every person who actually does the act or makes the omission that constitutes the offence.

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence.

(d) any person who counsels or procures any other person to commit the offence.

6. Ms Joseph for the State tendered the Bulolo District Court Deposition into evidence by consent which comprised of the following:

7. Upon the reading of the Committal Court dispositions and being satisfied that the evidence contained in the dispositions supported the charge, the prisoner’s guilty plea was accepted. The prisoner was convicted on the charge of causing grievous bodily harm under s 319 of the Criminal Code.

8. The prisoner is a male adult from Elauru Village, Wau/Waria, Morobe Province. The prisoner lives in 6 Compound, Wau with his wife, 2 children and parents. The prisoner is educated up to Grade 6 level. This is the first time that the prisoner is in trouble with the law.

9. The prisoner was remanded on the 3 of July 2023 and has been held in custody for a period of 11 months 3 days to the date of this decision on sentence.

10. When administering the allocutus, the prisoner was asked to speak on the question of penalty and in his response, he apologised to the Court and asked for leniency. he prisoner said sorry to the complainant, community and church leaders for the trouble caused.

11. However, prior to making a decision on sentence, the defence counsel, Mr Boku on behalf of the prisoner applied for directions to be issued to the Community Based Corrections Officer to prepare a Pre-Sentence Report (PSR) on the prisoner to determine whether or not the prisoner is a good candidate to be placed on probation supervision. The Court in this instance, directed that the Probation Officer, prepare such Report and have it furnished to this Court. This Pre-Sentence Report is before the Court. I will make comments on this accordingly.

12. Prior to determining sentence, Mr Boku for the prisoner requested that this Court direct the Community Based Corrections (CBC) Office to prepare a Pre-Sentence Report to be complied on the prisoner and have it filed for purposes of assisting this Court determine the issue of penalty.

13. This process is a necessary component of the Court process where prisoners have exercised their right to ask the Court to be placed on probation. To facilitate this process, this Court had directed the Probations Officer, (Bulolo) to prepare and file a Pre-Sentence Report on for purposes of determining your suitability as a candidate for probationary orders and also issued orders that these reports be filed prior by 23 October 2023.

14. The Pre-Sentence Report received from the CBC Office, Bulolo dated 17 October 2023 is available to the Court. The overall assessments contained in the report appears favourable to the prisoner. However, the complainant has asked to be compensated for the injuries he sustained. He asks for a sum of K5000 as compensation, a sum which has not been acknowledged by the prisoner and his family. To date, there appears to be no evidence of some form of compensation made as an offer of restitution to the victim and his family. On the and hand, a community leader has spoken highly of the prisoner as a person who had played a number of roles as a leader of the church community and someone who stands up to help maintain law and order and advocating his peers for a better living. The pre-sentence report also in its conclusion recommended that the prisoner is a suitable candidate for a non-custodial sentence for a period of 2 to 3 years and that he be placed on probationary supervisory orders on terms with an order for the payment of K5,000.00 as compensation.

17. It is noted that the aggravating factors outweigh the factors in mitigation. It is a factor in determining sentence and also a consideration in terms of what should be the starting point in sentencing tariff.

18. Section 19 of the Code gives the Court wide powers to consider an appropriate penalty to be impose on a prisoner. It is trite that the maximum penalty prescribed for an offence is reserved for the worst form or category or offending for that particular offence: Ure Hane v The State [1984] PNGLR 105: Goli Golu v The State [1979] PNGLR 653; Avia Ahi v The State (No.3) [1982] PNGLR 92. In Lawrence Simbe v The State, [1994] PNGLR 38 the Supreme Court held, that the principle in determining sentence, is that each and every case should be decided on its own peculiar facts and circumstances.

19. Mr. Boku for the defence, referred to several cases, I am minded listing only the cases dealing with injuries to the arm or hand using a grass knife. I do take note that the cases referred to by Mr. Boku were instances of injuries were caused by use of a bush knife which although not directly relevant, it is also useful guide to sentencing in cases of grievous bodily harm.

20. In State v Ambai [2018] N7154, the prisoner in wanting to know if the complainant had reported him to the police for an incident of the previous night, took out his bush knife and slashed the complainant on his writ which led to amputation. The victim in this case, had lifted his hand to protect himself had his writ slashed. He was sentenced to 5 years imprisonment less period of pre-sentence custody and an order for payment of K3,000.00 compensation, such compensation to be paid within 6 months imposed. The injuries sustained here are far more serious than this present case.

21. In State v Bupei [2016] N6848, the victim was attacked and kicked by the prisoner which resulted in the victim sustaining injuries to his right hand when he attempted to prevent a bush knife which was swung at him. The right writ was amputated, the prisoner was in the company other accomplices. A sentence of 4 years was imposed with pre-trial custody deducted. The balance of 2 years 7 months and 26 days was served in custody. The injuries sustained here are of similar extent to Ambai’s case, that is resulting in amputation.

22. In State v Mapah [2008] N3869, the prisoner in that case attacked the victim using a bush knife to effect multiples wounds to the victim’s face, left arm and forearm. The medical reports showed that the injuries were serious, and the victim was reported to have post traumatic disorders post sustaining the injuries. re. A sentence of 4 years was imposed. Pre-trial custody period was deducted. The balance of the sentence term of 3 years 1 week 5 days was wholly suspended on terms. In this case the injuries included facial disfigurement and post-traumatic disorders.

23. For the State, Ms Joseph cited the following cases in support of her submission on sentence. In terms of comparable case, she submits that the starting point of sentence should be at 3½ years imprisonment. She also cited several cases to support her submission.

24. In State v Nemao [2015] N6131 The offender used a bush knife to cut the victim on the right hand resulting in the victim sustaining lacerations with some blood loss, none of the injuries were life threatening. He was sentence for 3 years IHL. Balance was wholly suspended on terms including an order compensation in the sum of K2, 500.00.

25. In The State -v- Yawing [2022] N10340, the offender used a grass knife to cut the complainant on the on left forearm, requiring surgical operation to the left forearm where damaged tendons and blood vessels were sutured. The Court considered the starting point of 3 years is appropriate. The prisoner was sentenced to 3 years IHL. A period of 2-year 10 month 2 days being the period that the prisoner has been held in custody is deducted pursuant to s 3(2) of the Criminal Justice (Sentences) Act. The balance of the term of sentence of 1 month and 28 days is wholly suspended, and he was discharged to the rising of the Court.

26. The aggravating factors are that dangerous weapon was used, the victim was unarmed, victim suffered permanent injuries and such offending is prevalent.

27. Mr Boku for the prisoner submitted that the prisoner be accorded the benefit of any reasonable doubt and if there are any contentious facts where there is no agreement, the Court should act on the version of the facts, which within the bounds of possibility, is most favourable to the prisoner as applied in the case of Saperus Yalibakut v The State (2006) SC890. He submitted further that there are not set rules to follow in sentencing: see Thress Kumbamong v The State (2008) SC890. Hence, the Courts have unfettered sentencing discretion and are not necessarily bound by the Supreme Court tariffs when considering sentences. The Court has wide discretion in sentencing under Section 19 of the Criminal Code. Further, by pleading guilty to the charge, this has saved considerable costs and expenses being incurred by State: State v Nelson [2005] N2844. Therefore, he submits that the Court exercise leniency in this regard

28. Mr. Boku on the other hand conceded that the victim sustained lacerations to the left hand, and has since recovered from his injuries, the victim is healthy and able. The offence is aggravated by the fact that the prisoner used a grass knife to attack the victim, which is a very prevalent offence. He submits further that this is the worst type of offence so the Court can consider lenient sentences. The prisoner is not a threat to society. This is first offence committed by prisoner and the prisoner expressed his remorse by saying that he is sorry for what he has done to the victim. The prisoner has also stated that this type of incident would not happen again. In addition, the community leaders have also spoke highly of the prisoner. Consequently, Mr Boku submits that a starting point of sentence of 4 years is appropriate and in support of this argument referred to the case of State v Mapah (supra) which he submits the facts are similar to this present case except that the injuries sustained by the complainant here were not as traumatic unlike the Mapah case where the injuries were more serious. Regarding what sentences have been imposed for equivalent offences, he submits that there are no similar offences except for the Mapah case with multiple wounds and so he submits that a sentence of 4 years is applicable for this matter because the injuries were that of the knees and a hand.

29. Given these matters, he further submits that a head sentence of 2 years be imposed as there is no confirmation as to the status of the complainant’s recovery process less the pre-sentence custody period as per the requirements of Section 3(2) of the (Justice) Sentence Act.

30. Regarding the balance of the sentence terms. Mr. Boku submits that the balance of the sentence term be wholly suspended with terms. That is, with some form of compensation payment made as the Court deems appropriate.

31. Ms Joseph for the State submitted however that this type of incident is prevalent. She submitted further that such incidents ought to have been amicably settled between the parties instead of the prisoner taking the law into his own hands. She submits that the aggravating factors outweighs the factors in mitigation hence the sentence should e above the starting point. Whilst she notes the recommendation contained in the Pre-Sentence Report, she submits that this is a case where there is a strong need for both personal and general deterrence. In considering the criminality of the conduct of the prisoner, he should serve a custodial sentence.

32. Ms Joseph also acknowledges that should this Court consider a suspended sentence; she strongly submits that an Order be made for reconciliation and or compensation to be witnesses by police officers of Wau Police Station and the Community Leaders. This is to ensure peace between the young men, both of the prisoner and complainant and their families in the Wau community.

33. In conclusion, Ms Joseph submits that a sentence of 3 years imprisonment is appropriate.

34. I thank both counsels for their submission on sentence and citation of cases, some of which I am I have referred to in this my judgment. Overall, I refer to sentiments expressed in the case of The State v Kavena (2015) N6085, which involved a grievous bodily harm case. In that case, I had stated that “taking the law into your own hands is disrespectful to human dignity” as “this expression of anger exhibited an apparent lack of respect for the law”. Of concern to this Court is that fact that the prisoner (in this case) had been actively involved in advocacy in maintaining law and order within the community but when confronted with a situation such as this case; the prisoner had failed to exercise restraint in his own given circumstances and disposition. Furthermore, the Medical Report submitted confirmed wounds sustained by the victim which had been inflicted by a forceful use of a sharp metal weapon (grass knife) to the left hand. The victim was treated at the Wau Rural Hospital and then released. In addition, the prisoner by his own plea, admitted having attacked the victim with a grass knife, a lethal weapon.

35. The offence of unlawfully causing grievous bodily harm under Section 319 of the Code carries a maximum penalty of 7 years imprisonment. It is however, well established law that the maximum penalty for any offence is always reserved for the worst instances of that type of offence: Golu –v The State (supra), Aihi –v- The State (No.3) (supra), and Hane –v- The State (supra). It is also well settled law that each case must be treated on its own set of facts and circumstances: see Lawrence Simbe v The State (supra).

36. The charge against you is aggravated by the fact that you used a grass knife on an unarmed victim. Such an offence is very prevalent in PNG. Whilst granted that you are not a threat to the community and that this is your first offence and you have expressed remorse for your action including a favourable PSR. Whilst I note that the PSR recommended some form of compensation to be paid to the victim, The payment of compensation is considered a standard norm in a Papua New Guinean society. I believe it would be the same in your Elauru community. In any event, an order for payment of compensation is at the discretion of the Court.

37. Whilst it is the task of this Court to determine an appropriate sentence to be imposed on you, in that; considerations must also be taken into account in relation to whether or not this case deserves the imposition of the maximum penalty of 7 years imprisonment and also to consider whether if the maximum penalty is to be imposed, should consideration be given in terms of suspending wholly or partly a sentence once imposed.

38. Deciding what is an appropriate sentence is not an easy task for this court or a judge as there is no formula or mechanism through which a sentence is rated. The Court in all circumstances is guided by the particularities of a given case, circumstances, and antecedents of the offender including interests of the State and or society generally, plus the accepted objectives and purposes for sentencing. Furthermore, consideration will also be given to sentencing guidelines established by case law and tariffs, including those limited areas of sentencing guidelines enacted by legislation. The court has very wide discretionary powers under Section 19 of the Code to suspend wholly or partly a sentence once imposed depending on the circumstances of a case. However, for purposes of consistency and parity, this Court is also guided by principles already established by case law in relevant facts and circumstances.

39. For your case, the offence you pleaded guilty to, is very prevalent. A number of these cases have come through the courts; some of these cases (reported and unreported) have been cited by both your Counsel and the Counsel for the State.

40. A case which established the guidelines in setting down the starting point for an offence under s 319 of the Criminal Code is that of the case of the State –v- Konos (2010) N4157. This case involved an offender who attacked his nephew with a piece of timber which resulted in the fracture of his knee and other superficial lacerations to his body. Cannings J., in his decision in this case, held that the starting point for an offence under Section 319 of the Code should be 3½ years. Matters which his Honour took into account in determining penalty here was the mitigating factors in favour of the offender, which included his guilty plea, no prior convictions, de facto provocation, use of a blunt object which caused the risk of fatal injury and early admissions. However, the aggravating factors against the offender in that case included the facts that the injury sustained by the victim was serious, the offender took the law into his own hands, lack of compensation and reconciliation, his Honour in that case, imposed a sentence of 3 years. This sentence was fully suspended with conditions because of a favourable pre-sentence report.

41. In another case again, handed down by his Honour Cannings J is that the case of the State –v- Sheekiot (2011) N4454, His Honour again set the starting point at 3½ years. There the offender pleaded guilty to cutting his cousin sister on the neck with a bush knife. The offender pleaded guilty and made early admissions and paid compensation as well. However, he attacked the victim on a vulnerable part of her body with a lethal weapon and had a prior conviction. His Honour also sentenced the offender to 4 years which was also fully suspended on terms.

42. In order to determine an appropriate sentence to be imposed, this Court is guided by the starting point for GBH established by the cases of State –v- Konos (supra) and State –v- Sheekiot (supra) and thus say that the appropriate sentence in this case should be set at 3½ years with adjustments upwards or downwards depending on the circumstances of your particular case and applying the guidelines established relating to the aggravating factors that are present in situations where:

43. There are situations where some cases will attract sentences that will be set below the starting point of 3½ years as established in the case The State –v- Mais (2014) N5838 where the prisoner pleaded guilty to cutting his brother on the left shoulder with a bush knife. The Court in that case took into account his guilty plea, his co-operation with the police and had no prior convictions. On other hand, the prisoner had used a lethal weapon on his brother who was unarmed. The Court in this case imposed a sentence of 3 years imprisonment. None of this was suspended.

44. With regard to case against you, this Court noted that there are a number of mitigating factors in your favour. These are that you pleaded guilty to the charge, have no prior convictions, and co-operated with the police. In addition, and that you also appear genuinely remorseful.

45. However, this Court also noted that you attacked the victim with a grass knife, an offence which is a very prevalent one in Papua New Guinea and these are taken as aggravating factors against you. This then leads to the question as to what the starting point in relation to sentence in your case.

46. Mr. Boku on your behalf submits that a sentence of starting point of 4 years and given the mitigating and aggravating factors, a head sentence of two years less the period held in custody.

47. Ms Joseph for the State submits that a starting point of 3½ years and given the mitigating and aggravating factors, a head sentence of 3 years be imposed.

48. The circumstances in this case do show that whilst you did pursue the victim and that there is no pre-planning in the attack, it is also noted that the victim and his friends had mobilised and approached you and your family at your home without invitation. This can be intimidating as well and thus it is reasonable to say that the aggravating factors which I have cited above warrant a sentence below the starting point due to the fact that you pleaded guilty and are a first-time offender.

49. However, it should be pointed out that this type of offence is very prevalent and thus a sentence must be seen as a deterrent so that offenders are discouraged from re-offending and that others are discouraged from committing crimes of this nature and or taking the law into their own hands.

50. The offence of grievous bodily harm is on the increase especially in this area of Morobe and thus I am led to refer to a number of cases such as the cases of the State v Matao, (supra) and State v Kavena, (supra), State v Yawing (supra), where victims however innocent have suffered injuries of varying degrees on their persons due to range of degree of anger which have involved the use of all kinds of weapons however lethal.

51. In order to deter such behaviour, it is proper that a sentence of appropriate proportion be imposed on you and for this, I sentence you to a term of 3 years imprisonment, however, I also note that you have already been in detention for 11 months 3 days and thus deduct the period of 11 months 3 days pursuant to s 3 (2) of the Criminal Justice (Sentences) Act from the term of your sentence. This then leaves the balance of 2 years 27 days of the sentence to be served.

52. The next issue is to consider whether the balance of your sentence of 2 years 27 days be suspended.

53. Firstly, suspension of a sentence is at the discretion of the Court, to be exercised on proper principles and if it is recommended by a Pre-Sentence Report (Public Prosecutor –v- Done Hale (1998) SC564). Secondly, suspension may also be appropriate if it encourages reconciliation and restoration of damaged relationships. (Public Prosecutor –v- Tardrew [1986] PNGLR 91).

54. For your case, the PSR was favourable with recommendation for a suspended sentence with terms as this will enable you to reconcile you with the victim, pay compensation of K5,000.00 and re-establish your role as a youth leader and peer group advocacy awareness on maintaining law and order within the community, reconcile with the victim and his extended family and your overall community.

55. This Court has noted the PSR recommendation for probationary supervision orders for you and on that note, this Court is hopeful that a suspended sentence will allow you to reconcile with the victim, his relatives, and your community as well.

56. However, I also note that there is no indication expressly made by your family as to their willingness to paying compensation. Where there is no willingness to reconcile and re-established damaged relations, I am minded to not make an order for payment of compensation. The payment of compensation must be a genuine expression of remorse from the prisoner and his relatives. This Court is not minded making an order for payment of compensation where there is no genuine expression of remorse.

57. This court’s approach (my view) as expressed in the case of the State v Albert Kavena (supra); where I echoed the sentiments that “the communities’ form of compensation payment is important to maintaining peace and harmony within families, communities, and the public at large. This is a gesture that should be voluntary and not Court ordered. It must indicate a genuine show of remorse for the harm occasioned on a victim”. This view is also echoed in State v Epo Matao (supra) which also reinforced the view that “payment of compensation is a means through which an accused or offender says ‘sorry’ to the victims and their families. This act of goodwill must be done voluntarily (‘willingly’) by the offenders/accused”. In that the offender or accused must initiate or attempt to take steps towards payment of compensation as a form of goodwill and for purposes of reconciliation, maintaining peace and harmony within families, communities and public at large. It must not be Court imposed. I am inclined to adopt my view expressed in State v Kavena (supra) and State v Nemao (supra) that the payment of compensation should been made prior to coming to Court as it would indicate some form of remorse on the part of the prisoner.

58. At the same time, this Court is also aware that payment of compensations is also dependent on the circumstances of each and every particular case.

59. As regards the decision whether to suspend part of the sentence, I am inclined to exercise of discretion pursuant to s 19 of the Criminal Code. I therefore suspend 1 year of your term of sentence given the fact that you have pleaded guilty early, saving the Court’s time in terms of expenses and costs.

60. This now leaves a balance of the term of sentence of 1 year 27 days to be served in custody. Consequently, you are ordered to serve the balance of the sentence term of 1 year 27 days in custody at CIS, Buimo.

61. Having convicted you, Manuel Akwila on one count of grievous bodily harm under s 319 of the Criminal Code, you are now sentenced as follows:

Length of sentence imposed:	3 years.
Pre-sentence period deducted:	11 months 3 days
Balance of term of sentence to be served:	2 years 27 days
Amount of sentence suspended:	1 year.
Time to be served in custody:	1 year 27 days

Sentenced accordingly.
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner

National Court of Papua New Guinea

State v Akwila [2024] PGNC 258; N10923 (6 June 2024)