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State v Gawi [2005] PGNC 170; N2951 (26 September 2005)

N2951

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1481 of 2005

THE STATE

-V-

LIONEL GAWI

WEWAK: KANDAKASI, J.
2005: 08th, 20th and 26th September

CRIMINAL LAW — Sentence – Grievous bodily harm with intent – Use of dangerous weapon – Group attack – Guilty plea – Prior conviction for dangerous driving causing death – Unlicensed to drive - Unsatisfactory pre-sentence report – Custodial sentence appropriate

Cases cited:

The State v. Irox Winston (13/03/03) N2347

The State v. Isaac Wapuri [1994] PNGLR 271
The State v. Philip Susuve Raepa [1994] PNGLR 459
The State v. Nickson Pari (No.2) (10/01/00) N2033
The State v. Darius Taulo (15/12/00) N2034
The State v. Rueben Irowen (24/05/02) N2239
The State v. Eddie John Naopa (24/04/03) N2411
Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000.

Counsel:

Mr. A. Kupmain for the State.
Mr. J. Mesa for the Prisoner.

DECISION ON SENTENCE

26th September 2005

KANDAKASI J: You pleaded guilty to a charge of grievous bodily harm with intent contrary to s. 315 of the Criminal Code.

The Facts

From the District Court depositions, admitted into evidence with your consent, the relevant facts are straightforward. On Friday 13th May 2005, around midday, a Noel J. Gumbat, the victim of your offence, was walking toward a Kanora’s house. At that point, you with a group of boys called him out and invited him to the Boram Beach, in front of Luke Club. The victim obliged and when he got there, you started to attack him so suddenly with a home made metal axe several times on his head.

Another young man amongst your group also attacked the victim with a piece of wood, which had nails on it. The others started to kick, punch and steal from the victim about K20.00 and other personal properties he had with him. He managed to successfully free himself from you and the rest of the members of your group and run away into the safety of his house. From there, the victim’s parents and relatives found him in blood from your beating him. They therefore, rushed him to the hospital, where he was appropriately treated and discharged. A medical report dated 17th May 2005, confirms the victim sustaining injuries to his scalp, described as a 10 – 20 cm laceration and a 1 x 1 cm cut on his hand. He appears to have recovered well with no disability.

There is a pre-sentence report form the Community Correction & Rehabilitation Services dated 8th September 2005. That report states that your mother paid K200.00 in "belkol" and your family paid a further K1,000.00 in compensation to the victims side. Documents evidencing these payments and input to the report from the victim’s side confirm the payments. They also confirm that the victim and your side are not strangers and that; relationships between the two sides, strained by your attack on the victim are now restored. In view of this, the pre-sentence report, recommends a non-custodial sentence for you so you can go back home and look after your sick father.

Allocutus and Submissions

In your address on sentence, you asked the Court to note and consider your guilty plea and being a first time offender. You also said sorry for what you have done. You then asked for probation so you could return home to look after your sick father, as you are the only male child in your family.

Your lawyer added by informing the Court that, you are a single young men aged about 19 years old. You completed grade 10 at St. Xaviers and were planning on doing grades 11 and 12 through extension work. You are in good health but with a problem with your right thumb and that you are a stutter.

In your family, there are 5 children 4 girls and one boy being yourself. Your parents are both from the Korogu Village in the Ambunti District of this Province but all of you, that is, your sisters, you and your parents live here in Wewak at the Makum Settlement. Your mother is a house wife while your father is a businessman. He buys gold, a shareholder of a gold company, and has a house in Port Moresby which is earning him K7,000.00 per month. He is otherwise sick. He had a stroke resulting in partial paralysis and is in the village.

Police arrested you on the same day of the offence and remanded you in custody. You appeared from custody when the court took your plea. You are still in custody up to this day. Hence the total period in custody for you is exactly 4 months and 12 days up to this date.

Information disclosed in the pre-sentence report reveals and you accept that, you have a prior conviction for dangerous driving causing death. You were unlicensed at the time of committing that offence. Therefore, this is not the first time you have broken the law.

Your lawyer urged the Court to take into account your guilty plea and your personal and family backgrounds as set out above and impose upon you a non-custodial sentence, without any condition. I drew your counsel’s attention to a recent decision of the Supreme Court out of its sitting in Kokopo, where the Court held that where a Court decides to suspend either the whole or part of a sentence, it must do so on conditions. That decision endorsed what I said in my judgment in The State v Irox Winston.[1]

Having regard to these authorities, I allowed an adjournment up to 20th of this instant for additional input from the Community Correction & Rehabilitation Services. The Court required additional information in terms of what kind of things you could do for the community as a form of punishment outside the prison system, where would such work be carried out and who would supervise your performance of the work required of you and enforce any default. I also required a character reference of you to enable the Court to decide whether or not to suspend the whole or part of the sentence the Court eventually decides to impose against you.

When the matter returned before me on 20th September 2005, the Court had before it a character reference from a Pastor Francis Kuruf'her dated 10th September 2005, and some information on how previous suspended sentences were doing or serving their intended purposes. The later information is very sketchy. I am not satisfied with this information. The character reference is totally biased and highly favourable to you. It had no regard and did not reflect the fact that you got into trouble with the law before and the fact that this is not the first time you are in trouble with the law apart from the fact that you have committed the offence under consideration. I note also that, on previous such character reference, I granted bail to an offender and committed the offender under the Pastor’s care and that person appeared to have escaped. I therefore required his appearance in Court. When in Court, I tried to get him to explain your commission of the offence and the kind of character reference he provided. The pastor was not able to satisfactorily, do that.

The Offence and Sentencing Trend

Turning now to the offence and its sentencing trend, I note that s. 319 of the Criminal Code creates and prescribes the penalty for the offence of grievous bodily harm. This provision provides for a penalty not exceeding 7 years. A number of judgments have already dealt with the offence under this section before imposing a variety of sentences.

The earlier cases such as The State v. Isaac Wapuri[2] and The State v. Philip Susuve Raepa[3] date back some eleven years. These cases imposed sentences from a few months to 1 or 2 years. Since then the offence has not declined but has increased over the years. Sentences have therefore, started to increase to reflect the increase and prevalence of the offence.

Noting the prevalence of the offence and forming the view that past sentences appear not to be deterring other persons from committing this offence, I imposed in The State v. Nickson Pari (No.2),[4] a term of 4 years and suspended part of it on terms, inclusive of good behaviour bond. That was a case in which, the prisoner shot at and injured the victim on his left arm in the course of and in furtherance of an armed robbery. He was also a first time young offender.

Later in The State v. Darius Taulo,[5] I imposed a wholly suspended 3 years sentence on strict terms as an alternative form of punishment outside the prison system. That was in the face of genuine remorse being expressed coupled with compensation already paid for by the prisoner himself, a preparedness to undergo his wife’s (the victim’s) traditional form of compensation and restoring the relationship and a willingness to truly change his ways under supervision. The persuasion there was the fact that the victim preferred compensation. Further, a pre-sentence report supported such a sentence. I also noted that the prisoner was an adult, was not a danger to the society and that the society through a pre-sentence report was prepared to help him to rehabilitate.

A more serious case of grievous bodily harm was the case of The State v. Rueben Irowen.[6] In that case, the prisoner forced his two wives (victims) to strip down naked and effected serious bodily harm to them. That included the use of a bush knife to inflict serious cuts to their bodies resulting in the loss of a lot of blood rendering both of them unconscious. They had to run out of the house naked for help. If it were not for their running out and the help of third parties, they could have died. I imposed the maximum sentence of 7 years each for the harm he had occasioned to the victims, for him to serve cumulatively.

Subsequently, in The State v. Eddie John Naopa,[7] I imposed a sentence of 5 years part suspended because of a guilty plea and an order for compensation. The victim in that case lost one of her eyes completely from a slingshot.

A large number of the grievous bodily harm cases I have done so far come out of this province. Even in this circuit, the offence of causing grievous bodily harm for no good reasons or for silly reasons or clearly avoidable situations is on the increase and is very prevalent. There is a ready use of dangerous weapons such as bush knifes and such other dangerous weapons to resolve problems even in close relations as in your case.

Sentence in Your Case

In your case, the victim was not a stranger to you. You know each other. In most of the societies in Papua New Guinea, people are generally slow to attack people they know well. Given that, you clearly stepped out of line.

You did not let your victim know of the reason for your sudden attack on him with the help of the rest of the boys with you at the time. You said in Court that, the victim tried to rape one of your sisters. However, you did not witness that but heard from others. Even if that did happen, that was no valid reason to do what you did. What you did was taking the law into your own hands, which is unacceptable in our society. The police and the Courts are there to deal with that kind of problem.

Your actions show that you are such a violent person, showing no hesitation in using dangerous weapons. You are educated up to grade 10 and are not far from the township of Wewak. Pastor, Francis Kuruf’her gives a very good character reference of you as a good Christian youth leader, but does not cover and explain your commission of this offence and the fact that you have a prior conviction for dangerous driving causing death and committing that offence when you did not have an appropriate driving license.

Because of your background, you have had sufficient exposure to the need to face and deal with problems in a more civilized way. Notwithstanding that, you acted like an uncivilized person. Your actions clearly went against the character and traits of a Christian. Having come to Wewak and dealing with a lot of your kind of conduct and the prevalence of this offence, I note that this offence is on the increase and is very prevalent. Therefore, the sentences have to be increased with a view to deterring others from committing similar offences.

In these circumstances, I consider a sentence up to the maximum prescribed sentence of 7 years is called for. However, because of your guilty plea and your parents having paid compensation, which has restored the broken relations between yours and the victim’s side, I will have that reduced to 4 years.

I have considered suspension of either the whole or part of the sentence and have decided against suspension. The reason for this is simple. Firstly, the pre-sentence report does not provide sufficient information as to the kind of conditions the Court should impose, who will ensure your compliance any conditions the Court might impose and enforce any default and such other details. Secondly, you are an adult being 19 years of age where suspension is not necessarily a readily available option except in exceptional circumstances. You have not demonstrated an exceptional case for suspension of either the whole or part of it. You pleaded your family background and needs. However, as the Supreme Court said repeatedly, as in the case of Allan Peter Utieng v. The State[8] you should have considered this before committing the offence. Therefore, they do not serve any exceptional circumstances or good basis to either excuse you from criminal responsibility or reduce it. Thirdly, the compensation already paid only reduces the sentence you should receive but does not and should not be a substitute for criminal punishment. This is to avoid the risk of giving the impression that, such a violent person like you can escape a severe and appropriate penalty by paying his way out.

Of the 4 years head sentences, I order a deduction of the period you have already spent in custody leaving you with the balance to serve in hard labour at the Boram Correction Services. A warrant of Commitment in those terms shall issue forthwith.
_____________________________________________________

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

^[1] (13/03/03) N2347.
^[2] [1994] PNGLR 271.
^[3] [1994] PNGLR 459.
^[4] (10/01/00) N2033.
^[5] (15/12/00) N2034.
^[6] (24/05/02) N2239.
^[7] (24/04/03) N2411.
^[8] (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000. I applied this in a number of cases already as in The State v Jerry Mana (02/05/03) N2367.