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State v Kimat [2005] PGNC 33; N2947 (24 November 2005)

N2947

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR1760/05

STATE

V

PATRICK KIMAT

LORENGAU: LAY, J
2005: 8TH & 24TH November

CRIMINAL LAW ─ grievous bodily harm ─ Criminal Code s319─sentence─single blow with bush knife ─ cut to forehead ─ fracture of frontal bone ─ first time offender ─ guilty plea ─ post plea threats to victim─12 months imprisonment wholly suspended on terms.

Cases Cited:
John Jaminen v. State [1983] PNGLR 122;
State v. Kerry Reuben Trowen (2002) N2239;
The State v. Henry Idab (200) N2172;
The State v. David Saun (2003) N2192;
The State v Rose Yahriha N1741 (Bidar AJ);
The State v Kopiwan Pupuni N1709;
The State v Albina Sinowi N2175;
The State v. Thomas Waim [1988] PNGLR 360.

Counsel:
P. Kaluwin for the State
L. Siminji for the Defendant

LAY J: The Defendant was convicted on a plea of guilty of one count of grievous bodily harm contrary to the provisions of s319 of the Criminal Code.

Before accepting the plea I raised with the Defendant’s counsel that there was a suggestion in the record of interview that the Defendant acted in self defence or upon provocation. Counsel informed me he had taken instructions and was satisfied that the facts did not support self defence or provocation in the legal sense and he had instructions to take those matters up in submissions. Nothing was advanced by counsel in submissions on those issues. After submissions, having received the pre sentence report I noted that the allegations which might support a defence of provocation or self defence were repeated by the defendant to the Probation Officer. I again raised the matter with counsel who advised he was satisfied that he had taken full instructions and the allegations concerning provocation or self defence did not form part of his instructions. I have therefore accepted that the Defendant is not prepared to put to this court as truth, the exculpatory allegations he has made to others.

The facts put to the Defendant on arraignment were that on the night of 17th July 2005 at Kubalia Settlement, Lorengau, an argument arose between the Defendant and another person living with him named Pongo (or Bongo)Felix. The Defendant got a bush knife and cut Pongo Felix on the head causing harm grievous bodily harm without lawful justification.

On his allocutus the Defendant said he had been in Lorengau a long time and he had not been involved in an incident like this. The victim is his in-law. Pongo was drunk and would not listed to him. So eventually he injured him. Currently they are all living together in the one house, they share meals together and there is no problem between them.

Defendant’s counsel submitted that it was conceded Pongo’s injury was quite serious. I should take into account the Defendant is 31 years old, married with 3 children, eldest 16 years of age, youngest 4 years of age. His wife and children are with him in Lorengau. He is 3rd borne in a family of 5 from Numbogu village, Kubalia, East Sepik and has been residing in Lorengau since he was a small boy. He was educated to grade 7 at Manus High School and had employment with Telikom as a handyman from 1989-94 but has had no employment since.

The State Prosecutor submitted that the Defendant was not a first offender. The Defendant has a prior District Court conviction for assault for which he was fined K50.

From the depositions it appears the Defendant had told his in-laws he did not want them staying in house. This caused the Defendant’s wife to argue with him. The Defendant picked up the axe and his wife ran away so he ran and hit his in-law Ponjo in the face with the bush knife.

The medical report notes a single laceration of 6cm x o.5cm wide and 0.5cm deep with the frontal bone being chipped. The x-ray showed a fracture of the frontal bone. There was moderate loss of blood. I have not been informed of the victim’s present condition. From that I assume for the purposes of sentence that the victim has made a full recovery.

Defendant’s counsel submits I should take the following into account in mitigation:

1. The Defendant’s act was provoked by Ponjo’s behaviour in abusing alcohol and drug’s in the Defendant’s house. (There is no mention of this allegation in the depositions);
   
2. Defendant’s guilty plea;
   
3. first offender;
   
4. reconciliation, Defendant and victim have come to terms.
   

At the request of Defence counsel I ordered a pre-sentence report be prepared. The State Prosecutor reserved his submissions pending tender of the report.

The Defendant applied for bail pending sentence. I drew to counsel’s attention that exceptional circumstances must be shown to grant bail after conviction: John Jaminen v. State [1983] PNGLR 122 (Pratt J). Counsel submitted that as the CIS facilities were closed and the ability of the Police to maintain the remandees at the police lockup was compromised by the over crowding. I accepted that the prevailing conditions, coupled with the fact that the offence, though serious, was not the most serious, amounted to exceptional circumstances. As the Defendant had appeared in accordance with his bail conditions for trial I considered the risk of him not appearing for sentence were low. Bail was granted.

The Law

The offence of grievous bodily harm carries a maximum sentence of 7 years. The maximum sentence is always reserved for the worst cases. An example of such a ‘worst case’ was The State v. Kerry Reuben Trowen (2002) N2239 (Kandakasi J). In that case the Defendant forced his two wives to strip naked before him, he then inflicted severe permanent injury to both of them with a bush knife and they had to flee naked for their lives out of the house. Examples of less serious cases where a sentence of 5 years was imposed are The State v. Henry Idab (200) N2172 where a village peace officer lost 85% use of both hands through injuries sustained from a group attack by bush knife and The State v. David Saun (2003)N2192 where the victim suffered a permanent 30% loss of the use of one eye. There are less serious cases where the injuries are closer to those suffered by the victim here-─The state v Rose Yahriha N1741 (Bidar AJ) wife attacked co-wife with bush knife, inflicting 6cm wound cutting superficial blood vessel, tendon and bone, sentence of 18 months in light labour, suspended on entering bond to keep the peace. The State v Kopiwan Pupuni N1709 (Lenalia AJ) unlawful assault of a mother and daughter, mother struck twice on head (fracturing skull) and hands (hospitalized 20 days), daughter on leg and neck. Another pending charge of grievous bodily harm taken into account. Guilty plea, first offender, compensation paid. Female defendant sentenced to 2 years in light labour. The State v Albina Sinowi N2175 (Kandakasi J) was a case of unlawful wounding (maximum penalty 3 years) of a co-wife, the victim suffered a broken arm bone from a blow with a stone, K1000 compensation paid, victim and defendant living together in one house without difficulty, 6 months suspended sentence imposed.

This Case

I note the Defendant’s background as submitted by counsel and that the defendant is a first offender. The State Prosecutor submitted his instructions were that the Defendant had a prior conviction for assault. No certificate of conviction was produced. Counsel for the Defendant has submitted the Defendant is a first offender. That puts the issue in contention. The onus is on the State to produce a certificate of conviction. In the absence of such a certificate I treat the Defendant as a first offender.

Any attack with a bush knife is potentially very dangerous, particularly when the blow is aimed at the head. Many cases demonstrate that even moderate blows to the head with a bush knife result in a fracture. Picking up a bush knife every time an argument starts is a practice to be discouraged by the use of the Court’s sentencing policy.

In this case there was a single blow, the medical report describes the result as "a mild head injury". The victim was treated, the wound requiring 4 stitches; he was kept in observation for 48 hours then released.

With a little more weight on the blow inflicted by the defendant this could have been a much more serious case.

The Probation Service has provided a helpful report. I note from it that the Defendant, whilst on bail awaiting sentence has gone to the house where his first wife lives and threatened the other people living there including the victim. He tried to evict his brother in law Pongo. The report suggests a gaol sentence will not help the Defendant and suggests he is a good candidate for probation. And that he has learned from his mistake. Otherwise the report records that the Defendant’s character has won him many friends and he is generally well liked. The Defendant is in a marriage dilemma. He is married with children to a woman from his own place. He has also taken a wife from Manus and lives with her in a separate residence.

The report is at odds with the Defendant’s contention that all is resolved and amicable between him and the victim and that they reside together with no difficulty.

Because the Pre Sentence report indicated that since conviction on two occasions the Defendant had offered threats of violence to members of his first wife’s household I gave the Defendant the opportunity of giving sworn evidence in relation to these events before considering whether to take them into account as background to the offence. The Defendant denied that one of the events ever occurred. The other event he said was a disagreement with his first wife over his daughter. His daughter had come to him on the morning of 13th November 2005 complaining that she could not go to school because her mother had not given her any food the previous night. The Defendant had gone to see the mother to find to why the daughter had been treated in that way. He was met with the response that he had no right to come questioning the wife.

I have given anxious consideration to the appropriateness of a non custodial sentence for this Defendant. In The State v. Thomas Waim [1988] PNGLR 360, (Injia J) his Honour said:

"On the question of suspension of the whole or part of the minimum sentence, this power is conferred by section 19(1)(d). The power to suspend a sentence must be exercised on some proper basis: Public Prosecutor -v- Thomas Vola [1981] PNGLR 412. Relevant factors include first time young offenders, 18 years or below: Gimble -v- The State [1988-89] PNGLR 271 at 275; Good character and good family background: The State -v- Frank Kagai [1987] PNGLR 320; State -v- Justin Nyama [1991] PNGLR at 127; or on medical grounds: Public Prosecutor -v- William Bruce Tardrew [1986] PNGLR 91."

I have some concern that the Defendant has not learned from his mistakes and may treat a probation order as an irrelevancy. However, outside his domestic situation it appears that the Defendant lives a useful life and is well liked and is a man of good character. An order can be fashioned to regulate to some extent his domestic arrangements.

In all the circumstances of the case I consider that a sentence of 12 months imprisonment is called for in the interest of assuring the community that the Courts will protect the community against violent behaviour. However in view of the Defendants previous good behaviour and good character I will suspend that sentence on the following terms:

1. The Defendant is to be of good behaviour for a period of two years;
   
2. Not to consume any intoxicating substance for the term of his probation;
   
3. be at his place of residence between 8pm and 6 am during his probation;
   
4. Not to go within 100 metres of his first wife, Agnes Kimat’s place of residence unless invited by her;
   
5. To spend 6 hours one day per week on community service to be designated by the Provincial Probation Officer;
   
6. if called on, he shall appear and receive judgement in respect of his service of the sentence suspended.
   

The Defendant is sentenced to 12 months in hard labour, less time spent in pre trial custody fully suspended on the above terms.

Lawyer for the State Public Prosecutor
Lawyer for the Defendant Public Solicitor