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State v Kialo [2008] PGNC 290; N5467 (11 December 2008)

N5467

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 763 0F 2008

THE STATE

V

GREG KIALO

Kimbe: Cannings J
2008: 9 October, 1, 11 December

CRIMINAL LAW – sentence – grievous bodily harm, with intent – Criminal Code, Section 315 – wilful damage to property – one count each, guilty plea – offender attacked his brother and vehicle – sentence of 6 years.

A man pleaded guilty to two separate charges: unlawfully doing grievous bodily harm to another person and wilful damage of property. The victim in each case was the offender's brother.

Held:

(1) The head sentence for the first offence was seven years imprisonment, while the head sentence for the second offence was two years, making a total potential sentence of nine years imprisonment.

(2) The sentences should be served cumulatively but under the totality principle, it was appropriate to reduce the total sentence to six years, two years of which was suspended.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
The State v Bob Ananias CR 1413 + 1414/2003, 20.04.06
The State v Charles Kaona CR 459/2007, 24.08.07
The State v Justin Ipa (2008) N3439
The State v Ludwina Waiguma CR 68/2007, 21.03.07
The State v Nicodemus Badui CR 683/2007, 17.08.07
The State v Ria Bernard CR 374/2005, 20.05.05
The State v Rodney Gela and Clarence Logi CR 1300 + 1301/2005, 27.10.05

SENTENCE

This was a judgment on sentence for grievous bodily harm, with intent, plus wilful damage to property.

Counsel

F Popeu, for the State
J Yapao, for the offender

11th December, 2008

1. CANNINGS J: Greg Kialo is being sentenced for committing two offences, both of which he pleaded guilty to:

• 1 count of unlawfully doing grievous bodily harm, with intent, contrary to Section 315 of the Criminal Code; and
• 1 count of wilful damage to property, contrary to Sections 444(1) and (2) of the Criminal Code.
  

2. The victim of both crimes was his brother, Mambi Kialo. On the night of 23 October 2007 the offender was at Kavui Section 10, block No 1089. Mambi Kialo had parked his car, an Isuzu utility, on the side of the main road, near a friend's place. While Mambi was telling stories with his friend, the offender approached them with a long bushknife. He said he was going to cut Mambi with his bushknife and then he swung it at Mambi. Mambi and his friend, Michael, ran off. The offender then said that he would damage Mambi's vehicle and he approached the vehicle. He struck the windows with is bushknife then struck the bodywork of the vehicle, causing damage of about K5,000.00.

3. Mambi approached him and tried to stop him but the offender turned on him again. Mambi ran and fell and then the offender set upon him with the bushknife. While Mambi was on the ground, Greg cut him on the head, chest, right shoulder and both legs. Mambi shouted for help, others came to his assistance and he was rushed to Kimbe General Hospital for medical treatment.

ANTECEDENTS

4. The offender has no prior convictions.

ALLOCUTUS

5. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows.

The victim is my brother and we had a little argument over our block. He shot me with a stone. I tried to fight him but my hands are disabled so I got a knife and I cut him. I want to pay compensation. He works at Ok Tedi and only comes here for occasional visits. He usually drinks when he comes here and I have not had time to see him. Please do not send me to jail. I am a first time offender and I have six children to look after and they are all going to school. If I do to jail, life will be very difficult for them.

OTHER MATTERS OF FACT

6. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State SCRA (2006) SC890). In that regard I take into account that Mambi may have been the one who landed the first blow by shooting a stone at Greg.

PRE-SENTENCE REPORT

7. The offender is a 42 year-old married man, from West Yangoru, East Sepik Province. He was raised at Kavui. His children live on the block at Kavui. He has a permanent house there. Maria, his sister, is supportive and speaks highly of the offender of the Criminal Code and says that he was provoked by Mambi. Regina, his wife, speaks highly of her husband and gives the impression that he is a good father. Both of them suggest that Mambi, who lives and works in Western Province, may have started the argument with Greg and attacked Greg first. The victim wants to leave it to the court to decide. There has been no compensation or reconciliation.

Greg has a good community record. Pastor Saltik, of the SSEC, speaks highly of him. He also has a good employment record with Islands Petroleum. He is recommended for probation.

SUBMISSIONS BY DEFENCE COUNSEL

8. Mr Yapao asked the court to take into account the pre-existing conflict between offender and the victim. He is a first time offender and he has pleaded guilty. The interests of his children must be taken into account, Mr Yapao submitted. A sentence of 3 + 2 years, to be served concurrently, would be appropriate.

SUBMISSIONS BY THE STATE

9. Mr Popeu highlighted that this was s 315 GBH offence, thus it is much more serious than other cases. The victim suffered very serious injuries, which could easily have been fatal. A sentence of 6 + 2 years, to be served concurrently is warranted.

DECISION MAKING PROCESS

10. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty for each offence?
• step 2: what is a proper starting point for each offence?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence for each offence?
• step 5: should the sentences be served concurrently or cumulatively?
• step 6: what is the effect of the totality principle?
• step 7: should the pre-sentence period in custody be deducted?
• step 8: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

11. For the Section 315 offence the maximum is life imprisonment. For the wilful damage offence, the maximum under Sections 444(1) and (2) is three years.

STEP 2: WHAT IS A PROPER STARTING POINT?

12. I use starting points of seven years imprisonment for the Section 315 offence and 18 months for the wilful damage offence.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

13. Bearing in mind that the present case involved a Section 315 offence, it is useful to consider sentences under Section 319, where the maximum sentence is seven years imprisonment.

SENTENCES FOR GBH UNDER SECTION 319 OF THE CRIMINAL CODE,
WEST NEW BRITAIN, CANNINGS J, 2005-2008

14. For wilful damage to property, there are no readily available precedents.

STEP 4: WHAT IS THE HEAD SENTENCE FOR EACH OFFENCE?

GBH with intent

15. Mitigating factors are:

• only one attacker
• some provocation
• the guilty plea
• first time offender
• good pre-sentence report.
  

16. Aggravating factors are:

• vicious attack
• repeated attack
• dangerous weapon used;
• no genuine remorse.
  

17. This was a vicious attack with a lethal weapon. I impose a head sentence of seven years imprisonment.

Wilful damage

18. The offender caused a lot of damage. It is a serious case. I impose a head sentence of two years.

STEP 5: SHOULD THE SENTENCES BE SERVED CONCURRENTLY OR CUMULATIVELY?

19. I now have to decide whether the head sentences should be served concurrently (the sentences are served at the same time) or cumulatively (the sentences are added together). The offences were part of the one series of events but there were two separate and distinct offences, so the sentences should be served cumulatively. The potential sentence is 7 + 2 = 9 years.

STEP 6: WHAT IS THE EFFECT OF THE TOTALITY PRINCIPLE?

20. I now look at the total sentence the offender is facing, to see if it is appropriate having regard to the totality of the criminal behaviour involved. I consider that nine years would be excessive. I will reduce the total sentence to six years, allocated as follows: GBH 5 + WD 1 = 6 years.

STEP 7: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

21. There is nothing to deduct.

STEP 8: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

22. There is a good pre-sentence report. The offences seem to have been committed out of character. The court is concerned about his children. But he has to spend time in custody. I will suspend two years of the sentence on normal conditions, namely:

1. must be an order from the National Court approving release from custody;
2. must report to the Probation Office within 72 hours after release from custody;
3. must reside at a place approved by the National Court;
4. must not leave West New Britain without the written approval of the National Court;
5. must perform at least six hours unpaid community work in accordance with community work program approved by court;
6. must attend the church every weekend for service and worship and submit to counselling;
7. must not consume alcohol or drugs;
8. must keep the peace and be of good behaviour;
9. must have a satisfactory probation report submitted to the National Court Registry at Kimbe every six months after the date of release from custody;
10. must report to the National Court in Kimbe for consideration of her progressive probation report as and when required;
11. if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.
    

SENTENCE

23. Greg Kialo, having been convicted of one count of grievous bodily harm with intent and one count of wilful damage to property, is sentenced as follows:

Sentenced accordingly.
_______________________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the offender