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State v Paranis [2009] PGNC 145; N3761 (24 September 2009)

N3761

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.904 OF 2009

THE STATE

V

SAMUEL PARANIS

Kokopo: Lenalia, J.
2009: 9th, 21st, 22nd & 24th September

CRIMINAL LAW – Charge – Grievous bodily harm – Guilty plea – Sentence – Criminal Code s.319.

CRIMINAL LAW – Knife wound to right hand – Compound fracture of little finger and adjacent tendons – Loss of 25% functional use of right hand.

CRIMINAL LAW – Guilty plea – First time offender – Prevalence of offence – No compensation paid yet – Pre-sentence report filed – Custodial sentence appropriate – Sentence of 2 years imposed.

Cases cited:

The State v Patrick Jul (22.12.05) N3167
The State v Bomai Hesi (No.2) (14.11.08) N3232
The State v Karol Tobasi (29.7.09) Cr.No.572,
The State v Penningson Vube (30.3.09) unreported judgment Cr.No.1123/07

Counsel:

S. Luben, for the State
G. Kerker, for the Accused

24th September, 2009

1. LENALIA, J: The prisoner pleaded guilty to one count of unlawfully causing grievous bodily harm to Ben Kukubak on 26th December 2008. This is an offence contrary to s.319 of the Criminal Code. The offence charged carries with it the maximum penalty of 7 years imprisonment. This section states:

"319. Grievous bodily harm

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."

Brief Facts

2. On the early morning hours of 26th December 2008, between 4 am and 5 am, the victim and others were drinking alcoholic drinks at a cocoa fermentery at Tinganalom village. As they were drinking, three persons by the name of Ericknon, Henry and Vovonia came by and asked about the location of another person’s house. They named that person as June. The victim and the others referred the three of them to the location and direction where June’s house was. So the three of them took off to June’s place.

3. After they went, they returned and accused the victim Ben Kukubak and his friends of lying to them. That was because, they did not locate the person they were looking for. Erick and Henry got up and swore at the victim and his friends. When Lolo heard the swearing words, he went over and assaulted Erick. Soon after this, Erick and Henry left.

4. Sometime later, the two of them returned together with the prisoner. The victim’s statement shows that, when the accused approached him, without saying anything, he swung the bush/knife at him. He ducked to avoid that blow and put his right hand up to protect himself, the bush/knife landed on his hand and cut his right hand.

5. The medical report dated 16th January 2009 shows that, the victim sustained a compound fracture on the right hand finger. But the wound was "derided and tendons were repaired". The report concludes that, the victim lost 25% functional use of his affected hand.

Address on Allocutus

6. On his address to the court as to what penalty should be imposed on him, the prisoner said, he is very sorry for committing this offence. He said sorry to the victim and said, the court should consider him being a first time offender.

Pre-sentence report

7. I have read and considered the terms of the pre-sentence and means assessment reports. The victim could not settle with an offer of 300 fathoms of shell money. When contacted by the Senior Community Correction & Rehabilitation Officer, he said he wanted K65, 000.00 compensation. To the court this amount is so exorbitant and out of this court’s jurisdiction in criminal cases. Under s.3 of the Criminal Law (Compensation) Act 1991 when the court considers that compensation should be paid, it can only order K5, 000.00 compensation. Section 5 (3) of the Act sets out the limit of the amount earlier mentioned.

8. Section 5 of the Criminal Law (Compensation) Act states:

"(1) Upon receipt of the means assessment report or the Chief Probation Officer's advice under Section 4(2), the court may, after taking into account the factors specified in Section 3—

(a) order the offender to pay, within such period and in such manner as the court determines, compensation to a person or group of persons specified in the order; and

(b) direct the Chief Probation Officer to supervise compliance with the compensation order.

(2) Subject to Subsection (3), compensation may be ordered in the form of cash, goods, services or any other kind or method of compensation which the court considers appropriate.

(3) No compensation ordered under this Act—

(a) shall include the use or payment of alcohol; and

(b) whether in the form of cash, goods, services or any other kind or method of compensation shall exceed in value K5,000.00,

and the value of any form of compensation other than cash shall be as determined by the court."

9. I have also read the means assessment report. It says the prisoner has the ability to pay some compensation to the victim. When compensation is paid, it is not a punishment for the offence but a means of restoration of peace between an offender and a victim. (See s.3 of the Criminal Law (Compensation) Act).

Addresses on sentence

10. For the prisoner, Mr. Kerker submitted that, the court should consider the prisoner’s guilty plea and his previous good character. That he is the first time offender and he co-operated with the police during investigation. He asked the court to consider the prisoner had shown remorse. Counsel further highlighted on the application of law to the facts of the current case by citing some case law authorities. Counsel submitted, this was not the worst type case and the court should consider the fact that the prisoner’s wife had offered compensation of 300 fathoms of Tolai shell money but was refused by the victim.

11. Ms. Luben of counsel for the State submitted that, the prisoner committed a serious offence which carries the maximum sentence of 7 years. She asked the court to consider the prevalent nature of this offence and sentence the offender accordingly.

Application of law to the facts

12. The offence committed by the prisoner is punishable by the maximum penalty of 7 years imprisonment. Section 19 of the Criminal Code gives this court the sentencing discretion to impose any form of penalty and a term lower that what is prescribed.

13. On the trend of sentencing, section 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. Many cases have been dealt with under this section and many judgments have either been published or not have discussed the position of law on grievous bodily harm.

14. In The State v Bomai Hesi (No.2) (14.11.08) N3323 the accused was assaulted in a fight and lost consciousness. When he regained consciousness, he grabbed 2 bush knives and went to the house where he thought those who assaulted him were. His intention was to fight using the knives. Whilst in the house, he swung the knives dangerously in front of him as well as at his back. He cut the victim and two others were also hurt. The victim sustained deep lacerations to her head, her left thumb was amputated, a deep laceration down to her wrist, severe bleeding and loss of blood and multiple minor bodily wounds were sustained. Davani, J sentenced the prisoner to 3 years with the time spent in custody deducted. He served the balance of 2 years 9 months.

15. In The State v Patrick Jul (22.12.05) N3167, the victim alleged that when the accused went to see him in the office, he went armed with a stick. As soon as he entered the victim’s office, he stood on the other side of his table, picked up his diary and started to read his entries in it. Then an argument ensued between the victim and prisoner.

16. He used the stick and walked in with to strike the victim across his mouth on the jaw line causing him to bleed right away. He struck the second time with the same stick and it landed on the left side of the victim’s rib cage. That resulted in a fracture of the 11th rib. He struck the third time, this time the victim lost his balance and fell on the floor, and he continued to hit him with the stick until the stick broke off on the victim’s forearm when he raised it to block off further attacks. The victim thought he was going to kill him. Kandakasi, J sentenced the prisoner to 2 years imprisonment.

17. Recently in Buka in the case of The State v Karol Tobasi (29.7.09) Cr.No.572, the victim was cut on his right hand and further hit on the head with an iron bar. He sustained injuries in the course of trying to recover the victim’s auntie whom the accused was having a de facto relationship with. The victim suffered a single clean cut to his right hand which eventually healed up. He was sentenced to 3 years fully suspended with strict conditions.

18. In another case before this court, the case of The State v Penningso Vube (30.3.09) unreported judgment Cr.No.1123 of 2007, the prisoner was sentenced to 2 years imprisonment which was fully suspended. In that case on 24th April 2007, between the hours of 3am and 4am, the victim was waiting on the side of the road at his village at Nanuk for the company vehicle to pick him up for work at Kokopo town. While waiting, the prisoner approached him with a small bush knife and swung it at him twice leaving him with a laceration on the left shoulder and a fractured left arm. The prisoner was sentenced to 2 years imprisonment which was fully suspended.

19. This is another case where an offensive weapon had been used against a human being. In the present case a bush/knife was used against the victim who was unharmed. Even if he was harmed, the law does not allow any person to use any offensive objects to hurt anyone.

20. On sentence, I take into account the prevalence of this offence. On the circuit this month, three grievous bodily harm cases were brought up. This offence is on the rise. You just imagine what would have been the situation if you had struck the victim to death. You would certainly face greater consequences than the present charge.

21. The court takes into account your guilty and all mitigations mentioned by your lawyer and aggravations such as the prevalence of this offence. However against you is the fact that you used a bush knife against the victim. He was unharmed, you could have easily killed him. Carefully weighing both the factors in your mitigation as well as those against you and the sentencing trend or range, I consider a sentence below the prescribed maximum sentence of 7 years is appropriate. I consider a sentence of 2 years appropriate. I have considered compensation and suspension of either the whole or part of the sentence and have decided against them.

22. The use of offensive weapons like knives, axes, sticks or other objects are all dangerous weapons just like guns and pistols. I would sentence the prisoner to a term of 2 years imprisonment. The court orders that one (1) year from that sentence will be suspended and he shall serve the balance. There are two conditions placed on the suspended portion of this sentence.

23. They are:

1. After serving one year, he will keep the peace and be of good behaviour for 2 years.

2. After he is released, he shall pay an amount of K1, 000.00 compensation to the victim.

3. His bail money will be refunded to him.

___________________________________

The Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Accused.