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State v Sawali (No. 2) [2011] PGNC 313; N4246 (30 March 2011)

N4246

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 229 OF 2010

THE STATE

Vs

BENJAMIN SAWALI
(No 3)

Vanimo: Makail, J
2011: 30th March

CRIMINAL LAW - Sentence - Unlawful grievous bodily harm - Serious case - Use of kitchen knife - Serious injuries inflicted on victim - Unsuspecting victim - Sentence of 3 years imprisonment - Suspension of sentence inappropriate - No compensation ordered - Criminal Code, Ch 262 - Sections 19 & 319 - Criminal Law (Compensation) Act, 1991 - Section 2.

Cases cited:

The State -v- Benjamin Sawali (No 2): CR No 229 of 2010 (Unnumbered & Unreported Judgment of 28th March 2011)
The State -v- Kenny Rueben Irowen (2002) N2239
Ivoro Kaumin Lupu -v- The State: SCRA No.2 of 1997 (Unnumbered & Unreported Judgment dated 13th June 1997)

Counsel:

Mr K Umpake, for the State
Mr S Raneva, for the Prisoner

SENTENCE

30th March, 2011

1. MAKAIL, J: After a trial the prisoner was found guilty and convicted of one count of unlawful grievous bodily harm caused to a female by the name of Moleen Dusava on the morning of Sunday 07th June 2009 at Vanimo sawmill contrary to section 319 of the Criminal Code, Ch 262.

2. On the date of hearing of submissions on sentence, the prisoner failed to attend Court. Attempts to locate him at his house and work place have also been unsuccessful. His absence at the hearing rendered the continuance of the proceedings in his presence impracticable. In order to bring the proceedings to an end and to save time and money, by virtue of the combine effect of sections 571(Presence of accused) and 593 (Convicted person to be called to show cause) of the Criminal Code, Ch 262, I ordered the hearing to proceed in his absence. This is my decision on sentence.

3. The full details of the circumstances surrounding the commission of the offence may be found in the judgment on verdict in The State -v- Benjamin Sawali (No 2): CR No 229 of 2010 (Unnumbered & Unreported Judgment of 28th March 2011). But very briefly and summarizing, between 5 o'clock and 6 o'clock in the morning of Sunday 07th June 2009, the prisoner met the victim and two other girls on the main road near Vanimo sawmill. The victim and others were on their way to Banana Block market to sell ice blocks to raise money to travel to Ambunti in East Sepik Province for a meeting.

4. The prisoner set upon the victim. He attacked the victim by grabbing her and they wrestled. During the struggle, he struck her on her face with a stone. She sustained injuries to her left jaw. He took out a kitchen knife and swung it between her leg and it struck her on her vagina. She sustained a deep wound to her vagina and bled. She fell unconscious and was rushed to Vanimo General Hospital for treatment.

5. The offence of unlawful grievous bodily harm is provided under section 319 which 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."

6. This offence carries a maximum penalty of 7 years imprisonment. That is number of years the prisoner is facing and can expect to serve if the Court is satisfied his case is a worst case of unlawful grievous bodily harm. He should be grateful that the National Court is given discretion to impose a lesser sentence by virtue of section 19 of the Criminal Code, Ch 262.

7. As the prisoner has failed to turn up at the submissions on sentence, the Court did not administer allocutus to him. However, there is sufficient information in relation to his personal background in a pre-sentence report provided by the probation officer at his request. He is 27 years old and comes from Amsor village in Malol in Aitape District of this province. He is educated up to Grade 10 at Aitape High School. He is married and has a baby boy. He lives with his in-laws at Warakongkong settlement in Vanimo.

8. I have considered the submissions of both counsel in relation to the question of an appropriate penalty for the prisoner and must say first, this case would no doubt attract the maximum penalty of 7 years imprisonment because it is almost a worst case of lawful grievous bodily harm. This was a case where, as the State prosecutor correctly pointed out in his submissions, the attack was unprovoked and upon an unsuspecting and defenceless victim. The poor girl was on her way to sell ice blocks at Banana Block market. She woke up early that morning and set off with her two girl friends. She had no idea what laid ahead of her that morning. It was truly a misfortune for her.

9. In my view, people who prey on unsuspecting and defenceless victims are cowards. They do not have the guts and courage to confront their victims face to face and speak their minds out. They hide behind the curtains and jump out on their victims when they see the opportunity. In my view, people like this must be punished severely. They do not deserve any leniency.

10. Secondly, the prisoner denied the offence and a trial was conducted to determine his guilt. No doubt, time and resources including money had been spent to conduct the trial. However, he is a first offender. The antecedent report tendered by the State confirms this. It shows the prisoner has no prior convictions and to my mind, this factor favours him because it suggests he is a person who cannot be considered a habitual criminal and threat to the society. As he had absconded bail, the Court cannot speculate if he will have expressed remorse and apologised to the Court and to the victim for what he did to her.

11. Thirdly, the use of a knife as a weapon to attack another person has been a cause for concern not only to the Court but to the rest of the peace loving people of this country. Offences of this nature with use of knives are common and prevalent in this country. The result of using knives on other persons can be fatal and devastating.

12. The worst case of unlawful grievous bodily harm is The State -v- Kenny Rueben Irowen (2002) N2239. In that case, the prisoner, a husband of two wives pleaded guilty to two counts of unlawful grievous bodily harm caused to his two wives. He used a bush knife to inflict wounds on them.

13. As a result of the wounds, the victims fell unconscious. He held them in confinement for a long time. The Court considered that it was a serious case of grievous bodily harm and imposed the maximum penalty of 7 years imprisonment on the prisoner for count to be served cumulatively, even though it was a guilty plea. Again, a bush knife was used to inflict wounds to the victims.

14. Fourthly and following on from the third consideration is the type of injuries sustained by the victim. According to the medical report of Dr Cherobim Kapanombo of Vanimo General Hospital dated 09th June 2009, the victim received a deep laceration to her left jaw and deep wound to the left wall of her vagina. The laceration to her left jaw measured 2cm long and 3 cm deep. The deep wound to her left lateral vaginal wall measured 5 cm long and 1cm deep. These were the injuries the victim sustained from the attack.

15. There is no further evidence of any permanent injuries or disabilities however, I accept the State prosecutor's submission the injury to her vagina has caused a lot of humiliation and embarrassment to the victim. To my mind, the stabbing of the victim's vagina by the prisoner with a kitchen knife is a degrading act. It is inconceivable the prisoner can do such a thing, although it was suggested he may have been depressed by the victim's refusal to be-friend him and did what he did. That remains a speculation or allegation as no proper finding has been made by the Court. Be that as it may, the prisoner should not have done that in the first place.

16. In my view, the serious injuries, coupled with the humiliation and embarrassment are serious matters that cannot be brushed aside lightly. What this means is that, the penalty that I will impose on the prisoner must reflect the seriousness of the offence. It must act as a personal deterrent so that he will not repeat such acts in future. He must be punished for the wrong he has done to the victim. It must also act as a public deterrent so that others will refrain from such acts. I believe, if we are to have a peaceful and safe society, especially in Vanimo, people who commit such offences like the prisoner in this case must be punished severely.

17. In taking into account these matters, it is noted there is some evidence from the prisoner in relation to payment of compensation to the victim. There is a means assessment report provided by the probation officer along with the pre-sentence report. First, the means assessment report states the prisoner earns K150.00 net pay per fortnight from RD Tuna company in Vanimo. Secondly, he is prepared to pay K1,500.00 as compensation to the victim. Thirdly, his bail money of K800.00 can be converted and given as part payment to the victim while the balance to be paid by way of installment over a period of 7 months at K50.00 per fortnight.

18. There is no doubt in my mind, the prisoner has some means to pay compensation to the victim if the Court were to order compensation. However, there is no major problem with this proposal which has been pointed quite correctly by the State prosecutor and that is, according to the means assessment report, the victim has not expressly agreed to compensation. It was her father. The father is not the victim. It is the victim who is the victim and in my view, she is the one, and must be the one to have the final say on compensation; not the father or anyone for that matter. Given this, I am not inclined to order compensation pursuant to section 2 of the Criminal Law (Compensation) Act, 1991.
In relation to the pre-sentence report first, it strongly supports a non- custodial sentence because inter-alia, the prisoner is a first offender and is willing to submit to any conditions that the Court may impose including community work. He has co-operated well with the probation officer during the preparation of the pre-sentence report and means assessment report. He has a young family to care for and a custodial sentence would be crushing on him. His counsel has asked the Court to take into account the well-being and welfare of his family in mitigation. It is noted, according to the pre-sentence report, the prisoner has a wife named Emelia Wekeni and a 5 and half months old baby boy. The wife is a third year primary teaching school student at Gaulim Teachers College and is due to return to school for third semester in August of this year.

19. In relation to the well-being and welfare of his family in mitigation, the Supreme Court has warned that, it should be approached with caution and I take heed of that warning: see Ivoro Kaumin Lupu -v- The State: SCRA No.2 of 1997 (Unnumbered & Unreported Judgment dated 13th June 1997). In that case, the Supreme Court (Kapi, DCJ, Los & Jalina, JJ) said:

"Welfare of loved ones such as wives and children and parents have been raised by accused persons on numerous occasions both in the National Court and this Court as mitigating factors on sentence. Those are imported factors which a person should bear in mind before he sets out to commit serious crimes such as murder or wilful murder using dangerous weapons against the victim as death of such person may lead to a long period of imprisonment if convicted. Welfare of wives, children and parents are becoming lame excuses and should be treated with caution."

20. In the prisoner's case, I pay little attention to the prejudice that will arise to the family welfare of the prisoner if he is sentenced to prison. If he was concerned about the welfare of his family, he should have ceased what he intended to do in the first instance. I think, it is too little, too late to come before the Court and beg for leniency because his family will suffer if he goes to prison.

21. Taking into account the matters I have pointed out above, I consider a sentence of 3 years imprisonment is appropriate. In considering whether or not the sentence should be suspended, I should remind the prisoner that suspending a sentence is not an act of leniency and if the sentence is suspended, he must not take that for granted. According to the pre-sentence report, the probation officer is of the view the prisoner is not a real threat to the community as he is now a father and a husband.

22. However, what is disturbing and of most concern to the Court and to a greater extent, the victim and his family is, the probation officer has also reported in the pre-sentence report that the prisoner maintains that he is innocent. He is adamant the victim has mistakenly identified him, inferring that the Court has wrongly convicted him. If that is his attitude, he cannot expect leniency from the Court. These are matters for him to tell the appeal Court if he appeals the decision of this Court.

23. And what is more disturbing is that, again, according to the pre-sentence report, the probation officer has reported, the victim does not want the prisoner to go to prison because of potential back lashes. To my mind, this is not only a threat to the victim and her family but also to the Court. It is a serious threat, as it undermines the authority of the Court and the rule of law. People found guilty by the Court must learn to respect the decisions of the Court. Family members and relatives of offenders must be told to respect the decisions of the Court. If what the victim has said is true, I am disappointed the prisoner and his relatives are contemplating this, and then turn around and expect the Court to be lenient on him.

24. In the circumstances, I am not satisfied the prisoner is entitled to a suspended sentence either wholly or in part. The prisoner is sentenced to 3 years imprisonment. Three (3) months and five (5) days in pre-trial custody shall be deducted, thereby leaving a balance of 2 years and 8 months and 25 days to serve at Vanimo CIS prison.

Sentence accordingly.
____________________________________
Lawyers for the State: Acting Public Prosecutor
Lawyers for Prisoner: Paul Paraka Lawyers