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State v Boi [2012] PGNC 204; N4781 (31 August 2012)

N4781

PAPUANEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. No. 442 and 438 of 2010

THE STATE

-V-

WILLIE BOI AND IKUPU IRU

Waigani: Maliku AJ
2012: 06th, 10th, 20th, 29th, 31st August

CRIMINAL LAW-Grievous Bodily Harm- Section 319 of Criminal Code Act

CRIMINAL LAW- Sentencing after a finding of guilty – Prisoners are first offenders - Prevalence of such crimes – Crimes committed by highly educated prisoners- Appropriate sentences for first offenders

Cases Cited

Avia Aihi-v-The State (NO3) [1982] PNGLR 92 at page 96
Goli Golu-v- The State [1979] PNGLR at page 653
Rex Lialu - v - The State [1990] PNGLR
R-v- Taggart (1923) 17 Cr App R13
The State-v- Abel City Ya Kund and Wally Pyakai N4262
The State-v-David Carol N37621.
The State –v- Exley Hala Heni N3541
Willie-v- The State [1987] PNGLR 298

Counsel

Mr Kuvi, for the State
Miss Saroa, for the prisoners

SENTENCE

31ST August, 2012

1. MALIKU AJ: Willie Boi and Ikupi Iru were each and severally convicted for causing grievous bodily harm to one Thomas Pillar, contrary to Section 319 of the Criminal Code Act.

Plea: Not Guilty

The Facts

2. On the 21st December 2009 there was a road block conducted by members of the National Road Safety Council at Two Miles, National Capital District, Papua New Guinea. Among those that manned the road block were the prisoners Willie Boi and Ikupu Iru. The prisoners are employees of the National Road Safety Council.

3. At about 8am the complainant Thomas Pillar was driving a Toyota Surf Forerunner from Koki toward the road block with his wife. He was reached where the road block was had and was stopped by the two prisoners who inspected his vehicle and found that the safety sticker had expired.

4. It alleged that the prisoner Willie Boi punched the complainant on his face while he was sitting on the seat in the vehicle. While that happened the prisoner Ikupu Iru got into the complainant's vehicle directing the complainant to pull aside.

5. The complainant did move his vehicle to the side of the road but did not stop but drove off with the Prisoner Ikupu Iru in his vehicle. The prisoner Ikupu Iru punched the complainant several times in the vehicle while it was in motion causing the complainant to bleed very severely on his nose and mouth.

6. The complainant stopped at the junction opposite PNG Motors because he was bleeding from his nose and mouth. The prisoner Ikupu Iru jumped out of the complainant's vehicle and ran back to where the road block was.

The central issues in contention

1. Does this matter fall in the worst category of grievous bodily harm cases?
   
2. What is the appropriate sentence to be imposed on the accused?
   

Allocutus of Willie Boi

7. When I administered the allocutus to the prisoner Willie Boi, this is what he said:

❖ I am a first time offender

❖ I am not a rascal

❖ This is the first time that I have committed an offence like this one.

❖ I was carrying out my lawful duties as an officer of the National Road Safety Council

❖ I am a married man and have three children, the first is six (6) years old, the 2nd is three years old and the 3rd child is only a few days old. They are very small your honour.

❖ My wife, my parents and my wife's parents are unemployed and are dependent on me.

❖ I beg this Court to consider a non custodial sentence for me because if I am sentenced no one will look after my wife, children.

❖ I am sincerely asking for the Court to have mercy on me.

Allocutus of Ikupu Iru

8. When I administered the allocutus of the 2nd prisoner – Ikupu Iru, this is what he said:

• I apologize to the Court
  
• I know I have been found guilty of the offence
  
• I will depend on my Counsel's submission to this Court.
  

Antecedent /Personal Background for 1st Prisoner: [Willie Boi]:

✓ The prisoner has no prior convictions.
✓ He is 27 years old.
✓ He is married with three children
✓ He comes from Bereina, Central Province
✓ He attained Grade 10 at Iarowari High School
✓ He obtained a Certificate in Accounting Institute of Business Studies.
✓ He is employed by National Road Safety Council as an Inspector

Antecedent/Personal Background for 2nd Prisoner [Ikupu Iru]:

❖ The prisoner has no prior convictions
❖ He is 28 years old
❖ He is married with one child
❖ He comes from Kairuku, Central Province
❖ He attained Grade 10 at Kwikila High School
❖ He entered Institution of Business Studies for further studies.
❖ He is employed by National Road Safety Council as an Inspector.

Aggravating factors:

➢ Prisoners occupy public positions of trust as road inspectors.
➢ Injuries sustained by the complainant are serious.
➢ Damage done to the complainant's vehicle by prisoner Ikupu Iru.
➢ Both prisoners attacked the complainant. They acted together.
➢ Prevalence of this crime/offence.

Mitigating factors:

• Both prisoners are young and first offenders.
• Both prisoners co operated well with the police
• In the case of prisoner Ikupu Iru, he admitted to the assault during the Record of Interview.
• Both prisoners did not evade the arrest.
• Both prisoners have apologized to the victim in an open Court.
  

Both prisoners are willing to:

• Compensate the victim in cash and in kind, pursuant to Criminal Law (Compensation) Act;
• Pay reasonable costs for the repair of the damage to the complainant's vehicle;
• Pay for the receipted expenses the complainant had incurred for medical treatment;
• Pay reasonable costs for the complainant to have dentures inserted in place of his lost tooth.
• Both prisoners spent in custody awaiting being sentenced which was 2 nights from the conviction, one (1) night from the date of arrest which totals to 3 nights.
• Both prisoners are willing to forfeit their bail monies of K200 each and to be used as restitution towards the complainant or as Court fines.
• That although tooth 28 was not entirely due to the force of the punch by the prisoner Ikupu Iru, it was already associated with periodontal disease as stated in the Medical Report.
• In respect to the prisoner Ikupu Iru he reacted to the situation by reflex as he stated he was in fear of his life which was stated by this Court as mitigating factor in its Decision on verdict.
  

9. Miss Saroa submits that this case does not fall in the worst case of grievous bodily harm so as to warrant the maximum prescribe penalty. She reiterates that both prisoners are married with children and are gainfully employed.

10. They have been Road Safety Council officers, entrusted with ensuring our roads and streets are kept safe for the motoring public, and have been faithfully performing their duties even during the trial up until their convictions.

11. Miss Saroa submits that the sentence to be imposed on each prisoner should not be crushing but instead reflect the best possible outcome that can be achieved for the complainant primarily, but also for the prisoners.

12. Miss Saroa however did not present any cases of similar facts and circumstances to the present case. She nevertheless referred to the case of Kuri Willie-v- The State [1987] PNGLR 298 in which the Court held (among other things) that "where youthful first offenders are to be sentenced the Court should treat imprisonment as a last resort and should investigate alternatives to imprisonment before sentencing".

13. Miss Saroa submit further that the same Court did consider the case of R-v- Taggart (1923) 17 Cr App R132, where it was stated "[A Judge or Magistrate who sends a young man to prison for the first time takes on a grave responsibility.] It is not practical ...or desirable to take [a] risk to save a young man or woman from the consequences of [prison]."

14. Kuri Willie was a youth aged 18 years of age who was caught assisting in the theft of goods valued at K6000.00. He was placed on good behaviour bond with strict conditions.

15. Miss Saroa submits that these prisoners are aged 27years old and 28 years old and even though they are not youthful offenders, they are young men who still have long way to go in life with continued employment with National Road Safety Council. In the event that they are incarcerated, their families will suffer as they are the sole wage earners in the family.

16. Miss Saroa submits that taking all these factors submitted on by her, the defence/prisoners submits that the Court exercises its discretion pursuant to Section 19 of the Criminal Code, to impose a sentence of not more than two (2) years, to be wholly suspended and the prisoners placed on good behaviour bond with strict reporting conditions to the Probation Office and in additional condition on restitution to the complainant on the repair of his vehicle and to compensate the complainant for the injuries sustained.

Submission by State

17. In response to the submission on sentence by Miss Saroa for the prisoners, Mr Kuvi for the State responses first of all by re stating the offence and penalty of grievous bodily harm pursuant to Section 319 of the Criminal Code and Section 19 of the Criminal Code.

18. Mr Kuvi also by way of his submission re states the law in relation to sentencing principles, that it is trite law that the maximum prescribed penalty is usually reserved for the worst type of cases, for this present case the maximum prescribed is reserved for the worst sexual penetration cases (see Avia Aihi-v- The State (No.3) 1982 PNGLR 92 and Goli Golu-v- The State [1979] PNGLR 653.

19. Mr Kuvi referred to a couple of cases for the Court to consider and compare the present matter in considering sentencing for the prisoners.

20. The first case is The State –v- Exley Hala Heni N3541 Canning J. This is a case where the prisoner pleaded guilty to one count of Grievous Bodily Harm under Section 319 of the Criminal Code.

21. The victim, wife and daughter were in a Public Motor Vehicle when the prisoner confronted them and attacked the victim with a bush knife. The prisoner claimed the he was assaulted by the victim sometimes before the incident. The victim suffered deep cut to his left hand.

22. The prisoner was sentenced to a term of 4 years imprisonment. No part of the sentence was suspended. The Court noted, inter alia, that the fact the assault was committed in full view of the wife, daughter was an aggravating factor. The Court also did not note that no compensation was paid to the victim, nor was there any form of reconciliation.

23. I do note that no compensation has been paid to the complainant by both prisoners in the present case, nor have there been some forms of reconciliation attempted but it has been submitted that the prisoners are willing to do just that to the complainant. One wonders why they did not do so rather than the Court forcing them to do? It remains therefore that no compensation has been paid and no reconciliation has been attempted.

24. The second case which the State Counsel referred to is The State-v-David Carol N3762 Lenalia J, September 2009. This is a case where the prisoner pleaded guilty to grievous bodily harm under Section 319 of the Criminal Code. The prisoner while at work had called his wife on her phone but the wife did not answer his phone calls. The prisoner was not happy about this and returned home from work still not happy. He assaulted his wife who suffered the following injuries:

• Could not open her mouth.
• There was slight bleeding on the upper lip
• Four (4) front upper teeth mobile
• Soft tissue injuries
• Mobile teeth due to alveolar bone fracture, and alveolar bone supporting interior was fractured.
  

25. The prisoner was sentenced to twelve (12) months imprisonment which was wholly suspended on conditions.

26. In the present case the complainant was diagnosed for the following:

• Multiple facial plus Dental soft tissues injuries
• Partial subluxation (mobility) of teeth 11, 21, 22, 24, 25 and 26, a total of six (6) teeth partially subluxation as of the trauma.
• Associated head and back injuries.
  

27. It is obvious the complainant in the present matter suffered more than the victim in the case of David Carol (supra).

28. The other case that this Court was referred to is The State-v- Abel City Ya Kund and Wally Pyakai N4262; Makail J April 2011. This is a case where two prisoners pleaded guilty to one count each of grievous bodily harm under Section 391 of the Criminal Code Act.

29. The prisoners have assaulted the victim after mistakenly believing that he was the suspected rapist. The victim suffered three broken teeth which were permanently removed. The prisoners paid a substantial amount of compensation in the form of 32 pigs, a goat, a cassowary and K16500.00 cash.

30. A Pre Sentence Report was compiled and therein the victim and his relatives said that they did not want a custodial sentence. The Court in its ultimate discretion however imposed a sentence of two years wholly suspended with condition.

31. It seems clear that the substantial amount of compensation played a significant mitigation on this matter even though it was serious in nature. In the present case there was neither compensation nor any forms of reconciliation initiated by the prisoners to the complainant thus rendering this matter not to be in the prisoners favour.

32. Mr Kuvi finally submits in order to consider the appropriate sentences for the prisoners it must take into account the aggravating, which he submits over weighs the mitigation factors. The complainant suffered permanent injuries to his teeth as well as his property, the vehicle when the vehicle was in motion on the road. Mr Kuvi submits the Court should also take into account that this offence was committed by the prisoners while on official duties.

33. Mr Kuvi submits that this Court should consider a custodial sentence of 3-4 years of imprisonment for both prisoners or to exercise its discretion under Section 19 of the Criminal Code.

Guideline on sentencing

34. The guideline on sentencing is well settled in our jurisdiction in the case of Rex Lialu - v - The State [1990] PNGLR and is: "Sentence in any given case will depend on its own peculiar facts.... the Court ought to have regard to all aggravated effects of all relevant considerations on matters which aggravate or mitigate the serious nature of the offence and then to decide an appropriate penalty". I am bound to follow this principle.

35. I agree with both counsel that maximum prescribed penalties are reserved for the worst type or worst category of cases. This was settled in the case of Goli Golu-v- The State [1979] PNGLR at page 653 and re stated in the case of Avia Aihi-v-The State (NO3) [1982] PNGLR 92 at page 96.

Does this matter fall in the worst category unlawful killing?

36. Although this matter does not fall in the worst category of cases it is still serious because of the extent of injuries received by the victim Thomas Pillar.

37. Grievous bodily harm offences is on the rise in many parts of Papua New Guinea. Victims of grievous bodily harm have to live with permanent injuries sustained for many years.

The Pre Sentence

38. I had the benefit of reading the Pre Sentences Reports of both prisoners compiled by an Officer from the Office of Community Based Correction (CBC). I have read the report of Your Suitability to be placed on Probation Orders and the Recommendations by the Officer that prepared the Report. I conclude it does not have much weight in the prisoners favour. I was told by counsel for the prisoners and the counsel for the State that the Report contains aspects of new evidence not put in court during the trial which makes me reluctant to accept the Report in its totality.

The appropriate sentence

39. The State submits the appropriate sentence for each prisoner is between 3 to 4 years of imprisonment however the Court has discretion under Section 19 of the Criminal Code.

40. Miss Saroa submits the appropriate for the two prisoners is a sentence of not more than two (2) years, to be wholly suspended and the prisoners placed on good behaviour with strict reporting conditions to the Probation Office and in additional condition on restitution to the complainant on the repair of his vehicle and to compensate the complainant for the injuries sustained

Address to the accused

41. Both of you pleaded not guilty to the charges of unlawful grievous bodily harm to Thomas Pillar contrary to Section 319 of the Criminal Code Act.

42. However I found you both guilty and convicted you of these two charges.

43. I heard what both of you told me in your allocutus which I have recorded in this Judgement.

44. I also heard what your lawyer told the Court to take into account when it considers the appropriate sentences for the charge against both of you which was your mitigating factors and your personal background. I also heard what the State lawyer said is the appropriate sentence for the charge against you. I have recorded what both counsel said about the aggravating and mitigating factors in this Judgement.

45. In the present case the maximum for unlawful grievous bodily harm is imprisonment not exceeding (7) seven years in hard labour. I accept that both of you are young men in your late 20s. I note that if you are to be sentenced to imprisonment your families will suffer.

46. I also accept that you had no prior convictions prior to committing this offence. You both did not pay compensation to the complainant. I note that you are now willing to pay compensation to the complainant for the injuries he sustained and for the damage to his vehicle.

47. Having said this to both of you and having taken into account what your lawyer asked for and that the State asked for, I consider a custodial sentence is appropriate for both of you. I have decided to impose the same sentence to both of you even though the evidence shows that you Ikupu Iru attacked the complainant more than Willie Boi.

48. Having said this I sentence each of you to three (3) years imprisonment with hard labour which I suspend wholly on condition that each of you shall keep the peace and be of good behaviour for two years with surety in the sum of K600.00 each to be paid forthwith to the Registrar. I make no orders for compensation for injuries sustained by the complainant and for the damages done to the complainant's property. The complainant can pursue this through civil litigation.

49. Bail of K200.00 for each prisoner shall be refunded forthwith.

_________________________
Public Prosecutor: Lawyer for the State
Nelson Lawyers: Lawyer for the Prisoner