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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR 573 of 2011
THE STATE
V
PAUL JUMBUGU
Kimbe: Batari, J
2012: 28 March
CRIMINAL LAW – Sentence – Principles applied – Offence of grievous bodily harm – Accused cut three right arm digits of victim with bushknife in provoked attack - Seriousness and prevalence of
CRIMINAL LAW – Sentence - Grievous bodily harm – Plea – Factors in mitigation – De facto provocation – effect of – Compensation – use of in family disputes – Relevance of family ties in orders for compensation - Sentence of 4 years with suspension orders appropriate.
Cases Cited
No case cited
Counsel
L. Rangan, for the State
T Paraka, for the accused
SENTENCE
1. BATARI J: You have been convicted of causing another person, unlawful grievous bodily harm following your plea of guilty. Under s.319 of the Criminal Code you are liable to be imprisoned for 7 years, maximum.
2. The facts for the purpose of sentence are that, around midday of 13 March, 2011 you were at your home at Buvussi Oil Palm Settlement with other family members when the victim and her husband confronted you following an attack on their son. The couple were disturbed when informed of their son being assaulted at your place. The victim's husband argued with you while she stood by in apparent support and encouragement of her husband's abusive altercation with you. Fazed by the confrontation you chased after the victim. And when she tripped and fell, you attacked her with a bush-knife, cutting three fingers on the right hand.
3. A medical assessment of the injury from a Dr Peter Yama of the Surgical Unit of Kimbe General Hospital suggested the right hand is "now disabled and is of no use for now and about up to 8 weeks." The report is dated 21 March 2011. Despite the apparent intimation, there is no evidence of a recent medical prognosis of the injuries. You will have the benefit of doubt on whether the injury is permanent.
4. The injuries show a severe attack with a dangerous weapon. The circumstances of the offence also indicate that you carried out the attack with a degree of determination. Although the injury is not life threatening, the attack could have been fatal when you struck her after she fell. The victim was then harmless and completely at your mercy. She was possibly lucky to have survived the ordeal after you struck and missed her twice with the knife. You are also lucky because, had the victim died, you are likely to face a more severe punishment on one of the homicide charges. Your case falls into the serious category. I will sentence you on that basis.
5. I bear in mind that this type of offence is most widespread throughout the country. It is common occurrence that whenever an argument, dispute, disagreement or quarrel arises, a weapon is invariably used in the ensuing fight. Despite the punishment of this offence over the years, violence continues to be the norm in resolving differences. People must now surely know that it is wrong and against the law to cause another person grievous bodily harm. People ought to respect the law and use the established system to resolve their disputes. You have not only committed a serious offence but you have also inflicted on your victim, pain and some disability in the right arm.
6. You are liable to be sentenced to 7 years imprisonment. However, under s.19 of the Criminal Code, the Court has discretion to impose a lesser term. Hence, I must look at the circumstances of your offence, your own personal circumstance in the light of settled principles and the current sentencing tendency of the Courts for this type of offence. I must do this in an attempt to strike a balance between the seriousness of the offence and the interest of the community to see that those with anti-social behaviour are punished on the one hand and your personal interests on the other.
7. I have ordered a pre-sentence report and a means assessment test to be filed on your behalf to assist me on this difficult task of deciding a just sentence. The reports are now before the Court and I commend Ms Elizabeth Passingan of the CBC office for the comprehensive reports.
8. You are 49 years old and have two wives with six children from the first and a child from the second. You also maintain two homes, one at Buvussi, the other at Dagi near Kimbe town and you would spend time in either of the two locations. Your first wife fears that if you are sent to jail, the family welfare will suffer as you are the only breadwinner and on whom the two family blocks thrive.
9. You have pleaded guilty. When asked to say something on sentence, you expressed remorse and spoke at length about the incident and your relationship with the victim. She is your cousin and that you are married to her husband's sister. That is, her husband is your brother in-law. The boy in the centre of the fight is your nephew, being your cousin's son.
10. You said this is the first occasion of animosity between the two families. Your brother in-law had hurled insensitive verbal abuses at you and ignored your attempts to explain yourself. You also told the court that you and your son were mob-attacked from that altercation and hence, you armed yourself with a bush-knife in defence. It was then that you attacked the victim after the others had fled the scene of the fighting.
11. You were implying that, the presence of the victim together with her husband's disrespectful and unruly conduct drove you to commit this offence. I accept your statement on allocutus as a plausible explanation for your conduct. The State did not oppose your version of facts which appear reasonable and within the ambit of probability. I therefore accept that you acted under some provocation.
12. You have offered to pay compensation and you appear to have the means and ability to do so. The victim had initially demanded compensation of K15,000.00. You refused to pay primarily because your son's injury from the same fray was only settled with K2,500.00 compensation. The victim has possibly lost interest in claiming compensation and will rather see you imprisoned.
13. Be it as it may, compensation payment is an option open to the Court to consider under the Criminal Law (Compensation) Act 1991. Section 2 makes it mandatory for the Court when considering the punishment to be imposed for an offence, to also consider whether in the circumstances of the case, compensation should be ordered. Section 3 sets out factors to be considered in making compensation orders. Although the victim's attitude is not specifically mentioned as one of those matters under s.3, it is a relevant consideration if the order for compensation will advance the interest of justice even if the victim is not willing to accept compensation.
14. In this case, the victim's current stance regarding compensation, I think is more out of frustration than in genuine pursuit of justice.
15. Punishment is not all about going to prison. The interest of justice may be equally served if the offender can be punished in some other way. An order for payment of compensation in addition to other punishment is one of those options. The limit of compensation as a form of punishment under the Criminal Law (Compensation) Act 1991 is K5,000.00. Any excess claimed beyond that amount may be a subject of a separate civil suit action.
16. I am satisfied that an order for compensation should meet the justice of this case. Close family members were embroiled in a dispute that had split a family unit and solidarity. The rift will widen if there is no reconciliation. Moral, social and cultural obligations of close family ties to support each other in good and bad times ought to prevail over individual paranoiac personalities and attitudes. An order for compensation in my view will encourage reconciliation, mend and restore relationships, promote and enhance peace and harmony amongst the relatives.
17. Your case falls into the range of 3 to 5 years for similar type offence. I proposed to impose a sentence within that range because I have decided that you should be given a jail term for your offence.
18. The pre-sentence reports suggest that you have a difficult personality and that you are not easily swayed. However, that does not necessarily mean you have inclinations towards violence. And there is no evidence before me that you are a violent person who is likely to re-offend.
19. You have a prior conviction which has been explained through counsel as resulting from a failure to obey a civil court order. The details of that conviction are not before the court. You are now convicted of an offence involving violence but your conduct is sufficiently explained in those events leading up to your offence.
20. I propose to impose a sentence that is both useful to the community and to you. The sentence will serve the community interest because you will be given a jail term. It will also benefit you because I propose to suspend the whole of that sentence and place you on probation orders.
21. You are sentenced as follows:
3. The Probation Office shall file six monthly reports with the first such report due by 28th September, 2012 and whenever required by the National Court on your progress on probation until discharged.
__________________________________________________
Public Prosecutor: Lawyers for the State
Paul Paraka Lawyers: Lawyers for the Defence
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URL: http://www.paclii.org/pg/cases/PGNC/2012/36.html