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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 168 OF 2015
V
EPO MATAO
Kainantu/Goroka: Polume-Kiele J
2015: 17, 31st July, 21st September
CRIMINAL LAW – Sentence – Guilty plea - Grievous bodily harm, s 319 Criminal Code Act, Penalty, Imprisonment for a term not exceeding seven years, s 319 Criminal Code Act.
CRIMINAL LAW – Sentence – Early guilty plea – first time offender - Appropriate starting point and Head sentence – Suspension of sentence considered
CRIMINAL LAW –– Sentence – Head sentence of 4 years imprisonment, s 319 Criminal Code; Pre-trial period in custody of 1 year 19 days deducted; s 3 (2) Criminal Justice (Sentences) Act; Suspended 2 years of the head sentence of 4 years, s 19 Criminal Code Act; To serve 11 months 11 days imprisonment.
Facts:
The brief facts are that on the 16th of August 2014, the prisoner and his friends were demanding payment from members of the general public travelling through the collapsed Ramu Bridge situated at Kainantu. When told by the victim, namely Philip Bao; a casual employee of the Department of Works who was assisting workers to rebuild the collapsed Ramu Bridge to stop, the prisoner swore at the Complainant and consequently a fight broke out. The prisoner then grabbed a Tramontina bush knife and cut the victim on the head resulting in the victim sustaining lacerations. The victim was rushed to the Sky Medica Medical Health Care, Kainantu for medical attention. Upon examination at the Sky Medica Medical Health Care, it was found that the victim sustained a deep knife wound measuring 10 cm in length and 1.5 cm deep to his right temporal scalp. The wound was sutured with 5 stiches and dressed. In spite of sustaining a deep knife wound to the right temporal scalp, the victim’s all vital signs were normal and stable.
The prisoner has pleaded guilty to the charge to the offence of causing grievous bodily harm under s 319 of the Criminal Code and was convicted on the 15th of July 2015 upon his own guilty plea.
Held:
(1) The maximum penalty for grievous bodily harm under s 319 of the Criminal Code is imprisonment not exceeding seven years.
(2) The starting point for penalty for the offence of grievous bodily harm under s 319 of the Criminal Code is now set at 3 ½ years as held in the State –v- Sheekiot (2011) N4454 and State –v- Konos (2010) N4157.
(3) Mitigating factors in favour of the prisoner is that he is a first-time offender; co-operated fully with the police and that some compensation has been paid.
(4) Aggravating factors against the prisoner are that he used an offensive and lethal weapon, a Tramontina bush knife to attack the victim, use of excessive force, and he was in the company of others, the victim was not armed and that this type of offence is prevalent.
(5) A sentence of 4 years imprisonment imposed, less the period of 1 year 19 days that the prisoner has been held in custody, pursuant to s 3(2) of the Criminal Justice (Sentences) Act. Two years of the head sentence is suspended, s 19 of the Criminal Code on terms.
(6) The prisoner is therefore sentenced to serve a balance of 11 months 11 days imprisonment at CIS, Bihute.
Cases cited:
Aihi –v- The State (No.3) [1982] PNGLR 92
Golu –v The State [1979] PNGLR 653
Public Prosecutor –v- Tardrew [1986] PNGLR 91
State v Mono Sini, (CR.183 of 2013)
The Public Prosecutor –v- Done Hale (1998) SC 564
The State –v- Mais (2014) N5838
The State –v- Sheekiot (2011) N4454
The State –v- Konos (2010) N4157
Ure Hane v the State [1984] PNGLR 105
Counsel:
Mr John Biki, for the Prisoner
Ms Barbara Gore, for the State
JUDGMENT ON SENTENCE
27th August, 2015
“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.
Committal Court Dispositions
(1) The Record of interview both the original pidgin and English Version conducted on 19th of September 2014, CR 42 of (2014); marked as Exhibit "A" relating to the defendant Albert Kavena during which he admitted to using a Tramontina bush knife to chop Vermako Tamao on the head on the 16th of August 2014 between the hours of 10.00 a.m. and 10.30 a.m.
(2) The Statements of State witnesses namely Samuel Yandom, Police Constable dated 18th August 2014, Police Detective Senior Constable Iso Zime dated 25th August 2014 Vermako Tamao (victim) dated 12th of September 2014 and Detective Senior Constable John Joseph dated 25th August 2014 all of Kainantu Police Station, including the statements of Phillip Bao of Anona Village respectively all confirmed the identity of the prisoner and his demeanour at the time of the commission of the offence and the Medical Report prepared by Dr Kim Yauve of Sky Medica dated 18th August 2014 which confirmed the injuries sustained by the victim, Phillip Bao.
Allocutus
Pre-Trial Detention
6. The prisoner was remanded on the 2nd of September 2014, and has been held in custody for a period of 1 year 19 days to the date of this decision on sentence.
Pre-Sentence Report
7. However before I discuss the decided principles which have been applied by the courts to determine the severity of sentence, I will firstly discuss the PSR and MAR prepared and submitted by the Probation Officer, Mr Bennet Amuino on the prisoner. According to the PSR the prisoner is from Annona Village, Kainantu, Eastern Highlands Province and is about 30 years old. The prisoner has been married for 7 years and has no formal education. He is a subsistence farmer but sometimes compliments his sustenance with a bit of alluvial mining along the Ramu River. The prisoner is a Seventh Day Adventist and lives with his biological mother, wife and his two children (aged 1 and 3 years). The prisoner is a first time offender and has been in custody since his apprehension on the 22nd of August 2014.
8. The community leaders interviewed all speak highly of both the prisoner and the victim and are satisfied that peace is maintained within the community of Annona Village. The leaders also confirmed that some part of the compensation demand of K2, 500 and a life pig has been paid. That is, payment of compensation in the sum of K500.00, a life pig and K100 worth of garden food was paid and accepted by the relatives of the victim. The prisoner has been in custody now for 11 months 8 days. The Probation Officer in his overall assessment of the prisoner recommended that the prisoner is a suitable candidate for Probation period on terms and conditions which are set out below:
(i) The prisoner is the first time offender and can be placed on terms and conditions,
(ii) The prisoner can be placed on 100 hours community work orders,
(iii) The prisoner can report to CBC Office twice a week for counselling,
(iv) The prisoner can make compensation to the victim and the victim’s relatives to maintain peace in the community,
(v) The prisoner relatives be given a period of three months for the payment of compensation,
(vi) The compensation and peace reconciliation should be witness by an Officer in Charge of Criminal Investigation (Police) and the Probation Officer, Kainantu; and
(vii) The prisoner is to remain in Kainantu and not change his address or move to other Provinces until his term of Probation is completed.
Submission on sentence
9. Mr Biki on behalf of the prisoner submitted that it is settled law in this jurisdiction that the maximum penalty for an offence should ordinarily be reserved for the worst type of cases. In that, this case is not a worst type of offence involving grievous bodily harm. However Mr Biki conceded that the victim sustained lacerations to the right temporal scalp, and was treated at the Onamuga Health Centre, Kainantu. In that, the OIC of the Health Centre, Mr Nathan Reuben Fumi who treated the said victim confirmed that the victim sustained a sharp wound measuring 4 cm in length and 5 mm to the right temporal scalp but the victim was alert and conscious and not in distress. A number of case law (unreported) was cited in support of his submission however, not all the cases are discussed here but I make particular references to the case of the State v Mono Sini (CR.183 of 2013) as it is similar in nature as the present case because the accused was convicted on his own plea. In State v Mono Sini, (CR.183 of 2013) the prisoner was convicted on his own plea on a charge of assault occasioning grievous bodily harm under s 319 of the Code as amended. In this case, the prisoner had become angry upon discovery that his young planted coffee trees had been uprooted. This made the prisoner angry and he accused a young boy of this misdeed and then diverted his anger at the victim and swung a bush knife towards the victim. The victim then raised his left hand to block the force of the bush knife and consequently the victim received wounds to his left forearm. The prisoner in this case was sentenced to two years imprisonment but the period in custody was suspended.
10. Although, the Defence Counsel acknowledged that the offence is aggravated by the fact that the prisoner was in the company of fellow villagers and used a Tramontina bush knife to attack the victim, which is a very prevalent offence; he submitted that the prisoner is not a threat to society. This is the first time that the prisoner has committed such an offence. In addition the prisoner expressed his remorse by saying that he is sorry for what he has done to the victim and also stated that this type of incident would never happen again. The prisoner has reconciled with the victim and his relatives and during this reconciliation, some compensation in cash and kind has been exchanged and accepted by the relatives of the victim. Furthermore, the community leaders have also spoke highly of the prisoner and are prepared to assist rehabilitate the prisoner back into the community. Consequently, Mr Biki submits that a period of sentence of 1 to 2 years is appropriate. He also submits that this court exercise its discretion to suspend the whole or part of this sentence with conditions as recommended in the Pre-Sentence Report dated 31st July 2015.
11. In reply, Counsel for the State, Ms Gore submitted that this type of incident is prevalent and must be dealt with accordingly. Whilst acknowledging that such incidents ought to have been amicably settled between the parties instead of the accused taking the law into his own hands. In her oral submission for the State, Ms Gore submitted that a number of aggravating factors go against the prisoner in that the prisoner:
(i) used a Tramontina bush knife to attack the victim
(ii) used of excessive force
(iii) was in the company of others
(iv) the victim was not armed
(v) this offence is prevalent
12. Ms Gore, however, conceded that the Pre-Sentence Report was favourable to the prisoner and thus submitted that a deterrent sentence of 3 years which can then be suspended at the Court's discretion be imposed.
Determining Sentence
13. The prisoner was in the company of some of his friends who were demanding money from members of the public passing through the collapsed Ramu Bridge. The complainant who had been observing this activity for a while was not impressed so he called on the prisoner and his friends to stop what they were doing as it was bringing shame to the whole Village. The prisoner however ignored him and swore at the Complainant, a fight then ensued between the prisoner and the Complainant. In the commotion, the prisoner used a Tramontina bush knife and cut the Complainant once on the head. The Complainant was then rushed to Sky Medica for medical attention. Upon examination, the complainant was diagnosed to have sustained lacerations of a deep knife wound measuring 10 cm in length and 1.5 cm deep to his right temporal scalp. This wound was sutured with 5 stiches and dressed. In spite of the knife wound, the victim’s vital signs were normal and was stable however all head injuries are considered serious and the examining health officer anticipated that full recovery was expected within 6 weeks.
14. On that note, I would also make some remarks on such behaviours and these are my remarks. Firstly, services such as access to public roads and government services are vital to human development as this ensures that the delivery of essential social services such as health, education, law and security and commerce is accessible to all citizens of this country. However when such behaviours as those alleged against the accused impede the efficiency of the free flow of delivery of these essential services, citizens of this country are affected. In situations where citizens such as the prisoner cause hindrances and abuse such privileges for their own personal gains, then they must be dealt with and discouraged from engaging in such behaviour. Firstly, offenders must know that taking the law into your hands has consequences and as such penalties can be imposed however severe.
15. The offence of unlawfully causing grievous bodily harm under Section 319 of the Code carries a maximum penalty of 7 years imprisonment. It is however, well established law that the maximum penalty for any offence is always reserved for the worst types of that offence. It is also well settled law that each case must be considered on its own merits, set of facts and circumstances as held in Golu –v The State [1979] PNGLR (653); Aihi –v- The State (No.3) [1982] PNGLR 92) and Ure Hane v the State [1984] PNGLR 105. To ascertain an appropriate sentence in this present case, regard to two factors are considered and these are firstly, whether this is a case that would warrant the imposition of a penalty of 7 years imprisonment, which is the maximum penalty for such an offence?; and secondly whether the court can exercise its discretion to suspend a head sentence once fixed?
16. In the consideration of all of the above and to arrive at an appropriate bar upon which to determine an appropriate sentence for the offence of grievous bodily harm under s 319 of the Code in this case, I note that there are variations in the severity of penalties imposed. Thus am guided by a number of cases, (both reported and unreported) that have dealt with the offence of grievous bodily harm. Although the offence of grievous bodily harm is prevalent, these cases are determined by their relevant facts and circumstances. The factors held to be useful in these determinations include but are not limited to the following consideration: the particulars and antecedents of the accused, interests of the community and the State in general, given the overall accepted objectives, purposes and guidelines in sentencing and principles established by case law on the severity of penalty on particular offences, including sentencing tariffs set under legislation. All these factors have provided assistance in the determination of penalty plus the exercise of discretionary powers provisions under Section 19 of the Criminal Code and Section 3(2) of the Criminal Justice (Sentences) Act which are relevant to the present case and this I now discuss below.
17. In the State –v- Sheekiot (2011) N4454 and State –v- Konos (2010) N4157; his Honour Cannings J, held that a number of factors should be used when determining the severity of sentence involving grievous bodily harms cases. The case on point is the case of State –v- Konos (2010) N4157, where the offender attacked his nephew with a piece of timber fracturing his knee and causing many superficial injuries to his body. His Honour Cannings J., took into account the offenders mitigating factors which include his guilty plea, no prior convictions, de facto provocation, use of a blunt object which caused the risk of fatal injury and early admissions. The aggravating factors against the offender here were the serious injury sustained by the victim and the fact that the offender took the law into his own hands. In his decision on this case, in determining the severity of sentence, his Honour Cannings J., held that the starting point for an offence under Section 319 of the Code should be set at 3½ years. Whilst there was acknowledgement that there was lack of compensation and reconciliation, he imposed a sentence of 3 years which was fully suspended with conditions because of a favourable pre-sentence report.
18. Similarly in the State –v- Sheekiot (2011) N4454, his Honour Cannings J., again set the starting point at 3½ years. In this case, the offender pleaded guilty to cutting his cousin sister on the neck with a bush knife. The offender pleaded guilty and made early admissions and paid compensation as well. Here the offender attacked the victim on a vulnerable part of her body with a lethal weapon and had a prior conviction. However, in spite of the offender having a prior conviction, his Honour Cannings J sentenced the offender to 4 years imprisonment which was also fully suspended on terms. Whilst noting the principles established in these two cases cited above, this court also noted that the sentence is subject to adjustment on a scale which can be moved upwards or downwards in accordance with each particular circumstances of a case. Thus in situations where any or all aggravating factors presented do not favour the prisoner, then it is appropriate to set a head sentence above the starting point of 3 ½ years.
19. Thus when taking these into consideration in light of the aggravating factors established by the case of State –v- Sheekiot (supra) and State –v- Konos (supra), it is evident that these aggravating factors go against the prisoner. As such in applying these guidelines to the present case, it indicate that the bar in determining a head sentence must be raised above the starting point of penalty set at 3½ years set in State –v- Sheekiot (supra) and State –v- Konos (supra). These case laws established the principles that ‘where any or all of these aggravating factors are present then a head sentence above the starting point should be imposed’ and these aggravating factors are:
(i) there is use of a lethal weapon such as a bush knife or axe on an unarmed victim,
(ii) the offender inflicts injury on a vulnerable part of the body,
(iii) the offender is part of a group,
(iv) the offender inflicts multiple injuries on the victim,
(v) the offender attacks the victim with a non-lethal or lethal weapon and the victim suffers permanent disability or life threatening injuries,
(vi) the victim is unarmed or innocent,
(vii) where there is pre-planning
20. Thus in this case, there are a number of aggravating factors against the prisoner; these are that the prisoner was in the company of others when he attacked the victim with a Tramontina bush knife, on a vulnerable part of his body, an attack which is prevalent and particularly where there is no pre-planning involved and the victim is unarmed and innocent. Given that, I have set the head sentence in the present case at a sentence of 4 years imprisonment.
21. However consideration would also be taken into account in relation to the mitigating factors in favour of the prisoner. These mitigating factors were that he had made an early guilty plea, is a first time offender and co-operated fully with the police. The prisoner is a young offender with no formal education level. He was remorseful in his allocutus and has made part payment of the compensation demand made by the victim’s family. In addition, the PSR is also favourable to the prisoner (Public Prosecutor –v- Done Hale (1998) SC 564). The guidelines used in assessing these aggravating factors are:
(i) there is use of a lethal weapon such as a bush knife or axe on an unarmed victim
(ii) the offender inflicts injury on a vulnerable part of the body;
(iii) the offender is part of a group
(iv) the offender inflicts multiple injuries on the victim
(v) the offender attacks the victim with a non-lethal or lethal weapon and the victim suffers permanent disability or life threatening injuries
(vi) the victim is unarmed or innocent
(vii) where there is pre-planning
22. On the other hand, there are also cases which will necessarily attract sentences below the starting point of 3½ years. A case in point is the State –v- Mais (2014) N5838. There the prisoner pleaded guilty to cutting his brother on the left shoulder with a bush knife. His Honour Cannings J. took into account his guilty plea, including the fact that he co-operated with the police and had no prior convictions. He used a lethal weapon on his brother who was unarmed so he was served a sentence of 3 years. None of this was suspended.
23. In this present case, the prisoner pleaded guilty to the charge and has no prior convictions. In addition, the prisoner co-operated fully with the police and his family had paid some part compensation to the victim and his family. The prisoner is a young married man with a young family and appears to be genuinely remorseful. Furthermore, the PSR is favourable to the accused. The PSR also indicated that the family of the prisoner are prepared to pay some form of compensation in the sum of K1, 000.00 and garden food to the victim on behalf of the prisoner. Nonetheless the PSR report also indicate that if further compensation was ordered by the Court then the prisoner and his relatives are prepared to pay. Whilst this court agrees that some form of compensation and reconciliation is necessary, an order handed down by the court requiring the payment of compensation and reconciliation defeats the purpose of a prisoner being genuinely remorseful. This court’s approach (my view) is that ““payment of compensation is a means through which an accused or offender says ‘sorry’ to the victims and their relatives. Therefore, this act of goodwill must be done voluntarily (‘willingly’) by the offenders/accused. It should not necessarily be imposed or ordered by the court”. That is, if a prisoner is ordered to make some sort of compensation or reconciliation to the victim than these form of compensation or reconciliation may not be genuine. This however is dependent on the circumstances of each and every particular case and would not be adopted randomly as there can be situations where for some accused or offender; it can be very difficult where fears of reprisal are evident. Thus orders for payment of compensation and reconciliation by the Courts are necessary.
24. With regard to this case, a number of aggravating factors go against the prisoner. These are firstly, he was in the company of others when he attacked the victim, he used a lethal weapon that is a Tramontina bush knife to cut the victim on the head, the victim was unarmed and that this type of offence is very prevalent. Therefore there has to be some form of deterrent to other offenders. In this circumstance, a term of imprisonment by way of penalty is necessary to discourage others from committing such offences. Most importantly, imposing a stern punishment on those who take the law into their own hand will send a strong message to the perpetrators who breach the laws that they will face the consequence of their actions and will be dealt with according to law. Too often, people for whatever reasons and however justified tend to take the law into their own hands and cause harm on victims who suffer injuries of varying degrees to their persons and at worst lose lives. Thus such unplanned uncontrollable group fighting where weapons of all manner and form are used to attack and maim victims must be dealt with according to law.
25. For the present case, it warrants the imposition of a sentence above the starting point of 3½ years imprisonment considering the guidelines held in State –v- Sheekiot (supra) and State –v- Konos (supra) irrespective of the fact that the accused, being a first time offender and had pleaded guilty to the indictment early and cooperated with the police. There has to be respect for the law and laws must be adhered to. Furthermore, government services such as social services in the provision of access to freeways and highways are free to members of the public irrespective of their race, colour and origin where applicable. In this case, access to the Ramu Bridge was and is without a charge and to force one to pay for such access was illegal in the circumstances.
26. With regard to whether or not, this court can exercise its discretion pursuant to s 19 of the Criminal Code suspend a sentence, this exercise of discretion must be based on proper principles and these are firstly based on favourable Pre-Sentence Report assessment provided in favour of the prisoner. A case on this point is that of the (Public Prosecutor –v- Done Hale (1998) SC 564) where the court exercise its discretion to suspend a sentence based on favourable Pre-Sentence Report assessment which supported suspension of the sentence either wholly or in part and where the suspension of a sentence appropriately encourages parties to reconcile and restore any damaged relationships as held in (Public Prosecutor –v- Tardrew [1986] PNGLR 91). For this case, this court notes a favourable PSR assessment and recommendation for probation supervision including reconciliation with the victim and his family plus members of the community. This court also notes that members of the prisoner's family have already initiated some part payment of compensation which included K500.00 in cash, a life pig valued at about K400.00 and some garden food worth about K150.00 which has already been accepted by the victim and his family. This is an indication of showing how sorry the accused is for causing harm to the victim and his family. This traditional form of compensation payment is important to maintaining peace and harmony within families, communities and the public at large and such gesture must be encouraged, it is also a gesture done without court's order being made to compel you to do so. It is a show of your remorse for the harm occasioned on the victim.
27. In these circumstances, a head sentence of 4 years imprisonment is imposed. However the period of 12 months 5 days is deducted for the time that the prisoner is held in custody pursuant to s 3(2), Criminal Justice (Sentences) Act.
28. Furthermore, in the exercise of discretion under Section 19 of the Criminal Code, I suspend 2 years of the head sentence on the following terms:
(1) That the prisoner reconcile with the victim and restore his relationship with members of his family and the community;
(2) The prisoner shall keep the peace upon his release from custody.
(3) The prisoner is sentenced to serve the balance of sentenced to serve a balance of 11 months 11 days imprisonment at CIS, Bihute.
Orders accordingly
_____________________________________________________________________________
The Public Prosecutor : Lawyer for State
The Public Solicitor : Lawyer for Prisoner
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