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State v Pointer [2016] PGNC 126; N6320 (14 June 2016)

N6320

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No: 1178 of 2011

THE STATE

V

MERIMBA KONDUGL POINTER

Kundiawa: Liosi, AJ
2016: 13^th April, 14^th June.

CRIMINAL LAW – SENTENCE – Grievous Bodily Harm – Criminal Code S.319 and 7 – Guilty Plea – Offender Stabbed Victim on Scrotum after been drunk whilst his accomplice Stabbed the other Victim on the left thigh –Offender acting in concert thereby catching him under s. 7 of the Criminal Code as Principal Offender.

Held

1. The maximum sentence under s. 319 of Criminal Code is 7 years Imprisonment and an appropriate starting point is 2 years.
2. Mitigating Factors include pleading Guilty to 2 counts of Grievous Bodily Harm, he has no prior convictions, there was some defacto Provocation, he is a youthful offender, compensation payment of K1, 300 – cash and a pregnant live pig had been made, he cooperated with the Police, he has expressed remorse and has good family and community support.
3. The Aggravating Factors include use of a deadly weapon being drunk and in company of other drunken accomplices.
4. Head Sentence of 2 years for the first count to be served concurrently with head sentence of 1 year for the second count. Taking into account the 2 years 6 months already spent in custody the remaining 6 months to be served is wholly suspended on conditions.

Cases Cited:
Goli Golu v. The State (1979) PNGLR 653
Public Prosecutor v. Bruce William Tardrew (1986) PNGLR 91
Public Prosecutor v. Don Hale (1998) SC564

The State v. Kopiwan Pupuni (1989) N1709
The State v. Peter Erne (1999) N1939
Yatime Korogula No.2 (2009) N3742

This is a Judgment on Sentence for Grievous Bodily Harm.

Counsel:

Mr. K. Umpake, for the State
Mr. M. Yawip, for the Offender

14^th June, 2016

Facts:

1. LIOSI AJ: The Prisoner pleaded guilty to causing 2 counts of Grievous Bodily Harm to the victims Dokta Turumb and Bruce Lipu. The incident happened at between 8 – 9 pm on 22^nd August 2011 at Kerowaghi Station Chimbu. The two (2) victims after having some beers at a local Guest House were leaving the Premises when the victim Dokta Turumb decided to chew buai at the betel nut market outside the guest house. The co-offender and his 3 other accomplices were also drunk and were hanging around the beetle nut market. The prisoner was armed with a small sharp knife. When Dokta Turumb approached the betel-nut market the offender stepped forward and stabbed Dokta Turumb on his scrotum. Dokta Turumb fell to the ground. Bruce Lipu came to his assistance and was trying to lift him back to his feet when the offender’s accomplice stabbed Bruce Lipu on his left thigh. Because, the offender was together with his 3 other accomplices and acting in concert, he was caught under s. 7 of the Criminal Code as a principal offender.

Antecedents

2. The offender has no prior convictions

Allocutus

3. In his allocutus, he says this incident should not have happened, but Dokta Turumb started it earlier on. He said,” he is a policemen attached to the criminal investigation division. Earlier on, he had gone to the Kundiawa Police Station to lodge a complaint. At the counter of the Police Station Dokta Turumb was drunk and was holding a white can of beer. For no reason he searched the offender with the others then locked them in the Cell-block. Some off duty policeman then told Dokta Turumb to release them. When the prisoner came out of the cellblock Dokta Turumb punched him on the eye for no apparent reason. Sometimes later on he was drinking outside when he saw Dokta Turumb. He got angry for being assaulted earlier on. He then confronted him and they fought. The fight ended up in the stabbing. He is sorry to God and to the Court for what he did. He says he has spoilt his future education. He should have finished his studies after 5 years but this is now uncertain. He asked the court for leniency and to give him a Good Behaviour Bond.

Pre –Sentence Report:

4. The defence did not request for a Pre-Sentence report.

Submission by the Defence Counsel

5. Mr. Yawip of counsel submits in mitigation the following. The offender has pleaded guilty to 2 counts of Grievous Bodily Harm which carries a maximum penalty of 7 years Imprisonment in Hard Labour. At the time of the offence the offender was 16 years old and was attending grade 8 at Baundo Community School at Kerowaghi. He is from Omugl Village Kerowaghi District and is the first born in a family of 3. He was committed to stand trial on the 7^th December 2011 and was in custody when he escaped. Between 2012 – 2013, he secretly attended Grade 9 at Gumine High School whilst at large until he was rearrested in July 2014.
   
6. Mr. Yawip submits that compensation payment of K1, 300- plus a live pig was paid as confirmed by the affidavit of the father Mr. Kondugl Pointer. He submitted that as per the allocutus of the offender, there was defacto provocation and he has expressed remorse. There are no permanent disabilities suffered by the victims. Although, 7 years is the maximum penalty, the court has a discretion under s.19 of the Criminal Code to impose a lesser sentence. He submits a 4 years suspended sentence is appropriate.

State Submission

7. Mr. Umpake of counsel for the State submits the following. The offender was drunk and was in the company of other drunken accomplices. There was no immediate provocation. The offender was armed with a small sharp knife and stabbed the victim Dokta Turumb on his scrotum. The other victim Bruce Lipu wanted to assist him and the prisoner’s co-offender stabbed him on his left thigh. On the issue of compensation, he submits that the compensation only goes to restoration of peace and normalcy and maybe a token of remorse but cannot be used as a substitution for a penalty according to law.
   
8. In determining the appropriate penalty he refers to a number of decided cases. He submits the Sentencing trend highlights sentencing range of 2 up to 7 years in extreme cases with or without suspension. Bearing in mind the deterrent aspect and alcohol related crimes of violence, he submitted a term of 4 years for count 1 and 3 years for Count 2 is appropriate but does not take issue on possible concurrent sentence. This is given the fact that the 2 counts arose out of the same set of facts.

Decision

9. The maximum penalty for the offence is 7 years under s. 319 of the Criminal Code Act. I will use a starting point of 2 years given the circumstances of the case. The Range of sentences where an offensive weapon such as a bush knife is used has been 3-5 years imprisonment depending on the circumstances of each particular case. In this case a small knife was used. In deciding on an imposition of head sentence, the mitigating Factors and aggravating factors have to be weighed out.
   
   In mitigation the following factors were considered.
   

• The Offender pleaded guilty
• First time offender
• Cooperated well with the Police
• Expressed remorse during Allocatus
• Compensation has been paid
• Youthful offender
• No permanent disability were suffered by the victims

The Aggravating Factors are

• Use of a lethal Weapon
• Prevalence of the offence
• Was drunk and in Company of other drunk accomplices
  

10. I place great weight on the offenders Youth that he pleaded guilty and has paid some compensation to the victims. I find that the mitigating factors outweigh the aggravating factors. However it does not take away the fact that any Grievous Bodily Harm case is serious. Although the victims suffered injuries, I note there are no permanent disabilities suffered by the victims. I impose a Head Sentence of 2 years for the first count and 1 year for the second count. This is on the basis that, injury in the first count appears merely serious than the injury in the second count. I note the offender has been in custody for 2 years 6 months. Should all or part of the Head Sentence be suspended? I note that there is no Pre – Sentence Report in this case. I further note that there can be no suspension of sentence without the support of a Pre-Sentence Report. Public Prosecutor v. Don Hale (1998) SC 564. However given the fact that a Head sentence of 3 years has been imposed and that the offender has 6 months remaining of the 3 year sentence, I do not think it is improper to suspend the balance of the 6 months remaining sentence. I note further that the suspension of Sentence may be warranted to promote personal deterrence, reformation and rehabilitation of the offender. Public Prosecutor v. Bruce William Tardrew (1986) PNGLR 91.
    
11. I further note earlier case suggestions that suspending whole or part of the sentence is not been lenient. It is rather a form of punishment aimed at serving one of the important purposes of Criminal sentencing and that is to rehabilitate an offender. I say this also noting the offenders young age. Giving considerations to all the foregoing discussions, I will suspend the 6 months remaining on the following conditions.
    
12. The offender is to:
    1. Immediately enter into his own recognizance to keep the peace and be of good behaviour.
    2. During period of the suspended Sentence the offender must be at home between the hours of 6pm – 6am.
    3. He shall not consume any form of alcohol or home brew during the remaining period of his suspended sentence of 6 months.
    4. He shall be locked up to serve the remaining part of the sentence if any of these terms are breached.
13. Sentenced Accordingly,
    

Public Prosecutors : Lawyers for the State
Public Solicitors : Lawyers for the Offender