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State v Timothy [2017] PGNC 277; N6929 (3 October 2017)

N6929

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 458 OF 2016

THE STATE

V

ULKA AMBANE TIMOTHY

Kundiawa: Liosi AJ

2017: 23^rd April & 03^rd October

CRIMINAL LAW – Sentence – Guilty plea – Grievous Bodily Harm S.319 – Prevalence of offence considered – Committing a wrong to right another wrong is wrong – Cannot commit a wrong and later try to justify it – Sentence of 3 years imposed less custody period – Balance suspended on conditions.

Case Cited:
Goli Golu v. The State [1979] PNGLR 635
State v. Auduwa (2012) PGNC 327; N5169
State v. Bubura [2004] PGNC 194; N2577

Counsel:

Mr. E Thomas, for the State
Mr. M Yawip, for the Defence

DECISION ON SENTENCE

3^rd October, 2017
1 LIOSI, AJ; You pleaded guilty to 1 Count of Grievous Bodily Harm that you on the 1^st January 2015 at Komunoboga Village, Gembogl District, Simbu unlawfully caused Grievous Bodily Harm to another person namely Thomas Laiko thereby contravening S.319 of the Criminal Code. Upon been satisfied there was enough evidence to support the charge and your guilty plea, I convicted you.

2. In view of your request your lawyer asked for a Pre-Sentence Report which I ordered to be furnished to the court. The Pre-Sentence Report was filed on the 3^rd April 2017. On 21^st April 2017 submissions were made by the lawyers, I have adjourned for sentences to 3^rd July but was unable to give my decision until now. The presentence report recommends that you be give a non-custodial sentence as you are considered a suitable candidate for probation supervision.

3. Whether or not you should be given a non-custodial sentence is dependent upon the circumstances in which you committed the offence as well as the lead up to your arrest. This are very important considerations before a decision on sentence can be reached. This is in addition to other factors the court must take into account. So first I deal with the relevant facts. Then I will consider the factors against you. Then the factors in your favour. Looking at all these factors I will then arrive at a decision.

4. The facts of the matter are that on Friday 1^st January 2015 at about 4 pm the victim was at the graveyard to bury his brother William Takai who was murdered at Madang. Whilst crying at the graveyard, you slashed the victim’s left leg with a bushknife inflicting a deep wound. The complainant consequently fainted and was rushed to Gembogl Health Centre then to Kundiawa General Hospital. He was hospitalised for 8 months than discharged. On 27^th November 2015 you were formally arrested and charged.

5. You are 26 years of age married with a child who is 1 year old. You come from a family of 7 and you are the eldest. You completed grade 7 at Mt. Wilhelm High School but you did not continue. You are now a subsistence farmer at home. The victim is your uncle as he is the last brother of the deceased. Earlier your lawyer submits that the victim had raped the deceased daughter. Ashamed of this the deceased had gone to Madang where he was murdered. You had blamed the victim as been the cause of his death. Consequently, whilst the victim was mourning for his brother at the graveside, you said and I quote “You caused him to go to Madang and he died” then you cut him.

6. The deceased is your big uncle and he was the victim’s elder brother. After the assault, you and your father paid K1, 300.00 for medical bills. The victim was hospitalised for 8 months which indicated the gravity and seriousness of the injury. Your lawyer says payment of K2, 000.00 was made although the Pre-Sentence Report only maintains K700.00 totalling K3, 300.00.

7. The wound that you inflicted in the victim was on his achilles tendon which is a major supplier of a blood vessel. There appears to be no updated medical report to advice on status of permanent injury. You were provoked in a sense, you have no priors. You have been in custody for 6 months. Your lawyer says a sentence of 4-5 years suspended would be an appropriate sentence. Your lawyer has not provided any case authorities and does not explain why I should give you a suspended sentence.

8. Mr. Thomas for the state submits the aggravating factors include the prevalency of the offence in PNG. Secondly there are two bushknife wounds in the left leg. One is on the achilles tendon resulting in a 50% loss of the use of the left leg.

9. Your mitigating factors include an early guilty plea, offer to pay compensation to resolve the dispute within the family and the defacto provocation from the victim whom you say caused your uncle’s death.

10. Mr. Thomas cites a number of comparable cases. In the State v Auduwa N5169, the offender cut the complainant on her left ankle with a bushknife causing the victim a 100% loss of the left ankle. The accused was sentenced to 5 years following a guilty plea. Part of the sentence was suspended providing K5, 000.00 compensation was paid.

11. The other case is the State v Bubura N2577 where the offender pleaded guilty to one count of GBH. He speared the complainant in the abdomen after the complainant came to his house and argued with him over a piece of land. The court took into account that the complainant was unarmed, the nature of the injury, difficulties suffered from the injuries and that there was no reconciliation effort made. Despite the guilty plea the prisoner was sentenced to 7 years less the pre-trial custody period of 1 year.

12. In the current case, the victim suffered a 50% loss to his left leg. You and the victim are close blood relatives (uncles). Although compensation was offered it was refused as it did not meet the amount demanded. He submits the mitigating and aggravating factors are balanced therefore a sentence within the range of 3-5 years is appropriate. He further does not have any objections to a probation sentence.

13. The maximum penalty under S. 319 of the Criminal Code is 7 years subject to S.19 of the Criminal Code which allows the court to impose a lesser sentence. Your case does not fall in the worst case category. In mitigation, you pleaded guilty, you have no prior convictions and you have expressed remorse in your allocatus. I also note you have a favourable presentence report and that you have paid some compensation.

14. The issue is what the court should impose as a punishment on you. I have weighed out the mitigating factors for you and the aggravating factors against you. Your mitigating factors are that you pleaded guilty, you have no priors, and you have expressed remorse. Expression of remorse is normally shown through payment of compensation. I note you have shown this as you paid K700.00 for the victim’s medical expenses and you have also offered to pay compensation which the victim refused as been below the amount demanded. In any event I note the fact that you have tried to pay compensation.

15. You have further expressed that you were angry for a number of reasons.
They included allegations of rape against the victim on the deceased’s daughter. You say this was the reason why the deceased left for Madang where he met his death. Whilst I note this, there was no reason for you to have taken the law into your own hands. You should have reported the matter to the police. The court has an obligation to ensure that proper processes are followed. You cannot right a wrong with another wrong. That is why we have a police force so that offences are reported to them to deal with and the court must discourage this kind of behaviour which in my view is akin to payback.

16. I note that you have a favourable Pre-Sentence Report and that you have been considered a suitable candidate for probation supervision. However given what I said above I am not inclined to give you a wholly suspended sentence. Giving you a wholly suspended sentence would mean encouraging others to take the law into their own hands. Committing a wrong to create another wrong and then later trying to justify it is wrong and against the law. People must therefore, be educated and be made to understand this. In the circumstances I will send you to 3 years imprisonment in hard labour.

17. I note you have spent 1 year 3 months in custody hence I will deduct that period which lives you to serve a balance of 1 year 9 months. This will be suspended if you pay compensation in the amount of K5, 000.00 within 6 months from today.
    
18. This includes payment in cash and pigs. I note some cash payments have been made which are to be deducted from the K5, 000.00.
    

Ruling accordingly.
______________________________________________________________
The Public Prosecutor : Lawyer for the State
The Public Solicitor : Lawyer for the Accused