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State v Ben (No 2) [2018] PGNC 166; N7255 (20 April 2018)

N7255

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 1354 OF 2017

THE STATE

V

WILLY BEN

(No 2)
Palmalmal: Susame, AJ
2018: 16^th, 17^th, 18^th & 20^th April

CRIMINAL LAW – Sentence after trial - Offence of grievous bodily harm –s 319 Criminal Code Use of bush knife- Injuries sustained deep laceration wound of left ankle with compound fracture of bone- Prisoner was under influence of alcohol - Prisoner not acting in self defence or on provocation- Sentencing range - Offence prevalent - Current Penalty regime inadequate – S 2 Criminal Law (Compensation) Act 1991 – Court’s discretion to award compensation – Maximum allowable under the Act. – 5 years sentence wholly suspended upon probation with conditions.

Cases cited:
Aihi v The State (No 3) [1982] PNGLR 92
Anna Max Marangi v The State SC702
Goli Golu v. The State [1979] PNGLR 653
Paia Lifi v Philip Dege (1981) N291
Taiba Maima v Sma [1971-1972] PNGLR 49
The State v Kevin Ambai N7154

Counsel:
Mr. Lukara Rangan, for the State
Mr. Andrew Tunuma, for the Accused

JUDGMENT ON SENTENCE

20^th April, 2018

1. SUSAME, AJ: Prisoner has been found guilty after trail on 18^th April 2018. This is the judgment on sentence.
   
2. Facts accepted by the court on evidence during your trial was that you came to the camp under the influence of alcohol at about 9:30pm. You behaved in a drunk and disorderly manner and disturbed the people who were playing cards, gambling. That started a scuffled between you and couple of others including the victim. At that time you threatened to use a bush knife but you were stopped. That commotion had subsided and everyone had dispersed.
   
3. Several minutes later at 10:00pm you went searching for the victim armed with a bush knife. When you saw him climbing the steps to his house without hesitation you swung the bush knife cutting his left ankle almost severing it completely. At the particular moment victim was never assaulting or attacking you with any weapons, creating a real danger to your life so you had to defend yourself with the bush knife. If it had been the case your action would be justified and excusable under the defence of self-defence you pleaded but failed. During the day victim had also refused your request to use the tractor he drives to go look for beer. You were not happy with the victim over the earlier incident that night and being drunk you became more agitated causing you to go after the victim cutting him with the bush knife.
   

ALLOCUTUS

4. Prior to court hearing oral submissions on sentence at the allocutus you expressed you were sorry for what you did. It was the first time you committed such an offence. You said sorry to the victim and the court and will pay compensation to the victim. You asked the court to place you on Probation so you can pay compensation to the victim. You said your father and elder brother had passed on since 2006 & 2010 respectively leaving you and your mother.
   

ARGUMENTS

5. Your lawyer told court you are now 24 years old. You have been educated up to grade 4. You were employed as a truck crew with Gilford Ltd, Developer of Pomio Oil Palm project. You were in employment for 12 months when you committed the offence. Your lawyer submitted your case does not fall within the worst type of cases to attract the maximum penalty of seven years for this particular offence. Your counsel further asked the court to consider the means assessment and pre-sentence reports filed by the Probation Officer and take note of your indication to pay K3 000.00 compensation. Counsel made references to two previously decided grievous bodily harm cases of The State v Dapal Ainui (8^th July 2016) CR # 424/16 & The State v John Stanley Galigot (1^st July 2016) CR# 875/16. These were early plea cases with distinct facts. Sentence of 3 years was imposed respectively. Finally your lawyer pleaded for a sentence between 12 months to 36 months to be imposed and wholly suspended with conditions for you to refrain from consumption of alcohol and other illicit drugs and for you to pay compensation within a period of six months of your probation sentence of 2 years.
   
6. Lawyer for the State argued your case does not have extenuating circumstances. Court has found you never acted in self-defence. He submitted factors that weighed against you are the offence was pre-planned. You were under influence of alcohol. You cut the victim in the night causing terror in the community. Victim received permanent injury to his foot. He asked the court to note comments by the committee member Willie Ope at page 4 of the pre-sentence report.
   
7. The State lawyer further asked the court to endorse the sentiments I made in the case of The State v Kevin Ambai (2018) N7154. That there is a changing trend that bush knives which are working tools to help us are being abused and court to impose a tough deterrent sentence. He asked the court to impose a sentence beginning from 7 years down to 5 years. But, the court should suspend part of the sentence with conditions for you to pay compensation and you to refrain from taking alcohol or other drugs.
   

AGRAVATING FACTORS

1. Use a bush knife
2. Extenuating factors absent, attack was unprovoked & not in self defence
3. Prisoner under influence of alcohol
4. Cutting happened under the cover of night

5. Permanent injury/disability received by the victim

MITIGATING FACTORS.

1. Prisoner is a first time offender
2. Expressed remorse.
   

PAYMENT OF COMPENSATION

8. Order for payment of compensation in a criminal case is discretionary and not automatic. Court may refuse to or order specific amount of compensation in addition to the penalty court imposes.
   
9. Court may do that in the exercise of power under the Criminal Law (Compensation) Act 1991 which sets a maximum limit of K5, 000.00 or in the exercise of its inherent powers under ss. 155(4) &166 (1) of the Constitution.
   

COURT’S VIEW ON THE CASE

10. The following factors weigh against you as alluded to by the State Lawyer which I endorse. Your behavior that time was unlawful, frightening and life threatening. You used a bush knife and cut the victim with it in the cover of the night. The victim is now left with permanent disability to his left foot. There are no extenuating factors that I consider would lessen the severity of the sentence court may impose on you. You put up a false defence which the court had rejected.
    
11. Courts have expressed, expression of remorse by a prisoner must be genuine and not a put on remorse. I consider your remorse is not genuine. Why? Firstly, you still maintain in the PSR that you acted in self-defence implying your actions are justified. You have not tangibly done anything to the victim as expression of your remorse for what you did. I doubt very much you will afford to pay any compensation even to the tune of K3, 000.00 as suggested. I know you are now without employment because of the incident. There are no positive indications that other member of your family, friends or relatives will support you financially if the court ordered you to pay reasonable compensation to the victim and others affected by your unlawful act.
    
12. One other thing I want to make mention of is that involvement of members of a particular community in providing information of how prisoner had lived in the community (of course without spite, ill motive or exaggeration) for the court to consider often captured in PSR is worthwhile for sentencing purposes. I have considered information provided by Committee Member, Willie Ope’s about you. Generally, it seems to me you have serious behavioral attitude towards others at the Bruno Camp you were living. These are factors I consider weigh against you even though you are a first time offender with no history of prior convictions.
    
13. You will agree with me bush knives are purchased from the stores as working tools. Instead they are turning into weapons to kill or cause very severe life lasting injuries to people. State lawyer has expressed the same when he stated bush knives are supposed to be working tools to help us but are being abused and used as weapons. It is happening everywhere in Papua New Guinea. I expressed similar remarks in sentencing the prisoner in The State v Kevin Ambai (2018) N7154.
    
14. I am not the only one who expressed such sentiments. Many law abiding citizens and non-citizens in this country including lawyers, magistrates and judges have expressed similar sentiments. For example in the Supreme Court case of Anna Max Marangi v The State (2002) SC702, the court expressed this:
    

“We endorse His Honour’s emphasis on the use of a knife as a lethal weapon to kill another person as unacceptable under any circumstances. To our knowledge, there are increasing instances of manslaughter and murder killings coming before the Courts in which a knife is used to settle domestic differences, with fatal consequences. The use of readily available kitchen knife to settle one’s domestic grievances is prevalent in this country. It is becoming a silent lethal weapon, far more dangerous than other potentially dangerous weapons like axes, bush knives or even guns. The reason for this is because the knife is readily available, it can be easily concealed, and used on unsuspecting unarmed victims who are usually taken by surprise, and used in a calculating and precise manner, that the human body is easily penetrated and vital organs are damaged or even severed. It seems to us that more lives are being lost in this country today from the use of the knife than with any other weapon. Therefore, a strong punitive and deterrent sentence is required.”

15. Having expressed all this, what sentence should the court impose on you in the exercise of its discretion?
    

PENALTY REGIME

16. The offence of grievous bodily harm is provided in section 319 quoted below:

“S. 319 GRIEVOUS BODILY HARM.

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.”

17. The offence under consideration carries a maximum prison term of seven years subject to s 19 sentencing discretion.
    
18. It has been decided by the courts maximum sentence of any crime should be reserved in cases of repeated offenders or cases constituting very aggravating circumstances. (See Taiba Maima v Sma [1971-1972] PNGLR 49, Goli Golu v. The State [1979] PNGLR 653, Paia Lifi v Philip Dege (1981) N291 (M), & Aihi v The State (No 3) [1982] PNGLR 92).
    
19. At the outset your case does not attract the maximum penalty. I agree with your lawyer. This is because it does not consist of very serious aggravating facts and secondly you do not have a history of appearing in court repeatedly for similar or other serious crimes. But you must know that indiscriminate killing and cutting of people with bush knives is prevalent and increasing in Papua New Guinea. And this is a cause for concern.
    
20. In the case of The State v Kevin Amba (supra), I imposed a 5 year sentence. It was a plea case. Considering the prisoner’s early plea and favourable pre-sentence from the Probation Officer the entire sentence was suspended and prisoner placed on Probation for four years with specific conditions. In doing so I was guided by sentences that were imposed in prior decided cases. Few of which are, The State v Simon Tagi (2017) N7027, The State v Kariat (2017) N6904, The State v Lawasi (2015) N5964, The State v Sheekot N4454" title="View LawCiteRecord" class="autolink_findcases">(2011) PGNC N4454 & The State v Konos (2010) N4157.
    
21. I noted sentencing trend, ranged from top of 5 years down to 3 years.
22. I repeat the call I made in The State v Kevin Ambai (supra).
    

“In view of the changing trend and increasing instances of use of bush knives, seriously I think time has come for parliament to increase the current penalties for offences of unlawful wounding and grievous bodily harm. The present penalty regime is inadequate for effective deterrence.”

23. So with respect I am not persuaded by your lawyer’s plea for the court to impose a sentence between 12 months to 36 months for the reasons I alluded to.
    
24. The sentence the court will pass on you should echo the concerns by the courts. I consider that the sentence that will be imposed on you should be retributive and also serve as deterrence. Not only that you might also positively be rehabilitated and become a better behaved person through the many rehabilitation programs and prison gospel ministries that are run in major prisons in the country.
    
25. I have considered and guided by the sentencing trend of the decided cases. I start from the maximum of 7 years and work downwards. To give effect to the sentiments that have been expressed in the judgment and in view of the factual circumstances of the case I will impose a sentence of 5 years jail term on you to be served with hard labour at the Kerevat jail, Kokopo , East New Britain Province. I order that no portion of the sentence will be suspended and you shall serve out your full sentence at Kerevat Prison, Kokopo. I order that 7 months 12 days is deducted for pre-sentence period in custody.
    
26. You will effectively serve 4 years, 4 months & 18 days sentence. You will be given further remission of your sentence by the Kerevat jail command in its discretion.
    
27. No further orders are issued.
    

__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused