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State v Robert [2019] PGNC 369; N8060 (23 September 2019)

N8060

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 756 & 757 of 2018

THE STATE

V

GORDON ROBERT
NILIGUR MAIRA

Kokopo: Susame AJ
2019: 16^th August, 4^th, 6^th, 23^rd September

CRIMINAL LAW – Offence – Grievous bodily harm – s 319 Criminal Code – Sentence on plea – Starting sentence of 4 years – Mitigating factors outweigh aggravating factors – No use of objects and weapons – A single punch and a single kick - Prisoners active participants – 2 years effective sentence wholly suspended upon probation with conditions

Cases Cited:

The State v Boala [2013]PGNC 180, N5369 (25 September 2013
The State v David Matalau CR993 of 2016 (23 September 2019 )
The State v Kerry Reuben Trowen (2002) N2239
The State v Rose Yahriha N1741
The State v Rummints [2012] PGNC 275 N490 (21 November 2012
The State v Vincent Naiwa (2004) N2710 (22 June 2004)
The State v Vincent Naiwa (2004) N2710 (22 June 2004)

Counsel:

Miss. J Batil, for the State
Ms. C Pulapula, for the Accused

DECISION ON SENTENCE

23 September, 2019

1. SUSAME AJ: You both pleaded guilty to one count of grievous bodily harm under s 319 of the Criminal Code. You both appear today to receive your sentence.

Facts

2. Facts upon which you were convicted are these. The incident happened between 9 and 10 o’clock in the night on eve of Christmas, 25 December 2016. You were then under influence of alcohol and walking along the road to Submarine Bay, at Tavui village. It so happened that night complainant was walking along the road also under influence of alcohol. He had been to a family gathering at his father’s house and was walking back home.

3. You saw the complainant and called out to him. Complainant responded directing insults same time he flashed his torched at Gordon. One of your colleagues Jeffery Cosma approached the complainant and asked for a cigarette. Complainant started searching his bilum to offer a cigarette when Gordon punched him by surprise on the right side of his face. Complainant fell down and was lying unconscious on the ground when Niligur Maira came and kicked him on his face. After that you fled from the scene, leaving Jeffery behind with the complainant. Jeffery was waking up the complainant when Complainant’s uncle Ilai Marat came on the scene when he heard complainant calling out. He came and fought Jeffery who ran away.

4. As a result of the assault complainant received multiple injuries to his face and mouth. Medical examination on 28 December 2016 at Nonga Dental Clinic revealed complainant had a swollen and painful mouth. He had difficulty to fully opening his mouth and had difficulty eating. X –ray taken revealed he sustained a fracture to his lower jaw bone with slight mobility of his teeth. (Refer to medical reports dated 29 December 2016 & 27 January 2017)

Address on Sentence

5. You were given opportunity to speak in regard to your penalty at the allocutus.

6. Gordon Robert said: You apologised for the delay in coming to the court because of bus fare problem and transportation difficulty. You said you live at a far distance. You asked the court to be lenient on you.

7. Niligur Maira said: You said sorry to the court. This was your first time to appear in court. You asked the court for leniency. You asked the court to go back home and compensate the victim.

Submissions

8. Counsels have addressed the court on sentence. Court has taken note of the submissions. Mr. Tugah considered 3-4 years sentence is appropriate as he was of the view there were more aggravating factors than the mitigating factors. Ms. Pulapula of the prisoners asked for a suspended sentence as she was of the view there were more mitigating factors than the aggravating factors.

Sentencing Considerations

9. Maximum penalty provided for this particular offence is imprisonment for a term not exceeding 7 years. In practice maximum penalty is usually reserved for a case rated as the worst type consisting of very grave facts and features. This case lacks such facts and features to be categorised as the worst type to attract the maximum penalty. A sentence lower than the maximum will be considered in the exercise of my discretion under section 19 of the Criminal Code.

Aggravating Factors

10. These factors weigh against you.

• Excessive force was used upon a lone victim
• Offence prevalent
• Victim received injuries to his mouth and fracture to his lower jaw bone.
  

Mitigating Factors

11. Factors that serve in your favour are:

• First time offenders
• No weapons were used
• You both cooperated with police in making early admissions to guilt
• Both pleaded guilty to save court’s time and resources
• You both were remorseful and willing to compensate the victim. 20 fathoms of tolai people’s legal tender equivalent to K100 has already been paid and received by the victim’s parents.
• You both acted out of de facto provocation when victim directed verbal insults at you.
  

12. In my assessment mitigating factors far outweigh the aggravating factors.

Pre-Sentence Report

13. I have read the report. It is a balance report in the sense that complainant and his father’s views have been capture. What comes out from the report is your willingness to pay compensation apart from the amount that has initially been paid and willingness to reconcile with the complainant and his family. Complainant and his father are in agreement with that proposal.

Sentencing Guidelines & Tariffs

14. Few cases have been referred to by the counsels which will serve as guide towards reaching an appropriate sentence. Different sentences were imposed from 18 months in The State v Rose Yahriha N1741 to 4 years in The State v Rummints [2012] PGNC 275 N490 (21 November 2012) and The State v Boala [2013] PGNC 180, N5369 (25 September 2013). In few cases sentences have gone up to 5 years to 6 years like in The State v Vincent Naiwa (2004)N2710 (22 June 2004) and The State v David Matalau CR993 of 2016 ( 23 September 2019 ) which I just dealt with. State v Kerry Reuben Trowen (2002) N2239 is perhaps the only recorded case which court imposed the maximum sentence of 7 years. All the above cases involved use of lethal weapons and objects under various circumstances.

15. This case defers in facts from the cases referred. No objects or weapons were used in the assault of the complainant. You were both active participants in the assault of the complainant. Gordon directed a single punch on the victim’s face and Niligur kicked the victims face once. You both will receive the same sentence and I concur with Mr. Tugah.

I will maintain that starting sentence will be 4 years as I decided in The State v Morris Kramar Cr. N0. 1375 of 2018 (10 May 2019) and followed in The State v David Matalau (supra).

16. In your case mitigating factors far outweigh the aggravating factors. Sentence I will impose will go down lower.

17. In the exercise of my discretion I impose this sentence.

1. You are each sentenced to 2 years with hard labour.
2. For prisoner Gordon period of 19 days in custody to be deducted.
3. Sentence is wholly suspended and you are released on probation for two years
4. Furthermore in addition to mandatory conditions of the Probation Sentence you both shall pay compensation of K1000.00 with 100 fathoms of shell money equivalent to K500.00 in equal percentage.
5. Prisoners to comply with order 3 within 3 months during a reconciliation ceremony to be witnessed by the Probation Officer, Village Magistrates, Ward member and Church Pastor.
6. Prisoners are restraint from taking alcohol while serving their probation sentence.
7. You both shall perform community work at the church, school and the village cemetery for period of three months.
8. You both shall attend church services each Sunday while serving your probation sentence.
9. You shall not change your residential address without informing the Senior Probation Officer or his colleague Officer.
10. You shall not leave East New Britain Province without the leave of this court while you are serving your sentence
11. You shall report to the Senior Probation Officer, Kokopo within 24 hours and get directions.
    

18. Your bails monies shall be refunded to you forthwith.

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Office of the Public Prosecutor: Lawyers for the State
Office of the Public Solicitor: Lawyers for the Prisoners