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State v Perus [2019] PGNC 99; N7816 (12 April 2019)

N7816

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR NO 196 of 2018
CR NO 197 of 2018

THE STATE

V

DOUGLAS PERUS

AND
CHANNEL LAVANEN

Kavieng: Kangwia, J.
2019: 11 & 12 April

CRIMINAL LAW – Sentence – Grievous Bodily Harm caused in a prison setting – Main aggravating factor - Prisoners and victim serving sentence in Correctional Institution when offence committed – Prisoners not first-time offenders – No other sentence apart from a custodial sentence relevant – Sentenced to two years to be cumulative to current sentences - Sentences to be delayed to when they reoffend – Sentence not to apply if they complete current sentences without reoffending.
Cases Cited:

State v Augustine Lopulopu (2016) CR No 45 of 2016 (Unreported Judgement of 21 May 2015
State v Fhryle Aliu (2014) (CR NO 1233 of 2014 (Unreported Judgement of 17 September 201)
State v Wali Pyakai (2011) N4262
State v David Carol (2009) N3762

Counsel:

S. Luben, for the State
A. Tunuma, for the Defence

12^th April, 2019

1. KANGWIA, J.: The Prisoners are appearing for sentence after they were convicted on their guilty plea to one count of Grievous Bodily Harm (GBH) under s. 319 of the Criminal Code Act. The offence attracts a maximum penalty of 7 years imprisonment.
   
2. Both prisoners are currently serving time at CS Kavieng. Prisoner Douglas Perus was serving a sentence of 17 years for Murder while Channel Lavanen was serving a sentence of 12 years for manslaughter.
3. On their behalf Mr. Tunuma submitted that in the prisoner’s favors are that they have pleaded guilty early. They have co-operated with authorities during investigations into the offence and that they had a reason for the assault which they uttered in allocutus. While citing the cases of State v Augustine Lopulopu (2016) CR No 45 of 2016 (Unreported Judgement of 21 May 2015) and State v Fhryle Aliu (2014) (CR NO 1233 of 2014 (Unreported Judgement of 17 September 2014)
   
4. Mr. Tunuma submitted that the present offence was not serious and a concurrent sentence should be imposed.
   
5. On behalf of the State Ms Luben submitted that the offence is serious and prevalent. In the present case the victim sustained loss of one tooth and mobility to other teeth. The prisoners committed an offence of violence in a prison setting. While referring to the cases of State v Wali Pyakai (2011) N4262 and State v David Carol (2009) N3762 where suspended sentences were imposed Ms. Luben submitted that in the present case a sentence of one to two years be imposed to be served cumulatively to the sentences they were currently serving.
   
6. I consider the cases cited by defence as more serious in nature where lethal weapons were used. The present case involved the use of a fist from which the victim sustained injuries. Even if the victim had prior defects in his tooth it was aggravated by the prisoner’s assault.
   
7. The underlying reason for the assault seems to be associated with suspicion of being reported to Corrections Officials which in my view is no justification for the assault.
   
8. The prisoners and their counsel requested that any sentence imposed be concurrent to the sentences they are serving at present. The State however pressed for a cumulative sentence.
   
9. Probation or compensation orders are not possible in their situation.
   
10. I accept that the offence falls into the less serious category of GBH. The injury sustained by the victim was not life threatening.
    
11. Despite that, the present case warrants a custodial sentence because it occurred inside a Correctional Service facility where such offence is least expected of serving prisoners.
    
12. The sentencing range of the Courts for Grievous Bodily Harm under s.319 is varied from Good Behavior to terms of imprisonment. The sentence variances in my view are due mainly to the circumstance of each case and the extent of injury sustained.
    
13. In the present case the victim did not sustain any permanent injury apart from the loss of a tooth including the pain and suffering associated with the assaults.
    
14. The prisoners are therefore sentenced to two (2) years imprisonment. The period of sentence shall be cumulative only when the prisoners commit another offence while serving their current terms of imprisonment. If each prisoner serves his earlier sentence without committing any other offence, the two-year sentence for this offence shall not apply.

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