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State v Teine [2021] PGNC 70; N8811 (8 March 2021)

N8811

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1129 OF 2020

THE STATE

V

JASON TEINE

Goroka: Gora J
2021: 10^th February & 8^th March

CRIMINAL LAW- Charge of Grievous Bodily Harm- Section 319 of Criminal Code- Guilty plea- Aggravating Factors- Under the influence of liquor- Victim a relative and of old age.

CRIMINAL LAW- Sentence should reflect severity of injuries suffered and prevalence of offence- Sentence of 2 years appropriate under the circumstances- Favorable Pre-Sentence Report- Sentence wholly suspended with orders for compensation payment.

Cases cited:

Goli Golu v The State [1979] PNGLR 653
Avia Ahi v The State [1983] PNGLR 92
Ure Hane v The State [1984] PNGLR 105
Lawrence Simbe v The State [1994] PNGLR 38
The State v Konos [2010] N4157
The State v Mais [2014] N7850
The State v Boala [2013] PGNC 180: N5369
The State v Kos [2013] PGNC 221: N5365
The State v Sam Piapin [2009] PGNC 227; N3585
The State v Wan Minimbi, CR No. 599 of 2012
The State v Sheekiot [2011] PGNC 40; N4454
The State v Konos [2010] N4157

Counsel:

Mr. J Noma, for the State
Ms. G Apa, for the Defendant

DECISION ON SENTENCE

8^th March, 2021

1. GORA J: INTRODUCTION: Prisoner JASON TEINE age 23 years of Bunn village, Chuave, Simbu Province was indicted with one count of causing grievous bodily harm to one Timothy Linogo, age 65 years old. He pleaded guilty to the charge hence this decision on sentence. The indictment is in the following terms:
   

“JASON TEINE of GUNN Village, CHUAVE DISTRICT, SIMBU PROVINCE stands charged that he on the 08^th day of July 2019 at Okiufa in Papua New Guinea unlawfully did grievous bodily harm to one TIMOTHY LINOGO.”

Brief Facts

2. Facts in brief are that on the 08^th of July 2019 at about 4.00am the Prisoner Jason Teine went to the victim’s home at Okiufa in Goroka. The victim Timothy Linogo is a relative of the Prisoner being his grand-father, his grand-mothers brother. The Prisoner was angry at the victim for calling him names previously so he went to the victim’s house to confront him. The Prisoner did not see the victim standing behind the gate of his premises. The Prisoner flung open the gate which hit the victim on his face, causing him to lose balance and tumble over as the gate was on a down-hill slope. As a result, the victim sustained injuries to his head and was taken to the hospital for medical attention. The State says that by his actions the Prisoner contravened Section 319 of the Criminal Code.
   

Issue

3. What is the appropriate sentence to impose on the Prisoner?
   

The Law

4. Section 319 of the Criminal Code creates the offence of Grievous Bodily Harm. It also prescribes the penalty. The provisions read:
   

“A person who unlawfully does grievous bodily harm to another person is guilty of a crime. Penalty imprisonment for a term not exceeding seven (7) years.”

5. Maximum penalty prescribed by law is seven (7) years imprisonment. However, it is well settled principle of law in this jurisdiction that the maximum penalty is reserved for the worse type of cases or scenarios as observed on the cases of Goli Golu v The State [1979] PNGLR 653; Avia Ahi v The State [1983] PNGLR 92; Ure Hane v The State [1984] PNGLR 105.
   
6. It is also a trite principle of law that each case must be determined according to its own peculiar facts and circumstances as observed in the case of Lawrence Simbe v The State [1994] PNGLR 38.
   
7. Section 19 of the Criminal Code also gives court an unfettered discretion to consider alternative forms of sentence other then what is prescribed by law.
   

Application of the Law

Case Authorities

8. Decided case authorities on Grievous Bodily Harm cases provide some guide for comparison purposes, particularly where the accused person has pleaded guilty to the charge. It is worth noting some of these case authorities:
   
   • (i) The State v Konos [2010] N4157- In this case a man pleaded guilty to unlawfully causing Grievous Bodily Harm to his nephew by attacking him with a piece of timber fracturing his knee and inflicting many other superficial injuries by multiple blows. He was sentenced to three (3) years imprisonment which was fully suspended in view of a favorable Pre-Sentence Report with conditions including payment of compensation and a reconciliation ceremony.
     
   • (ii) The State v Mais [2014] N7850- In this case a man pleaded guilty to unlawfully causing Grievous Bodily Harm to his brother. He cut the victim on his left shoulder with a bush knife. He was sentenced to three (3) years imprisonment. Pre-sentence period in custody was deducted with no part of the sentence suspended.
     
   • (iii) The State v Boala [2013] PGNC 180: N5369- In this case the offender pleaded guilty to one count of causing Grievous Bodily Harm to a Maritime safety officer at Kimbe main wharf. The offender hit the victim with a paddle on his arm and head resulting in the victim receiving a fractured left arm. The attack was unprovoked but had a favorable Pre-Sentence Report. He was sentenced to four (4) years imprisonment which was wholly suspended with conditions, including payment of compensation in the sum of K2000 within four weeks from the date of the orders.
     
   • (iv) The State v Kos [2013] PGNC 221: N 5365- In this case the offender pleaded guilty to one count of causing Grievous Bodily Harm to his wife. He heard rumors that his wife was having an extra marital affair. He assaulted his wife with an axe and chopped off her fourth and fifth fingers. He then locked her in a room in the house, but she managed to escape and sought medical attention. Offender was sentenced to four (4) years imprisonment but was wholly suspended on favorable Pre-Sentence Report with conditions including an order for payment of compensation in the sum of K4000 plus a live pig valued at K1000.
     
   • (v) The State v Sam Piapin [2009] PGNC 227; N3585: N3585- In this case the offender and the victim were close neighbors. A dispute arose between them over land boundary they shared. During the confrontation, the offender swung a spade at the victim. In an attempt, to protect herself the victim lifted her hands up but because the spade was swung with great force, it hit the victims left arm and severed her ring finger. The offender pleaded guilty to one count of Grievous Bodily Harm. He was sentenced to three (3) years imprisonment less time spent in pre-sentence custody with balance suspended with conditions including an order for community work during the suspended term.
     
   • (vi) The State v Wan Minimbi, CR No. 599 of 2012 (Unreported and unnumbered Judgement by David J) - In this case the offender pleaded guilty to one count of causing Grievous Bodily Harm to her husband. The offender saw her husband with his second wife at an ATM in town. This provoked her and she attacked her husband with a bush-knife. The first swing struck the victim on his left leg severing the Achilles tendon. The second swing struck the victim on his head, but the victim caught the blade with his hand causing deep lacerations to his right hand. Offender was sentenced to four (4) years imprisonment less pre-sentence confinement period. The remaining balance was suspended with conditions including payment of compensation of K1000 and community service work during the suspended term.
     

Sentencing Range

9. It is clear from these case authorities that sentencing range for Grievous Bodily Harm cases on a guilty plea and with favorable Pre-Sentence Report lies between 3 to 4 years imprisonment. It has been suggested that three and half years, imprisonment should be the starting point as observed in the cases of The State v Sheekiot [2011] PGNC 40; N4454 and The State v Konos [2010] N4157 (Supra).
   
10. In the present case State submitted that where victim suffers serious injury caused by the actions of the Prisoner, the prevalence of such offence and ones taking the law into his own hands, two (2) years imprisonment should be the starting point. Therefore, a sentence of two and half years would be appropriate for the Prisoner.
    
11. Defense counsel on the other hand submitted for a sentence of two years imprisonment as being appropriate for the prisoner.
    

Circumstances of the offence

12. The prisoner was drunk and kicked open the gate of the victim’s premises. Time was around 4.00am. Victim was asleep but woke up when he heard noise at the gate of his premises and walked out to see what was happening when the Prisoner flung open the gate and hit the victim on the head causing severe brain injuries as shown by the Medical Report. This in my view demonstrate that high degree of force was applied by the Prisoner when he flung open the gate.
    

Mitigating Factors

13. I take into consideration the mitigating factors which weigh in favor of the Prisoner. He gave himself up to the police soon after committing the offence. This in my opinion was good on his part because he realized at that point in time that he had committed an offence.
    
14. The Prisoner also made early admissions and pleaded guilty to the charge thus saving court and the State time and resources in running a trial. He is also a first-time offender with no prior conviction records held against him. This shows that he has generally been a law-abiding citizen but for this incident.
    
15. Prisoner has also expressed remorse for his actions and has made attempt to pay compensation, but the victim’s immediate family members refused any offer of compensation. There was no serious intention to cause grievous bodily harm.
    
16. Prisoner’s actions were not pre-meditated or pre-planned and there was a de-facto provocation when the victim called the Prisoner names on some previous occasions.
    

Aggravating Factors

17. Equally I must take into consideration the aggravating factors which does not weigh in favor of the Prisoner. The Prisoner was under the influence of liquor at that time and he attacked the victim at his own home in the early hours at 4.00am. This is unacceptable.
    
18. The Prisoner took the law into his own hands when he flung open the gate of the victim’s premises thereby causing serious injuries to the victim’s head which required immediate medical attention. The victim is of old age being 65 years old at the time when he was injured. In-fact he is a grand-father to the Prisoner being his grand-mother’s brother. According to Medical Report compiled by Dr. Leonard Numu Kaupa, the victim suffered severe brain injuries. The summary of the medical report at page two concluded:
    

“He sustained a very severe brain injury on 08^th June 2019 and the main control centers of his brain have been severely injured... He is recovering very slowly. He is severely disabled and is being managed like a new- born baby.”

Pre-Sentence Report

19. A favourable Pre-Sentence Report was submitted by the Probation Service but left the matter to the court to exercise its’ discretion.
    

Sentence

20. The offence of Grievous Bodily Harm is prevalent in many communities. This reflects the type of mind set we have when it comes to use of common sense and rational thinking. People often resort to violence and take law into their hands rather than allowing matters to be settled according to law. It serves no purpose when one commits a crime and then asks for courts mercy. It is common saying that “you think before you act” and not the reverse.
    
21. Actions of the Prisoner at that time was unlawful and uncalled for when most people were still asleep at 4.00am. He took the law into his own hands and caused serious life-threatening injuries to the victim.
    
22. A deterrent approach should be seriously considered when it comes to sentencing.
    

Orders

(i) Prisoner is sentenced to two years imprisonment in hard labor less time spent in Pre- sentence custody of 3 months and 3 weeks.

(ii) Remaining balance is wholly suspended with condition that the Prisoner pays compensation of K2000 to the victim within two months from the date of this orders.

Ordered accordingly
________________________________________________________________Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant