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State v Yawing [2022] PGNC 608; N10340 (15 June 2022)

N10340


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR NO. 1201 OF 2021


THE STATE


V.


ANDREW YAWING


Bulolo/Lae: Polume-Kiele, J
2021: 24th May, 2nd August, 3rd, 8th, 22nd, November
2nd, 9th December,
2022: 22nd & 23rd February, 1st March, 13th May, 15th June


CRIMINAL LAW – Guilty Plea – Grievous Bodily Harm, s 319, Criminal Code Act – Plea – Guilty –Victim sustained compound fracture to left forearm- permanent disability - Victim treated at Wau Health Centre and Angau Memorial General Hospital and discharged.

CRIMINAL LAW – Sentence –starting point of 3½ years and head sentence considered – Suspension considered – Criminal Code, s 19, Mitigating and aggravating factors considered.

CRIMINAL LAW – Sentence – 3 years’ imprisonment less the period of 2 years 10 month 2 days that he has been held in custody - s 3 (2) Criminal Justice (Sentences) Act applied– the balance of the Sentence of 1month 28 days is wholly suspended.

Facts:

The brief facts are that on the 12 September 2019, at around 8 p.m. the prisoner swung a grass-knife at the complainant in the dark and when the complainant lifted his left hand to block it, the grass knife cut his hand, splitting the smaller bone in half requiring surgical operation on the left forearm where damaged tendons and blood vessels were sutured. The injury to the forearm is permanent.

The complainant is from Haokini Village and was a student at Kaisenik Primary School and at the time of the incident was living with his father at their house. The prisoner is also an occupant of the same house. It is alleged that at the time of the incident, the prisoner had had some personnel properties and items taken from his room without permission and he suspected that it was the complainant who was responsible for such disappearances. In any event, on 12 September 2019, the complainant saw the prisoner using a file to sharpen his grass knife which he recognised as his, which he had been looking for, but he did not raise this with the prisoner and went home. During the evening, he was still angry about his things going missing and because of that, he shouted and said something to this effect, and I quote: “Yu tasol save stilim ol samting blo mi ah? Yupla ino save askim mi na kisim nating samting blo mi” and was moving towards the prisoner, when he got close to the prisoner, the prisoner swung his grass knife at him, and the complainant lifted his hand to block the grass knife and the end result was that he was chopped on the forearm which injury is permanent.

The medical reports furnished confirmed there are permanent injury and disability suffered by the victim. It is alleged that when the accused cut the victim on the left forearm, he caused grievous bodily harm to the victim, a charge under s 319 of the Criminal Code Act.

The accused by his own plea, pleaded guilty to one count of grievous bodily harm under s 319 of the Criminal Code and was convicted.

Held:

(1) The starting point for sentence of 3½ years for the offence of grievous bodily harm held in (State –v- Sheekiot (2011) N4454 and State –v- Konos (2010) N4157 followed.

(2) A head sentence above the starting point to be imposed in circumstances where aggravating factors exist:

(i) there is use of a lethal weapon such as a bush knife or axe on an unarmed victim
(ii) the offender inflicts injury on a vulnerable part of the body
(iii) the offender is part of a group
(iv) the offender inflicts multiple injuries on the victim
(v) the offender attacks the victim with a non-lethal or lethal weapon and the victim suffers permanent disability or life-threatening injuries
(vi) the victim is unarmed or innocent

(vii) where there is pre-planning

(3) The prisoner's mitigating factors are he pleaded guilty, a first-time offender, cooperated with the police and is remorseful and there was no pre-planning.

(4) The aggravating factors against the prisoner are that a dangerous weapon was used, a grass knife, the victim is unarmed or innocent, the offender attacked the victim with a lethal weapon and the victim suffers permanent disability, the offender inflicts injury on a vulnerable part of the body and this type of offence is very prevalent.

(5) Sentence to 3 years imprisonment, less period of 2 years 10 months 2 days spent in custody. The balance of 1 month 28 days sentence is wholly suspended.
Cases Cited:
Golu –v The State [1979] PNGLR 653
Aihi –v- The State (No.3) [1982] PNGLR 92
Lawrence Simbe v The State [1994] PNGLR 38
The Public Prosecutor –v- Done Hale (1998) SC564
Public Prosecutor –v- Tardrew [1986] PNGLR 91
The State –v- Mais (2014) N5838
The State –v- Sheekiot (2011) N4454
The State –v- Konos (2010) N4157
Paulus Mandatitip and Anor -v- The State [1978] PNGLR 128
Kuri Willie v The State [1987] PNGLR 298
State v Taulaola Pakai (2010) N4125


Counsel:
Ms. S Joseph, for the State
Mr. C Boku, for the Prisoner

SENTENCE

15th June, 2022


1. POLUME-KIELE J: The accused appeared before me on the 22 November 2021 at Bulolo. He pleaded guilty to one count of unlawfully causing grievous bodily harm to one Nickson Peter Augustine, on 12 September 2019: an offence under Section 319 of the Criminal Code. The offence of grievous bodily harm carries a maximum penalty of 7 years imprisonment. The provisions of s 319 of the Criminal Code reads:


“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.


Committal Court Disposition


  1. Ms. Joseph for the State tendered the Lae District Court Deposition (CB No. 35 of 2020) into evidence by consent which comprised of the following:
  2. Upon the reading of the Committal Court dispositions and being satisfied that the evidence contained in the dispositions supported the charge, the prisoner’s guilty plea was accepted, and the prisoner was convicted on the charge of causing grievous bodily harm under s 319 of the Criminal Code.

Antecedent Report

  1. The prisoner is a male adult from Sim Village, Waria LLG, Bulolo, Morobe Province and is 24 years old. The prisoner lives in Wau, with the victim’s family. The prisoner is a self- reliant and does informal activities to support him financially through gold penning. This is the first time that the prisoner has been in trouble with the law.

Pre-Trial Detention


  1. The prisoner was remanded on the 6 March 2020. He has been held in custody for a period of 2 years 2 month 4 days to the date of this decision on sentence.

Allocatus

  1. When administering the allocutus, the prisoner was asked if he had anything to say on the question of penalty. He then responded that he wanted to say something on penalty. In his allocutus, he apologised to the Court and asked for leniency. The prisoner asked that due consideration be given to his case as he is a young offender. He asked that the Court have mercy on him.
  2. However, prior to making a decision on sentence, the defence counsel, Mr. Boku on behalf of the accused applied for directions to be issued to the Community Based Corrections Officer to prepare a Pre-Sentence Report (PSR) on the accused to determine whether or not the accused is a good candidate to be placed on probation supervision or has any means of making paying compensation payment if this Court was minded to make a ruling in relation to probations supervision or compensation payments. The Court in this instance, directed that the Probation Officer, prepare such Report and have it furnished to this Court. These reports have been furnished and I have had the opportunity to peruse. In addition, I have heard submissions on sentence from both Counsels, Ms. Joseph for the State and Mr. Boku for the Accused on 23 February 2022 for and against a custodial sentence.

Pre-Sentence Report


  1. However, before I touch on the issue of imposing a sentence, let me discuss briefly the PSR provided by the Probation Officer, Ms. Jane Taibob on the accused. I note that the PSR is undated but has a return date which is dated the 19 of November 2021. According to the PSR, the accused is from Sim Village, Waria LLG, Bulolo, Morobe Province. The prisoner is an adult male. Prior to this offending, the prisoner lived in Wau with some relatives as he has no knowledge of his biological parents. He was unemployed and supplement his sustenance from informal activities such as gold penning to assist him financially. The prisoner is a first-time offender and has been in custody since the 6 March 2020 when he was remanded. The prisoner has expressed his remorse by saying sorry to the court for taking the law into his own hands and ask that the Court have mercy on him. He also stated that if placed on probationary orders, he will abide by those probationary orders.
  2. Due to difficulties experienced by the CBC officers in obtaining a positive response from the community leaders invited, it was not in a position to compile such a report. At the time that the PSR was conducted, the complainant and his relatives did not come forward to offer any views on the matter. The Probation Officer overall is not in a position to make an assessment on the suitability of the prisoner for probationary orders. However, does note that the prisoner is the first-time offender and has entered an early guilty plea.

Submission on Sentence

  1. Mr. Boku on behalf of the accused submitted that this case is not very serious in comparison to other grievous bodily harm cases. While Mr. Boku conceded that the victim sustained compound fracture to the left forearm, and has since recovered from his injuries, the victim is healthy and able. On the other hand, the Defence Counsel contended that the offence is aggravated by the fact that the victim used a bush knife. This is the first offence committed by prisoner. The prisoner has expressed his remorse by saying that he is sorry for what he has done to the victim.
  2. Mr. Boku submits that a sentence of 2 years wholly suspended is appropriate. He also submits that this court exercise its discretion to suspend the whole or part of this sentence with conditions. Mr. Boku also relied on the following cases State v Allen Ken (Unreported judgment) CR No. 227 of 2019 (17 July 2019, State v Ambai [2018] N7154 to support his submission on sentence.
  3. In reply, Counsel for the State, Ms. Joseph submitted that this type of incident is prevalent and although agreed that such incidents ought to have been amicably settled between the parties, the accused should not have taken the law into his own hands. On that note, I would also make some remarks on such behaviour, and these are my remarks. Taking the law into your own hands is disrespectful to human dignity and in this case, the victim sustained compound fracture to the left forearm which is permanent. The accused by his own plea, admitted to have attacking the victim with a grass knife, a lethal weapon.
  4. Ms Joseph referred this Court to a number of comparable sentences on grievous bodily harm in support of her submission such as the case of The State v Bill Kara, CR No 1214 of 2010, State v Sheekiot (2010) N4454, State v Jet Kundapen, CR No. 611 of 2014, (unreported judgement, State v Matao [2015] N6084, State v Nemao [2015] N6131,

Mitigating Factors


  1. The mitigating factors in favour of the accused where that:

Aggravating Factors


  1. The following aggravating factors go against you-
(1) use of grass knife to attack the victim;
(2) use of excessive force;
(3) the victim was not armed;
(4) injury is permanent
(5) this offence is prevalent
  1. The offence of unlawfully causing grievous bodily harm under Section 319 of the Code carries a maximum penalty of 7 years imprisonment. It is however, well established that the maximum penalty for any offence is always reserved for the worst instances of that offence. (Golu –v The State [1979] PNGLR (653); Aihi –v- The State (No.3) [1982] PNGLR 92). It is also well settled that each case must be treated on its own merits and its own set of facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38. However, Counsel for the State contended that your offence is aggravated by the fact that you used a grass knife on the victim and that this is a very prevalent offence. She submitted that you are a threat to yourself and the society generally whilst conceding that this is your first offence, and you are sorry for your action. In addition, Ms. Joseph also conceded that the PSR is not of any assistance to you and therefore it is difficult to assess how to determine the appropriateness of penalty.
  2. Nonetheless it is the task of this Court to determine an appropriate sentence to be imposed on you, in that; considerations must also be taken into account in relation to whether or not this case deserves the imposition of the maximum penalty of 7 years imprisonment and also to consider whether if the maximum penalty is to be imposed, should consideration be given in terms of suspending wholly or partly a sentence once imposed. Deciding what is an appropriate sentence is not an easy task for this court or a judge as there is no formula or mechanism through which a sentence is rated. The Court in all circumstances is guided by the particularities of a given case, circumstances, and antecedents of the offender and the interest of the State or society generally, including accepted objectives and purposes for sentencing. Plus, sentencing guidelines that have been established by case law and tariffs (in limited areas) enacted by legislation. But in all this, the court has very wide discretionary powers under Section 19 of the Code to suspend wholly or partly a sentence once imposed depending on the circumstances of a case. Furthermore, for purposes of consistency and parity, this Court is also guided by principles already established by case law in relevant facts and circumstances.
  3. For your case, the offence you pleaded guilty to, is very prevalent. A number of these cases have come through the courts; some of these cases (reported and unreported) have been cited by both your Defence Counsel and the Lawyer for the State. References to these cases where relevant will be used to assist this court determine an appropriate sentence.
  4. A case which established the guidelines in setting down the starting point for an offence under s 319 of the Criminal Code is that of the case of the State –v- Konos (2010) N4157 where the offender attacked his nephew with a piece of timber which resulted in the fracture of his knee and other superficial lacerations to his body. Cannings J., in his decision in this case, held that the starting point for an offence under Section 319 of the Code should be 3½ years. Matters which his Honour took into account in determining penalty here was the mitigating factors in favour of the offender, which included his guilty plea, no prior convictions, de facto provocation, use of a blunt object which caused the risk of fatal injury and early admissions. However, the aggravating factors against the offender in that case included the facts that the injury sustained by the victim was serious, the offender took the law into his own hands, lack of compensation and reconciliation, his Honour in that case, imposed a sentence of 3 years. This sentence was fully suspended with conditions because of a favourable pre-sentence report.
  5. In another case again, handed down by his Honour Cannings J is that the case of the State –v- Sheekiot (2011) N4454, His Honour again set the starting point at 3½ years. There the offender pleaded guilty to cutting his cousin sister on the neck with a bush knife. The offender pleaded guilty and made early admissions and paid compensation as well. However, he attacked the victim on a vulnerable part of her body with a lethal weapon and had a prior conviction. His Honour also sentenced the offender to 4 years which was also fully suspended on terms.
  6. In order to determine an appropriate sentence to be imposed, this Court is guided by the starting point for GBH established by the cases of State –v- Konos (supra) and State –v- Sheekiot (supra) and thus say that the appropriate sentence in this case should be set at 3½ years with adjustments upwards or downwards depending on the circumstances of your particular case and applying the guidelines established relating to the aggravating factors that are present in situations where:
  7. There are situations where some cases will attract sentences that will be set below the starting point of 3½ years as established in the case The State –v- Mais (2014) N5838 where the prisoner pleaded guilty to cutting his brother on the left shoulder with a bush knife. The Court in that case took into account his guilty plea, his co-operation with the police and had no prior convictions. On other hand, the prisoner had used a lethal weapon on his brother who was unarmed. The Court in this case imposed a sentence of 3 years imprisonment. None of this was suspended.
  8. In the case of State v Matao [2015] N6084, the prisoner pleaded guilty to unlawfully doing bodily harm to a passenger on a vehicle. The prisoner swore at the complainant and a fight broke out. The prisoner grabbed a bush knife and cut the victim on the head resulting in the victim sustaining lacerations, not life threatening. A head sentence of 4 years imprisonment imposed, less 12 months 5 days of pre-sentence detention deducted. 2 years of the sentence was suspended on terms.
  9. In another case, The State v Nemao, [2015] N6131, the prisoner pleaded guilty to doing grievous bodily harm, the prisoner used a bush knife to cut the victim on the right hand resulting in the victim sustaining lacerations with some blood loss, none of the injuries were life threatening. A three (3) year sentence imposed less pre-sentence custody deducted. The balance of the sentence was wholly suspended on terms including an order for payment of a sum of K2,500.00 compensation.
  10. With regard to the case against you, this Court noted that there are a number of mitigating factors in your favour. These are that you pleaded guilty to the charge, have no prior convictions, and co-operated with the police and that there was no pre-planning. In addition, you also express remorse. However, this Court also noted that you attacked the victim with a grass knife, an offence which is a very prevalent one in community and in your case, you have inflicted injury on a vulnerable part of the body of the victim, such injury means that the victim now suffers permanent disability in the use of his left forearm. Furthermore, the victim was unarmed or innocent. These are matters taken as aggravating factors against you. It should be pointed out that this type of offence is very prevalent and thus a sentence must be seen as a deterrent so that offenders are discouraged from re-offending and that others are discouraged from committing crimes of this nature and or taking the law into their own hands. It is also noted that there is no attempt made at making compensation or reconciliation.
  11. This then leads me to the question as to what the starting point in relation to sentence in your case should be. In order to deter such behaviour, it is proper that a sentence of appropriate proportion be imposed on you and for this, I sentence you to a term of 3 years imprisonment, however, I also noted that you have already been in detention for 2 years 10 month 2 days and thus deduct the period of 2 years 10 months 2 days from the term of your sentence under s 3 (2) Criminal Justice (Sentences) Act. This then leaves the balance of 1 months 28 days of the sentence to be served.
  12. The next issue is to consider whether the balance of your sentence be suspended. Firstly, suspension of a sentence is at the discretion of the Court, to be exercised on proper principles and if it is recommended by a Pre-Sentence Report (Public Prosecutor –v- Done Hale (1998) SC 564). Secondly, suspension may also be appropriate if it encourages reconciliation and restoration of damaged relationships. (Public Prosecutor –v- Tardrew [1986] PNGLR 91). For your case, the PSR does not recommend suspend of the sentence. There was no feedback from the community on this aspect of consultation from community views overall.

Sentence


  1. With regard to the prisoner’s pleas for leniency and being a first time offender in court, this case can be distinguished from the case of Paulus Mandatitip and Anor -v- The State [1978] PNGLR 128 where youth was considered as a mitigating factor or the case of Kuri Willie v The State (1987) PNGLR 298 Hinchliffe, J (as he was then) discussed the need for courts to investigate alternatives to imprisonment when dealing with youthful first time offenders and the need to consider alternative mode of punishment to imprisonment. However although this prisoner is a first time offender and young man, the crime of attempted murder which is committed with such impunity must carry with it some serious penalties as a deterrent factor and I therefore adopt the principle applied by Hartshorn J in the State v Taulaola Pakai (2010) N4125, where he stated that “Court’s should not lose sight of its duty to impose what is a just and fair punishment on an offender." A plea for leniency to avoid the suffering of one's family should have little or no weight when an appropriate sentence is being considered."
  2. In these circumstances, this court considered that incarceration is an appropriate penalty and sentence you to 3 years imprisonment with hard labour. A period of 2-year 10 month 2 days being the period that the prisoner has been held in custody is deducted pursuant to s 3(2) of the Criminal Justice (Sentences) Act. The balance of the term of sentence of 1 month and 28 days is wholly suspended.

Sentence

Having been convicted Andrew Yawing, of one count of grievous bodily harm, he is now sentenced as follows:


Length of sentence imposed: 3 years.

Pre-sentence period deducted: 2 year, 10 months 2 days.

Balance of term of sentence to be served: 1 month 28 days.

Amount of sentence suspended: 1 month 28 days.

Time to be served in custody: Nil


The prisoner is Discharged on the rising of the Court.
__________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Offender

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