N2033

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1376 of 2000

THE STATE

-V-

NICKSON PARI (No.2)

LAE: KANDAKASI, J.
2000: DECEMBER 5, 12, 20
2001: January 10

CRIMINAL LAW - Sentence - Unlawful grievous bodily harm - Offence committed in course of armed robbery - Guilty Plea - Pre-sentencing report considered - Code Act (Ch.262) s. 319, 18, 19. 

CRIMINAL LAW – Compensation inappropriate to be ordered – Compensation relevant factor only in mitigation – Criminal Law (Compensation) Act 1991, ss. 2 – 7.

Cases cited:
The State v. James Gurave Guba (unreported and unnumbered decision delivered on the 19th of December 2000 here in Lae) CR 340 and 341 of 2000
The State v. Isaac Wapuri [1994] PNGLR 27
The State v. Ottom Masa (unreported and unnumbered judgement delivered in Lae on the 20th of December) CR 542 of 200
The State v. Margaret John (No.2) [1996] PNGLR 298
The Statev. Rex Lilu [1988-89] PNGLR 499
The State v. Abel Airi (unreported but numbered judgement delivered on 28th November 2000) N2007
Tau Jim Anis & Ors v. The State SC 642

Counsel:
N. Miviri for the State
M. Mwawesi for the Defendants

DECISION ON SENTENCE

10 January, 2001

KANDAKASI, J: Following the decision in The State v. Nickson Pari (No.1), the State presented an indictment against the Defendant, this time charging him with one count of unlawfully doing grievous bodily harm contrary to s. 319 of the Criminal Code Act (Ch 262) (hereinafter the Code).

The indictment was presented on the 13th of December 2000. After taking the plea and administering the allocutus, all of, which were uneventful, I adjourned the proceedings to the 20th of December 2000 and requested a pre-sentencing report. That report was compiled and presented to the court on the 20th of December 2000. Both parties were asked to make any submissions they may wish to make if any on the report but they chose not to make any submissions on it. The Court then adjourned the proceedings to today for decision on sentence. The following is the Court’s decision.

Facts

As I said in The State v. James Gurave Guba (unreported and unnumbered decision delivered on the 19th of December 2000 here in Lae) CR 340 and 341 of 2000, at pages 3 to 4 of the judgement, the Court is entitled to gather the relevant facts from the depositions. Accordingly, the facts of this case are taken out of the depositions. I will also take into account the facts presented in the pre-sentencing report.

The prisoner and his father came to Lae about three years ago while his mother is still in their home province and village Kiaru, in the Yangoru District of the East Sepik Province. They do not have a house or place of residence of their own in Lae. So they stay with their relative’s from time to time. Most of the time, the prisoner stayed with his uncle at five-mile block. Neither the father nor the prisoner has any form of employment.

The prisoner is about 18 years old and dropped out of grade 6. Whilst at five-mile in Lae, he spent most of his time with drug dealers and troublemakers or criminals and has a very bad attitude. His uncle thus, became very concerned and at one time paid his ship fares to go back to his village where his mother was but the prisoner returned from Madang.

On the 7th of June 2000, at about 5:00pm, the prisoner left his uncle’s house and meet up with two of his friends with intend to go and hold up and steal from a group of people who were playing cards at four mile. At that time the prisoner was armed with a home made gun and his accomplices were armed with knives. As the prisoner and his accomplices approached the group of people they intended to hold up and steal, a man saw them and notified the others. That destroyed the prisoner and his accomplices plan to hold up those who were playing cards and steal from them. The plan therefore failed. The prisoner and his accomplices thus went and waited for the person who spoiled their plan. Eventually when that man turned up where they were waiting, he was held up and K10.00 was stolen from him. Before fleeing, the prisoner shot the victim with the gun and injured him on the left arm. The victim was taken to the ANGAU Hospital where he was treated and eventually recovered.

The prisoner went to his uncle’s house at five-mile straight after the incident and then fled to Bulolo, the next day. Through excellent police work, the prisoner was eventually arrested and charge for attempted murder. He was subsequently committed to stand trial before the National Court for that offence. On the 5th of December 2000 the State presented an indictment against him for attempted murder but was eventually dropped and charged under s. 319 of the Code following the decision in the judgement in The State v. Nickson Pari (No. 1).

The pre-sentencing report

The pre-sentencing report points out that the prisoner’s uncle does not want to see the prisoner back at his residence and for that matter, Lae. The Community leaders at five mile also do not want to see him back there because they say he is a troublemaker. They prefer him to be sent back to his home village at his uncle’s expense. It reports that K600.00 compensation has been paid to the victim by the prisoner’s relatives without any contribution from the prisoner. That has facilitated good relations between the victim and the prisoner’s relative, which could only be the uncle and the father in the absence of any evidence to the contrary.

The report recommends that the prisoner be given a suspended sentence of 12 months and be placed under a good behaviour bond and on terms to be supervised by the Probation Service’s office at Wewak. That recommendation is made subject to the Court’s sentencing powers.

I repeat what I said in The State v. Ottom Masa (unreported and unnumbered judgement I delivered in here in Lae on the 20th of December) CR 542 of 2000, that:

… a pre-sentencing report cannot substitute or dictate the kind of sentenced to be imposed in any one case. They only assist the courts in the process of assessing what kind of sentence to give in cases before them. The courts still have the power to decide on the appropriate sentence to give after having regard to all the factors that need to be taken into account, including any pre-sentencing report. If the situation were otherwise, than there would be no need for the courts to administer justice in criminal cases.

Thus, I am free to decide and impose whatever sentence I consider appropriate having regard to all the factors attending this case, including, the pre-sentencing report.

Address on sentence

The prisoner in his allocutus and again through his counsel asked for a lighter sentence to be served at Erap Boystown. Mr. Mwawesi, when asked to specify what kind of sentence he was asking the court to give his client, he submitted that anything between a few months to the maximum prescribed by s. 319 of the Code will do for his client, as long as that is not crushing on his client. He did not assist the court with any case authority on point.

In his client’s mitigation, Mr. Mwawesi asked the court to take into account the fact that his client is a young first time offender. He pleaded guilty to the charge and has no prior convictions. He further submitted that, his client has expressed remorse. Furthermore, he submitted that customary compensation of K600.00 has already been paid and that the relations between the victim and his client’s relatives have been restored and they are now living in harmony. He finally submitted that his client has a permanent address in five-mile Lae Morobe Province.

As with his other submissions, Mr, Mwawesi did not assist the Court with any relevant case law on point. In particular I asked him to tell the Court what was the legal position in relation to compensation already paid and what effect it should have on sentencing. Without any case law, he submitted that the fact that compensation has been paid should be taken into account has a factor in favour of the prisoner in his mitigation.

The offence and sentencing trend

The offence with which the prisoner has been charge is prescribed by s. 319 of the Code. It carry’s a maximum of seven years imprisonment. That is however, subject to the discretion vested in the courts under s. 19 of the Code. That provides the basis for a sentencer to impose a sentence, which may consist of one or more of the kind of sentences provided for under s. 18 of the Code.

There appears to be not many reported cases on point. The only latest reported case on point is The State v. Isaac Wapuri [1994] PNGLR 27. That was a case in which the defendant caused grievous bodily harm to a female victim, who was his cousin brother’s wife. Prior to the commission of the offence, the victim made advances for sexual intercourse with the defendant (who was living in the same house as the victim and her husband) but the defendant refused. On the day of the offence, when the defendant returned to the house, he found his cloths thrown all over the place and he believed that the victim did that because of his refusal to accommodate her advances for sexual intercourse. He therefore, picked up a motor vehicle handbrake cable and hit her across the face, causing injuries to one of her eyes resulting in an estimated 90 % loss of its use. 

The National Court imposed a term of 18 months in hard labour. Of that, 5 months already spent in custody was deducted and the balance was suspended with the defendant being placed in good behaviour bond for 12 months and ordered him to pay compensation consisting of K500.00 cash and five pigs valued at K800.

The particular circumstances in which the offence was committed and the defendant pleading guilty to the charge and other good factors in the defendant’s favour caused the Court in that case to impose the sentence that was imposed. 

Present case

In the present case, compensation has already been paid to the victim by the prisoner’s uncle and or relatives. The prisoner is unemployed and has no other source of income. Under the Criminal Law (Compensation) Act 1991, the court has to decide whether or not compensation should be ordered and if so, what means the offender has to meet any compensation order. I have decided against ordering compensation because I consider it inappropriate given that, compensation has already been paid not by the offender but by his relatives and that he is unemployed and has no source of income. This is consistent with the Act and the case law on it. A recent example of that is, The State v. Margaret John (No.2) [1996] PNGLR 298, where His Honour, Injia, J. decided not to order compensation because a means assessment report he called for and received showed that, the offender did not have the means to pay or meet any order for compensation.

The only issue for me to decide is, whether or not I should take into account as a factor in the prisoner’s favour the fact that compensation has already been paid. It is the law now that compensation is not and cannot be a substitute for criminal penalty. It is only relevant has a factor in mitigation. See The State v. Rex Lialu [1988-89] PNGLR 499 and The State v. Abel Airi (unreported but numbered judgement delivered on 28th November 2000) N2007, at page14. Whether compensation already paid or not, should still in my view, be a factor for consideration only has a factor in mitigation. That should be the case in which the offender is actually making the compensation payments. If he plays no meaningful part in the organisation and payment of compensation, but other members of his family or community is, it should not operate in his favour. This is because the whole basis of our criminal justice system is based and any penalty imposed is dependant on the offender’s culpability (see The State v. Abel Airi (supra) at page 6) and he is the only one that is personally responsible for his actions. It is also apparent from a reading of the provisions of ss. 2 to 7 of the Criminal Law (Compensation) Act 1991, especially the wording in ss 2(1) which sets the context in which the other provisions and hence the Act is to apply. It makes it clear that compensation is in addition to other punishments that may be imposed and is not a substitute or replacement for the prescribed punishments. Section 2(1) reads:

(1)	Notwithstanding that payment of compensation is not specified as a punishment for an offence, a court may, in addition to any other punishments imposed, order an offender to pay compensation in accordance with this Act. 
									(Underlining mine)

The other provisions then provide as to the factors to take into account before making a decision as to whether or not to order compensation (s.3), the need to get an assessment on what means an offender has to meet an order for compensation (s.4), the terms for making compensation orders and the penalties that can be imposed for non compliance of compensation orders (Schedule to the Act).

This is why the Courts in cases like that of The State v. Margaret John (no.2) [1996] PNGLR 298 have decided not to order compensations against persons other than the offender. That was a case in which the defendant was in a way caused to commit an act of murder by her husband but the Court decided that only the offender was responsible for her own actions. In so doing the Court did not prevent the husband from paying compensation to the deceased’s relatives in accordance with custom to fix up relations between his line and that of the deceased.

For the case before me, there is no evidence to show that the prisoner paid the K600.00 compensation. Instead there is evidence such as the fact that he is not employed and has no source of income, which indicate that he had no means and does not have the means to pay any compensation. Further there is no evidence to show that the prisoner has personally made up to the victim and they are now in good terms. I therefore, reject the submission that I should take into account the fact that compensation has already been paid as a factor in favour of the prisoner.

I do however, take into account the other factors in the prisoner’s mitigation and thus in his favour. These are his pleading guilty to the charge. He is a first time young offender and he has expressed remorse. Nevertheless in respect of expression of remorse, may I reiterate what the Supreme Court said in Ala Peter Utieng v. The State (unreported and unnumbered judgement of the Supreme Court delivered in Wewak on the 23rd of November 2000) SCRA 15 of 2000 at page 5:

In passing, we make one observation in relation to the Appellant’s plea for mercy and leniency both before the National and this Court on the basis that, he is married, his parents are deceased and he is sorry for what he has done…. Also, as the Bible says, he should have shown mercy and care first before asking the Courts to be merciful with him. Besides, as we said yesterday in the Rudy Yekat case, the Appellant’s utterance of sorry must be accompanied by something tangible which befits the wrong he has brought upon the victim, her family and relatives, if such utterances are to be of any value and meaning. In the present case, there is no evidence of the Appellant paying any compensation or has taken any step to correct the wrong he has perpetrated. This Court or any other court for that matter should be slow to act on such meaningless and or valueless pleas for mercy or leniency
							(underlining mine)

In the present case, I did not get the impression that the prisoner was genuine when he said he was sorry for what he did to the victim and committing the offence. This is confirmed by the lack of any evidence of the prisoner personally paying the compensation and approaching the victim and saying sorry and doing something to show his remorse.

I take the circumstances in which the offence was committed to be serious and the sentence must reflect that fact. As noted earlier, the offence was committed in the course of or in the pursuance of a more serious offence, armed robbery. Armed robberies are on the increase and the sentences have now been increased. This is in answer to the society’s call for tougher penalties. Armed robbery on a street such as was the case in the present, has the starting point of 8 years now: See Tau Jim Anis & Ors v. The State SC642 on a plea of guilty.

I also take into account the fact that the prisoner was armed with a home made gun, which was intended to be used for the purposes of carrying out a robbery of people, who were playing cards. The victim however, stepped in the way of the prisoner and his accomplices and they decided to shot him for that. Fortunately, the victim only sustained injuries to his arm and escaped death. The prisoner and his accomplices also stole from the victim. The prisoner’s action has forced his uncle and his relatives, without any help from him to pay the K600.00 compensation. I further take into account my observation that the prisoner has not expressed any genuine remorse.

Placed against the above background, I also take into account the fact that the prisoner is a young first time offender. Both of his parents are alive with the mother living in his home village in the Yangoru District East Sepik province, while his father is living from house to house in Lae. He is the second born in his family. The prisoner is educated up to grade six and has no employment or any permanent source of income. He has been accommodated and looked after by his uncle in Lae. I also take into account the pre-sentencing report.

Taking into account and considering all the above factors and considerations, I consider a sentence of 4 years in hard labour appropriate. Of that I will deduct the period of 7 months he has already spend in custody awaiting his trial. That will leave him with 3 years and 5 months. Out of that I am prepared to suspend a period of 2 years provided he enters into a recognisance to be of good behaviour for a period of two years and return to his village (the expenses of which shall be paid by the prisoner himself or his relatives) after serving 1 year 5 months in hard labour and meet the following additional conditions:

1)	Be not in the company of other boys or men of his own age group or any other group except for the purposes of meeting any of the conditions hereinafter stated.

2)	Abstain from getting, consuming or dealing with any form of alcohol or drug of whatsoever description and or make.

3)	Abstain form carrying any offensive weapon of any sort and whatsoever description.

4)	Attended church services with his immediate family members every Sunday or Saturday has the case may be.

5)	Be home bound between the hours of 6:00pm and 6:00am.

6)	Render free community services either at the Yangoru District police station, the health centre or the district office at the supervision, direction and control of the police or probation service.

7)	Allow probation service to closely monitor his compliance of these terms and report to this court on a quarterly basis.

I also direct and or request the probation service to check on the prisoners compliance of these terms on a regular fortnightly basis and report to this court on a quarterly basis. If the prisoner fails to meet any of these terms, the suspended term will be immediately lifted from the date of first default and he shall serve the balance of the term in hard labour at the nearest Correctional Institution. 

The decision to suspend part of the sentence has not been lightly arrived at. It has been arrived at after carefully considering and weighing the interest of the community to punish offenders and the interest of an offender to be given the opportunity to rehabilitate, especially for young first time offenders. Giving the prisoner such a suspended sentence is not an exercise in leniency but is a form of punishment and serves the community interest of rehabilitating offenders with a view to help offenders not to re-offend and hence minimise the level of crime in society. See The State v. Abel Airi (unreported but numbered judgement by myself delivered at Waigani on the 28th of November 2000) N2007, at pages 10, 11, 12 and 15 for a detailed discussion on this point.

Finally the court recommends that the term of 1 year 5 months be served at the Erap Boystown.
_____________________________________________________

Lawyer for the State:			Public Prosecutor
Lawyer for the Defendant:		Public Solicitor