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State v Sambrai [2005] PGNC 48; N2886 (21 July 2005)

N2886

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE IN MADANG]

CR 1251 OF 2004

THE STATE

-V-

YALE SAMBRAI

MADANG : SAWONG, J.
2005 : 14th, 21st JULY

CRIMINAL LAW - Causing grievous bodily harm – Intention to cause grievous bodily harm – Sentence – Plea of Guilty – 2 Years imprisonment.

FACTS

The prisoner had an argument with the victim. But a few hours later, he met the victim and using a bush knife, cut the victim on the head from the back inflicting serious bodily injury.

HELD

(1) The offence is a serious crime of violence, because it involves the intention to cause someone grievous bodily harm.

(2) As such it calls for an immediate custodial sentence.

CASES CITED:
Public Prosecutor v Terrence Keveku [1977] PNGLR 111

COUNSEL:
Mr. J. Wala, for the State
Mr. L. Vava, for the Accused

DECISION

21st July, 2005

SAWONG, J: The accused pleaded guilty to a charge that he on the 26th day of June, 2004 at Bugati in Papua New Guinea with intent to cause grievous bodily harm to one, JULIUS ELISON did cause grievous bodily harm to the said Julius Elison. He was indicted under s.315 (b) and (c) of the Criminal Code Act, as amended to date.

The facts are these. On the early morning of 26th June 2004, the prisoner told the victim to cut some posts for him. Thereafter there was some argument between the two of them. After that the prisoner left his house and went to a hamlet called Gulaging. He was sitting when the victim also arrived there. Upon arriving there, the victim and two other men decided to go and watch a game of soccer at a nearby village. The three of them left for Male village. As they started walking towards Male village, the accused followed them and came behind and cut the victim on the back of the head with a bush knife he was armed with. He inflicted serous injury which caused the victim to fall down unconscious. The victim is his brother in-law.

The prisoner is about 32 years old. He is a married man with four (4) children. He is an uneducated villager. In his allocutus, he told the Court that he has paid compensation to the victim and asked the Court for leniency.

Mr Vava has given the Court a written submission and he spoke to it. I have read and considered his submissions. In summary, his submission was that there were not many authorities on this particular section and it was difficult to discern what the Court’s sentencing policy is on this offence. However, he submitted that by analogy, the Court should use as a guide, sentences imposed on the crime of unlawfully causing grievous bodily harm cases under s.319. He then referred me to a number of authorities on that particular section. (s.319).

He further submitted that the Court should also take into several mitigating factors in favour of the accused in determining the appropriate sentence. In the final analysis, he submitted that a wholly suspended sentence was appropriate in the circumstances for this case.

Mr Wala, on the other hand submitted that this crime calls for a custodial sentence for a number of reasons. First, he submitted that this offence is different in nature and character to the crime of unlawfully causing grievous bodily harm under s.319. Here the offence involves an element of intention – a deliberate intention to wound someone. Secondly, the penalty is higher than that of a crime under s.319, in that the crime under s.315 attracts, a punitive maximum sentence of life imprisonment whereas a crime under s.319 attracts a maximum sentence of up to seven (7) years imprisonment. He submitted that the penalty provision in s.315 indicates clearly that the offence is far more serious. He further submitted that I should also take into account the fact the prisoner is now undergoing committal proceedings for murdering his wife. He urged the Court to impose a custodial sentence.

In determining the appropriate sentence, one must, in general start with a consideration of the penalty prescribed by the relevant statute. Thus in the present case, one must start with the penalty prescribed in s.315. The maximum penalty that could be imposed is, subject to S.19, life imprisonment.

Apart from the case of State v Inapero Susuve (17 June, 1999), the rest of the authorities relied on by Vava are of little assistance. Whilst I accept that those authorities are a helpful guide, nevertheless, in my opinion, they are not helpful because those deal with a different offence. However, in my opinion, the Supreme Court decision in the Public Prosecutor v Terrence Keveku [1977] PNGLR 111, is much more helpful.

There the accused first assaulted the first victim, who was the first husband of his wife. He searched for the victim, armed with a long bush knife and after locating him, cut him with the said bush knife, inflicting three (3) cuts on him. After he was arrested and released on bail for that offence, he attacked his cousin sister with a mace made from a heavy plastic covered battery cable ending in a large bolt. He chased her and hit her with it twice, causing a deep cut to her head (with severed blood loss) and a fracture of the skull. In the National Court he was convicted on both counts and sentenced to 15 months imprisonment on each count to be served consecutively. The Public Prosecutor appealed against the inadequacy of the sentence to the Supreme Court. The Court at 113 said:

"The policy of the Legislature in regard to officers of this character is illustrated by the maximum penalty provided for by s.323, (now s.3.5) viz., life imprisonment. In our opinion, the would rarely be instances of this kind of offence which could be met with other than a substantial sentence of imprisonment in the current conditions in Papua New Guinea"...

The Court upheld the appeal and by a majority increased the sentence to 3 years imprisonment on each count, to be served consecutively.

To my mind the penalty prescribed indicates that Parliament considered this offence to be serious that, it has prescribed the maximum sentence of life servitude. That maximum penalty is prescribed because the crime involves a deliberate intention to cause someone grievous bodily harm. Because of these, in my view, unless there are exceptional circumstances, such a very young offender (below 18 years old) or a very old person, or the like, the crime should attract an immediate custodial sentence in the first instance. This is a crime of violence with deliberate intention to cause someone serious bodily injury.

Finally, I have taken note of all the mitigating factors in your favour. However, these have not convinced me to impose some other sentence than a custodial sentence.

In the present case, a dangerous weapon was used on an unsuspecting person. You attacked him from the back and inflicted serious injury. The evidence shows that, had it not been for one of the bystanders, you would have cut the victim again. The medical report shows that you inflicted a serious deep and penetrating wound. However, it shows that the victim has recovered.

Mr Wala has invited me to take into account a further charge for which you are now facing at the committal. I do not accept that, because it is not a prior conviction. To do so would be taking into an irrelevant matter, because at the time you were arrested for the offence, I am dealing with now, you did not have a prior conviction.

For the reasons I have given, you are convicted and sentenced to two (2) years imprisonment in hard labour. From that I deduct the remand period of one (1) year and twenty days, leaving a balance of eleven (11) months and ten (10) days to serve.

_________________________________________________________
LAWYER FOR THE STATE : PUBLIC PROSECUTOR
LAWYER FOR THE ACCUSED : PARAKA LAWYERS