N4482

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1767 0F 2005

THE STATE

V

BERTRAND HIANU

Buka: Cannings J
2006: 17, 22, 24, 25 August

SENTENCE

CRIMINAL LAW – grievous bodily harm – Criminal Code, Section 319 – sentence on plea of guilty – 4 years.

A man pleaded guilty to unlawfully doing grievous bodily harm to his friend by smashing a full bottle of beer on his face, causing permanent loss of sight in one eye. 

Held:

(1)	The starting point for sentencing for grievous bodily harm under Section 317 of the Criminal Code is 42 months imprisonment.(1)	
(2)	Mitigating factors are: only one attacker; co-operated with police; reconciliation process has begun; pleaded guilty; expressed some remorse; first offender. 

(3)	Aggravating factors are: he hit the victim more than once; offender solely responsible; dangerous weapon used; no accident; the victim was an able-bodied man, now maimed for life; vicious assault; did not give himself up; not a youthful offender; a mindless action.

(4)	A sentence of 4 years (48 months) was imposed. The pre-sentence period in custody of 4 days was deducted and 2 years of the sentence was suspended on conditions. 

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v John Erip Muge, CR No 1996 of 2002, 17.08.06
Tom Longman Yaul v The State (2005) SC803

Abbreviations

The following abbreviations appear in the judgment:

ARB – Autonomous Region of Bougainville
CR – Criminal
DCJ – Deputy Chief Justice
J – Justice
N – National Court judgments
No – number
SC – Supreme Court Judgment
SCRA – Supreme Court Criminal Appeal
SP – refers to a brand of beer sold in PNG
v – versus

PLEA

A man pleaded guilty to unlawfully doing grievous bodily harm and the following reasons for sentence were given.

Counsel

R Luman for the State
P Kaluwin for the accused

INTRODUCTION

1. CANNINGS J: This is a decision on the sentence for a man who pleaded guilty to unlawfully doing grievous bodily harm under Section 319 of the Criminal Code. He faced the following indictment:

Bertrand Hianu of Kaparo, Siwai, Bougainville, stands charged that he on the 5th day of February 2005 at Kokopau, Buka … unlawfully did grievous bodily harm to Gerard Leo [the complainant].

CONVICTION

2. The offender, Bertrand Hianu, pleaded guilty to and was convicted on the following facts:

•	The incident happened at 7.00 am.

•	The offender was drunk at Kokopau.

•	He directed his friend, the complainant Gerard Leo, to follow him and confront a group of youths.

•	Gerard refused and hid in the offender’s bottle shop.

•	The offender proceeded to fight with the youths but then realised that Gerard was not with him.

•	He returned to the bottle shop, called for Gerard who came over to him and then smashed a full brown bottle of SP beer across his head.

•	Gerard sustained a serious eye injury.

•	He was in hospital for two weeks and has permanently lost the sight of his eye.

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

I apologise to the court and to my family and to the family of the person I injured. I ask the court for a suspended sentence. 

OTHER MATTERS OF FACT

5. As the offender has pleaded guilty, he is entitled to the benefit of the doubt on mitigating factors that are apparent from the depositions, the allocutus or matters raised by his defence counsel that are not contested by the prosecutor (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06, Supreme Court, Jalina J, Mogish J, Cannings J). The rationale is that giving the benefit of the doubt provides an incentive for accused persons to plead guilty and is a benefit accorded to them for saving the State extra resources that would have been committed to the case if a trial were necessary.

Depositions 

•	It was the offender who took the victim across Buka Passage to the Buka Hospital for treatment. 

Allocutus 

•	He expressed remorse.•	
Matters raised by defence counsel

•	The offender has paid for some of the victim’s medical bills.

•	A reconciliation process has started. A written statement by Joseph Noro, Kapuna Hong (paramount chief), Puriri clan of Siwai district, declares that both the offender, Bertrand, and the victim, Gerard, are members of the same sub-clan. Bertrand’s family has already paid K100.00 and one fathom of shell money to Gerard’s family. This payment has been received and symbolises acceptance and goodwill on the part of the victim’s family. 

PERSONAL PARTICULARS

6. The offender, Bertrand Hianu, is aged 27. He is from Siwai and single. His father is deceased and his mother is alive. He helps run a family business at Kokopau. He has four brothers and four sisters and many of them are dependent on him for financial support. The victim, Gerard Leo, was his employee in the bottle shop.

SUBMISSIONS BY DEFENCE COUNSEL

7. Mr Kaluwin highlighted the following mitigating factors: the offender pleaded guilty; he expressed remorse; he has started a process of reconciliation with the victim and they are again on speaking terms.

SUBMISSIONS BY THE STATE

8. Mr Luman, for the State, submitted that this was a serious case of grievous bodily harm as a young man has permanently lost the sight of one eye. 

DECISION MAKING PROCESS

9. To determine the appropriate penalty I will adopt the following decision making process:

•	step 1: what is the maximum penalty?

•	step 2: what is a proper starting point?

•	step 3: what should the head sentence be?

•	step 4: should the pre-sentence period in custody be deducted from the term of imprisonment?

•	step 5: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

10. Section 319 (grievous bodily harm) of the Criminal Code states:

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.

11. The maximum penalty is therefore seven years imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code. 

STEP 2: WHAT IS A PROPER STARTING POINT?

12. In the present case I have been unable to locate a suitable precedent, so I will use the mid-point of three years, six months (42 months) as the starting point.

STEP 3: WHAT IS THE HEAD SENTENCE?

13. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be reduced below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point.

14. Three sorts of considerations are listed. Numbers 1 to 8 focus on the circumstances of the incident. Numbers 9 to 13 focus on what the offender has done since the incident and how he has conducted himself. Numbers 14 to 16 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

1	Did the assault on the victim consist of just a single blow? No – the depositions show that the offender punched the victim in the head before striking the lethal blow with the beer bottle. 1	
2	Was just one person involved in the assault? Yes.

3	Was there some other cause of bodily harm, ie did the injury not result directly from the assault committed by the offender? No.

4	Was the victim injured by only a fist? No – the offender used a dangerous weapon: a full beer bottle. 

5	Did the offender not set out to hurt anyone? No – no one can say that he did not intend to inflict harm when he smashes a beer bottle on another person’s face.

6	Did the victim or any other person provoke the offender in ‘the non-legal sense’, eg did the victim abuse or assault the offender? No – the offender wanted to repel some troublesome youths at the front of the bottle shop and asked Gerard to help him. But Gerard refused, causing the offender to become angry. That, however, cannot be regarded as provocation.

7	Did the victim have a pre-existing condition making him susceptible to injury by a moderate blow? No – the victim was an able-bodied man with good vision in both eyes before he was attacked.

8	Can the assault on the victim be classed as ‘not vicious’? No – it was very vicious.

9	Did the offender give himself up after the incident? No.

10	Did the offender cooperate with the police in their investigations? Yes.

11	Has the offender done anything tangible towards repairing his wrong, eg offering compensation to the victim, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what he did? Yes – to some extent reconciliation has begun. The offender has paid some of the victim’s medical bills, cash and shell money. But it is not yet complete. There is some evidence that the victim’s family is prepared to reconcile but the court does not have evidence of how the victim feels about things. The present case is different to a recent Buka case, The State v John Erip Muge, CR No 1996 of 2002, 17.08.06. The offender was convicted of attempted rape but had reconciled fully with the victim. There was a public ceremony witnessed by village chiefs, an exchange of compensation and a written record of the ceremony and the offender’s apology and the witness’s acceptance of it, all of which was signed by the offender, the victim and their families.

12	Has the offender pleaded guilty? Yes. 

1	Has the offender genuinely expressed remorse? To a limited extent, yes.13	
1	Is this his first offence? Yes. 14	
1	Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence? No – he was in his mid-20s when the offence was committed.15	
16	Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? No – this was a mindless, gutless, drunken attack on an innocent man.

15. To recap, mitigating factors are: 

•	No 2 – only one attacker;
•	No 10 – co-operated with police;
•	No 11 – reconciliation process has begun;
•	No 12 – pleaded guilty; 
•	No 13 – expressed some remorse;
•	No 14 – first offender.

16. Aggravating factors are:

•	No 1 – he hit the victim more than once;
•	No 3 – offender solely responsible;
•	No 4 – dangerous weapon used;
•	No 5 – no accident;
•	No 6 – unprovoked attack;
•	No 7 – the victim was an able-bodied man, now maimed for life;
•	No 8 – vicious assault;
•	No 9 – did not give himself up;
•	No 15 – not a youthful offender;
•	No 16 – it was a gutless and mindless action.

17. After weighing all these factors and bearing in mind that there are six mitigating factors compared to ten aggravating factors, the head sentence should be above the starting point. I impose a head sentence of four years imprisonment.

STEP 4: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

18. The offender has spent four days in custody in connexion with this offence and it is proper that that period be deducted from the total sentence. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, as shown in the table below:

TABLE 1: CALCULATION OF FINAL SENTENCE

Length of sentence imposed	4 years	
Pre-sentence period to be deducted	4 days	
Resultant length of sentence to be served	3 years, 11 months, 3 weeks, 3 days	

STEP 5: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

19. This is not an appropriate case in which to suspend the entire sentence. A man has been maimed for life. He has lost the sight of one eye, permanently. He could easily have lost his life. The offender and the victim come from the same sub-clan and a reconciliation process has started. But the court must send a strong message to everybody that this sort of drunken, idiotic violence will not be tolerated. The offender must spend some time in jail to mark the seriousness of what he has done. That is the best deterrent.

20. However, in view of the mitigating factors that have been identified – in particular the guilty plea and the reconciliation – I will suspend two years of the sentence. The offender must serve the first two years of the sentence in custody, ie a further 1 year, 11 months, 3 weeks and 3 days. The rest of the sentence will be suspended on the following conditions:

1	must within three months after release from custody pay at least K500.00 cash compensation to the victim and participate in a reconciliation ceremony in accordance with custom;1	
1	must reside at Kokopau and nowhere else except with the written approval of the National Court;2	
1	must not leave Bougainville without the written approval of the National Court;3	
1	must perform at least six hours unpaid community work each week at Kokopau Catholic Church under the supervision of the Parish Priest;4	
1	must attend Kokopau Catholic Church every Sunday for service and worship and assist the church in its community activities under the supervision of the Parish Priest;5	
1	must report to the senior Correctional Service officer at Buka Police Station every government payweek Friday between 9.00 am and 3.00 pm and sign the register;6	
1	must not consume alcohol or drugs;7	
1	must keep the peace and be of good behaviour;8	
1	must have a satisfactory probation report submitted to the National Court Registry at Kimbe every three months after the date of release from custody;9	
1	the person responsible for filing the probation report will be the ARB senior welfare officer;10	
11	if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence. 

21. The last condition is very important. If any of these conditions is breached, any person may report the matter to the police or to any person nominated to supervise the offender or to the ARB senior welfare officer, any of who may bring the matter to the attention of the National Court. The Court may then issue a warrant for arrest of the offender and he can be brought before the Court to show cause why he should not be sent to jail to serve the rest of his sentence. (See Tom Longman Yaul v The State (2005) SC803, Salika J, Mogish J, Cannings J.)

SENTENCE

22. Bertrand Hianu, having been convicted of the crime of doing grievous bodily harm to another person, is sentenced as follows:

Length of sentence imposed	4 years	
Pre-sentence period to be deducted	4 days	
Resultant length of sentence to be served	3 years, 11 months, 3 weeks, 3 days	
Amount of sentence suspended	2 years	
Time to be served in custody	1 year, 11 months, 3 weeks, 3 days	

Sentenced accordingly.
_______________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused