N5056
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 459 OF 2003

THE STATE

V

CHARLES KAONA

Kimbe: Cannings J
2007: 13, 23, 24 August

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

A man pleaded guilty to grievous bodily harm. There was a dispute between clans in a village after a man was alleged to have committed adultery with another man's wife. Two clans had a confrontation and in the course of it the offender slashed the victim with a bushknife while he was on the ground; shortly afterwards the victim was shot dead by another member of the offender's clan.

Held:

(1)	The starting point for sentencing for grievous bodily harm under Section 319 of the Criminal Code is 42 months imprisonment.

(2)	Mitigating factors are: single blow; other cause of victim's death; de facto provocation; co-operation with police; peace and reconciliation; pleaded guilty; first-time offender.

(3)	A sentence of 4 years was imposed. The pre-sentence period in custody was deducted and one third of the head sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
The State v Bob Ananias CR 1413 + 1414/2003, 20.04.06
The State v Jeffery Lamis CR 1929/2005, 20.04.06
The State v Kevin Wakore CR 378/2003, 16.08.07
The State v Ludwina Waiguma CR 68/2007, 21.03.07
The State v Nicodemus Badui CR 683/2007, 17.08.07
The State v Philip Lekis CR 1927/2005, 13.07.07
The State v Ria Bernard CR 374/2005, 20.05.05
The State v Rodney Gela and Clarence Logi CR 1300 + 1301/2005, 27.10.05
The State v Steven Moni, James Baki, Freddy Gorea, Francis Kuvi & Alois Raka CR 293-297/2004, 19.12.06

SENTENCE

This was a judgment on sentence for grievous bodily harm.

Counsel

F Popeu, for the State
B Tanewan, for the offender

24th August, 2007 

1. CANNINGS J: This is a decision on sentence for a man who pleaded guilty to one count of doing grievous bodily harm to another man arising from the following facts. The offender, Charles Kaona, and the victim, the late Robin Waluka, are from Pangalu village in the Talasea area of West New Britain Province. Late in the afternoon of 5 October 2002 Charles, in company with about ten of his relatives went to the premises of the victim's brother, Andrew Waluka. They were demanding compensation as it was alleged that Andrew had committed adultery with the wife of one of the offender's clansmen, Ben Gala. When they got there, Andrew was not there but Robin was there. There was a confrontation between Ben and Robin. Ben pulled a gun from Robin and while they were struggling a member of Charles' group cut Robin on the hand. Robin fell and while he was on the ground, Charles cut him with a bushknife on his ankle. Another of Charles' group then got the gun and shot Robin in the chest, killing him.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. The offender said:

This is my first time in court and I ask for a non-custodial sentence so that I can pay more compensation to and reconcile with the victim's relatives.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). It is apparent that he co-operated with the police and made admissions when he and his clansmen were arrested about a week after the incident.

PRE-SENTENCE REPORT

5. I received a favourable pre-sentence report from the Community Corrections and Rehabilitation Service, which is summarised below.

CHARLES KAONA: male, aged 28 years.
Residence: Pangalu.
Family background: mother and father from Talasea – father is deceased; mother alive – Charles is the fifth-born in a family of nine.
Marital status: married with no children – stable marriage.
Education: Grade 4, Pangalu Primary School, 1994.
Employment: worked for a short time with Lotogam Plantation as a harvester, while he was on bail; lost the job when he went back into custody.
Health: OK.
Financial status: earns income from sale of copra.
Plans: look after his family and his blocks.
Religion: SDA, attends church regularly.
Victim's family's attitude: the deceased's father, Waluka Gare, has received K10,000.00 and is satisfied with that – another of his sons was shot dead by police when the fighting between the offender's and deceased's clans was still going on – there was a payback killing of one of the offender's clan too – despite these problems there has been reconciliation between the clans.
Offender's family's attitude: supportive.
Attitude of community: prior to the offence his behavioural record in the local community was good – there was a big reconciliation ceremony in 2004 – the two clans involved have made peace though some underlying tension remains – since the incident took place, the two clans – Pagonunu (deceased's clan) and Tabekewavo (offender's clan) – have intermarried, which is significant as the exchange of women in the Talasea area is a sign of peace.
Assessment: not a threat to the community – well regarded – low risk of re-offending.
Recommendation: suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Tanewan urged the court to consider all the circumstances surrounding commission of the offence: the reason it was committed, how the death actually occurred and what has happened since. There are many mitigating factors in those circumstances, which warrant a sentence of around four years, half of which should be suspended.

SUBMISSIONS BY THE STATE

7. Mr Popeu agreed that there were a number of mitigating factors, particularly arising from the peace and reconciliation process that has occurred. Nonetheless it was a very serious offence, part of a sequence of events that led to the victim's death, warranting a sentence of four to six years imprisonment.

DECISION MAKING PROCESS

8. 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 sentences have been imposed for equivalent offences?
•	step 4: what is the head sentence?
•	step 5: should the pre-sentence period in custody be deducted?
•	step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. The maximum penalty under Section 319 (grievous bodily harm) of the Criminal Code is 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?

10. 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 OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

11. Before I fix a sentence, I will consider sentences I have imposed in recent times in West New Britain for similar offences.

COURT SENTENCES FOR OFFENCES ENDANGERING LIFE OR HEALTH, DIVISION V.4, CRIMINAL CODE

No	Case	Offence	Details	Sentence	
1	The State v Ria Bernard CR 374/2005, 20.05.05	Sec 319 – GBH
2 counts	Guilty plea – 29-year-old offender was under the influence of alcohol – cut his brother with a bushknife – then cut his father when he came to his brother's aid – life threatening injuries.	4 years
each count; total 8 years, cumulative sentence	
2	The State v Rodney Gela and Clarence Logi CR 1300 + 1301/2005, 27.10.05	Sec 319 – GBH	Guilty plea – victim and both co-offenders had been drinking – argument between one of the offenders and victim – degree of participation or type of weapons used – bushknife and a tree branch – victim stabbed in abdomen, suffers permanent injury.	6 years,
4 years
	
3	The State v Bob Ananias CR 1413 + 1414/2003, 20.04.06	Sec 319 – GBH	Guilty plea – offender believed that two people were sorcerers and made his mother sick – he held the victims captive then assaulted them – he injured one of them badly, slashing him with a bushknife, injuring his leg and cutting off one finger – victim stabbed in abdomen, suffers permanent injury.	3 years
	
4	The State v Jeffery Lamis CR 1929/2005, 20.04.06	Sec 322 –unlawful wounding	Guilty plea – domestic setting – argument between father and mother – son assaults father – no weapons used.	18 months
	
5	The State v Steven Moni, James Baki, Freddy Gorea, Francis Kuvi & Alois Raka CR 293-297/2004, 19.12.06	Sec 315 –GBH, with intent;
Sec 322 – unlawful wounding	Guilty plea – group attack by six men against two, over a village dispute – one victim had his arm chopped off by an offender other than those being sentenced, the other victim was cut on his arm.	5 years;
4 years, 6 months (x 2);
3 years, 3 months (x 2); depending on degree of involvement and age	
6	The State v Ludwina Waiguma CR 68/2007, 21.03.07	Sec 319 –GBH	Guilty plea – female offender stabbed another woman with a knife, after a history of bad feeling between them – offender claimed the victim had been saying bad things about her, due to suspicion that she was having an affair with the victim's husband.	4 years
	
7	The State v Philip Lekis CR 1927/2005, 13.07.07	Sec 322 –unlawful wounding	Guilty plea – offender had dispute with his sister and his father in a public place – swung his bushknife at his sister, cutting her on the head – wound required 20 stitches.	30 months	
8	The State v Nicodemus Badui CR 683/2007, 17.08.07	Sec 319 –GBH	Guilty plea – drunk offender went to a house, armed with a grassknife, angry with someone he suspected of having an affair with his wife – had altercation with occupants of the house – wounded one of them, severing two of his fingers.	4 years	

STEP 4: WHAT IS THE HEAD SENTENCE?

12. 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. 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? Yes.

2	Was just one person involved in the assault? No.

3	Was there some other cause of bodily harm, ie did the injury not result directly from the assault committed by the offender? Yes, the victim was killed when he was shot.

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

5	Did the offender not set out to hurt anyone? No.

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? Yes, the victim was armed with a home-made gun before being disarmed.

7	Did the victim have a pre-existing condition making him susceptible to injury by a moderate blow? No.

8	Can the assault on the victim be classed as 'not vicious'? No.

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. There has been a concerted attempt at peace and reconciliation, as explained in the pre-sentence report.

12	Has the offender pleaded guilty? Yes.

13	Has the offender genuinely expressed remorse? Neutral.

14	Is this his first offence? Yes.

15	Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence? Neutral.

16	Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Neutral.

13. The other factors (Nos 13 and 15) are neutral. After weighing all these factors and bearing in mind that there are seven mitigating factors and six aggravating factors, the head sentence should be around the starting point. It was a serious assault on a man who, when the offender attacked him, was unarmed and on the ground; who was soon afterwards killed by one of the offender's clansmen. I impose a head sentence of four years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

14. 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, which is ten months, four days.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

15. The offender has received a favourable pre-sentence report, which shows he is well regarded in the community, despite the serious offence he committed. Both his clan and the deceased's clan have made a genuine attempt to bring peace back to the community. He is recommended for probation. I recently sentenced the man who shot dead the victim in this case for murder. I imposed a sentence of 12 years and suspended four years of the sentence because of the compensation paid and the peace and reconciliation that have occurred (The State v Kevin Wakore CR 378/2003, 16.08.07). Therefore I will suspend the same proportion – one-third of this sentence. Sixteen months of the sentence will be suspended on the following conditions:

(a)	must reside at Pangalu and nowhere else except with the written approval of the National Court;

(b)	must not leave WNB Province without the written approval of the National Court;

(c)	must perform at least six hours unpaid community work each week at a place to be determined by the National Court, in consultation with the Community Based Corrections Service;

(d)	must attend a church to be approved by the National Court every week for service and worship and assist the church in its community activities;

(e)	must report to the senior Probation Officer at Kimbe on the first Monday of each month between 9.00 am and 3.00 pm;

(f)	must not consume alcohol or drugs;

(g)	must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim's family;

(h)	must have a satisfactory probation report submitted to the National Court Registry at Kimbe every three months after the date of sentence;

(i)	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.

SENTENCE

16. Charles Kaona, having been convicted of one count of doing grievous bodily harm, is sentenced as follows:

Length of sentence imposed	4 years	
Pre-sentence period to be deducted	10 months, 4 days	
Resultant length of sentence to be served	3 years, 1 month, 3 weeks, 3 days	
Amount of sentence suspended 	16 months	
Time to be served in custody	1 year, 9 months, 3 weeks, 3 days	

Sentenced accordingly.
_______________________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Offender