N3866
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1218 of 2008

THE STATE

-V-

PETER MIKA KUKUMO

Buka: Kandakasi, J.
2008: 	12th And 19th November

DECISION ON SENTENCE

CONSTITUTIONAL LAW - Bougainville Constitution – Consideration of - Resolution of conflicts and disputes in Bougainville – Main focus - Promotion of peace and harmonious living – Use of non violent means such as mediation and reconciliation - Customary or traditional justice system – Criminal sentencing to start with inquiry on existence of a form of customary punishment - Application of – Customary practice promoting peace and peaceful co-existence – Appropriate to adopt and apply in combination with modern principles of criminal sentencing - Focus for criminal justice system should be rehabilitation through peaceful means – Imprisonment a form of violence and should be reserved for the hardcore, repeat and offenders having propensity to re-offend National Constitution - Sections 291, 305, 306, 308, 309, 333 - 336 Bougainville Constitution – Sections 13(3), 45(1), 112, 114, 115, 126, 241. 

CRIMINAL LAW – Sentence – Particular offence - Grievous bodily harm – Drunken brawl – Another trying to attack prisoner – Prisoner pulling out knife with intend to fight off attack on him – Victim stepping in to stop prisoner from stabbing his assailant – Prisoner stabbed him – Penetrating injuries to stomach cutting the intestines – Injuries life threatening – Possible defence of self defence considered and taken into account in mitigation of prisoner – Guilty plea – First time offenders – Prevalence of offence – Some compensation already paid with more to be paid - Sentence of 4 less pre-trial custody imposed – Criminal Code s. 319. 
Cases cited:

The State v Vincent Naiwa (22/06/04) N2710.
The State v. Isaac Wapuri [1994] PNGLR 271.
The State v. Philip Susuve Raepa [1994] PNGLR 459.
The State v. Nickson Pari (N0.2) (2000) N2033.
The State v. Rueben Irowen (2002) N2239.
The State v Henry Idab (2001) N2172.
The State v. Eddie John Naopa (2003) N2411.
The State v. Tamumei Lawrence, Koloata James and Tobia Thomas (2007) N3117.
The State v. Ambe Tu (2008) N3306.
Acting Public Prosecutor v. Don Hale (1998) SC 564.
The State v Allan Nareti and Amstrong Kupe (2004) N2582
The State v Gibson Haulai (2004) N2555
The State v. Frank Kagi [1987] PNGLR 320 
The State v. Nyama [1991] PNGLR 127
The State -v- Abel Airi (2000) N2007 
The State v Micky John Lausi (2001) N2073

Counsel:

L. Rangan, for the State.
P. Kaluwin, for the Accused.

19th November, 2008
 
1.	KANDAKASI J:	You two pleaded guilty to a charge of causing grievous bodily harm to your cousin, Clarence Buo on 21st March 2008 here in Buka Town, Autonomous Region of Bougainville. 

2.	The main issue for this Court to decide is, what is an appropriate punishment for you? As I noted in earlier decisions as in the matter of The State v. Lawrence Mattau CR 960 of 2006, this is usually the main issue in all cases of criminal sentencing. In order to determine that issue, the Courts often have to address the following subsidiary issues:

(1)	What are the relevant facts or the particular circumstances in which the offence was committed? 
(2)	What is the nature of the offence with which the offender has been charged with and its relevant sentencing trend?
(3)	What are the factors in aggravation and mitigation of the offender? 
(4)	Are there any special feature attending the commission of the offence?
(5)	After carefully considering all of the relevant factors, what should be the appropriate sentence? and 
(6)	Whether the whole or any part of the sentence should be suspended and if so, on what terms?

3.	Again as I observed in the Lawrence Mattau case and others, any special feature attending the commission of an offence could either be a factor in mitigation or aggravation. Therefore, if there is any special feature attending the commission of the offence under consideration, it would appropriately be considered within the context of the factors operating for or against the offender. Given that, it would be inappropriate to deal with the fourth issue as an issue on its own.

4.	With that clarification, I now turn to a consideration of the issues outlined above. I start with, what are the relevant facts or the particular circumstances in which you committed the offence? 

What are the Relevant Facts or Circumstances in which the offence was Committed? 

5.	In the early morning hours between 3:00 and 4:00am on 21st March 2008, you were drunk and was roaming around the streets of Buka Town with your cousin, Clarence Buo, the victim of your offence. While you were doing that, you came across another drunkard namely, Puriro in front of the Jomik Wholesale. You called Puriro over to you as you want to tell him something but he refused to come over and you kept on insisting. Puriro was not happy with your insistence, came over to where you were and punched you on the right hand. That made you angry and you took out a small switch knife you had with you and tried to stab Puriro with it. Before you could strike Puriro with the knife, your cousin, Clarence stepped in to stop you and you stabbed him. 

6.	The knife got Clarence in his stomach area. That resulted in a deep penetrating injury which reached Clarence's intestines. On realizing that you had stabbed him, Clarence tried to run to the hospital but he could not make it all the way. He fell along the way. Fortunately, some security guards on duty came to his help and had him taken to the hospital. In the meantime, you chased after Puriro and did not succeed in getting him.

7.	The medical doctors at the hospital appropriately treated Clarence. He recovered well. However, the medical doctors have opined that, Clarence is likely to suffer post traumatic stress. The doctors described the injuries has life threatening and that Clarence was fortunate enough to survive.

8.	According to the pre-sentencing report, your cousin's relatives collected K200 in compensation from your employer, Jomik Wholesale. That prevented any trouble from erupting between your people and that of your cousin. You are now prepared to undergo the appropriate customary ceremonies to demonstrate and express your remorse, offer your apology for committing the offence and pay over compensation, consisting of cash and kind which will include shell money, pigs and food stuff. Your cousin and his people are prepared to accept these and reconcile with you and strengthened continued peaceful and harmonious co-existence between the two sides. 

9.	With these facts and the circumstances in which the offence was committed in mind, we now turn to a consideration of the next subsidiary issue of, what is the nature of the offence you committed and have been charged with and its sentencing trend?

What is the Nature of the Offence and its Sentencing Trend?

10.	Section 319 of the Criminal Code creates and prescribes the penalty for the offence of grievous bodily harm. This provision provides for a maximum penalty of up to 7 years. A number of judgments have already dealt with offences under this section before imposing a variety of sentences from a few months to the maximum of 7 years.

11.	I noted in a number of my judgments as in The State v. Vincent Naiwa, that the earlier cases such as the case of The State v. Isaac Wapuri and The State v. Philip Susuve Raepa imposed much more lenient sentences. Those decisions date back more than ten years. Since then however, the offence has not declined but has increased over the years. Given that, sentences have increased to correspond the increase in the offence. 

12.	In 2003, noting the prevalence of the offence and forming the view that past sentences appear not to be deterring other persons from committing this offence, I imposed a sentence of 4 years, part suspended on terms in The State v. Nickson Pari (No.2). That was in a case of young first time offender pleading guilty. He shot at and injured the victim on his left arm in the course of and in furtherance of an armed robbery. 

13.	A more serious case of grievous bodily harm I dealt with was in the case of The State v. Rueben Irowen. In that case, the prisoner forced his two wives to strip down naked and effected serious bodily harm to them. That included the use of a bush knife to inflict serious cuts to their bodies, resulting in the loss of a lot of blood rendering both of them unconscious. They had to run out of the house naked for help. If it were not for their running out and the help of third parties, they could have died. I imposed the maximum sentence of 7 years each for the harm he had occasioned to the victims for him to serve cumulatively.

14.	Another serious case that I also dealt with and also referred to by your lawyer was the case of The State v Henry Idab. In that case, a group of men attacked another group mistakenly taken to be the ones responsible for verbally abusing one of the attacking group member's mother. In the process, a village court magistrate sustained serious bush knife injuries to both of his hands, resulting in an estimated 85% loss of efficient use of his hands and restricted to only light work. I imposed a sentence of 5 years, and suspended part of it on strict terms including community work. I also allowed at the discretion of the village court magistrate, room for the prisoner to render services free of charge to his victim appreciating that the victim was prevented from using one of his hands.

15.	In another case, namely, The State v. Eddie John Naopa, I imposed a sentence of 5 years part suspended because of a guilty plea and an order for compensation. The victim in that case lost one of her eyes completely from a slingshot. 

16.	Finally, in The State v. Vincent Naiwa, I imposed a custodial sentence of 5 years. That was for grievous bodily harm caused to his sister–in–law by the prisoner. He used a bush knife to do that. There was no good reason for the attack. The attack on the victim left her left hand useless. That was on a guilty plea by a first time offender, who had not paid any customary compensation and did not have any means to pay any compensation if the Court were to make such an order. 

17.	I note that other judges have imposed higher penalties in cases similar or closer to your case. An example of that is the decision of Lay J., in The State v. Tamumei Lawrence, Koloata James and Tobia Thomas. There the victim had been gardening and the offenders and their friends attacked him without provocation. The victim suffered serious knife wounds. His left upper arm was cut through to the bone, the back of the left shoulder involving the shoulder joint was cut, there were cuts to the posterior upper right chest and the right forearm involving the elbow. There was a prompt compensation payment.

18.	In a number of my previous decisions on grievous bodily harm cases, I noted that, the offence was prevalent for no good reasons or for silly reasons or clearly avoidable situations. In most cases, offenders were carelessly using dangerous weapons such as bush knives and other dangerous weapons to resolve problems even in close family relations. 

19.	Taking into account the foregoing sentencing trends and tariffs and the particular circumstances, I imposed a sentence of 4 years in the case of The State v. Ambe Tu. There, the prisoner acting alone caused also life threatening injuries to his victim. However, I found that he had good reason constituting some provocation in the non legal sense, by his wife running off with another man and failing to reason with him as to her abandonment of her children. That was on a guilty plea by an elderly first time offender.

Present Case
What are the Factors Operating Against Lawrence?

20.	Allowing myself to be guided by the foregoing discussion on the offence and its sentencing trend as well as the relevant facts in your case, I now proceed to give consideration to the factors operating for and against you, starting with those against you first. 

21.	 The first factor against you is the use of a knife. The Courts have been repeatedly saying that, such instruments or objects have fast become dangerous killer instruments. As such, anyone who uses such a weapon ought to be dealt with severely than one who does not. Over the years, there have been increases in cases of people using bush knives to even attack their own relatives resulting in either serious injuries or even deaths.

22.	Secondly, you used your knife to cause serious injuries to the victim. The injuries were serious and life threatening. In other words, you almost caused your cousin's death. Your cousin required hospitalization and treatment, after which he recovered with some residual disability, namely possible on going post traumatic stress for the rest of his life. This has to be contrasted with any form of punishment you receive which will be short lived given the prescribed maximum sentence of 7 years imprisonment.

23.	Thirdly, you were fighting with another person and not your cousin. Your cousin stepped in to prevent you from attacking that other person with your knife. Rather than appreciating that, you proceeded to stab him and caused him much pain and trouble. You might say you did not intend to attack him but the other person. That makes no difference because you would have still stabbed the other person, if your cousin did not step in your way.

24.	Finally, I note that both you and your cousin were up very early on the day in question doing nothing useful but very wasteful and useless and looking for trouble. Indeed, I note that you started the whole chain of events that eventually led to you stabbing your cousin. People consume alcohol beyond their senses and any level of self control invite unto themselves trouble or mean trouble and menace to other people. There is far too many abuse of alcohol and alcohol sponsored deaths and destruction of lives and property in our country. Hence, the law correctly does not accept being drunk and under the influence of alcohol as any excuse or defence to any offence a drunkard might commit. Hence this is a factor against you.

What are the Factors in Lawrence's Favour?

25.	Turning next to the factors in your mitigation or in your favour, I note there are at least three of them. Firstly, I note that, your conviction came on your guilty plea. That saved the State the time and money it could have spent on running a trial. As I said in the earlier decisions I have handed down here in Buka in this circuit, a note that a guilty plea reflects, in my view, an offender's genuine admission of guilt and taking of responsibility for his or her actions. This is in addition to saving the Court much time and effort hearing and coming to a decision on an offender's guilt or innocence. 

26.	Secondly, I note that, this is your first ever conviction. That means, until the commission of the offence for which you are in Court, you have not been in trouble with the law before. You are a relatively younger and a single man aged 28. You come from Biros Village, Bana here in Bougainville. Your father is deceased while your mother is alive. You live a village life. You have two other brothers who are your eldest and you live with them and your mother. Your brothers and your mother are supportive of you. Prior to the commission of the offence, Jomik Wholesale employed you as a casual employee. Education wise, you have been up to grade 4 primary level education in 2006. 

27.	The pre-sentence report has a good reference from your family members including the victim and his father. They vouch your past good record and your cousin taking K200 from your employer. They also confirm that, it would be appropriate to under go a customary reconciliation ceremony to bring about lasting peace between your side and the victim's side to get over what has happened and strengthen the good and peaceful co-existence between the two sides. I note you are prepared to under go such a ceremony for the stated good purpose. 

28.	Finally, I note and take into account the fact that, appreciating what you have done was wrong, you said sorry in your allocatus. This is not something you said in your allocutus as do some other offenders merely to argue for a lenient sentence. As I have already noted, there is evidence through the pre-sentence report that, you have partially met customary obligations and are prepared to complete it all in the name of peace and reconciliation and peaceful co-existence in harmony. 

29.	As I have already noted in the Lawrence Mattau case, the Bougainville Constitution mandates the recognition and strengthening of the clan structure and customary leadership of Bougainvillean communities. This includes recognition of the authority, roles and responsibilities of traditional chiefs and other traditional leaders as well as the family and clan units and a use of "the customary system of justice in Bougainville based on the restoration of peace through restoration of harmony in relationships between people" which is to be "recognized and reinforced to the extent not contrary to Christian principles."

30.	Further, as I again noted in the Lawrence Mattau case, the intention of the Bougainville people through their Constitution is very clear. They made a deliberate decision to make their customary system of justice, which is based on the family, clan and traditional chieftain and other system of traditional leadership and the family which is aimed at ensuring the peaceful and harmonious existence of human relationships, an integral part of the formal justice system in Bougainville. 

What is the Appropriate Sentence for You?

31.	Bearing the above discussion in mind, the question then is, what is an appropriate sentence for you, which is the main issue for determination in this case. A consideration of this question requires the Court to carefully consider and weigh the factors operating for and against him. I accept that you committed a violent and serious offence. That was for no good a reason and you started the whole cause of events that lead to the commission of the offence under consideration.

32.	Once again, I note as I did in the Lawrence Mattau case that, a criminal law policy is yet to be developed in accordance with the requirements of s. 45 (1) and (2) of the Bougainville Constitution. Notwithstanding that, I am of the view that there is sufficient pronouncement by the people of Bougainville that, their traditional justice system based on their customs that are not inconsistent with internationally accepted norms of human rights, fairness and justice should drive such a policy. Similarly, I find that, there is sufficient expression of the will of the Bougainville people through their Constitution that, that system of justice should be the main guiding principle for the resolution of conflicts or disputes in Bougainville. Accordingly, I am of the view that, a critically first inquiry should be, is there a form of customary punishment that can be adopted and applied either on its own whether with or without any modification or in combination with the introduced system of justice. 

33.	Applying the view I have just expressed, I have in the Lawrence Mattau case asked the question, is there a form of customary punishment that can be adopted with or without modification or in combination with the introduced system of justice? I had that question answered in the affirmative and the same applies here. Custom in the present case requires the performance of a ceremony in which you will express your remorse, offer your apology and seek the forgiveness and acceptance by your cousin, Clarence and his family. They are prepared and will be happy to accept such gestures and will continue to allow for and strengthen the peaceful co-existence between your side and that of Clarence's. 

34.	I remind myself as I did in the Lawrence Mattau case that, most of the National case law makes the point that, the payment of customary compensation is only a mitigating factor and not a total exoneration of criminal responsibility, for fear of offender's paying their way out of criminal responsibility for those who can afford it and those who cannot face imprisonment. I reiterate my view however that, an appropriately packaged sentence can take care of that concern and also allow for a customary form of punishment to fully apply because more importantly, a customary form of punishment looks at restoring broken human relations and enables offenders and their people with victims and their people to live in peace rather than in animosity. Any term of imprisonment hardly promotes any peaceful co-existence between offenders' and their victims' people. The reason for this is simple; imprisonment is undoubtedly a form of violence because it forcefully removes an offender from society and locks him or her away from his or her family and community or society. The people of Bougainville realized this fact through their experiences culminating in the peaceful resolution of more than a decade's conflict. Based on their useful experience, they have deliberately stipulated in s. 15 of the Bougainville Constitution that:

"(1)	In order to achieve and maintain peace at all times, mediation, reconciliation and harmony shall at all times be pursued as means of resolving disputes, and the use of violence shall be avoided." 

35.	Again as I observed in the Lawrence Mattau case, the provisions made in the National Constitution and those in the Bougainville Constitution, in my view, signal a need for us to seriously reconsider the way in which the criminal sentencing has been approached in our country. Following the lead provided by the provisions in question, I have expressed the view and I reiterate that, of all of the purposes of criminal sentencing, rehabilitation should be the main aim and focus of criminal sentencing, if we are to rid our communities of criminal activities and promote peaceful co-existence of our culturally diverse peoples. Indeed I note that, our traditional societies did not have a police force, a correction service and a court system removed from the direct involvement of the community affected by an offence. Apart from immediate retribution that were often meted out to offenders failing any compensation, there were no law and order and social problems coming any where near the levels we as a nation along with the rest of the world are experiencing today. Our police force is stretched to their ultimate limits with our prisons being filled way beyond their limits and the other peace loving and law abiding citizens are living in fear of criminals. As the Supreme Court noted in the Thress Kumbamong case, this is the result of the State using the force of law to deal with social problems rather than finding ways and means of using positive and peaceful means which are powerful agents for peace to deal with our criminal problems to promote peaceful, lawful and orderly co-existence of our people.

36.	Again as I noted in the Lawrence Mattau case, section 19 of the Criminal Code already vests the Courts with a wider discretion to deal with offenders as recently re-affirmed by the Supreme Court decision in the Thress Kumbamong case. In the case of criminal sentencing in Bougainville, the Bougainville Constitution emphasis the need for greater use of customary ways of resolving conflicts. I repeat my observation there that, this was not merely an academic exercise. It was the good customary principles and practices that formed the foundation to restore peace and good order on Bougainville and hence lead to the Peace Agreement and the eventual return to peace and normalcy in Bougainville. The Bougainville peoples' (which in my view is representative of most of Melanesia), ability to overcome death and other atrocities committed during the Bougainville conflict through offers of genuine expression of remorse and apologies accompanied with compensation as a physical sign of such expressions by offenders and the ready acceptance of such offers by the victims was the catalyst for the Peace Agreement and actual return to peace on Bougainville. The experience on the ground now is commendable. Although there are areas in Bougainville that are yet to see a full return to peace and normalcy, most of Bougainville, unlike most other places in the country, has all the hallmarks of peace. A very good example is the fact that, nearly all houses and properties on Bougainville have no high rise corrugated iron fences, which has else where in the country become the every day prison for the peace loving majority of our people. 

37.	 Further, I repeat my observation that, given the foregoing, the Bougainville experience is a good lesson not only for he rest of our country but the world over and should form the foundation for a review and reform of our criminal justice system and sentencing. Accordingly, I am of the view that, in the exercise of the wide discretion vested in the Courts by s. 19 of the Criminal Code, this Court has the necessary power to choose the way of peace to promote peace, rather than a ready resort to imprisonment. Imprisonment should be reserved as a last resort and for the hard core or harden criminal and those who are likely to re-offend and not one of offenders.

38.	Having regard to the particular circumstance of this case as we have noted above, I consider starting with a head sentence of 4 years is appropriate. Of that, the period of 12 months you have spent in pretrial and pre-sentence custody is deducted. That leaves you with the balance of 3 years yet to serve. Stopping at that, would not sufficiently accommodate what we have suggested in the foregoing. Accordingly, we need to look at the question of suspending either the whole or part of that sentence and make provision for the application of the customary forms of restoring the relations that have been broken by your one off bad conduct. That question is the subject of the last and remaining issues for this Court to resolve. Accordingly, I turn to a consideration of that issue now. 

Whether the whole or part of the Sentence should be Suspended?

39.	The pre-sentence report after noting the views of the members of the community recommends that, you be given a suspended sentence. As I have already noted in the decisions I have already handed down in this circuit as in the case of The State v. Edmond Hotsia Geria CR 602 of 2008 and the Lawrence Mattau case, I have allowed myself to be guided by the decision of the Supreme Court in Acting Public Prosecutor v. Don Hale (1998) SC 564, on the task of criminal sentence. I have then expressed the view in a number of cases already that, criminal sentencing is a community responsibility. Therefore, the courts must seriously take into account the views of the community expressed through a pre-sentence report when called on to exercise the sentencing discretion vested in the Courts by s. 19 of the Criminal Code. Also, going by the much earlier case authorities like that of The State v. Frank Kagi [1987] PNGLR 320 and The State v. Nyama [1991] PNGLR 127, I have repeatedly stated in a number of cases that, suspending either the whole or part of a sentence is not an exercise in leniency. It is, however, a form of punishment aimed at serving one of the important purposes of criminal sentencing, namely rehabilitating an offender turning him or her into a useful peace loving and law abiding member of the community, which a prison sentence might not be able to deliver.
 
40.	I am inclined to imposing a wholly suspended sentence here because there is nothing to suggest and I do not believe that, you are not a hardened and repeat offender and a danger to society warranting your imprisonment for the safety of the community. I am firmly of the view that, you have learned your lesson well during the period you have spent in custody and I accept that, you have voluntarily accepted responsibility for what you have done and that, you are prepared to do what your society requires of you to correct the wrong you have brought upon yourself, the victim and your society. Suspending your sentence is also the right thing to do given that you are still a very young man and I do not believe that, sending you to prison will return you to the society at the end of your sentence, a well rehabilitated or change person. The chances of any rehabilitation are outside the prison system. 

41.	The suspension must however be on strict terms to convey the message that, this is not an easy let off but a form of punishment for the serious offence you committed. Hence, I consider the following conditions appropriate and order that, they be the conditions on which your 3 years is suspended. You shall:

(1)	Immediately enter into your own recognizance, with the surety specified in term (2) below, to keep the peace and be of good behaviour for the whole of the period suspended;

(2)	Within 3 months from today, pay into Court, a sum of K300.00 as surety which shall be forfeited on breach of any of the conditions herein from (1) to (7);

(3)	Within 6 months from today, undertake and complete an appropriate customary ceremony as may be determined appropriate by your village chiefs under which, you shall express your unconditional remorse, offer your apology and reconcile with your victim, her parents and relatives. 

(4)	Be home bound between the hours of 6:00pm and 6:00am for the whole of the suspended period;

(5)	No consumption of any form of alcohol, including any form of home brew for the whole of the suspended period.

(6)	Within the 3 three years suspended period, you are not leave the Autonomous Region of Bougainville without first obtaining the leave of the Court;

(7)	Render four hours free physical labour each week to a public institution, be it a school or a hospital or any other public institution which shall be specified by the Probation Service here in consultation with your village chiefs one of who may supervise you;

(8)	For the purposes of term (6), the Probation Service here in Buka shall in consultation with you, your victims people and the village chiefs or leaders specify the kind of work or service you shall undertake and furnish a work schedule to the Court for the Court's endorsement within 7 days from today;

(9)	Allow for and permit Probation Services to visit your home on a regular basis to monitor his compliance of these terms and to make such recommendations as they consider appropriate either for a variation or an implementation of these terms;

(10)	Enable and the Probation Service will attend on you each quarter to do a comprehensive review and report to this court of your compliance of these terms commencing with the first one by or before 19th February 2009;

(11)	Serve the remaining term of your suspended sentence if for whatever reason you breach any of these terms, from the date of the breach;

(12)	Be at liberty to apply for a review and or variation of any of these terms with the support of appropriate evidence or material, provided you faithfully and satisfactorily comply with all of the foregoing conditions.

_________________________

Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner