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State v Konos [2010] PGNC 179; N4157 (12 November 2010)

N4157

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 1219 0F 2010

THE STATE

V

MARTIN KONOS

Madang: Cannings J
2010: 7 October, 1, 12 November

SENTENCE

CRIMINAL LAW – sentence – grievous bodily harm – Criminal Code, Section 319 – guilty plea – offender attacked his nephew with piece of timber, fracturing his knee – sentence of 3 years.

A man pleaded guilty to unlawfully doing grievous bodily harm to his nephew by attacking him with a piece of timber, fracturing his knee and inflicting many other superficial injuries by multiple blows.

Held:

(1) The maximum sentence under Section 319 of the Criminal Code is seven years imprisonment and an appropriate starting point is three and a half years.

(2) Mitigating factors are: pleaded guilty; first-time offender; the victim was a known troublemaker; de facto provocation for the attack; a blunt object was used on the leg, lessening the risk of a fatal injury; the offender made early admissions.

(3) Aggravating factors are: serious leg injury, took the law into his own hands, no compensation, reconciliation or forgiveness.

(4) A sentence of three years was imposed, which was fully suspended in view of a favourable pre-sentence report and subject to conditions including payment of compensation and participation in a reconciliation ceremony with the victim.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
The State v Justin Ipa (2008) N3439

SENTENCE

This was a judgment on sentence for grievous bodily harm.

Counsel

M Pil, for the State
A Turi, for the offender

12 November, 2010

1. CANNINGS J: Martin Konos has pleaded guilty to unlawfully doing grievous bodily harm to another person and has been convicted of that offence under Section 319 of the Criminal Code. The victim was his 27-year-old nephew, Taga Konos. The incident occurred at their village, Furan, on the morning of 8 August 2009. The offender, aged in his mid-40s, went to the victim's house, armed with a piece of timber, which he swung at the victim's left leg. The victim in fear of his life, ran off into the bush, chased by the offender, who caught him and attacked him a second time using the same object. As a result of the attacks, the victim suffered a fractured left knee and other superficial, but very painful, injuries, including bruising and haematoma of both ankles, haematoma of the left forearm and five lacerations on the scalp.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. The offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:

There was a reason for this happening. My family and I had been putting up with the victim and his antics for six years. He is a troublemaker in the village, a well-known illegal drug user and he consistently threatened my family and I, and used abusive language against us. If I had gone to the police they would not have assisted me. On the morning of the incident after he had been drinking yawa all night with his friends he came to my house and called out "Today you will die! Yu kaikai kun!" My children heard what he said and they were very frightened so I decided that I needed to attack him first. Church people arrived on the scene and told us to shake hands. The plan was that after he received medical treatment, we would do a customary reconciliation but after a month he decided to take the matter to the police and the reconciliation has not taken place.

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). In that regard, I accept as a fact the explanation he has given for committing the offence: he was frustrated by the victim's conduct and attitude over a long period and there was immediate provocation for the incident. This does not justify what he did, but it helps explain why he did it and to some extent it is a mitigating factor. I will also take into account that he co-operated with the police and made early admissions.

PRE-SENTENCE REPORT

5. Martin Konos is 47 years old and married with five children. He has been raised in Furan, a village on the outskirts of Madang town, and he has no plans to leave. He has two brothers and four sisters and his parents are deceased. He is a subsistence farmer and faces occasional financial difficulties. He has a grade 9 education. He is spoken of highly by the ward member, Henry Makul, of Ambenob Local-level Government, who stated in an affidavit that the victim, Taga, has a bad reputation in the village and that he understood the reason that Martin had hit him.

6. He is a village recorder and chairman of the Law and Order Committee in the village. He is actively involved in the Lutheran Church. Taga Konos was not available to be interviewed. However, his father made a statement that suggests the prevailing view in the village is that the problems between Taga and Martin should be sorted out in the village by customary means. The report concludes by saying that the offender has accepted responsibility for his actions and is not a danger to the community. He is recommended for probation.

SUBMISSIONS BY DEFENCE COUNSEL

7. Ms Turi highlighted the guilty plea and the fact that Martin Konos is a first time offender. There was a clearly identifiable cause of frustration that had built up in the village due to the victim's bad behaviour and attitude. Tension and frustration existed for six years; and then there was the death threat and the abuse that triggered commission of the offence. The favourable pre-sentence report warrants a suspended sentence of 18 months, she submitted.

SUBMISSIONS BY THE STATE

8. Mr Pil asked the court to take into account that the victim has been made out to be a troublemaker but that his side of the story had not been heard; so the court must be careful it is not too lenient on the offender. A sentence of three or four years would be appropriate. The State, however, did not oppose a suspended sentence.

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 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?

10. The maximum penalty under Section 319 (grievous bodily harm) is seven years imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

11. I will use the midpoint of three and a half years.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

12. Attacks of this nature, where the offender pleads guilty to a Section 319 grievous bodily harm offence, and there is an identifiable cause and where the offence can be described as a crime of passion, usually result in a sentence of three to five years imprisonment, depending on the circumstances. See, for example, the recent West New Britain cases summarised in The State v Justin Ipa (2008) N3439.

STEP 4: WHAT IS THE HEAD SENTENCE?

13. Mitigating factors are:

• pleaded guilty;
• first-time offender;
• the victim was a known troublemaker;
• de facto provocation for the attack;
• a blunt object was used on the leg, lessening the risk of a fatal injury;
• the offender made early admissions.
  

14. Aggravating factors are:

• the offender attacked the victim twice and inflicted multiple, unnecessary blows;
• took the law into his own hands;
• no compensation, reconciliation or forgiveness.
  

15. In weighing all these factors I place great weight on the fact that the offender has pleaded guilty, he is a first time offender and he showed a high level of co-operation. This is a less serious case than many other grievous bodily harm cases, particularly those involving bushknives. The appropriate sentence is three imprisonment.

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

16. No time has been spent in custody. There is nothing to deduct.

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

17. The favourable pre-sentence report warrants a suspended sentence, subject to strict conditions. It seems that the offender is willing to pay compensation and reconcile with his nephew. Also, the victim's family favour customary resolution of the problem ahead of the offender being sent to prison. I will suspend the entire sentence subject to these conditions:

(a) the offender must participate in a reconciliation ceremony with the victim, supervised and witnessed by the Village Court and the Probation Office, within three months after the date of sentence and at the reconciliation ceremony:

• he must give K500.00 cash + foodstuffs to the victim; and
• the victim must contribute 5 chickens + foodstuffs;
  

(b) must reside at Furan village and nowhere else except with the written approval of the National Court;
(c) must not leave Madang Province without the written approval of the National Court;
(d) must perform at least six hours unpaid community work each week at a place notified to the Probation Office under the supervision of his Ward Councillor;
(e) must attend his local Church every weekend for service and worship and submit to counselling;
(f) must report to the Probation Office at Madang on the first Monday of each month between 9.00 am and 3.00 pm;
(g) must not consume alcohol or drugs;
(h) must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim and his family;
(i) must have a satisfactory probation report submitted to the National Court Registry at Madang every six months after the date of sentence;
(j) 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

18. Martin Konos, having been convicted of one count of unlawfully doing grievous bodily harm contrary to Section 319 of the Criminal Code, is sentenced as follows:

Sentenced accordingly.
___________________________

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