N4832

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 894 OF 2011

THE STATE

-V-

MASON KINJON KARATO
(NO. 2)

Wabag: Gauli AJ
2012: 17 & 19 October

CRIMINAL LAW – Sentence – Grievous bodily harm – Criminal Code, s. 315 – Plea guilty – Used offensive weapon – Injured victim on the lower part of the leg – Injury not life threatening – No pre - planning – Acted alone – No prior conviction – Showed remorse – Sentenced to 3 years with part suspended on condition. 

Cases Cited: 

Goli Golu v. The State [1979] PNGLR 653.
Lawrence Simbe v. The State [1994] PNGLR 38.
The State v. Lendeki Openkaly & Ors (Unreported) CR. 840 & 479 of 2011; (27 July 2012).
Public Prosecutor v. Terrence Kaveku [1977] PNGLR 11. 
The State v. So'on Taroh (2004) N2675.
The State v. Inapero Susure (1990) N1880.
The State v. Martin Muru Cr No. 1632 of 2006; (19/04/2007). 
Manu Kovi v. The State (2005) SC789.
Thress Kumbamong v. The State (2008) SC1017.
The State v. Peter Pepa (2010) N4146.
The State v. Yale Sambrai (2005) N2885.
The State v. "W" (2010) N3889. 

Counsel: 

Mr. Ruari, for the State 
Mr. Mwawesi, for the Accused / Prisoner

DECISION ON SENTENCE

19 October, 2012 

1.	GAULI AJ: The prisoner Mason Kinjon Karato is convicted on his plea of guilty to the alternative charge of doing grievous bodily harm, pursuant to section 315 (b) (d) of the Criminal Code. He pleaded not guilty to the principle charge of attempted murder, charged under section 304 (a) of the Criminal Code. A trial was conducted, I found him not guilty of the attempted murder, but convicted him on the alternative charge of grievous bodily harm on his plea of guilty. 

2.	The brief facts are that on the 7th of February 2011 outside the Highlands Lutheran International School at Amapyak about 5.00 o'clock in the afternoon, the prisoner Mason Karato, suddenly and surprisingly attacked the victim Richard Kare with a bush knife. He approached him from the back and he cut the victim on the lower part of his right leg. The victim sustained a deep wound measuring 25cm long, the muscles completely severed and the fibula bone fractured.

THE LAW 

3.	The law that prescribes the offence of grievous bodily harm under s.315 (b) (d) of the Criminal Code Act is as follows:

315 Acts intended to cause grievous bodily harm ... 

A person who, with intent – 
(b) to do some bodily harm to any person; or 
or does any of the following things is guilty of a crime – 
(d) unlawfully wounding or doing a grievous bodily harm to a person. 

Penalty: Subject to Section 19, imprisonment for life.

4.	The position of the law in regards to sentencing is well established by the Supreme Court in Goli Golu v. The State [1979] PNGLR 653, and applied and adopted by other cases later, that maximum penalty is reserved for the most serious category of any offence before the court. And that each case must be decided on its own facts and merits; see Lawrence Simbe v. The State [1994] PNGLR 38. 

ANTECEDENT REPORT

He has no prior criminal records. 

ALLOCUTUS

5.	On allocutus, the prisoner said:

"I am a young Christian member of Four Square Church and I lead singing in the church. I wasn't expecting this thing to happen. I was expecting those people to compensate my brother for the injury. When I saw the victim, I thought of that incident, so I cut him. I say sorry to this court and the victim for what I did. I will never do this again. Now I put myself in the hands of the court. I ask for the mercy of the court. I will compensate the victim. That is all." 

MITIGATING FACTORS 

6.	The prisoner's mitigating circumstances are:

(a)	He entered an early plea of guilty. 
(b)	He showed remorse. 
(c)	He is a Christian, a youth leader, leads praise and worship in the church service. 
(d)	First time offender. 
(e)	Offence not pre-meditated, it occurred by chance in retaliation for his brother's injury that occurred sometimes ago in Port Moresby. 
(f)	He acted alone 
(g)	He inflicted a single injury with a single blow. 
(h)	Injury not life threatening. 

AGGRAVATING FACTORS

7.	The aggravating features in this case are:

(a)	The use of an offensive weapon namely a sharp bush knife. 
(b)	The victim was unarmed and caught unaware. 
(c)	He approached the victim from the back and suddenly cut him on the lower right leg.
(d)	The victim received serious injury. 
(e)	Though not a life threatening injury, it was serious deep wound that severed muscles and fractured a fibula bone. 
(f)	Prisoner intended to cause grievous bodily harm. 

DEFENCE SUBMISSION 

8.	Mr. Mwawesi submitted the court to consider the mitigating factors in sentencing. Though there was no provocation, it was a payback assault for the injury his brother received in Port Moresby several years ago. In the Highlands region such dispute is still existing no matter how long it may take. 
 
9.	The offence was committed some 1 year and 8 months ago. The prisoner is prepared to pay compensation of K1,000.00 plus a large pig and is readily available. The prisoner and the relatives attempted to contact the victim earlier to reconcile but were unsuccessful. If the court decides a higher compensation then a period of 3 months be given to pay the compensation. 

10.	Defence counsel referred to one of the decision of this Court, namely The State v. Lendeki Openkaly & Ors, (Unreported), CR. 840 & 479 of 2011; (17 July 2012), by Gauli AJ. The circumstances are not the same but the sentence is relevant where the sentence of 6 years was wholly suspended for attempted murder. Mr. Mwawesi submitted that in the present case the prisoner swung the bush knife only once, therefore it is not the worst case. The attack was sudden and the victim was unaware. The injury was serious but not life threatening. This court has wide discretionary powers on sentencing under section 19 of the Criminal Code and submitted that a sentence of 5 years be appropriate and to be wholly or partly suspended. 

PROSECUTORS SUBMISSION

11.	Mr. Ruari submitted that the offence is very serious and it calls for immediate custodial sentence, as per Public Prosecutor v. Terrence Kaveku [1977] PNGLR 110. The offender was sentenced to 15 months on each of the two counts of unlawful wounding with intent to do grievous bodily harm under section 315 of the Criminal Code. On an appeal against inadequate sentence, the Supreme Court substituted to 3 years to be served cumulatively. 

12.	The offence involves violence to the person of another and it is a prevalent offence especially in this province where people walk around with bush knifes and axes all the time. It seems that cutting another is just another days work or it is a normal thing to do. The prisoner knew that the victim is not the person who injured his brother some 4 years ago. As such it calls for a deterrence sentence. 

13.	In The State v. So'on Taro (2004) N2675, the accused inflicted three severe wound to the victim's hands with a bush knife resulting from a land dispute. He was sentenced to 8 years after trial, though self defence was raised. In the case of The State v. Inapero Susure (1999) N1880, the accused cut the victim twice with an axe and inflicted wounds on the head and nose, was sentenced to 3 years partly suspended on terms including compensation. And in The State v. Martin Muru, CR No. 1632 of 2006; (19/04/2007), David J sentenced the accused to 3 years wholly suspended with condition to pay compensation. The accused deliberately struck the victim on his left leg with a stone using a lot of force and broke the two lower bones (tibia and fibula).
 
14.	Considering the circumstance of the present case to that of So'on Taroh (above), Mr. Ruari submitted that this case calls for immediate punitive deterrence sentence. 

DECISION OF THE COURT

15.	Although this proceeding went on trial for the charge of attempted murder, under section 304 of the Criminal Code, of which the Court has found the prisoner not guilty, the prisoner has pleaded guilty and convicted on this alternative charge of doing grievous bodily harm, under section 315 (b) & (d) of the Criminal Code. It is therefore correct to say that the prisoner is convicted on a plea of guilty and not after a trial. And I now proceed to determine on an appropriate sentence to be imposed on the prisoner after considering the whole of the evidence and the submissions by both the defence and the prosecution counsel. 

THE ISSUE

16.	The issue for this court to determine is what would be the appropriate sentence the court should impose on the prisoner. In determining the appropriate sentence for the prisoner, the relevant issues to be considered are:

1.	Whether this is a worst type of grievous bodily harm to warrant the imposition of a maximum imprisonment term?

2.	What would be the appropriate head sentence? 

3.	Whether it is appropriate to suspend the sentence wholly or in part? 

ISSUE 1: Whether this is a worst type of grievous bodily harm case to warrant the imposition of a maximum imprisonment term? 

17.	The maximum penalty for the offence of grievous bodily harm, under section 315 of the Criminal Code is a life year imprisonment. However the Court has wide discretionary power under section 19 of the Criminal Code to impose either lesser term of sentence or impose non-custodial sentences depending on the facts and the circumstances of the case under consideration before the court. 
 
18.	The prisoner swung the sharp bush knife only once and he inflicted a single wound on the victim's lower leg. The injury was quite serious as the wound was deep that severed the muscles or flesh and fractured one of the bones (fibula). The prisoner was the lone attacker and the assault was not pre - planned. The blow was directed at the lower part of the leg and that being the circumstance as it is, it was not a life threatening blow. Given the circumstance of the case as it stands, I consider that this case does not fall in the worst type of grievous bodily harm that should attract the imposition of a maximum penalty. A worst type of grievous bodily harm case would be where there are multiple injuries resulting from series of repeated blows either from a single perpetrator or from a group attack. And one or several of those blows is directed at any vital part of the victim's body that is likely to result in death. 

ISSUE 2: What would be the appropriate head sentence? 

19.	There are a number of decided cases on sentencing for the offence under section 315 of the Criminal Code. In the case of Manu Kovi v. The State (2005) SC789, the Supreme Court has set sentencing guideline. If I have to follow the guidelines in Manu Kovi case, the present case falls within Category 2 and attracts a sentence between 16 – 20 years. However Manu Kovi case had been overruled by the Supreme Court decision in Thress Kumbamong v. The State (2008) SC 1017, as such I would not follow the sentencing guidelines in the Manu Kovi case. 

20.	The defence counsel submitted that a sentence of 5 years should be appropriate when taking into consideration the mitigating and aggravating factors. The State submitted that an immediate custodial sentence is called for in this case. 

21.	I get assistance from some of the decided cases on what sentences have been imposed that are similar in nature charged under the same offence as in the present case. In The State v. Peter Pepa (2010) N4146, David J sentenced the accused to 6 years with part suspended. The victim sustained multiple wounds where he was cut with a bush knife on his face, right arm and right leg. In The State v. So'on Taroh (2004) N2675, the accused was sentence to 8 years for cutting the victim three times on his hands. These two cases are considered to be more serious as they involved multiple injuries as compared to the present case. 
 
22.	In The State v. Yale Sambrai (2005) N2886, Sawong J, sentenced the accused to 2 years when the accused approached the victim from the back and cut him on the back of his head with an axe. This case is similar to the present case in that the accused approached the victim from the back. However the blow was on the head, which is a vital part of the body and an axe was used. I consider the sentence of 2 years to be too lenient when considering the weapon used and attacked the vital part of the body. 

23.	 In The State v. "W" (2010) N3889, Ellis J, sentenced the prisoner to 3 years on plea of guilty for cutting his wife on her right foot with a bush knife. He missed the first blow aimed at her head. And in The State v. Martin Muru (above), David J, sentenced the accused to 3 years wholly suspended for hitting the victim with a stone on the right leg that broke the fibula bone. These two cases are more appropriate to the present case and I consider that a sentence of 3 years as appropriate. 

ISSUE 3: Whether it is appropriate to suspend sentence wholly or in part? 

24.	The offence of causing grievous bodily harm using busk knives or axes is a prevalent offence here in Enga Province. People are walking around even in the streets in Wabag town with bush knives. Bush knives are purposely made to be used in clearing gardens and bushes but are not meant to be used on fellow human being. 

25.	Suspension of sentence is provided for under section 19 (6) (b) of the Criminal Code for offences not punishable by death. How much portion of the sentence to be suspended is the discretion of the sentencing authority after taking into account such matters including the antecedent report, mitigating and aggravating factors, any compensation paid or are forthcoming and so on.

26.	There is no pre – sentence report presented in court to assist the court to order for suspension of sentence. The lack of pre – sentence report should not be the reason not to consider suspension of sentence. The court has the duty to consider suspending sentence where it considered just and appropriate to do. 

27.	The victim was caught unaware, unarmed and defenceless when he was attacked. The prisoner's reason that he did what he did because his brother was given the similar injury some 4 years ago in Port Moresby by the victim's sister, cannot be justified by law. The victim was not the one who injured the prisoner's brother. I have given a very serious thought on these circumstances and I am of the view that partial suspension of the sentence is more appropriate in the circumstances than wholly suspension of the sentence. The section 3 (2) of the Criminal Justice (Sentences) Act 1986 imposed on the courts to deduct pre – trial custody period. The prisoner has being in custody for a period of 2 months and that will be deducted. 

SENTENCE

28.	You Mason Kinjon Karato having pleaded guilty and convicted of the charge on grievous bodily harm under section 315 of the Criminal Code, I now convict you and sentence you as follows: 

a)	You are sentenced to 3 years imprisonment in hard labour. 
b)	I deduct the period of 2 months for your time in custody. 
c)	You will serve a period of 1 year 5 months in prison at Baisu CIS. 
d)	After serving the first half of your sentence, the balance of the sentence of 1 year 5 months is suspended on CONDITIONS that: 

i)You shall keep the peace and be of good behaviour bond for a period of 2 years with surety of K200.00

ii) You shall not re - offend.

iii)You shall remain at your Amapyak village during the period the bond.

iv)You shall pay compensation of K3000.00 plus one (1) matured pig to Richard Kare within 3 months from the date of this order. 

v)If you breach any of these conditions, you will be arrested and returned to serve your suspended sentence in full. 

Sentenced accordingly
______________________________________________________

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