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State v Busii [2012] PGNC 310; N5267 (14 December 2012)

N5267

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR 818 of 2012


THE STATE


V


ROBERT BUSII


Lorengau: Batari J
2012: 11, 14 December


CRIMINAL LAW– Sentence – unlawful grievous bodily harm – accused struck third party in domestic fight and fractured right forearm bones – use of weapon - wood - offence – prevalence of - plea – mitigation - background – social worker – effect of sentence on community – relevance of


CRIMINLA LAW–Practice and procedure – sentencing options – whether "tariff sentence" or individual measure – principles applied – payment of compensation – s. 3 Criminal Law (Compensation) Act - sentence – 3 years suspended on probation orders and orders for compensation appropriate.


Cases Cited


No cases cited


Text Referred


Principles of Sentencing, DA Thomas, 2nd Edition


Counsel


C. Sambua, for the State
K. Kaleh, for the Accused


SENTENCE

14 December, 2012


  1. BATARI J: Robert Busii, you have pleaded guilty to unlawfully causing grievous bodily harm to one, Jennifer Chilih. Under s 319 of the Criminal Code the maximum penalty for unlawfully grievous bodily harm is 7 years imprisonment. This is your sentence.
  2. The facts surrounding your offence are brief. On the morning of 27/6/2012 an altercation between your two wives at Ahus Island, Lorengau, Manus Province developed into a fight between them. You armed yourself with a bush knife and a piece of wood and assisted one of them to attack the other. The victim, Jennifer Chilih intervened and you struck her with the wood, causing her a fracture of the right forearm bones.
  3. This is sadly, a case of an elderly lady being critically hurt in a courageous attempt to save a victim of domestic violence. In her own words, you were threatening to cut your wife with the bush knife when she moved in between you and her. It was then that you struck her with a tree branch, fracturing her forearm bones. She had placed her own life on the line to prevent what could have led to serious bodily injuries or even death of your wife. What she did may be unwise for her own safety but it was clearly a selfless act of bravery against a cowardly knife-wielding husband.
  4. You assaulted and caused serious arm injury to a defenceless elderly woman whose only fault was her attempt to stop your acts of violence against your wife. Wife beating or domestic violence is one social evil that has become a concern for law abiding Papua New Guineans due to its escalating occurrence. As a result, it has attracted a lot of adverse publicity both internally and abroad. When others see us as wife-bashers it brings shame to the people and to the country. Parliament has therefore seen fit to legislate against such violence so that wives, daughters, children and even husbands are safe in their own homes.
  5. Your offence was not calculated or planned. I accept that you struck the victim on the spur of the moment. All the same, this type of offence is quite prevalent and that makes your conduct serious.
  6. You are aged 49 years, married with three grownup children. You completed Grade 10 education and continued college studies towards a certificate in community health work. After college, you initially served as a Community Health Worker at several other places before moving to Ahus Island where you have served the islanders for the past 11 years.
  7. The pre-sentence report which I ordered from the Probation Officer of Lorengau CBC Office included a favourable view from the community that your presence and services on the island have had positive impact on the social and well-being of the islanders. It is stated that if you were sent to jail, there will be serious setbacks to the island health and welfare services because of the difficulties in accessing service delivery from the provincial headquarter.
  8. This is your first offence and you have pleaded guilty early which to some extent is also indicative of and supports remorse.
  9. A plea of guilty is a factor that may in appropriate cases substantially mitigate a criminal conduct. It may warrant a substantial discount on sentence as an incentive in itself to plead guilty. In your case, your plea of guilty together with your expression of remorse and offer to pay compensation are significant factors in your favour. I will take those factors into account on sentence.
  10. I have considered the pre-sentence report together with the means assessment reports from the CBC Office. I commend Ms. Nancy Poli in compiling a very comprehensive pre-sentence report together with the means assessment report. Such reports are most useful as they assist in making this difficult task of sentencing a lot easier. The reports are sufficiently detailed on the grounds for alternative sentencing and there has been no opposition for the recommended options for a release on probation and payment of compensation.
  11. The Criminal Law (Compensation) Act 1991 authorizes the court when considering punishment, to consider whether compensation should also be awarded as part of the penalty.
  12. In a civil suit for damages, the extent of the victim's injuries described by the doctor may call for an award in excess of K5,000 provided for under the Criminal Law (Compensation) Act 1991, inclusive of any assessment for continuing disabilities or loss of enjoyment. The guidelines under which the Court may proceed are set out in s. 3 of the Act and these are:
  13. I have determined your sentence in the light of those considerations.
  14. According to the pre-sentence report, both parties will agree to settlement by compensation as part of the punishment. The victim had initially submitted her settlement figure at K2,000.00. However when interviewed by the Probation Officer, she has increased her rate to K5,000.00. You had offered K2,000.00 but may settle at K3,000.00.
  15. The Means Assessment Report shows that you earn K400.00 a fortnight. You are able to immediately pay K2,000.00 but will require time to pay a further K1,000.00. Your relatives have pledged to assist but will require time for their contribution.
  16. I consider that you are able to pay compensation. The orders I propose to make takes into account, your ability to pay. It also takes into account what might be a just and fair compensation in all circumstances of the case.
  17. The option to order compensation does not necessarily endorse the notion that those with the means can simply "buy" their way out of court. It will appear that way when it is not viewed in the light of the primary legislative structure under s 19 of the Criminal Code. Section 19 creates two distinct systems of sentencing to reflect the different penal objectives governed by different principles. This notion of sentencing is succinctly stated by the learned author of Principles of Sentencing, DA Thomas, 2nd Edition at p8:

"The options are to impose a sentence that may be loosely termed as "tariff sentence" or impose a sentence based on the needs of an offender as an individual".


  1. As to which of these two objectives should prevail over the other will be determined by the circumstances of each case before the Court. Whatever the circumstances, the court will apply the appropriate body of principles to determine the form of the sentence or measure to be adopted.
  2. In this case, the circumstance of the case taking into account, the gravity of the offence and the personal circumstances of the offender, the individual measure approach are in my view, warranted. So, the punishment imposed should include an order for payment of compensation.
  3. I have considered all that was submitted by both lawyers. Prosecuting counsel in particular concedes that the circumstances of this case warrant leniency and the individual measure approach. Your plea of guilty, remorse, offer of compensation and good background are most favourable factors which deserve appropriate discount on sentence. You have spent some days awaiting sentence in custody. I do not propose to send you back to jail. I am of the view that a compensation award should be part of the sentence I am about to impose.
  4. I make the following orders:
    1. You are convicted and sentenced to 3 years imprisonment in hard labour;
    2. You are to be released forthwith on probation for a period of three years on the usual conditions;
    3. You are to perform 200 hours of community work without pay.
  5. In the event that these conditions are not complied with, then your probation will be breached and you will be sent to gaol for three years imprisonment.
  6. I propose to award K3,500.00 Pursuant to s 6 of the Act, I order that:

__________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused

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