N4896
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 452 & 453 0F 2011

THE STATE

V

BALTHAZAR BASAN & HERMAN SAREA

Madang: Cannings J
2012: 23 October, 12, 20 November

CRIMINAL LAW – sentence – grievous bodily harm – Criminal Code, Section 319 – guilty pleas – offenders cut victim with bush knives – group attack – sentence of 4 years each.

CRIMINAL LAW – sentencing – request by victim for compensation – distinction between compensation order under Criminal Law (Compensation) Act and imposition of condition for payment of damages or compensation as part of probation order under Probation Act Chapter No 381 – whether order for compensation can exceed K5,000.00.

Two young men pleaded guilty to unlawfully doing grievous bodily harm to another young man, a relative, in a village setting, inflicting multiple wounds with a bushknife. It was a group attack, the victim being outnumbered five to one. He was admitted to hospital for six weeks and two of his toes were amputated. His attitude was that he would prefer to receive compensation than see the offenders imprisoned. He requested K15,000.00. The defence counsel submitted that the Court lacked the power to order compensation of that amount as the Criminal Law (Compensation) Act 1991 imposed a limit of K5,000.00. This is the judgment on sentence.

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: moderate amount of de facto provocation; spontaneous, one-off incident; pleaded guilty; expressed remorse; preparedness to reconcile with and compensate victim; victim's positive attitude; no prior convictions; good pre-sentence reports.

(3)	Aggravating factors: use of lethal weapons; group attack; multiple injuries to vulnerable parts of body; victim's permanent disability.

(4)	A sentence of four years was imposed, fully suspended in view of favourable pre-sentence reports and the victim's attitude.

(5)	In setting conditions of a probation order under the Probation Act, the Court is not constrained by the monetary limit of K5,000.00 imposed on compensation orders under the Criminal Law (Compensation) Act.

(6)	Various conditions were attached to the probation order including an order that the offenders pay a total of K6,000.00 cash + two pigs + foodstuff to the victim within six months of sentence.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
The State v Bill Kara (2012) N4663
The State v Justin Ipa (2008) N3439
The State v Ray Sheekiot (2011) N4454

SENTENCE

This was a judgment on sentence for grievous bodily harm.

Counsel

M Pil, for the State
B Meten, for the offenders

20 November, 2012

1. CANNINGS J: Balthazar Basan and Herman Sarea pleaded guilty to unlawfully doing grievous bodily harm to their relative, Mathew Sod, and have been convicted of that offence under Section 319 of the Criminal Code. The incident occurred at Dumusek near Kananam village where the offenders and the victim live in the North Ambenob area of Madang District, Madang Province, on Friday 10 December 2010. At 3.00 pm Mathew Sod was walking home after a graduation ceremony at the nearby Alexishafen School when he heard that his younger brother had for some reason been assaulted by a group of young men. He approached the men who were said to have assaulted his brother to find out the cause of the problem. They responded by threatening him with bushknives and sticks. Mathew Sod was outnumbered. There were five in the group, including Balthazar Basan and Herman Sarea, and Mathew Sod was by himself. Sod made a run for it but tripped and fell and then Basan and Sarea with the others set upon him while he was on the ground, injuring him seriously. Sod's brother came to the rescue and assisted him to the beachfront and found a dinghy that rushed him across the bay to Alexishafen Health Centre. From there he was driven to Modilon General Hospital.

2. A report by Dr G Kune, Surgical Registrar, states that Mathew Sod presented with multiple knife wounds to the scalp, little index finger and foot. He was slightly pale due to blood loss. He had two deep lacerations, 4 cm and 6 cm in length, to the parietal area of the scalp. He had a compound fracture of the left index finger with the proximal phalange exposed. The fourth and fifth toes on the left foot were almost severed. The second and third toes were fractured. There were also metatarsal and proximal phalange fractures of the left foot. Three days after admission the fourth and fifth toes became infected and gangrenous and were amputated. He remained in hospital for six weeks undergoing treatment.

ANTECEDENTS

3. Neither offender has any prior conviction.

ALLOCUTUS

4. Each offender was given the opportunity to say what matters the court should take into account when deciding on punishment:

Balthazar Basan: I apologise to the victim and to the police and to the court. I would not have committed the offence without provocation. I ask for the mercy of the court so that I can solve this problem outside court.

Herman Sarea: I apologise for what happened. I ask for mercy and a non-custodial sentence so that I can go back to the village and solve the problem there.

OTHER MATTERS OF FACT

5. As the offenders have pleaded guilty they will be given the benefit of reasonable 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). Balthazar Basan in his statement on allocutus spoke generally of provocation. This is consistent with a claim made in his record of interview. It appears that the incident was fuelled by alcohol on both sides and that insulting and inciting words were used against the offenders before they became angered and attacked the victim. This does not excuse what they did but as they have pleaded guilty it will be taken into account as a moderate mitigating factor that there was an element of de facto provocation.

PRE-SENTENCE REPORTS

6. A report on each offender was prepared by the Community Correction and Rehabilitation Service to assess their suitability for probation. Both offenders are from Kananam and live in the village. Balthazar Basan is 28 years old and is a single parent of one child. Herman Sarea is 22 years old and is married with one child. Balthazar Basan has a grade 9 education and Herman Sarea has a grade 10 education. Their parents are alive and also live in the village. The offenders' health is sound. Their financial positions are similar. Neither is employed and they earn moderate cash income from the sale of fish and produce at the local market. They are actively involved in local Catholic Church activities. They want to reconcile with the victim and the victim and his father (who were both interviewed) also want to reconcile. There is no persisting animosity between the parties and the prospects for long-term peace are good. The victim and his family would prefer to receive compensation instead of seeing the offenders go to jail. The amount sought is K15,000.00. Both offenders are suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

7. Mr Meten, while acknowledging that the use of bushknives made it a serious matter, highlighted the guilty plea, the lack of prior convictions and the fact that it was a one-off incident. Comparing this case with others in which the parties had reconciled or made progress towards reconciliation and compensation a sentence of no more than three years imprisonment, fully suspended, should be imposed. The conditions of the suspended sentence should include an order for compensation for a total amount of no more than K5,000.00 in view of the monetary limit imposed by the Criminal Law (Compensation) Act 1991.

SUBMISSIONS BY THE STATE

8. Mr Pil submitted that the case had many aggravating features: it was a group attack involving dangerous weapons and there were multiple wounds inflicted including head injuries. Had it not been for the intervention of the victim's brother the injuries are likely to have been much worse. A deterrent sentence of no less than four years, part only of which should be considered for suspension, was sought by the State.

DECISION MAKING PROCESS

9. To determine the appropriate penalty the following decision making process will be used:

•	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 State v Justin Ipa (2008) N3439 and The State v Bill Kara (2012) N4663.

STEP 4: WHAT IS THE HEAD SENTENCE?

13. Mitigating factors are:

•	there was a moderate amount of de facto provocation that led to the incident;
•	it was a spontaneous (unplanned), one-off incident;
•	the offenders pleaded guilty;
•	they expressed remorse;
•	they are prepared to reconcile with and compensate the victim;
•	the victim has a positive attitude in that he is prepared to reconcile and continue living in the same community as the offenders;
•	neither offender has any prior conviction;
•	the offenders have good pre-sentence reports.

14. Aggravating factors are:

•	use of lethal weapons;
•	it was a savage group attack against one person who was defenceless at the time;
•	the victim suffered multiple injuries to vulnerable parts of the body;
•	the victim suffered a permanent disability (two toes were amputated).

15. I place great weight on the fact that the offenders have pleaded guilty and are prepared to compensate and reconcile with the victim. However, any GBH case in which a bushknife is used, particularly when the wound is to the head, is a very serious case, involving great distress to the victim as it puts them in a life threatening situation (The State v Ray Sheekiot (2011) N4454). I reject Mr Meten's submission that a sentence of only three years is called for. This is too serious a case for that sort of sentence. The appropriate sentence is four years imprisonment.

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

16. Only two days each has been spent in custody. I exercise the discretion available under the Criminal Justice (Sentences) Act 1986 not to deduct this period from the sentence.

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

17. Despite the very violent nature of this crime, the offenders have received sound pre-sentence reports and most importantly the victim is prepared to accept compensation and wants to reconcile with them and does not want to see them imprisoned. This combination of factors warrants a suspended sentence subject to strict conditions, one of which will be payment of compensation.

18. I have difficulty with Mr Meten's submission that the amount of compensation is limited to K5,000.00 by virtue of Section 5(3)(b) of the Criminal Law (Compensation) Act. That is a monetary limit that applies only in relation to compensation orders made under that Act. There is no similar monetary limit applicable to orders that are made as conditions to a probation order under the Probation Act, which is the Act under which I am going to impose conditions on the suspended part of the sentence. I have included relevant provisions of the Probation Act as an appendix to this judgment. The combined effect of Sections 16(2)(a), 17(1) and 18(1)(b) is that there is no monetary limit on the amount of compensation that can be ordered by the National Court when imposing conditions on a suspended sentence and making a probation order under the Probation Act. I have considered the claim for K15,000.00 by the victim. It is not an outlandish claim especially as he has been maimed for life as a result of the attack. However, in all the circumstances I consider it excessive. The court must take into account the capacity of the offenders to pay and arrive at a realistic amount that will help all parties achieve real reconciliation and lasting peace in the community. The total amount I fix is K6,000.00, ie K3,000.00 to be paid by each offender (in instalments), plus one pig each and foodstuffs.

19. The entire sentence is suspended and probation orders shall be issued to each offender on the conditions, imposed under Sections 16, 17 and 18 of the Probation Act, that each offender must:

(a)	(i) within one month after the date of sentence pay K1,000.00 cash each to the victim; and 

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

•	must give a further K2,000.00 cash each + one pig each to the victim;
•	the victim must contribute 12 chickens + foodstuffs; 

(b)	must appear before the National Court at Madang on Thursday 7 February 2013 and Thursday 23 May 2013 or at such other times set by the Court to prove compliance with condition (a); 

(c)	must report to the Probation Office within three days after the date of sentence and settle on a community work program, involving at least three hours unpaid community work each week at a place notified to the Probation Office;

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

(e)	must not leave Madang Province without the written approval of the National Court;

(f)	must attend his local Church every weekend for service and worship and submit to counselling;

(g)	must report to the Probation Office on the first Monday of each month between 9.00 am and 3.00 pm;

(h)	must not consume alcohol or drugs;

(i)	must keep the peace and be of good behaviour;

(j)	must have a satisfactory probation report submitted to the National Court Registry every six months after the date of sentence;

(k)	if either breaches any one or more of the above conditions, 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

20. Balthazar Basan and Herman Sarea, having been convicted of one count of unlawfully doing grievous bodily harm contrary to Section 319 of the Criminal Code, are each sentenced as follows:

Length of sentence imposed	4 years	
Pre-sentence period to be deducted	Nil	
Resultant length of sentence to be served	4 years	
Amount of sentence suspended	4 years, subject to conditions	
Time to be served in custody	Nil	

Sentenced accordingly.
___________________________

Public Prosecutor: Lawyer for the State
Meten Lawyers: Lawyers for the Offenders

APPENDIX

Sections 16, 17 and 18 of the Probation Act Chapter No 381 state:

16.	Probation order.

(1)	In this section, "offence" does not include an offence for which a mandatory minimum sentence is provided for by any law.

(2)	Subject to Subsection (3), where a person, is convicted of an offence punishable by imprisonment or a fine or both imprisonment and a fine, the court convicting him may by probation order—

(a)	impose a sentence but suspend committing him to imprisonment or a fine or both imprisonment and a fine; or

(b)	defer sentencing him to imprisonment or a fine or both imprisonment and a fine,

and release him on probation for a period specified in the order, being a period of not less than six months and not more than five years.

(3)	. . . [Repealed]

(4)	Subsection (2) does not prevent the court—

(a)	imposing and requiring the payment by the probationer of a fine authorized by law; or

(b)	in accordance with any law—disqualifying the probationer from holding or obtaining a licence to drive a motor vehicle under the Motor Traffic Act.

(5)	A probation order takes effect from such date as may be determined by the Court or, where the Court makes no determination as to the date, from the date of the making of the order.

(6)	Subsection (2) shall not be construed as derogating from the powers of any court conferred by any other law to release a person on probation for such period and on such conditions as are specified in that law.

(7)	Notwithstanding Subsection (6), where a law provides for—

(a)	probation; or

(b)	a person to be placed on probation,

this Act shall apply in the absence of any express provisions to the contrary in that law.

17.	Conditions of probation.

(1)	A probation order shall—

(a)	specify the address to which the probationer is to go and remain on release until he is contacted by a probation officer; and

(b)	require the probationer to report to a probation officer as and when he is required by the probation officer to do so; and

(c)	require the probationer to keep the peace and to be of good behaviour; and

(d)	direct that—

(i)	the probationer shall not change his address, other than the address referred to in Paragraph (a), unless he has given to a probation officer reasonable notice of his intention to do so and the reasons for the proposed change; and

(ii)	where by virtue of the change of address, the probationer has moved to another declared area—he shall, within 48 hours of arrival, report to a probation officer in that area and advise that officer of the nature and place of his employment and of his new address in that area; and

(e)	direct that the probationer shall give to a probation officer reasonable notice of his intention to change his employment and advise him of the nature and place of his proposed employment; and

(f)	require that the probationer shall, for the purposes of this Act, allow a probation officer to enter his home during reasonable hours.

(2)	In Subsection (1)(a), (b), (e) and (f), "probation office" includes a voluntary probation officer.

18.	Additional conditions.

(1)	In addition to the conditions set out in Section 17(1), the court may impose all or any of the following conditions:—

(a)	that a probationer shall not, except with the permission of a probation officer and in accordance with such directions as the probation officer may give, leave any specified area; and

(b)	that a probationer shall pay, within such period and by such instalments as the court determines, damages for injury, or compensation for loss, suffered by any person by virtue of the offence for which the probationer is convicted or shall carry out work in restitution for such injury, compensation or loss; and

(c)	that a probationer shall travel to and reside in a specific area; and

(d)	that a probationer shall perform community work under the provisions of any law; and

(e)	that a probationer shall pay, within such period and by such instalments as the court determines, compensation according to custom to any person or persons.

(2)	Subsection (1) does not prevent the court imposing such other conditions as are necessary in the circumstances of the case for ensuring compliance by the probationer with the conditions of the order and for his good conduct and welfare.

 (3)	Where a probationer is performing community work or work by way of restitution, the probationer shall be deemed to be employed by the State for the purposes of the Workers Compensation Act (Chapter 179).