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State v Boala [2013] PGNC 180; N5369 (25 September 2013)

N5369

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 662 OF 2013

THE STATE

V

JOE BOALA

Kimbe: Geita AJ
2013: 18, 24, 25 September

CRIMINAL LAW – Guilty plea – Grievous Bodily Harm -
CRIMINAL LAW – Grievous Bodily Harm – Section 319 Criminal Code –

CRIMINAL LAW — Sentencing — Grievous bodily harm — Victim a National Maritime Safety Officer — offences against law enforcement agencies includes NMS Officers — stiffer penalties called for — Use of a paddle handle — No Provocation - Guilty plea — first time offender with no prior convictions — Sentence of 4 years part suspended on terms

Cases Cited

The State v. Joe Foe Leslie Leslie N1496,
Peter Naibiri and Kutoi Soti Apia v. The State, SC 137
Ure Hane -v- The State [1984] PNGLR 105
Goli Golu v The State [1979] PNGLR 653
John Kalabus 1988 PNGLR 193
The State v Henry Idab (2001) N2172. 17 December 2001

Counsel:

Francis Popeu, for the State
Paul Moses, for the accused

DECISION ON SENTENCE

25th September, 2013

1. GEITA AJ: You pleaded guilty to one count of doing grievous bodily harm to Michael Benjamin Livinai contrary to section 319 of the Criminal Code. I entered a provisional plea of guilty and then proceeded to read the depositions handed up in support of the charge against you. Upon reading the depositions, I found out that, in your record of interview with the police, you admitted to causing grievous bodily harm to the victim. I accepted your guilty plea and proceeded to convict you on the charge.

Brief Facts

2. The facts as contained in your depositions as presented to me are as follows: On 4th May 2013 at Kimbe Main Wharf you unlawfully did grievous bodily harm to the victim by hitting him with a paddle on his arm and head resulting in him receiving a fractured left arm. Besides his other duties as Ships Safety Inspector with National Maritime Safety Authority he was responsible for carrying out inspections of all ships docking into Kimbe wharf. On that day the victim ordered the accused's ship to remain in Kimbe and return to Rabaul for certain defects which he identified to be repaired. From 2nd to 4th May the captain of the ship tried unsuccessfully to have his ship released for repairs in Rabaul but died on the 4 May 2013. Unbeknown to the victim he boarded the ship on the same day to give clearance for the ship to leave Kimbe. The accused who was second in charge of the ship became incensed at the loss of his captain and attacked the victim causing grievous bodily harm.

3. Medical evidence which was admitted into evidence without any objection from the defence describes the victim's injuries as consisting of:

"scalp laceration open wound measuring 4cm x 0.5cm swelling, left forearm deformed revealing fracture."

The Law

4. The offence of grievous bodily harm and its penalty is prescribed by section 319 of the Criminal Code in these terms:

" A person who unlawfully does grievous bodily harm to another person is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.".

Allocutus.

5. In your allocutus you said you were sorry for what you had done and asked for leniency. You also said you were unemployed and have been living away from family who are in Rabaul, awaiting the outcome of this case. You told court that this was your first time and that what you did was wrong.

Mitigating factors

6. The following was the mitigating factors in your favour

1. No prior convictions, first time offender
2. Prisoner was alone and not in company of others
3. Early guilty plea
4. No dangerous weapon used
5. Spur of the moment attack

Aggravating factors

7. The victim suffered a broken left arm & bruises to his head

Pre- Sentence Report

8. A pre sentence report prepared and submitted on your behalf by Community Corrections Officer Ms Elizabeth Passingan on 24/9/2013 amongst other recommendations suggest that you are a suitable candidate for probation. However due to the seriousness of the crime a longer period of probation be placed on you. Furthermore you were willing to pay some compensation amounting to K2000. I thank the officer for the well researched report and commend her for a job well done.

Submissions on sentence

9. In his oral submissions Defence Lawyer Mr. Moses submitted that the circumstances of the case do not warrant the imposition of the maximum 7 year jail sentence. Furthermore he submitted on your behalf in mitigation that you attempted to reconcile with the victim by offering him K1000 some time back but such offer was declined by the victim. That is understandable in my view at the time as he was still in pain and not in a settled frame of mind. He said you and your family are now prepared to pay K2000 in cash as compensation to the victim.

10. Mr Popeu for the State conceded with your lawyers submissions on sentence. He however said the weapon used in the attack was a wooden paddle as opposed to a bush knife or such like weapons in other similar situations. Furthermore your willingness to pay compensation and genuine remorse shown is sufficient punishment but submitted that the court also consider a prison term of up to 3 years and exercise its discretion and other conditions.

11. I note also that your Pre Sentence Report contains some information on your ability and those of your relatives and children towards monetary compensation. I am satisfied with this information and so will not call for a means assessment report as required by section 4 of the Criminal Law (Compensation) Act 1991. You must understand that the payment of compensation is also a punishment. It is a relevant factor only in mitigation and not in substitution of criminal penalties. Your Lawyer also invited the Court to also consider sentencing options available under Section 19 (6) Criminal Code Act.

Decision of the court

12. The first issue is whether the offence committed by the prisoner is of the worst type and whether the court should impose the maximum prescribed sentence. To this end I remind myself that the maximum prescribed sentence are best left for the worst types of cases. (Goli Golu v The State [1979] PNGLR 653 and State v John Kalabus [1988] PNGLR 193. The second issue is framed in this question and that is what is an appropriate sentence in your case? I have had the benefit of submissions from both lawyers on all relevant issues. I also have had the benefit of a pre sentence report presented to me. The decision that I come up with will obviously depend on points favourable to you and points against you.

13. In your case, you attacked a man who was tasked to ensure that ships going out to sea are sea worthy. You armed yourself with a handle of a paddle and attacked the victim. He suffered wounds to his head and a broken left arm. I consider the nature of the injuries and the attack on the victim uncalled for and serious, calling for the maximum prescribed penalty to be imposed on you. My research has shown that there are decided cases in which both the Supreme and National Court have said serious offences of this nature ie attacks on persons empowered by law to carry out their lawful duties must be protected and warrants the imposition of the maximum penalty.

14. In the case of The State v. Joe Foe Leslie Leslie N1496, Peter Naibiri and Kutoi Soti Apia v. The State, SC 137 and Ure Hane -v- The State [1984] PNGLR 105, the Court said and I quote":

"The Courts must protect the police, as they carry out their duties, by stern punishments on anyone who attacks them. A policeman carrying out his duty deserves the full protection of the law. If he is trying to arrest an escapee, for example, he should be able to do so by virtue of the authority which attaches to his position without fear of attack..."

15. Similar sentiments were echoed by His Honour Kandakasi J in the case The State v Henry Idab (2001) N2172. 17 December 2001. His Honour said:

"I agree and adopt the sentiments echoed by Justice Sevua in this judgment. It is my view that an attack on a law enforcement agency, be it a police officer, Judge, Magistrate or CIS officer, is a very serious matter. I consider that an attack on any of the law enforcement agency is tantamount to an attack on the fundamental democratic institutions we have under our Constitution. The attack on the police officer in the present case, in my view, is tantamount to an attack on the function of the Police Force under s.197 of the Constitution. Neither the Courts nor the community at large should condone or tolerate violence against police officers who are going about their lawful and constitutional duties."

16. I too support the sentiments echoed by the two Justices and adopt their views as mine here in this judgment. In this case, the victim was a National Maritime Safety Officer. As delegate of the Secretary to the Department of Transport, his responsibilities were to ensure that the safety standards on ships were maintained and conditions on ships improved for the safety and lives of both the crew and passengers. Such officers are appointed under The National Maritime Safety Authority Act. These officers' responsibilities are as important as other law enforcing officers or agencies. As such the principles set out above in my view apply equally to them. The victim was carrying out his duties when you attacked him forcing him to jump overboard in fear of his life.

17. Due to the foregoing reasons I consider that a head sentence of 4 years would be appropriate in your case. I am sure the seriousness of the crime of grievous bodily harm will be reflected. Your admissions in your record of interview coupled with your guilty plea, your good record in the community and your willingness to pay compensation has added weight to the suspension of your sentence. Therefore the orders I make are in the following terms:

1. You are sentenced to 4 years imprisonment of which the whole of the sentence will be suspended with conditions,
   
2. As part of your sentence you are ordered to pay compensation of K2000.00 to the victim within 4 weeks from today in default distress.
   
3. You will be put on probation supervision for 24 months. You must allow Community Correction Service Officer to do home visits and do quarterly reports to this Court.
   

18. Should you fail to comply with any of the above orders you will be rearrested to serve the balance of the suspended sentence.

Ordered accordingly.
____________________________________________________

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