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State v Ben [2013] PGNC 225; N5368 (27 September 2013)

N5368

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR 418 OF 2013

THE STATE

V

LOY BEN

Kimbe: Geita AJ
2013: 20, 25, 27 September

CRIMINAL LAW – Guilty plea – Grievous Bodily Harm -
CRIMINAL LAW — Sentencing — Grievous bodily harm — Victim a close relative - Guilty plea — first time youthful offender — Sentence of 2 years wholly suspended with conditions- Sections 16 & 17 Probation Act Ch 381

CASES CITED

The State v Joe Boala CR 662 of 2013) Unreported 25 July 2013 Kimbe
The State v Kuri Willie [1987] PNGLR 298
John Kalabus v. The State [1988] PNGLR 193
Goli Golu v The State [1979] PNGLR 653

Counsel

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

DECISION ON SENTENCE

27 September, 2013

1. GEITA AJ: The prisoner Loy Ben pleaded guilty to one count of doing grievous bodily harm to Robert George 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 one Robert George. This offence attracts a maximum penalty of 7 years imprisonment however Section 19 (1) (a) (b) of the Criminal Code gives courts powers to impose a lesser sentence.

The Facts
2. The relevant facts put to you during your arraignment and the agreed facts by the prosecution and your lawyer on the depositions for the plea of guilty with your consent are these. On 12th February 2013 around 7.30 am at Kimbe Aling market the complainant was said to be arguing with Joe Tine when you came from behind and attacked him. You took a stick from a nearby tent and hit the victim on his head and left arm causing one of his left arm bones to break. The victim also received wounds on his head. The medical report also confirmed the wounds on the victim's body.

What is the law on grievous body harm? Section 319 Criminal Code
3. A person who unlawfully does grievous body harm to another person is guilty of a crime.
Penalty: Imprisonment for a term not exceeding 7 years.

Allocutus.
4. During the administration of the allocutus or when you were given the opportunity to speak on the question of penalty you asked the court to have leniency on you and told the Court that this was your first time and that what you did was wrong. You asked the court to be put on probation.

Mitigating Circumstances
5. The following mitigating factors were in your favour:

1. No prior convictions, first time offender

2. Youthful offender

3. Prisoner was alone and not in company of others

4. Early guilty plea

5. No dangerous weapon used

6. Spur of the moment attack

Aggravating Circumstances

6. The following aggravating factor operated against you:

1. The victim suffered a broken left arm and head injuries.
   

Pre- Sentence Report

7. A pre sentence report prepared and submitted on your behalf by Community Corrections Officer Walter Salua on 25/9/2013 amongst other recommendations suggest that you are a suitable candidate for probation. You a 18 years old and a committed church follower. Furthermore you were willing to pay some compensation. I thank the officer for the report.

Submissions on sentence
8. 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. In light of the prisoner's guilty plea, no prior conviction and young age he submitted that having you sent to prison will not help you as you will come into contact with hardened criminals and may be influenced by their bad ways. Your lawyer referred to the case of The State v Kuri Willie [1987] PNGLR 298 in which His Honour Hinchliffe J, quoting a passage from R v Taggart echoed the same sentiments thus:

"A Judge or a magistrate who sends a young man to prison for the first time takes on a grave responsibility. It is not practical or desirable to lay down a general rule but in many cases it is desirable to take the risk to save a young man or woman from the consequences of prison".

9. Basically saying that first time youthful offence are best not sent to prison for fear of them being influenced by prisoners already there. He invited court to also consider sentencing options available under Section 19 (6) Criminal Code Act.

10. State Prosecutor Mr Francis Popeu reminded the court about an earlier case this morning in which the prisoner was found guilty of grievous bodily harm for using the handle of a paddle and sentenced to 4 years which was suspended with conditions. (The State v Joe Boala CR 662 of 2013, Unreported 25 July 2013 Kimbe). Mr. Popeu said in your case you used a stick and so a sentence of 3 years should be imposed on you. No other case precedents were presented to the court however he invited the court to exercise its discretion and impose a sentence suitable to the crime, adding that the prisoner was willing to pay some form of reasonable compensation.

Decision of the court
11. 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 The State v John Kalabus [[1988] PNGLR 193
12. 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 .My deciding on what is the appropriate sentence I should impose on you and whether parts of your sentence should be suspended, will depend on points favourable to you and points against you.

13. After having considered all the information before me in your favour and against you I have come to the conclusion that your case is not as serious as the one referred to me by Mr Popeu. In that case the victim was a National Maritime Safety Officer who was attacked for carrying out his lawful duties: impounded a defective ship. I said in that case the victim's job was very important in that defective ships were prevented from going out to sea, hence public safety maintained. In your case a stick was used on the spur of moment and not as serious as the Joe Boala case. As such I consider 2 years to be the appropriate starting point in your case. Therefore the sentence I now impose upon you is as follows:

1. You are sentenced to 2 years imprisonment in hard labour;
   
2. I order that whole of the sentence be suspended with the following conditions,
   
   1. You are ordered to enter into your own recognizance to be of good behaviour throughout the period of your suspended sentence,
      
   2. You are to report to the Probation Office in Kimbe as and when required by the Probation Officer;
      
   100. You are ordered to pay a reasonable compensation of K1000 to the victim within 3 weeks from today.
        
3. Upon any breaches you will be arrested to serve out the full sentence.
   

Ordered accordingly.
____________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyers for the accused