Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Tumaima [2013] PGNC 279; N5205 (25 April 2013)

N5205

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 626 OF 2011

STATE

V

SAMSON TOM TUMAIMA
Prisoner

Goroka: Ipang AJ
2013: March 20, 26
April 25

CRIMINAL LAW – Sentence – Criminal Code Act, Chapter 262 – s. 319 Grievous bodily harm – offender a husband of 3 wives and father of 4 children out drinking alcoholic, picked up a lady went off the main road, followed small road. The lady decided to walk back to the main road. The offender got frustrated and assaulted the lady causing head, facial injuries and a broken lower jaw bone.

CRIMINAL LAW – Sentence – Pre Sentence Report & Means Assessment Report – Recommends the prisoner as suitable candidate for probation supervision – payment of compensation of K3, 5000.00 taken into account.

Cases Cited

Avia Aihi v State [1982] PNGLR 92
Ure Hane v State [1984] PNGLR 105
State v Pawa [1998] 387
State v Issac Wapuri [1994] PNGLR 271
State v Philip Susuve Raepa [1994] PNGLR 459
State v Apa Kuman (2000) N2047
State v Nickson Pari (No. 2) (2000) N2033
State v Darius Taulo (2001) N2034

Counsel

Mr. K. Umpake, for the State
Mr. V. Agusave & Ms. E. Kapu, for the Prisoner

DECISION ON SENTENCE

25 April, 2013

1. IPANG AJ: On the 2Oth of March, 2013, the Prisoner Samson Tom Timaima pleaded guilty to an indictment charging him on one count of causing Grievous Bodily Harm (GBH) contrary to s. 319 of the Criminal Code Act, Chapter 262. Mr. V. Agusave of counsel for the prisoner requested for Pre Sentence Report (PSR) and a Means Assessment Report (MAR) and I have ordered for both reports to be compiled by the Community Base Correction (CBC) Office in Goroka. The matter was then adjourned to the 26thof March, 2013 at 9.30am for Submission on Sentence. The Pre Sentence Report (PSR) and a Means Assessment Report (MAR) were compiled and submissions were made on Sentence. This is the decision on Sentence.
   
2. The indictment presented against the Prisoner were as follows:
   

Samson Tom Timaima of Nagamito village, Unggai-Bena in the Eastern Highlands Province stands charged that he on the 02nd day of April, 2011 at Kamiliki, Goroka unlawfully did grievous bodily harm to one Anina Waine.

Brief Facts:

3. On the 02nd of April, 2011 at 6.00am between the junction of China Town & University of Goroka, the prisoner picked up the victim namely Anina Waine. The prisoner drove a Toyota Land cruiser Ute. He drove the said vehicle with the girls including the victim to Kamaliki. There, the prisoner drove off the main road and followed the small road. The victim and the other girl on the vehicle decided to walk back to the main road. The prisoner followed them and asked them to go back to the vehicle but the victim refused. The prisoner then got frustrated and assaulted the victim using his fist and stone on her head and face. The victim sustained head and facial injuries coupled with the fractured lower bone jaw. The victim was admitted to the hospital and has since recovered.
   

Antecedent Report:

4. The Antecedent Report tendered to court revealed that the prisoner has no prior convictions.
   

Allocutus:

5. The prisoner said the following when I administered the allocutus to him,
   

"...the charge put t me is true. I was under liquor. I am sorry for what I did. I ask for court's mercy. This is my first time in court. I am 38 years old. I paid K3, 500.00 to the victim. I have four (4) children of ages between 8 eight (8) months to 12 years old. Three of the children are in school and I want probation."

Pre Sentence Report (PSR) and Means Assessment Report (MAR):

6. The Pre Sentence Report (PSR) only covers the personal particulars and views of the prisoner and his family. It does not cover the views of the victim. The prisoner is an educated person having completed university education from University of Technology in 1999. He was employed in private sector that was Niugini Builders, Ok Tedi Mine and Oil Search in Kutubu. He has left formal employment and he is now a self-employed businessman. He is married with three (3) wives and has children. He has expressed remorse for what he has done he has paid K3, 500.00 to the victim as compensation. The prisoner was able to pay compensation as he was doing private contract work. See Means Assessment Report (MAR). The Pre Sentence Report recommended the prisoner to be a suitable candidate for Probation Supervision.
   

The Relevant Law:

7. The prisoner is charged for the offence of Grievous Bodily Harm pursuant to s. 319 of the Criminal Code Act. This provision provides;
   

"319 Grievous bodily harm

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."

Submission by Defence:

8. Ms. E. Kapu of counsel for the prisoner submitted that in order for the court to determine an appropriate penalty the court should consider the facts and circumstances of the case properly. Bearing in mind all the time that the maximum penalty should be reserved for worst type of cases. See Avia Aihi v State [1982] PNGLR 92 and Ure Hane v State [1984] PNGLR 105.
   
9. In this instant case, Kapu said this offence has greatly affected the prisoner. She said since 2011 when the prisoner was charged and brought to court, he was not able to travel and conduct business out of the province. Thus, Kapu submitted the prisoner has suffered loss of business. This is in my view the consequence which flow from the commission of the offence. One cannot think or presume he or she can commit an offence and enjoy the same freedom as if he or she enjoyed prior to commission of the offence.
   
10. Defence Counsel also submitted that the prisoner had acknowledged the severity of the offence and the aggravating circumstances of the case through use of stone and has compensated the victim in the sum of K3, 500.00. Counsel further submitted that the prisoner acknowledged the seriousness, the prevalence of the offence and the need for the court to impose a stronger deterrent sentence but asks the court to consider a sentence that would encourage reconciliation, rehabilitation and punishment at the same time. In this respect, it rekindles to me to ask; what would then be the purpose of punishment that the courts normally impose? I need not to wonder off somewhere to get an answer then to consider the case of State v Pawa [1998] PNGLR 387. At p. 391 of this case, Lenalia AJ (as he then was) quoted a passage in the New Zealand Court of Appeal in R v Radich [1954] NZLR 86 which I find relevant and appropriate to adopt here;
    

"One of the main purposes of punishment is to protect the public from the commission of the crime by making it clear to the offenders and to other persons with similar impulses that if they yield to them they will meet severe punishment."

11. So one of the aims of punishment is that it has to have a clear deterrent effect on the like-minded or would be offenders that if they are thinking of committing such offence(s) they can expect to be dealt in the same fashion. The court of Appeal in R v Radich (supra) also sounded the warning the following;
    

"If a court is weakly merciful and does not impose a sentence commensurate with the seriousness of the crime it fails to do its duty to see that sentences are such as to operate as a powerful factor to prevent the commission of such offences."

12. How can sentences have a deterrent effect on like-minded offenders and protect members of the public from commission of such crimes if a court is weakly merciful and too lenient with its sentences? So the balance need to be struck somewhere and I believe that is to take into account as Ms. Kapu submitted a sentence that takes account of prisoner's rehabilitation, reconciliation and punishment at the same time.
    
13. The court in R v Radich (supra) made this further remark that;
    

"...justice and humanity both require the previous character and conduct of the individual offender and the effect of the sentence on these should also be given most careful consideration although this factor is necessarily subsidiary to the main factors that determine the appropriate punishment".

Mitigating Factors:

14. I find the following mitigating factors in favour of the prisoner;
    
    • Prisoner pleaded guilty to the offence thus saving state's time for putting a trial and costs;
      
    • The offender is a first time offender with no prior convictions;
      
    • Offender expressed remorse;
      
    • Offence not pre meditated;
      
    • Victim was compensated with K3, 500.00.
      

Aggravating Factors:

15. In aggravation, I find the following;
    
    • The prisoner was drunk
    • The prisoner used an offensive weapon, a stone.
      
    • Victim sustained serious bodily injuries and was admitted to the hospital.
      
16. In order to arrive at an appropriate sentence for the prisoner, it is appropriate to consider past case precedents. These are some of the past cases which provide useful sentencing guidelines.
    
17. In the case of The State v Issac Wapuri [1994] PNGLR 271. That was a case in which the prisoner hit the victim, who was his sister-in-law with a vehicle hand brake cable on one of her eyes resulting in a 90% residual disability. He did that after the victim failed to get the prisoner to have sexual intercourse with him and she scattered all of his clothes all over the place in what he thought was retaliation for his refusal. He was given 18 month in hard labour with 5 months deducted on account of time spent in custody. The balance of the sentence was suspended on condition of good behavior bond and compensation of K500 cash and pigs to the value of K800.
    
18. In another case, The State v Philip Susuve Raepa [1994] PNGLR 459, the victim was rendered brain damaged out of a drunken brawl and after a skull operation to remove internal bleeding. The court order K5, 000 compensation and placed the prisoner on good behavior bond on his own recognizance with a surety of K300. With judgment being deferred to future sittings of the court and for the prisoner to abstain from alcoholic drinks for 12 months until further orders.
    
19. In The State v Apa Kuman (2000) N2047, a sentence of 3 years imprisonment was imposed. The prisoner after having raped the victim cut her across her stomach to prevent her from calling out for help. That caused substantial damage to her left and right lobes, which bled profusely into the abdomen. Quick admission to the hospital prevented further bleeding and saved her from death due to loss of blood. The prisoner there was a young first offender.
    
20. In The State v Nickson Pari (No.2) (2000) N2033, His Honour Kandakasi imposed a term of 4 years and suspended part of it on terms, inclusive of good behavior bond. That was a case in which the prisoner shot at and injured the victim on his left arm in the course of and in furtherance of an armed robbery. He was also a first time young offender.
    
21. In The State v Darius Taulo (2001) N2034, that was also a case of wife beating a person without any prior convictions. The medical evidence revealed a consistent pattern of serious wife beating over the period 1993 to 2000. The court imposed a wholly suspended sentence of 3 years on very strict terms as a form of alternative to time in prison because he pleaded guilty, he had no prior, and he paid compensation, showed and expressed genuine remorse and was not going to re-offend. Furthermore, the Court noted in his favour that, he was not a danger to the society and that the society through a pre-sentencing report was prepared to help him to rehabilitate and that the victim was supportive of the sentence imposed.
    
22. Ms. Kapu submitted that 2 – 4 years should be the appropriate starting head sentence for the prisoner. Mr. K. Umpake of counsel for the state concedes that a starting head sentence of 2 – 4 years as suggested by Ms. Kapu.
    

Court's Analysis:

23. In arriving at an appropriate sentence for the prisoner, I have considered the mitigating and the aggravating factors, the Pre Sentence Report (PSR) and the Means Assessment Report (MAR), the Prisoner's Antecedent Report (PAR) and what the prisoner has expressed in his allocutus. I also took into account that the prisoner has compensated the victim with the sum of K3, 500.00. The prisoner has pleaded guilty to the offence and has expressed remorse for what he has done. I have also noted that the prisoner was under influence of liquor when he committed this offence. He has used an offensive object and the injuries the victim sustained were serious and that the victim was hospitalized.
    
24. I consider a head sentence of 3 years imprisonment is appropriate. I wholly suspend the 3 years imprisonment sentence and placed the prisoner on 2 years Probation Supervision with the following conditions;
    
    • Prisoner is now placed under supervision of Community Base Correction (CBC) Office in Goroka;
      
    • Prisoner shall do 100 hours of Community Work Service to be identified and supervised by Community Base Correction (CBC), Goroka;
      
    • Not to consume any form of alcoholic drinks;
      
    • Not to commit any form of offences whilst on probation;
      
    • Not to leave his usual place of residence;
      
    • Correction Base Correction (CBC) Officer to provide quarterly report to the National Court;
      
    • If the prisoner breaches any of the above conditions he will be ordered to serve his term out.
      
25. Prisoner's bail be refunded.

______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner