N9043
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 52 OF 2012

THE STATE

V
MARK EZEKIEL
Losuia, Alotau:  Toliken, AJ
2013:   18th July, 22nd August, 24th October

CRIMINAL LAW – Sentence – Grievous bodily harm – Guilty plea – Bush knife attack – Victim’s right arm cut off – Several more knife wounds on left arm – Near worst case – Mitigating & aggravating factors considered – Appropriate sentence – 5 years less time in custody – Suspension considered – Appropriate case – 2 years suspended with conditions. 

Cases Cited

The Public Prosecutor v Bruce William Tardrew [1986] PNGLR 91
Avia Aihi (No.3) v The State [1982] PNGLR 92
Goli Golu v The State [1979] PNGLR 653
The Public Prosecutor v Don Hale (1998) SC 564
The State v Henry Idab (2001) N2172
The State v Robert (2009) N3629
The State v Eddie John Naopa (2003) N2411
The State v Fidelis Kiatni (2011) N4331
The State v Pennington Vube; CR No. 1123 of 2007 (unnumbered and unreported judgment dated 30th march 2009).  
The State v Karol Tobasi; CR No. 572 (unreported and unnumbered judgment dated 29th July 2009).  
The State v Steven Moni & Ors (2006); CR 293 – 297 of 2004
The State v Bob Ananias; CR No. 1413 & 1414 of 2003 (unreported and unnumbered judgment dated 20th April 2006).  
The State v Modoreta Anataula; CR NO. 568 of 2012 (Unnumbered and unreported dated 24 October 2013)

Counsel

R Auka, for the State
P Palek, for the prisoner

JUDGMENT ON SENTENCE

24th October, 2013

1.	TOLIKEN, AJ:	    Mark Ezekiel, on the 18th of July 2013 at Losuia, you pleaded guilty to one count of unlawfully causing grievous bodily harm to Tobwaga Mwaebu at Gawada Village, Losuia, Milne Bay Province, on 01st October 2012. This is an offence under Section 319 of the Criminal Code, Chapter 262.

FACTS

2.	On 1st of October, you went to your garden.  On arrival, you saw two people in your garden so you hid and watched them as they went into your garden.  One of them was the victim Tobwaga Mwaebu.

3.	You then saw the two men started to harvest taro from your garden.  You threw an iron rod at them to scare them away.  The two men ran away and you ran after the victim.  You were armed with a bush knife.  When you caught up with the victim, you swung your bush knife at him, completely chopping off his right arm. He started bleeding heavily.  You then swung the knife again several times at his left arm cutting it. You then left the victim on the ground bleeding heavily and in great pain.

4.	The victim struggled for survival, got up and walked slowly to his village.  He was taken to the Omarakama Health Centre from where he was flown to Alotau General Hospital.

5.	I entered a provisional plea which I confirmed after reading the committal depositions.

ISSUE

6.	The following issues arise for my determination:

(1)	What is an appropriate sentence?
(2)	Does your case deserve the maximum prescribed penalty?
(3)	Should any portion of the sentence suspend?

ANTECEDENTS

7.	You are from Guwada village, Losuia, Kiriwina/Goodenough District, Milne Bay Province. You are 23 years old and single. You are last born in a family of 8 children, 4 boys and 4 girls. You father has passed but your mother is still alive. It appears that you were adopted by your elder brother Ezekiel Tobakik. You are a member of the United Church and was educated up to Grade 10. You have no prior convictions.
 
ALLOCUTUS

8.	You apologized to the Court and to the victim whom you referred to as your friend for hurting him and explained why you attacked him. You also apologised to the victim’s relatives. You admitted to breaking the law and promised never to re-offend. You said you want to return home so that you can go and help your community and family. You are concerned about your family’s welfare as you are the only one supporting them for their daily needs. Finally, you said you had been in custody at Giligili for 9 months and do not want to be influenced by the stories and activities of hard-core criminals in there.

SUBMISSIONS

`	Defence

9.	Your Lawyer Mr. Palek submitted that due to mitigating factors, such as your plea of guilty, lack of priors, youthfulness, prior good character, co-operation with police, expression of remorse, and provocation on the non-legal sense, you should be given sentence between 1 – 3 years.  The sentence could then be wholly suspended and that you be placed on probation.

  State

10.	The State asked for maximum sentence penalty (7 years) because of the following aggravating factors:

•	Use of a dangerous weapon.
•	You took the law into your own hands.
•	It was a vicious attack where you cut the victim several times.
•	The victim suffered very serious life-threatening injuries. He lost a limb as a result.
•	The injuries have left victim with permanent a disability – an added and unnecessary burden to his parents.
•	This offence is very prevalent

Pre-sentence Report/Victim Impact Sentence (PSR/VIS)

11.	You have a favourable Pre-sentence PSR. It was very well prepared, comprehensive and balanced. Some customary compensation to monetary value of K1,031.00 was paid to victim’s relatives.  However, the victim stated in his VIS, that he did not benefit personally from any of that.  he did not benefit personal.  Your PSR recommended a partial custodial sentence.

THE OFFENCE

12.	The offence of unlawfully causing grievous bodily harm carries a maximum penalty of 7 years imprisonment, subject to the Court’s discretion under Section 19 of the Code to impose a lesser or alternate sentence.

13.	It is also, however, trite that the maximum penalty reserved for worst instances of the offence and that each case must be treated according to its own facts and circumstance. Furthermore, on a guilty plea, the maximum penalty may only be imposed in the most serious or worst cases. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi (No.3) v The State [1982] PNGLR 92)

SENTENCING TREND

14.	I cite the following cases with the view to comparing the sentences imposed there with your own case. I have cited most of these in the matter of The State v Modoreta Anataula; CR NO. 568 of 2012 (Unnumbered and unreported dated 24 October 2013), which I have dealt with just immediately before your own.

15.	The State v Pennington Vube; CR No. 1123 of 2007 (Unnumbered and unreported judgment dated 30th march 2009).  The prisoner approached the victim as he was waiting on the road to go to work and attacked him with a small bush knife cutting him on the left shoulder and fracturing the left arm.  The prisoner was sentenced to 2 years which was fully suspended.

16.	The State v Karol Tobasi; CR No. 572 (unreported and unnumbered judgment dated 29th July 2009).  The prisoner cut the victim on his right hand and hit him on the head with an iron bar.  The victim had gone to take back his aunt whom the prisoner was having an affair with when he was attacked.  The prisoner was sentenced to 3 years which was fully suspended with conditions.

17.	The State v Robert (2009) N3629: There offender was sentenced to 3 years and 6 months for cutting his brother with a bush knife on his face.  The mitigating factors considered were guilty plea, first offence, some remorse, dysfunctional family, surrender to police and early admissions.   The aggravating factors, however, were a serious head injury, use of bush knife, taking law into own hands, no compensation and no reconciliation or forgiveness. 

18.	The State v Henry Idab (2001) N2172:  The prisoner was among a group of men who attacked the victim – a Village Peace Officer – over insults made to the prisoner’s mother by other persons.  He was attacked with bush knives and stones and sustained two deep cuts on his left upper arm and a superficial slash on the chest wall.  His right thumb was severed and left hanging only by the skin.  This was a crippling handicap as the victim was right-handed so he could not therefore do any heavy lifting.  The prisoner pleaded guilty, was a first-time offender, there was non-legal provocation but the offence was aggravated by fact that it was a group attack and the use of dangerous weapon.  His Honour imposed a sentence of 5 years but expressed the view that if it were not a guilty plea, he would have imposed the maximum penalty of 7 years.  Two (2) years of the sentence was suspended on terms.

19.	The State v Steven Moni & Ors (2006); CR 293 – 297 of 2004: The prisoners pleaded guilty to one count of causing grievous bodily harm with intent to two victims with knives and other weapons.  One of the victims had his arm chopped off but not by any offenders.  He, however, suffered multiple knife wounds.  The other victim suffered knife wounds to his left arm.  Some of the offenders paid “Bel Kol” money to the victims.  There, the court imposed sentences, ranging between 5 – 3 years according to each prisoner’s degree of participation.

20.	The State v Eddie John Naopa (2003) N2411: There, a gang attacked school girls returning from a Scripture Union Fellowship.  The prisoner grabbed the victim and threatened her with a knife in fact cut her left fingers.  She fell into a drain and the prisoner shot her in her eyes with a stone with a sling shot.  Though the victim recovered from her injury to her eyes, she unfortunately lost 100% sight from that eye.  The prisoner was a first-time offender.  He pleaded guilty to the charge and expressed remorse.  Even though compensation was paid, the offender did not contribute to it.  He was sentenced to 5 years, 3 of which were suspended on terms.

21.	The State v Bob Ananias; CR No. 1413 & 1414 of 2003 (unreported and unnumbered judgment dated 20th April 2006).  There, the prisoner pleaded guilty to two counts of causing grievous bodily harm to two victims who he had suspected of being responsible for her mother’s illness through sorcery.  He held them captive and slashed one of the victims on the leg with a bush knife.  He also cut off one of his fingers.  He then slashed the other victim with the knife.  This victim suffered permanent injuries.  The offender was sentenced respectively for 1 year and 3 years.

22.	The State v Fidelis Kiatni (2011) N4331:  The offender pleaded guilty completely chopping off the victim’s right hand.  He was a youthful offender with no prior convictions.  Against him were the facts that he used a dangerous weapon and the victim lost 100% permanent disability to his right hand.  The offender was sentenced to 4 years, 2 of which were suspended on terms.

YOUR CASE

Mitigating Factors

23.	I accept the following as mitigating your offence –

•	You pleaded guilty to the offence
•	You are a first-time offender.
•	You are youthfull.
•	You were of prior good character prior to your offending.
•	You were provoked in the non-legal sense.
•	You have expressed what appears to be genuine remorse
•	Your people have paid customary compensation to the victim’s relatives.

Aggravating factors

24.	There are, however, aggravating factors –

•	Use of dangerous weapon.
•	The attack was vicious if not brutal. Furthermore, it was a sustained attack.  Not only did you chop off victim’s right arm with the first swing of the bush knife, but you also struck his left arms repeatedly inflicting more injuries on the victim. 
•	The victim suffered permanent disability due to loss of right arm.
•	The attack happened at 1.00 o’clock in the morning according to statements in the depositions.
•	The offence is prevalent.

Deliberations

25.	Viewed objectively this is a very serious case that falls right up there at top in terms of seriousness.  The circumstances justify the imposition of the maximum penalty or just below it.

26.	While the mitigating factors and aggravating factors appear to balance out, this is one case where an appropriately stiff sentence ought to be imposed for the purposes of punishing you and deterring you personally and others as well.

27.	Granted, you were provoked in the non-legal sense, and you may have been frustrated because as you said in your Record of Interview, your previous reports to village authorities over thefts from your garden fell on deaf ears. However, taking the law into your own hands and the manner in which you viciously, if not brutally, attacked the victim cannot be tolerated and must be condemned in the strongest possible terms.

28.	You completely chopped off the victim’s right arm with that first blow from your bush knife.  Then you slashed his other hand and you left him bleeding on the ground.  He had to walk all the way to his village with one arm chopped off and the other with deep and extensive cuts and heavily bleeding.  He said he fainted several times on the way.  It is nothing sort of a miracle that he survived at all.  But now, that he has survived – thanks to quick and proper medical attention – he is permanently disabled.  Dr. Tosiberu who attended to the victim at Losuia Rural Health Centre described the victim’s injuries in his report and concluded that ”All injuries contributed to a major compromise in his circulation and state of Hypermedia which could have resulted in shock and loss of life”.

29.	So, what this comes down to is that this is a case that must, as I said, attract a sentence close to the maximum penalty.  Of course, I do not lose sight of the mitigating factors, but there is nothing significant about any of those factors that should justify a significantly reduced term.  Even payment of compensation which can sometimes be regarded as significant, depending on circumstances such as amount and reconciliation, cannot in this case justify such a reduction.  Here, the compensation was paid to the relatives and not the victim.  He did not benefit because it was paid when he was hospitalised. The question, therefore, is whether it was compensation at all or just “Bel Kol” which is normally paid not to the victim but to relatives to prevent reprisals and to maintain peace between the parties.

30.	It is my respectful view that any compensation, whether purely customary, or in cash and kind, should benefit the victim personally.  It stands to common sense that he should because he is the one who has been injured, he is the one who would suffer disability or loss of quality of life. Any compensation that leaves out the victim is not compensation at all, and that should be reflected accordingly at a judicial sentence.

Appropriate Sentence

31.	But having said all that, I think that in the circumstances, a starting point should be 6 years.  And due to the mitigating factors, I, therefore, fix a head sentence of 5 years. From that, I deduct the pre-trial/sentence detention period of 10 months and 3 weeks leaving balance of 4 years 5 weeks. 

32.	Now, you have expressed concern about your family from that as you say, you are the only one working for their daily substance.  Unfortunately, as has been said again and again, these are things which you ought to have thought about before you decided to take the law into your own hands.  That your family will now suffer too for your crime due top loss of your labour and service, no-one else can take the blame – the blame falls squarely upon your shoulders.  But should any of your sentence be suspended?

Whether to Suspend

34,	There is no question that the Court has the discretion to suspend a sentence.  However, it must be justified.  The Supreme Court in The Public Prosecutor v Bruce William Tardrew [1986] PNGLR 91
 	said, inter alia, that a sentence can be suspended if it will promote personal deterrence, reformation or rehabilitation of the offender or restitution of stolen goods or money. A suspension must also be supported by a favourable PSR. (The Public Prosecutor v Don Hale (1998) SC 564) 

33.	However, where the offence is against persons, such as in your case, I must add here that a suspension will be justified if it will promote reconciliation and restoration of relationships between the offender and his victim and their respective relatives.  

34.	So, is your case one that will justify a suspension because you need to be reformed or rehabilitated or because of the need to restore your relationship with the victim?

35.	I think that there is indeed justification for a partial suspension of your sentence.  The victim has suffered permanent disability and it is fair that he must be compensated personally for his injuries and loss of quality of life. 

36.	But as I said above, the customary compensation that your people paid did not benefit him at all.  Any compensation for personal injuries must personally benefit the victim if justice is to be done to him at all.  

37.	A prison term for you will not benefit him, yes, he will feel some satisfaction that you are punished for your offence, but how will that assist him to get on with life in his state of disability.  Therefore, if I am to suspend any part of your sentence, it will be one the conditions, amongst any other that may be appropriate, that you pay adequate monetary compensation to him.

38.	I have not ordered a Means Assessment Report, but I do not think that there should be any impediment legal or otherwise, preventing me from exercising my discretion under Section 19 of the Code to impose conditions in a suspended sentence which the justice of the case requires.  I accept that you must have the means in the first place to pay compensation if it will ultimately benefit the victim, but on the same token, you should be able to accept the consequences of your action.  

39.	In this case, you reduced the victim to half the man he was before this incident.  I do accept to that he is responsible partly for his predicament, a fact that he readily acknowledges in his VIS, but the punishment that you meted out to him for his wrong against you did not justify the greater wrong and permanent injuries you inflicted on him.  All things considered, and bearing in mind that you may not be a man of much means, I shall order just compensation against you.

40.	In the circumstances, I shall, therefore, suspend 2 years of your resultant sentence of 4 years and 5 weeks on the condition that you will enter into your own recognizance (without surety) to be of good behaviour for a period of two (2) years with conditions that you shall keep the peace towards Tobwaga Nwaebu and you will pay K2,000.00 compensation to the said Tobwaga Mwaebu within 12 months from the date of your release or sooner than that if your circumstances permit. Should you breach any of these conditions, you will be arrested and imprisoned for the suspended portion of your sentence.

ORDERS

41.	My order and sentence are, therefore, as follows:

         Head Sentence	5 years	
Deduction for pre-trial period	    10 months 3 weeks	
         Resultant Sentence	    4 years 5 weeks	

        Period Suspended	2 years on condition that you shall enter into your own recognizance without surety to be of good behaviour for a period of 2 years with conditions that (1) you will keep the peace towards Tobwaga Mwaebu; and (2) you shall pay K2,000.00 to Tobwaga Mwaebu within 12 months from your release or sooner if your circumstances permit; and (3) if you breach any of this conditions will be arrested and imprisoned for the suspended portion of  your sentence.	
      Period to be served	2 years and 5 weeks to be served at Giligili Corrective Institution	

Ordered accordingly.

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