N9045
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 568 OF 2012

THE STATE

V
MODORETA ANATAULA

Alotau:  Toliken, AJ
2013:  18th July, 24th October

CRIMINAL LAW – Sentence – Grievous bodily harm – Plea – Victim cut on shoulder, arm and chin with bush knife – Life threatening wound – Aggravating and mitigating factors considered – Appropriate sentence – 2 years less pre-sentence custody period – Favourable Pre-Sentence Report - Balance suspended on terms – Criminal Code Act Ch. 262, s 319.

Cases Cited

Goli Golu v The State [1979] PNGLR 653
Avia Aihi (No.3) v The State [1982] PNGLR 92)
The Public Prosecutor v Don Hale (1998) SC 564
Manu Kovi v The State (2005) SC 789
Saperius v Yalibakut v The State (2006) SC 890
The State v Penington 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 Robert (2009) N3629
The State v Henry Idab (2001) N2172
The State v Steven Moni & Ors (2006) CR 293 – 297 of 2004
The State v Eddie John Naopa (2003) N2411
The State v Bob Ananias CR No. 1413 of 2003, CR No. 1414 of 2003 (unreported and unnumbered judgment dated 20th April 2006
The State v Fidelis Kiatni (2011) N4331
The State v Paino Auduwa, CR No. 520 of 2011 (unnumbered and unreported judgment delivered on 7th of December 2012 at Kimbe)
The State v Emoto Noine CR No. 179 of 2012 (unreported and unnumbered judgment dated 25th September 2013

Counsel

J. Waine, for the State
J.Mesa, for the Prisoner

SENTENCE

24th October, 2013

1.	TOLIKEN, AJ:	    Modoreta Anataula, on the 18th of July 2013 at Losuia, you pleaded guilty to one count of unlawfully causing grievous bodily harm to one Beona Robwayauna on the 16th of February 2012 at Okaiboma Village, Kirwina Island, Milne Bay Province.  This is an offence under Section 319 of the Criminal Code Act, Chapter 262.

2.	The brief facts in support of the charge are that on the afternoon of the 16th February 2012, you went to Okaiboma village armed with a bush knife and a torch. On arrival, you saw Beona Robwayauna sitting on the veranda of Lina Boraupa’s house.  You approached him from the back and struck him on the thigh with the flat side of your bush knife. As he was caught by surprise, the victim turned around to see who had struck him when you suddenly swung your bush knife again.  This time, you cut him across his right shoulder and arm.  The victim tried to move away and escape but you cut him again on his chin.  You then left without telling the victim why you had cut him.

5.	The victim suffered life threatening wounds which were described in the Medical Report as:

(a)	Wound/laceration on the right deltoid (shoulder) extending down to the right stratus muscle, severing the main muscle of the shoulder, blood vessels and nerves.  The wound measured 18.2 cm long, 8cm wide and 10 cm deep exposing the periosteum of the humorous (bone).

(b)	Submental wound - measuring 5cm long, 3cm deep partially fractured the submental (bone).

(c)	Blood loss – 2-2.5 litres of blood lost through the open wound.

6.	I confirmed your plea and convicted you after I was satisfied that the committal depositions supported the charge and your plea.

ANTECEDENTS

7.	You come from Okupukopu village, Losuia, Kiriwina/Goodenough District of Milne Bay Province.  You are 23 years old and are engaged to be married to one Nawtuyana Yubusa.  You are the second born of a family of four.  Your mother has passed away but your father is still alive.  You are a member of the United Church.  You are uneducated, a simple villager and this is your first offence.

SENTENCING ISSUES

8.	The issues for me to determine is what would be an appropriate sentence for you and whether your case should attract the maximum penalty prescribed for this offence or should you be given a lesser sentence?

ALLOCUTUS

9.	When asked to address the court before your sentence, you had the following to say:

“Indeed, I committed this crime, and I would like to apologise to the 	court. I would like the court to know that on that day I entered Okaiboma village, I was to bring back my wife whom the victim had taken away. So, I did what I did.  I apologise to the court and the victim and members of his family.

I also apologise to my community and to members of my family for spoiling their good name. Now I ask the court to place me on probation and return me back to my village.

I have to return because my mother has died leaving my father only to look after our family. That is my plea. Thank you.”

10.	After the allocutus, I requested for a Pre-Sentence Report (PSR) a Victim Impact Statement (VIS).  However, since the Probation Officer was not present, I issued directions to him to prepare these reports and file them at the Alotau Court House.  

Submissions were reserved until the reports were filed.  The reports were duly filed and the Defence and the State had made submissions in the August sittings.  However, due to lack of time, I adjourned the matter to these (October) sittings of the Court.

SUBMISSIONS

11.	Your lawyer submitted among other things that while it is true that you used a dangerous weapon on the victim, there are factors that mitigated your offence.  These are that:

•	You pleaded guilty saving time and money for the State.
•	You are a first-time offender.
•	You co-operated with the police.
•	You are remorseful and have apologised to the victim and
         his relatives and to your own community and family for
         spoiling their good name.
•	You were provoked by the victim when he had an affair with
         your future wife.

12.	Counsel, therefore, asked for a sentence of 1 – 3 years which could then be suspended on condition because of favourable PSR and VIS.

13. The State on the other hand submitted that your charge was reduced from attempted murder to one of Grievous Bodily Harm after plea bargaining.  He said your case is serious because of the use of a dangerous weapon and that you attacked a defenceless man.  The injuries suffered by the victim were life threatening and that the offence and particularly the use of knives for committing this type of offence is very prevalent.  Counsel submitted that a custodial sentence would be appropriate for punishment and deterrence.

PRE- SENTENCE REPORT/VICTIM IMPACT STATEMENT

14.	Your Pre-Sentence Report is very comprehensive and well prepared.  It covered all areas and persons of interest including the victim and his family, your own family members and church and community leaders.

15.	The report reveals that your people have made customary compensation to the victim which monetary value stands at K687.00. The report states that while the victim appreciates other payment of compensation, he is still bitter about what you did to him.  This is reiterated in the Victim Impact Statement.  The victim, therefore, wants you to serve a portion of your sentence and the rest can be suspended.

16.	All in all, the Pre-Sentence Report is supportive of you and recommends partial imprisonment and probation with additional conditions.

THE OFFENCE

17.	The offence of unlawfully causing grievous bodily harm carries a maximum penalty of 7 years imprisonment.

18.	It is trite law that the maximum is, however, always reserved for the worst instance of offending.  It is also settled that each case has to be treated on its own merit. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi (No.3) v The State [1982] PNGLR 92)

SENTENCING TREND 

 19.	The following cases give us some idea what the sentencing trend for this type of case has been. This will assist me in deciding what an appropriate sentence for you will be.  

20.	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.

21.	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.

22.	 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. 

23. 	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.

24.	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.  The court there imposed sentences ranging between 5 – 3 years depending on prisoner’s degree of participation.

25.	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.

26.	The State v Bob Ananias CR No. 1413 of 2003, CR No. 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.

27.	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.

28.	The State v Paino Auduwa, CR No. 520 of 2011 (unnumbered and unreported judgment delivered on 7th of December 2012 at Kimbe).  The prisoner there attacked the victim with a bush knife.  He slashed the victim’s ankle with a bush knife.  The ankle was fractured and was only held by the skin.  Though the doctors managed to debride the leg, the victim will not regain full and complete use of his leg.  This was a vicious attack.  The prisoner pleaded guilty and was a first-time offender expressed remorse and there was non-legal provocation. No compensation was made nor was any offer for reconciliation given to the victim.  I viewed this case to be a near worst case and imposed a sentence of 5 years. I suspended 3 of these with conditions which included K5,000.00 compensation and reconciliation.

29.	The State v Emoto Noine CR No. 179 of 2012 (unreported and unnumbered judgment dated 25th September 2013).  The prisoner there confronted the victim who had some time before made sexual propositions to his wife.  He fought with the victim and then retired.  However, the victim threw a stone at him, and the prisoner returned and, in an attempt, to parry a blow by the victim, the prisoner cut the victim’s hand above the wrist.  The hand was later amputated.  I sentenced the prisoner to 4 years imprisonment two of which I suspended with conditions.

YOUR CASE

 30.	In assessing what an appropriate sentence for you should be, I take into account your mitigating factors firstly. These are -

•	You pleaded guilty to the charge.
•	You are a first-time offender.
•	Without proof to the contrary, I accept in your favour that you were 	provoked in the non-legal sense in that the victim was having an 	affair with the woman whom you were betrothed to. (Saperius 	Yalibakut v The State (2006) SC 890)
•	You paid some compensation to the victim and which they accepted.
•	You are a simple illiterate villager.
•	You co-operated with the police.

31.	Against you, however, I find that you used a dangerous weapon, you attacked the victim unawares from behind and the victim was hence defenceless.  Furthermore, this offence is very prevalent.

 32.	Now, is your case so serious that it must attract the maximum penalty of 7 years?  I do not think so.  If anything, it would fall below the mid-range of 3 1/2   years.  I find that your mitigating factors outweigh your aggravating factors but that does not mean that you will get off lightly.  On the contrary, you must pay for your crime.  You acted recklessly with a certain degree of determination when you attacked the victim.  You first struck him on the thighs with the flat side of the knife and then you cut him on his shoulder and then his chin.  The medical report clearly showed that the wounds were serious and the examining doctor was of the view that the injury was life threatening.

AN APPROPRIATE SENTENCE

33.	So, what would be an appropriate sentence for you and what should it achieve?  Given the circumstances of the case, I feel that an appropriate sentence for you should be similar to the sentence in Peningson Vube’s case (supra), that is two years imprisonment.  Such a sentence should seek to punish you personally and at the same time also deter you and others from indulging in this type of behaviour.  There is too much violence in our society and communities.  People too readily offer violence at the slightest provocation which has left a trail of victims – some seriously maimed and unfortunately some dead.

34.	To a lot of people, compensation is an expected means of setting one’s right from his violent behaviour or other criminal indulgences.  In other word, some think that compensation will exonerate them from all wrong doing.  While that may be the case in some areas of the country, the interest of the State and the rule of law demand that violent behaviour should be appropriately punished with State sanctioned penalties including incarceration.  This is to exact respect for the law and the rights of others.

35.	So, while your people have paid compensation, be it K987.00 according to your lawyer or K687.00 according to the PSR, compensation remains only a mitigating factor if not an important one depending on the particular circumstances of each society. (Manu Kovi v The State (2005) SC 789)

36.	I do accept that compensation goes further than mitigate an offence or sentence.  As I said in the case of Paino Auduwa CR No. 520 of 2011, (unreported and unnumbered judgment dated 07th December 2012 delivered at Kimbe):

“65.   In our Melanesian cultures when a wrong is committed
by individuals, they invariably affect others related to
the parties resulting in [the] break down of relationships.
These relationships must be restored principally
through reconciliation and compensation so that the parties
and their relatives can again live in harmony”.

37.	If anything, compensation is the means by which relationships are restored but that works perfect well only if the people involved were the two parties themselves. Of course, that does not discount the grim fact that often-times retribution (payback) will be exacted on the wrong-doer before reconciliation can be attempted.  That being said, in our criminal justice system, the State and its interests must be taken into account.  And as I already said, it is in the interest of any democratic State for all offences (serious or not) to be met with appropriate sentence or penalties to exact respect for the law.  This means that imprisonment or some other form of punishment must be imposed on offenders so that they are served what they justly deserve for their crimes.

38.	All things considered, I am of the view, therefore, that a starting point for your case should be 2 1/2 years.  And because of the fact that your mitigating factors outweigh the aggravating factors, I shall impose a head sentence of 2 years.  From this, I shall deduct 1 year, 6 months and 5 days for pre-sentence custody period.  That should leave you with a resultant sentence of 5 months and 25 days.  But should any part of the resultant sentence be suspended?

SUSPENSION

39.	In the exercise of discretion under Section 19 of the Code, the Court can suspend a sentence but only if supported by a favourable Pre-Sentence Report.  (The Public Prosecutor v Don Hale (1998) SC 564)

40.	As I said, your Pre-Sentence Report was very comprehensive and well prepared. But the important thing is that it is favourable to you and recommends probation in addition to any sentence that may be imposed on you.

41.	That being the case, I am of the view that the period you have spent in custody is sufficient punishment for you.  Hence, I shall wholly suspend the balance of your sentence – 5 months and 25 days – and place you on probation for 2 years with the following additional conditions: 

1.	You shall keep the peace especially towards Beona Robwayauna.
2.	You shall perform 3 hours of unpaid community work identified by the Provincial Probation Officer in consultation with the Okopukopu Ward Councillor, every Friday for a period of 6 months under the supervision of the Provincial Probation Officer in collaboration with your Ward Councillor, Mr. Moses Ketoma.

3.	You shall attend church service at your local Four Square Church every Sunday and be actively involved in all its programmed activities and receive counselling from Church Pastor Gisa Yobulobu.

4.	You are not to consume, produce, buy or sell any form of intoxicating liquor whether legal or illicit.

Ordered and sentenced accordingly.

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