State v Kaiwa [2014] PGNC 220; N5543 (11 March 2014)

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CRIMINAL LAW – Guilty plea – Grievous Bodily Harm –First time offender - Good standing in the community –not a threat to the community

CRIMINAL LAW — Call for means assessment — Means assessment and pre-sentencing report recommending compensation-Prisoner to pay reasonable compensation of K1000.00 - Criminal Law Compensation Act s. 2 — 4.

CRIMINAL LAW — Sentencing — Grievous bodily harm — Victim also contributed to the harm caused on him - Use of a stick- Guilty plea — first time offender- no prior convictions — Sentence of 2 years wholly suspended on terms.

Counsel:
Mrs Laura Kuvi, for the State
Ms Sabenu Katurowe, for the accused

1. GEITA AJ: You pleaded guilty to one count of doing grievous bodily harm to Ambrose Sini 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 Ambrose Sini. A guilty plea was then formally entered on your behalf. Your Lawyer confirmed instructions on your guilty plea.

The Law
2. 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.

Brief Facts
3. I accepted your guilty plea and proceeded to convict you on the charge. The facts as contained in your depositions as presented to me are as follows: On Thursday 27 September 2012 between the hours of 7 am and 8 am at Popeu village Rambutso Island, Manus Province you unlawfully did grievous bodily harm to the victim. You hit him with a long mangrove branch on his left forearm resulting in him receiving a fracture of the Ulna bone. As I understood from the evidence before me you were a bystander and intervened to prevent a fight between the victim and his three sons. In your attempts to stop the victim/father from causing more harm to one of his three sons involved in a fight you now find yourself a victim of your good intentions: stopping the victim from shooting one of his sons with a spear gun.

4. Medical evidence forming part of the depositions one month later describes the victim's injuries as consisting of:

" a deformed proximal left forearm; bony prominence piercing under the skin showing tenderness and palpation; inability to fully flex the elbow joint; fracture of the Ulna bone."

Criminal History
5. No prior convictions have been recorded against your name and I accept that position as presented to me by the State Prosecutor.

Allocutus
6. In your allocutus or when you were asked if you had anything to say about the punishment that should be considered you said this was your first time to appear before a National Court and you asked for leniency. You further said you were prepared to pay some compensation. Upon an application by your Lawyer for directions for a Pre Sentence Report and a Means Assessment Report of which I have granted I will adjourn until the reports are ready.

Mitigation Circumstances
1. No prior convictions, first time offender
2. No premeditation and or pre-planning
3. No intention to harm the victim
4. Early guilty plea

7. The two main extenuating circumstances in favour of the accused were these according to Mrs Raymond: The victim appears to have a history of being violent towards his family members and employs offensive weapons on many occasions. The victim attacked his wife with a knife almost killing her instantly; the victim cutting one of his son's wives Margaret with a bush knife and was rushed to the nearby aid post. This evidence was recorded in the prisoner's record of interview, now before court as part of consent evidence. The prisoner had no ulterior motive save to defend/protect a family member from being harmed by the victim. The victim was at a ready to shoot one of his sons with a spear gun when distracted by the blow from the stick thrown by the victim.

8. A pre sentence report prepared and submitted on your behalf by Probation Officer Mr. Wep Ninau on 6/3/2014 amongst other recommendations spoke very highly of your life in and out of your community. The report recommends that you do not pose any real threat to the community and should be considered for probation. Despite your low salary you have willingly come forward and offered to pay compensation to the victim.

9. The means assessment report prepared on your behalf by the Probation Officer records your willingness to pay some compensation despite your meagre salary. Your willingness to reconcile with the victim and his family with your offer to make compensation payment of up to K2000 is also noted.

Community attitudes
10. Your community leaders also spoke very highly of you and described you as a humble person with pleasant characters. You were instrumental in helping your community with development projects and have a willing heart to help your people, according to the pre sentence report.

11. In her well documented and written submissions Defence Lawyer Ms. Katurowe referred me to a number of cases on the sentencing principles: (The Acting Public Prosecutor v Aumane & Ors [1980] PNGLR 501, The State v Iori Verage (2005) N2921.); the appropriateness of sentences to be imposed under the circumstances: (John Kalabus v The State (1989) PNGLR 195; Antap Yala v The State (1996) SCR 69; Ume v The State (2006) SC836) and whether or not the crime warranted a minimum and or maximum sentence: Goli Golu v The State [1979] PNGLR 653; Manu Kovi v The State (2005) SC 789). She rightly submitted that although the case was serious her client's case cannot be categorised as the worst type of offence. She said the circumstances of the case do not warrant the imposition of the maximum 7 years jail sentence. In light of the prisoner's guilty plea, no prior conviction the court should consider a lesser sentence she said. Furthermore in the absence of sentencing guidelines in grievous bodily harm case she submitted that the court adopt a head sentence of 3 years with movements up and down based on the factual circumstances of the case. She however conceded that the crime was prevalent and is an aggravating factor against the accused. In the final analysis defence lawyer submitted for head sentence of two years to be wholly suspended based on recommendation by the Probation Officer in his Pre Sentence Report.(Public Prosecutor v Don Hale (1998) SC 564); Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91.

12. I list hereunder two near similar cases referred to me by The Defence Lawyers for ease of reference:

State v Dua [2013] PGNC; N4957 (Cannings J)	Guilty plea, GBB, Victim's left arm severed with bush knife. 5 years.
State v Lemia [2012] PGNC 179; N4817 Lenalia J	Guilty plea, GBB, Bush knife attack to head and body, prevalence, first time offender. 4 years wholly suspended

13. The State Prosecutor Mrs Laura Kuvi submitted that the crime was serious and that the victim suffered a broken lower arm and was still receiving medical treatment. She referred me to two cases in support of her argument: The State v Patrick Jul (2005) N3167 and The State v Samuel Paranis N3761.These are grievous bodily harm cases with serious knife wounds,no compensation paid, guilty pleas. Prisoners received custodial sentences up to 30 months. Mrs Kuvi conceded that the mitigating and extenuating circumstances including the pre sentence report were favourable to the accused. She further conceded to the head sentence of 2 years in light of the prisoner's willingness to pay compensation. She however said the payment of compensation was a discretionary mater and was left to the court's discretion.

14. 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. The Defence Lawyers have adequately addressed court on this issue and I must commend them for a well researched submission. My job has been made very easy. Nevertheless I have a duty to remind myself that the maximum prescribed sentence are best left for the worst types of cases. I agree with Defence submissions on this point. (Goli Golu v The State [1979] PNGLR 653 and John Kalabus 1988 PNGLR 193

15. The second issue is framed in this question and that is what an appropriate sentence in your case is? 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. Again I must commend both The State Prosecutor and Defence Team for your submission on pertinent points of law which has made my job very easy in deciding the most appropriate sentence guided by case precedents etc. I have had the opportunity of reading the four cases put before me especially those touching on the issue of exercise of my discretion on the appropriateness of sentence in those cases to the facts now before me.

16. My task as trial judge and sentencing judge is exercised judicially based on all evidence before me from both sides. Each case is different with particular circumstances and in most situations will ultimately determine the kind of sentence that must be imposed. Section 19 of The Criminal Code also gives courts wide discretion in considering sentencing offenders.

17. In your case your good deeds have backfired on you. In other words there was no intention on your part to cause harm rather you acted to prevent harm. You used a stick and obviously it was not lethal or very dangerous as compared to an offensive weapon, bush knife, spear gun or a gun for that matter. The attack was not pre planned and was a spur of the moment attack. Notwithstanding your good deeds and what I would call your act of a "good Samaritan", harm has resulted in the victim briefly hospitalized with on-going medical treatment. Due to the foregoing reasons I am of the view that the victim must also share some blame for his actions. In short he was partly responsible for injuries caused to his body. It follows that he is not deserving of the full K2000 offered by the prisoner as compensation. Furthermore I do not consider the nature of the injuries suffered by the victim any more serious than those he inflicted on his immediate family members. The wounds inflicted are no more serious than the ones described and referred to me in the four cases discussed earlier. In my view therefore this case should not attract the maximum prescribed penalty.

18. After having considered all the information before me in your favour and against you I have come to the conclusion that a head sentence of 2 years to be the appropriate starting point in your case. Your sentence will be in the following terms:

Orders accordingly
___________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyers for the accused

National Court of Papua New Guinea

State v Kaiwa [2014] PGNC 220; N5543 (11 March 2014)