N6535
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR  160 of 2012
CR  161 of 2012

THE STATE

V

    HUDSON IRIMA & KASIU PALIBUTU Jnr.

Bialla/Kimbe: Batari J
     2014: 16 & 20 May, 17 June

CRIMINAL LAW – sentence – grievous bodily harm - accused persons in company of each other –victim assaulted with hand s and bush knife – injuries to arm and knee  – offence of grievous bodily harm - use of weapon - alcohol  related – seriousness of – mitigating factors – plea – compensation – offer and acceptance of – remorse – CBC presentence reports – use of - sentence of 4 years imprisonment wholly suspended on probation terms appropriate.      

Cases Cited:
The State v Chan Alois and Augustine Tutut (2008) N3668
Counsel:

A. Bray, for the State
D. Kari, for the Accused

17 June, 2014
1.	BATARI J:   Hudson Irima and Kasiu Palibutu, you were presented before the Court on 16 May 2014 upon Indictment charging you with one count of unlawfully causing Grievous Bodily Harm to one, Pepe Wapi in contravention of s. 319 of the Criminal Code Act.  The maximum penalty for your offence is 7 years imprisonment.  You are in court again today to receive your sentence following you plea of guilty and conviction.
	
2.	You committed the offence in this manner.  On the morning of 11/12/2011 at Section 15, Bialla town, you Hudson Irima accosted the victim, Pepe Wapi on the road.  He was on his way to visit a sick friend at Bialla Heath Centre.  You grabbed him by the collar of his T’ shirt and punched him.  His attempts to explain his innocence fell on deaf ears as you called for assistant from your co-accused, Kasiu Palibutu Jnr.  He responded with a bush knife and chopped Pepe Wapi on the right elbow and knee.

3.	The offence of unlawfully causing Grievous Bodily Harm is quite prevalent in this country.   It is also on the increase in this Province as seen from the number of cases coming before the Court.  

4.	When someone resorts to violent ways and means to resolve his/her dispute and disagreement, this invariably leads to unnecessary harm, loss, suffering and misery to the victim.  Where, many people are involved, it often results in higher and wider degree of hostility and disharmony. This brings bad name and shame to the community and the nation.

5.	The nature of your offence shows people like you have no regard to the rule of law and the formal avenues for settlement of differences and disputes.  With Christianity and government influences having permeated the length and breadth of this nation, people should surely know, it is morally wrong and unlawful to attack the victim in the manner you did and cause him or her, serious bodily injury, pain and discomfort.  To do so is not only unchristian-like but will also lead to arrest and imprisonment.

6.	The serious nature of your case is that you committed a very prevalent offence.  You attacked the victim with a bush knife and incapacitated his right bony prominence at the elbow.  He also sustained a 10cm deep laceration to his right knee.  The attack was clearly vicious and sustained. It sadly resulted in a permanent disability to the victim in the use of his right arm and leg.    

7.	You set upon the unsuspecting, innocent victim like pack of wild animals for no apparent reason at all.  The attack happened at the end of a drinking spree. Your good sense and judgment were possibly clouded by your state of drunkenness.  This may explain, but not excuse your conduct.  Your violent behaviours were clear manifestations of the evil side of alcohol abuse more particularly, by young people who do not seem to have anything better to do than go around drinking, harassing and making life miserable for other people.

8.	The presentence reports confirm that each one of you come from good family background with Christian upbringings.  You Hudson Irima, both your parents are still alive and had responsibly brought you up well.  They were naturally hurt and ashamed when they heard of you breaking the law.

9.	This must be most disturbing for them because you are their second child who had come into conflict with the law.  Your elder brother Brown Irima is currently on parole following his conviction and sentence on a robbery conviction. This tells me you the Irima children ignore good teachings and advice and have anti-social behaviours.           

10.	And you Kasiu Palibutu Jnr., your father is a public servant.  Both your parents are still alive and had reliably brought you up well.  They were naturally hurt. You brought them shame you broke the law.

11.	For both of you, your conducts do not reflect your parents’ good family values.  You have clearly shown to have behavioural problems when you ignored sound advice and Christian teachings.  You dishonoured your parents and your Christian upbringings.  You think you are above everyone else, including the law.  Your rebellious, selfish attitudes have brought shame and disrepute to respectable household names.  You have tarnished the good family names of Irima and Palibutu.  No law abiding person is proud to have a bad name.  You ought to be ashamed of yourselves.  Now you know that those with anti-social conduct will be punished because they must pay back the community, the wrong they have done it.

12.	     You Hudson Irima were about 22 years at the time of the offence.  You are married with a 5 year old daughter.  Your presentence report states that you are also supporting two other children from a previous relationship.  After attaining Grade 10 in 2005, you completed a carpentry certificate course at Mora Mora Technical School and are now self-employed.  
	
13.	You Kasiu Palibutu were aged about 23.  You are still single.  In 2007 you completed Grade 12 at Kimbe Secondary School and obtained Certificate in Computing and Diploma in Information &Technology from IBS.  You are also self-employed.  

14.	The both you have served four months in pre-trial custody before being released on K1, 000.00 bail.  In addition you have been incarcerated for one month pending your sentence.  This is your first offence.  You have pleaded guilty and expressed remorse.

15.	It is confirmed by the presentence reports that you have paid the victim a total of K2, 500.00 in compensation.  Further compensation is offered subject to the power of the court to make that order.  I will return to this aspect later.

16.	The fact that one pleads guilty is a factor that may, in appropriate cases substantially mitigate a criminal conduct.  It may warrant a substantial discount on sentence as an incentive in itself to plead guilty.  In, The State v Chan Alois and Augustine Tutut (2008) N3668 his Honour Justice Lay suggested that the value of a plea of guilty should be clearly articulated by a sentencing policy so that the accused knows with certainty, the advantage of pleading guilty early. I agree and adopt the following from the judgment:    

“I therefore consider that it is important, to encourage early pleas of guilty in appropriate cases, that is in cases where the accused is guilty, for the court to have a clearly enunciated policy so that the accused person can know with some certainty what the advantage is of an early plea.   Except in cases of horrific personal violence, I propose to adopt the English practice of making a reduction of 25% to 33% from the appropriate head sentence where there is an early admission to police and a subsequent plea of guilty, without any intention of creating a binding strict mathematical formula.”

17.	In your case, your plea of guilty is supported by your expression of remorse and payment of compensation.  You have also offered to pay further compensation.  These are significant factors to consider in your favour.  

18.	I have considered the pre-sentence reports together with the means assessment reports from the CBC Office.  I am most grateful to the author of the reports, Mrs Passingan for the assistance in making this difficult task of sentencing a lot easier.  The reports are sufficiently detailed on the grounds for alternative sentencing.  It recommends that orders for compensation payment together with orders for release of the prisoners on probation will meet the justice of the case.  There has been no opposing view to that recommendation.

19.	The Criminal Law (Compensation) Act, 1991 authorizes the Court when considering punishment, to consider whether compensation should also be awarded as part of or in addition to the term imposed.  The guidelines under which the Court may proceed are set out in s. 3 and these are:

(a)	The nature and seriousness of the offence;
(b)	The degree and nature of any personal injury suffered by the victim;
(c)	Any other factors regarding the commission of the offence or the offender’s attitude which may be considered in mitigation or aggravation of punishment;
(d)	Any relevant custom regarding compensation;
(e)	A report on “means”;
(f)	Other relevant matters.

20.	I have considered your case in the light of those considerations.

21.	Both parties are clearly agreeable to settlement by compensation.  The victim has demanded K15, 000.00 in cash and in kind.  He had in particular requested that you provide him with sawn timber for his house as part of compensation.  He also told the Probation Officer that he would rather see you pay compensation and released on suspended sentence than imprisonment.    

22.	The Means Assessment Report shows that you have some means; though your parents and other relatives may be bound to assist you meet any compensation amount that may be ordered.  The two of you have paid the victim compensation of K1, 000.00 each and could raise a further K2, 000.00 each.  Your bail money of K1, 000.00 each may be refunded towards payment of compensation.  You will require up to five months to raise an amount that may be ordered by the Court.

23.	I consider that compensation should be ordered as part of your punishment.  The orders I propose to make takes into account on the one hand, your ability to pay and on the other, what might be the just and fair compensation in all circumstances of the case.  

24.	The maximum amount the court may order under s. 5 (3) (b) of the Criminal Law (Compensation) Act 1991 is K5, 000.00.  Section 5 (3) reads:

(3)	No compensation ordered under this Act—
      (a)	shall include the use or payment of alcohol; and
      (b)	whether in the form of cash, goods, services or any other            kind or   method of compensation shall exceed in value K5,000.00,
and the value of any form of compensation other than cash shall be as determined by the court.

25.	 I raised with Counsel, the question of whether it is permissible to order separate amounts against each accused, the total sum of which may exceed the statutory limit of K5, 000.00.   This issue arises because the two accused persons were charged and dealt with together.
  
26.	Having heard from the lawyers on this relevant point of law, I am of the view that each accused person is responsible for his or her own actions irrespective of whether he or she is charged alone or with others.  If convicted, he or she must personally bear the consequences of his or her own conduct.  The primary intention of the law is to prosecute and punish the offender individually.  That intention is clear from the singular reference to “person” in the legislative provision creating the offence and the penalty provisions.

27.	In relation to payment of compensation as punishment, s. 2 of the Criminal Law (Compensation) Act 1991 states:       

2.	Compensation as punishment.
(1)	Notwithstanding that payment of compensation is not specified as a punishment for an offence, a court may, in addition to any other punishments imposed, order an offender to pay compensation in accordance with this Act.
(2)	When a court is considering the punishment or punishments to be imposed for an offence, it shall also consider whether in the circumstances of the case, compensation should be ordered.

28.	“Offender” in subsection (2) is defined as, “a person convicted of an offence.”   When read together with the opening words, “No compensation ordered under this Act —” in s. 5 (3), this means in my view that a compensation amount ordered against the individual offender must not exceed the maximum limit in s. 5 (3) (a).  So, in cases where two or more persons are tried together, each person may be ordered to pay a compensation amount up to the maximum limit of K5, 000.00 though, the aggregate amount may exceed the statutory amount limit.   This proposition is consistent with the legal position that each convicted offender in a joint trial is liable to be individually sentenced up the maximum penalty.        

29.	Returning to the rationale in compensation as punishment, it addresses but does not necessarily endorse the notion that those with means can simply “buy” their way out of court.  Section 19 of the Criminal Code already provides for the primary legislative structure by creating two distinct system of sentencing to reflect the different penal objectives governed by different principles.  This sentencing options have their roots in the common law as clearly by stated by the learned author of Principles of Sentencing, DA Thomas, 2nd Edition at p8:

     “The options are to impose a sentence that may be loosely termed as “tariff sentence” or impose a sentence based on the needs of an offender as an individual.”

30.	The sentencing authority must first decide which of the two sentencing objectives should prevail over the other on the particular circumstances of the case before the Court before applying the appropriate body of principles to determine the form of the sentence or measure to follow.
  
31.	In this case, in all the circumstance of the case taking into account, the gravity of the offence and the personal circumstances of the offenders, I am of the view that, the individual measure option is warranted.  Hence, the punishment imposed should include an order for payment of compensation.
	
32.	Based on the foregoing and the presentence reports, I propose to impose a sentence that is both useful to the community and to you. The sentence will serve the community interest because you will be given a jail term.  It will also benefit you because I propose to suspend the whole of that sentence and place you on probation orders.
21.      You are sentenced as follows:
1.	Four (4) years imprisonment IHL
2.	The whole term is suspended and you are to be released and placed on the usual probation orders and in addition that you:
I.	Shall within 48 hours, report to the Probation Officer after release from custody;
II.	Shall each pay K5,000.00 compensation and participate in reconciliation ceremony with the victim within three months of today’s date or by 18 September, 2014;
III.	The compensation amount shall be paid in cash and kind as follows – 
a)	K1,000.00 paid by each probationer is deducted;
b)	K1,000.00 cash bail from each probationer shall be refunded to form part of the compensation order;
c)	Each probationer shall supply sawn or processed timber to the victim to build his house to the value of K1, 000.00 each.
d)	The probationers shall pay K2, 000.00 cash each to the victim on the appointed date for reconciliation.
IV.	Shall reside at Gomu village at all times and nowhere else without leave of the National Court;
V.	Shall not leave Bialla or West New Britain Province without approval of the National Court;
VI.	Shall perform 400 hours of unpaid community work at a work site approved by the National Court;
VII.	Shall attend church every weekend for service and worship and submit to counselling;
VIII.	Shall not consume any form of liquor, alcohol or drug;
IX.	Shall keep the peace and be of good behaviour;
X.	Shall have a satisfactory probation report submitted to the National Court Registry as required;
XI.	Shall appear before the National Court as and when required for assessment of your progress on probation.
3.         The Probation Office shall file six monthly reports with the first such report due by 18 December, 2014 and whenever required by the National Court on your progress on probation until discharged.
4.	In the event of a breach of any of these conditions, you shall be brought before the National Court to show cause why you should not be incarcerated to serve the remaining term of imprisonment.

_________________________________________________________
Public Prosecutor:  Lawyer for the State  
Public Solicitor:      Lawyer for the Accused