N6531 

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 415 of 2013

THE STATE

V

BENNY AMBI

Kimbe :  Batari, J
2014:  14, 24 July

CRIMINAL LAW – Sentence -Grievous bodily harm – Accused attacked and cut victim’s hand with bush-knife – Seriousness of–prevalence of - Plea - mitigation – domestic offence - compensation – use of –Restoration of family relationships – consideration of - Sentence of 5 years with suspension orders appropriate.
	
Cases Cited 
No cases cited 

Counsel:
A. Bray, for the State
A.Inisi, for the Accused

SENTENCE
24th July, 2014
1.	BATARI J:  BennyAmbi I convicted you 10 days ago following your plea of guilty to the offence of causing another person, unlawful grievous bodily harm. Under s.319 of the Criminal Code, you are liable to 7 years imprisonment.  This is your punishment.

2.	On the morning of 1st February 2011 at section 7, Block 1720, Kavui Oil Palm Settlement, your wife Emma confronted the husband of Nellie Reu, the victim of your offence and shot him on the head with a stone.  Nellie Reu then retaliated in defence of her husband and attacked Emma with the same rock. After onlookers separated them, Nellie took her husband away to their block. While she was attending to her husband’s head injury, you appeared and attacked her with a bush-knife.   

3.	Because of your attack, Nellie sustained two knife wounds to her left hand.  Medical assessment of the injury by a Health Extension Officer, Alfred Goru of Kimbe General Hospital showed the victim suffered confound fractures of the left upper and lower arm.  There is no further evidence of a recent medical prognosis of the injury. Hence, I give you the benefit of doubt on whether the injuries are permanent.

4.	The nature of injuries shows a severe attack with a dangerous weapon namely, a bush knife. The circumstances of the attack also show that you used the knife with some degree of determination on your part. Although the injuries may not be life threatening, the attack could have been fatal. The victim was then harmless and completely at your mercy. You struck her twice with the bush knife though she was defenceless. 

5.	I think she was extremely lucky you missed a vital part of the body. Had that been the case, the victim could have died and you would be facing a more severe punishment on one of the homicide charges. In any event, your conduct falls into the serious category of grievous bodily harm cases. I will sentence you on that basis.

6.	I bear in mind that this type of offence is widespread throughout the country. It is common occurrence that whenever a dispute or quarrel arises, it invariably results in fights and resort to use of weapons. Despite the punishment being imposed by the courts for this type of offence over the years, violence continues unabated in settling differences.  People must surely know, that attacking and causing fellow human beings grievous bodily harm is bad and against the law. People need to respect the law to use the formal systems in resolving their grievances. You have not only committed a serious offence but your despicable act has also resulted in unnecessary pain and suffering to the victim.
	
7.	The imprisonment term prescribed law is not mandatory because of s.19 of the Criminal Code, which gives the court discretion to impose a lesser term. Under the settled principles of sentencing, I must consider the circumstances of your offence, your own personal circumstance and the current sentencing tendency of the courts for this type of offence.  I must do this in an attempt to strike a balance between the seriousness of the offence and the interest of the community to see that those with anti-social behaviour repay the society for their wrongs on the one hand, and your personal interests on the other.

8.	I have ordered a pre-sentence report and a means assessment test to assist me on this difficult task of deciding the appropriate sentence. I commend Mrs Christine Robe, Probation Officer from the Community Corrections & Rehabilitation Services for the two comprehensive reports that are now before the Court.

9.	You are aged 48 years and married with five children. The victim was the wife of your younger brother and you all live at the same block. You attacked your sister in-law and caused personal pain and suffering to someone within your home – a helper.  This was a domestic infighting which in a way is also personally burdensome and regrettable for you.

10.	You have pleaded guilty and this is your first offence. I accept your expression of remorse as genuine because it followed your plea of guilty.

11.	You also said the incident was the third the victim had caused your family. This may explain your aggressive reaction.  It does not however, excuse your resort to violence. Besides, you did not react on the spur of the moment. You attacked the victim sometime after the incident when everything has quietened down. 

12.	Furthermore, the attack was cowardly towards a female, a gender commonly considered the weaker sex, lacking the masculinity of men to a certain degree.  She was unarmed and not a threat to you or anyone in any manner or form. The aggression you showed towards her was extremely excessive and unwarranted. You would not be in court today had you exercised common sense and restraint.  Be it as it may, you will pay for your needless violent anti-social behaviour.

13.	The victim has demanded compensation of K10, 000.00 together with one pig.  Your counter-offer of K3, 000.00 has support as you appear to be a person of means and ability to pay at least that amount.

14.	Compensation payment is an option open to the Court under the Criminal Law (Compensation) Act 1991. Section 2 makes it mandatory for the Court when considering the punishment to be imposed for an offence, to also consider whether in the circumstances of the case, compensation should be ordered. Section 3 sets out factors to be considered and taken into account in making compensation orders if the order for compensation will advance the interest of justice.

15.	It is trite that the interest of justice may be served if the offender can be usefully punished in some other way other than imprisonment. An order for payment of compensation in addition to other punishment is one of those options. Under s. 5 (3) (b) of the Act, the limit of compensation the Court can impose is K5, 000.00.  Any excess claim in excess of that amount may be a subject of a separate civil suit action. 

16.	I am satisfied that an order for compensation will meet the justice of this case. Close family members are embroiled in this dispute. Their moral, social and cultural obligations to each other in good and bad times should prevail over individual personality issues. An order for compensation in my view will encourage reconciliation and restore relationships. It will enhance peace and harmony amongst relatives.

17.	Your case falls into the range of 4 to 6 years for similar type offence.  I proposed to impose a sentence within that range as I have decided to impose a term of imprisonment for your offence.

18.	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.

19.	You are sentenced as follows:

1.	5 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 you:

(i)	Shall within 48 hours, report to the Probation Officer after release from custody;
(ii)	Shall pay K5,000.00 compensation and participate in reconciliation ceremony with victim within three months of today’s date or by 24th November 2014;
(iii)	Shall reside at a place approved by the National Court;
(iv)	Shall not leave Kavui, Kimbe or West New Britain Province without written approval of the National Court;
(v)	Shall perform 800 hours of unpaid community work at a work site approved by the National Court;
(vi)	Shall attend church every weekend for service and worship and submit to counselling;
(vii)	Shall not consume any form of liquor, alcohol or drug;
(viii)	Shall keep the peace and be of good behaviour;
(ix)	Shall have a satisfactory probation report submitted to the National Court Registry as required;
(x)	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 24thJanuary, 2015 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:  Lawyers for the State			
Public Solicitor:   Lawyers for the Defence