N6085
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1444 OF 2014

THE STATE

V

ALBERT KAVENA

Kainantu/Goroka: Polume-Kiele J
2015: 17, 31st July
2015: 21st September

CRIMINAL LAW – Guilty Plea – Grievous Bodily Harm, Criminal Code Act, s319, – Accused and victim relatives - Victim sustained lacerations –Not life threatening - Victim treated at Onemuga Health Centre and discharged

CRIMINAL LAW – Sentence –starting point and head sentence considered – Suspension considered, Criminal Code Act, s 19; Mitigating and aggravating factors considered

CRIMINAL LAW – Sentence – 4 years imprisonment – Deducted 1 year 1 day (period held in custody), s 3(2) Criminal Justice (Sentences) Act 1986 - 2 years suspended, s 19 Criminal Code Act - To serve term of 12 months sentence with hard labour

Facts:

The brief facts are that on the 17th of August 2014, the prisoner was within the vicinity of Babiga Lutheran Church in Kainantu where he met the victim and his 4 year- old son who were on their way to the said Church. The prisoner who was armed with a Tramontina bush knife approached the victim and swung the bush knife towards the victim thereby causing injury to his head. Due to the quick intervention of the members of the public who were nearby, the accused was disarmed and they assisted to transport the victim to the Onemuga Health Centre for medical treatment. Upon examination by the OIC of the Onemuga Health Centre, the victim was found to have received lacerations measuring 4cm length and 5 mm deep sharp wound to the head with no significant blood loss and none of these injuries were life threatening. Similarly, no permanent injury or disability was diagnosed.

Held: 

(1)	A head sentence above the starting point to be imposed in circumstances where one or any of the following aggravating factors exist: (State –v- Sheekiot (2011) N4454 and State –v- Konos (2010) N4157 applied where:

(i)	There is use of a lethal weapon such as a bush knife or axe on an unarmed victim;

(ii)	The offender inflicts injury on a vulnerable part of the body;

(iii)	The offender is part of a group;

(iv)	The offender inflicts multiple injuries on the victim; 

(v)	The offender attacks the victim with a non-lethal or lethal weapon and the victim suffers permanent disability or life threatening injuries; 

(vi)	The victim is unarmed or innocent; and

(vii)	Where there is pre-planning.

(2) Sentenced to 4 years imprisonment, less the period of 9 months 8 days spent in custody. Two years sentence suspended on the following terms and conditions:

(i)	The prisoner shall be keep the peace towards the victim and members of his family and be of good behaviour upon release from custody;

(ii)	The prisoner shall pay compensation in the sum of K1, 000.00 in cash to the victim within three months; and

(iii)	The compensation and peace reconciliation should be witness by the Officer in Charge of Criminal Investigation (Police) and the Probation Officer, Kainantu.

(3)	The prisoner to serve a term of 1 year 2 months and 22 days imprisonment at CIS, Bihute.

Cases cited:
The State v Mais (2014) N5838
The State v Sheekiot (2011) N4454 
The State v Konos (2010) N4157 
Manu Kovi v The State (2005) SC 789
Aihi v The State (No.3) [1982] PNGLR 92
Ure Hane v the State [1984] PNGLR 105
The Public Prosecutor v Done Hale (1998) SC 564
Public Prosecutor v Tardrew [1986] PNGLR 91
Golu v The State [1979] PNGLR 653 

Counsel:

B Barbara Gore, for the State
J Biki, for the Prisoner

JUDGMENT ON SENTENCE

21st September, 2015

1.	POLUME-KIELE J: The prisoner appeared before me on the 15th of July 2015. He admitted by his own plea to one count of unlawfully causing grievous bodily harm under s 319 of the Criminal Code. The offence of unlawfully causing grievous bodily harm under s 319 of the Criminal Code attracts the maximum penalty of 7 years imprisonment. The provisions of s 319 of the Criminal Code reads: 

“A person who unlawfully does grievous bodily harm to another person is guilty of a crime” – 

Penalty: Imprisonment for a term not exceeding seven years.

Committal Court Disposition

2.	Ms. Gore for the State tendered the Kainantu District Court Deposition into evidence by consent which comprised of the following: 

(i)	The Record of interview both the original pidgin and English Version conducted on 19th of September 2014, CR 42 of 2014; marked as Exhibit "A" relating to the defendant Albert Kavena during which he admitted to using a Tramontina bush knife to chop Vermako Tamao on the head on the morning of Sunday, 17th of August 2014 between the hours of 10.00 a.m. and 10.30 a.m. at the vicinity of the Babiga Lutheran Church.

(ii)	The Statements of State witnesses namely Maru Hoidae, Police Constable who attended at the scene dated 19th September 2014, Vermako Tamao (victim) dated 12th of September 2014 and Detective Senior Constable John Joseph dated 12th September 2014, including the statements of Onire Erilo a Village Leader from Babiga Village and Ben Kavena also of Babiga Village, respectively all confirmed the identity of the prisoner and his demeanour at the time of the commission of the offence and also the Medical Report prepared by Nathan Rueben Fumi of Onamuga Health Centre dated 22nd August 2014 which confirmed the injuries sustained by the victim.

3.	Upon the reading of the Committal Court dispositions and being satisfied that the evidence contained in the dispositions supported the charge, the prisoner’s guilty plea was accepted and the prisoner was convicted on the charge of causing grievous bodily harm prescribed under s 319 of the Criminal Code.

Antecedent Report

4.	The prisoner is a male adult from Babiga Village, Kainantu, Eastern Highlands Province and is 46 years old. The prisoner lives in Babiga Village with his 10 children. His wife had passed away on the 12th of July 2014. The prisoner is educated up to Grade 9 level. Although he had been employed for some time with Associated Mills in Lae from 1991- 2004; he is a subsistence farmer and sometimes compliments his sustenance with a bit of alluvial mining and coffee to support his family plus the sale of post for house construction and firewood. The prisoner is a member of the Lutheran Church. This is the first time that the prisoner has been in trouble with the law. 

Pre-Trial Detention

5.	The prisoner was remanded on the 22nd of September 2014 and has been held in custody for a period of 1 year 1 day to the date of this decision on sentence. 

Allocutus 

6.	When administering the allocutus, the prisoner was asked to speak on the question of penalty and in his response, he apologised to the Court and asked for leniency. The prisoner asked to be placed on probation so that he can go home and care for his family and pay compensation to the victim’s family and also reconciled with the victim's family. However, prior to making a decision on sentence, the defence counsel, Mr John Biki on behalf of the prisoner requested that the Probation Officer be directed to provide a Pre-Sentence Report (PSR) and Means Assessment Report (MAR) on the accused to assist this court determine the issue of severity of penalty. In response to this request, the Probation Officer was directed to prepare a PSR and MAR have them submitted prior to the 31st of July 2015 for purposes of assisting this court determine the issue of sentence. The Probation Officer, Mr Bennet Amuino has prepared such Reports which I have perused. In addition on the 31st of July 2015, submissions were made by Counsel acting for and on behalf of the prisoner and the State on sentence.

Pre-Sentence Report

7.	However before I touch on the issue of the determination of sentence, let me discuss briefly the assessment provided by the Probation Office as contained on the PSR on the accused. According to the PSR, the prisoner suspected that the victim had killed his wife through sorcery. He has been custody since his remand on the 27th of November 2014. During his arraignment, the prisoner has expressed his remorse by saying sorry to the court for taking the law into his own hands and wants to reconcile and make peace with the victim. However, the community leaders interviewed all speak of difficulties being faced by the community to bring the members of the families to come together and reconcile but are hopeful that it can occur. At the time that the PSR was conducted, the relatives of the prisoner indicated that they are willing to pay compensation to the victim’s relatives and make peace within the community. The prisoner has been held in custody for 11 months 5 days. The Probation Officer in his overall assessment of the prisoner recommended that the prisoner is a suitable candidate for Probation period on the following terms and conditions:

(1)	The prisoner is the first time offender and as can be placed on terms and conditions,

(2)	The prisoner can be placed on 100 hours community work orders,

(3)	The prisoner can report to CBC Office twice a week for counselling,

(4)	The prisoner can make compensation to the victim and the victim’s relatives to maintain peace in the community,

(5)	The prisoner relatives can be given a period of three months for the payment of compensation,

(6)	The compensation and peace reconciliation should be witness by Officer in Charge of Criminal Investigation (Police) and the Probation Officer; and

(7)	The prisoner is to remain in Kainantu and not change his address or move to other Provinces until his term of Probation is completed.

Mitigating Factors

8.	The mitigating factors in favour of the prisoner where that he was a first time offender, pleaded guilty early in his plea, co-operated with the police and had expressed his remorse for taking the law into his own hands. Mr Biki on behalf of the prisoner submitted that this case is not very serious in comparison to other grievous bodily harm cases. While Mr Biki conceded that the victim sustained lacerations to the right temporal scalp, and was treated at the Onamuga Health Centre, Kainantu, the OIC of the Health Centre, Nathan Reuben Fumi who treated the said victim who sustained a sharp wound which was 4 cm in length and 5 mm to the head; the victim was alert and conscious and not in distress. On the other hand, the Defence Counsel conceded that the offence is aggravated by the fact that the accused used a Tramontina bush knife to attack the victim, which is a very prevalent offence. But at the same time submitted that the accused is not a threat to society. This is first offence committed by prisoner and the prisoner expressed his remorse by saying that he is sorry for what he has done to the victim and also stated that this type of incident would never happen again. The family members of the prisoner want to reconcile and are willing to pay compensation on behalf of the prisoner. In addition, the community leaders have also spoke highly of the prisoner.

Aggravating Factors

9.	The aggravating factors against the prisoner are that there is use of a lethal weapon, in this case a Tramontina bush knife on an unarmed victim. There appears to be pre-planning and the victim is unarmed or innocent, the offender inflicts injury on a vulnerable part of the body. This type of offence is prevalent. 

Submission on Sentence

10.	Mr Biki for the prisoner submitted that a sentence of 1 to 2 years is appropriate. He also submitted that this court exercise its discretion to suspend wholly or part of this sentence with conditions as recommended in the Pre-Sentence Report dated 31st July 2015. Mr Biki submitted further that the prisoner is not a threat to the society and therefore a sentence of 2 years would be appropriate which can then be suspended pursuant to s 19 of the Criminal Code with conditions.

11.	Counsel for the State, Ms Gore however submitted that this type of incident is prevalent. Although she agreed that such incidents ought to have been amicably settled between the parties in that the prisoner should not have taken the law into his own hands. On that note, I would also make some remarks on such behaviours and these are my remarks. Taking the law into your own hands is disrespectful to human dignity and in this case, the victim sustained lacerations to the head and was treated at the Onemuga Health centre and then discharged. Whilst the victim's injuries were not life threatening and he did not sustain any fractured bones or permanent injuries or disability, the prisoner attacked the victim with a bush knife, a lethal weapon. Ms Gore, conceded that the PSR was favourable to the prisoner and submitted that a deterrent sentence of 3 years is appropriate which can then be suspended at the Court's discretion. 

Sentencing guidelines 

12.	The offence of unlawfully causing grievous bodily harm under Section 319 of the Code attracts the maximum penalty of 7 years imprisonment. However, it is well established law that the maximum penalty for any offence is always reserved for the worst type of that offence (Manu Kovi v The State (2005) SC 789). Thus each case must be considered on its own merits including its own set of facts and circumstances as held in Golu –v The State [1979] PNGLR 653; Aihi –v- The State (No.3) [1982] PNGLR 92 and Ure Hane v the State [1984] PNGLR 105. Whilst it is the role of this court to determine an appropriate sentence to be imposed, it is also incumbent on this court to consider firstly, whether this offence warrants the imposition of the maximum penalty of 7 years imprisonment and secondly whether any part of the sentence once fixed can be suspended. 

13.	In determining an appropriate sentence to be imposed, courts are generally guided by the circumstances and particulars of each and every case including matters relating to the antecedents of an offender, interest of the State and communities and the overall objectives and purposes of sentencing. Most importantly, courts have generated precedents with established guidelines or principles on sentences and these precedents will guide this court to ensure consistency and parity in decision making in its determination of the severity of sentence in a given case. Furthermore, courts have wide discretionary powers under Section 19 of the Code which can be exercised accordingly. 

14.	For this case, the prisoner has pleaded guilty to unlawfully causing grievous bodily harm under Section 319 of the Code. The offence attracts the maximum penalty of 7 years imprisonment and this type of offence is very prevalent. In his submission on behalf of the prisoner, the Defence Counsel has cited a number of cases both reported and unreported to assist this court determine an appropriate sentence. This court appreciates the assistance by the Defence Counsel in citing these cases and whilst an attempt has been made to examine the guidelines and principles articulated in these cases, reference is made to the cases that are more relevant to the circumstances of this present case. Upon research of relevant case authorities, a number decisions by his Honour Cannings J., in State –v- Konos (2010) N4157 , State –v- Sheekiot (2011) N4454 and The State –v- Mais (2014) N5838 which are discussed in detail in this judgment are considered and taken into account in my deliberation on the severity of sentence on a charge of grievous bodily harm under s 319 of the Criminal Code.

15.	In State –v- Konos (2010) N4157 his Honour Cannings J., held that the starting point for an offence under Section 319 of the Code should be 3½ years. In this case, the offender attacked his nephew with a piece of timber fracturing his knee including causing many superficial injuries to his body. In consideration of determining an appropriate sentence, a number of factors were taken into account by his Honour. Firstly, the offender’s mitigating factors which include his guilty plea, no prior convictions, de facto provocation, use of a blunt object which caused the risk of fatal injury and early admissions. Secondly, the aggravating factors against the offender included the fact that the injury sustained by the victim was serious, the offender took the law into his own hands, lack of compensation and reconciliation. In this case, his Honour imposed a sentence of 3 years. However the sentence was fully suspended with conditions as the PSR was very favourable to the offender.

16.	Similarly, in the State –v- Sheekiot (2011) N4454, His Honour again set the starting point at 3½ years. In this case, the offender pleaded guilty to cutting his cousin sister on the neck with a bush knife. The offender pleaded guilty and entered an early plea including the payment of compensation to the victim and her family. However, the factors against the offender is that he attacked the victim on a vulnerable part of her body with a lethal weapon and had a prior conviction. His Honour in determining penalty, sentenced the offender to 4 years imprisonment but in the exercise of the court’s discretion fully suspended the sentence on terms.

17.	The guidelines established by the cases of State –v- Konos (2010) N4157 and State –v- Sheekiot (2011) N4454 will be used as the starting point for sentence for GBH at 3½ years subject to adjustment upwards or downwards depending on the relevant facts and circumstances of a particular case including the various the mitigating and aggravating factors set out in these above cases. Basically, these decisions provide that in a case ‘where any or all of the following aggravating factors are present then a head sentence above the starting point of 3 ½ years should be imposed’. These aggravating factors include where:- 

(i)	 there is use of a lethal weapon such as a bush knife or axe on an unarmed victim;

(ii)	the offender inflicts injury on a vulnerable part of the body;

(iii)	the offender is part of a group;

(iv)	the offender inflicts multiple injuries on the victim;

(v)	 the offender attacks the victim with a non-lethal or lethal weapon and the victim suffers permanent disability or life threatening injuries;

(vi)	the victim is unarmed or innocent; and

(vii)	where there is pre-planning

18.	In applying these guidelines to the present case, there are 4 factors out of seven aggravating factors identified in this case and these are as follows:

(i)	there is use of a lethal weapon such as a bush knife or axe;
(ii)	the offender inflicts injury on a vulnerable part of the body;
(iii)	the victim is unarmed or innocent; and
(iv)	there is pre-planning

19.	This Court also notes that there are instances where a case may warrant the imposition of a sentence below the starting point of 3½ years as held in The State –v- Mais (2014) N5838., where the prisoner pleaded guilty to cutting his brother on the left shoulder with a bush knife. Again his Honour Cannings J., took into account his guilty plea, his co-operation with the police and the fact that he had no prior convictions as factors in his favour. However, the court also took into account the aggravating factors against the prisoner in that he used a lethal weapon on his unarmed brother and imposed a sentence of 3 years. None of the sentence was suspended. 

20.	Thus for purposes of determining an appropriate sentence for grievous bodily harm, the aggravating factors against the prisoner out-weighed the mitigating factors. It is for this reason that this court will impose a sentence above the starting point of 3½ years held in (State –v- Konos (2010) N4157 and State –v- Sheekiot (2011) N4454)). I therefore impose a term of 4 years sentence on the prisoner. The offence of grievous bodily harm is very prevalent thus the severity of sentence must be seen as a deterrent to future offenders. 

21.	With regard to whether or not, this court can exercise its discretion pursuant to s 19 of the Criminal Code suspend a sentence, this exercise of discretion must be based on proper principles and these are firstly based on favourable Pre-Sentence Report assessment provided in favour of the prisoner. A case on this point is that of the (Public Prosecutor –v- Done Hale (1998) SC 564) where the court exercise its discretion to suspend a sentence based on favourable Pre-Sentence Report assessment which supported suspension of the sentence either wholly or in part and where the suspension of a sentence appropriately encourages parties to reconcile and restore any damaged relationships as held in (Public Prosecutor –v- Tardrew [1986] PNGLR 91). For this case, this court noted a favourable PSR assessment and recommendation for probation supervision including reconciliation with the victim and his family plus members of the community. This court also notes that members of the prisoner's family have indicated their willingness to pay compensation of the sum of K1, 500.00 and 1 live pig. This is an indication of showing that they are sorry and wish to reconcile with the victim and his family and more so make amends for the harm caused to the victim and his family by the prisoner. This traditional form of compensation payment is important to maintaining peace and harmony within families, communities and the public at large. Thus such gesture is be encouraged, it is also a gesture done without a court order being made to compel you to do so. It is a show of remorse for the harm occasioned on the victim. For these reasons, this court in the exercise of its discretion under s 19 of the Criminal Code suspended 2 years of the head sentence on terms. 

22.	 I also deducted 1 year 1 day which is the period that the prisoner has been held in custody pursuant to s 3 (2) of the Criminal Justice (Sentences) Act.

23.	Furthermore in the exercise of discretion under to s 19 of the Criminal Code; 2 years of the sentence is suspended on the following terms:

(i) The prisoner shall be keep the peace towards the victim and members of his family and be of good behaviour upon release from custody;

(ii) The prisoner shall pay compensation in the sum of K1, 000.00 in cash to the victim within three months; and

(iii) The compensation and peace reconciliation ceremony should be witnessed by the Officer in Charge of Criminal Investigation (Police) and the Probation Officer, Kainantu.

24.	The prisoner is to serve the balance of the term of sentence of 12 months imprisonment with hard labour at CIS, Bihute. 

Orders accordingly.

____________________________________________________________
The Public Solicitor: Lawyer for the Prisoner
The Public Prosecutor: Lawyer for State