N6131

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1106 OF 2014

THE STATE

V

VINCENT NEMAO

Kainantu/Goroka: Polume-Kiele, J
2015: 2, 5, 19 & 30 November

CRIMINAL LAW – Guilty Plea – Grievous Bodily Harm, s 319, Criminal Code Act – Plea – Guilty –Victim sustained lacerations to the right hand – Injuries not life threatening - Victim treated at Kainantu Rural Hospital and discharged

CRIMINAL LAW – Sentence –starting point of 3½ years and head sentence considered – Suspension considered – Criminal Code, s19, Mitigating and aggravating factors considered

CRIMINAL LAW – Sentence – 3 years imprisonment less 28 days held in custody, s 3 (2) Criminal Justice (Sentences) Act – Sentence of 2 years 11 months 2 days wholly suspended on terms.

Facts:

The brief facts are that, on the 1st day of July 2014, around 09.00.a.m. the prisoner was at his home at Abiara Village, when he was approached by the victim and few of his relatives about a dispute that the prisoner had had with the victim the previous day. Whilst the victim had approached the prisoner without any weapons, it was alleged that the prisoner upon seeing the victim and his relatives, picked up a bush knife and without saying a word swung the bush knife towards the victim cutting him on the right hand. The victim in this case received lacerations to his right hand with some blood loss but none of these injuries were life threatening. The affidavit deposed to by Dr Thomas Koimbu of the Division of Health, Eastern Highlands Province, (Kainantu Rural Hospital) on the 6th of August 2014 confirmed that the victim sustained a deep u-shaped laceration on the dorsal side at the base of the fingers and the distal end of the second metacarpal bone. The wound was clean and 15 cm long. The victim also suffered loss of blood, pain and anxiety as a result of these injuries. It is alleged that when the prisoner cut the victim on the right hand, he caused grievous bodily harm to the victim, a charge contrary to s 319 of the Criminal Code Act. The prisoner by his own plea, pleaded guilty to one count of grievous bodily harm under s 319 of the Criminal Code.

Held: 

(1)	The starting point for sentence of 3½ years for the offence of grievous bodily harm held in (State –v- Sheekiot (2011) N4454 and State –v- Konos (2010) N4157 followed. 

(2)	A head sentence above the starting point to be imposed in circumstances where aggravating factors exist:

(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

(3)	Sentenced to 3 years imprisonment, less period of 28 days held in custody. The 2 years 11 months 2 days sentence is wholly suspended on the following terms and conditions:

(i)	The prisoner is placed on 100 hours community work orders for a period of one year from the date of his release from custody to be supervised by the SDA Pastor, Aibara;

(ii)	The prisoner is report to SDA Pastor for three sessions a month for counselling;

(iii)	The prisoner shall pay compensation to the victim and the victim’s relatives in the sum of K2,500.00 and shall maintain peace in the community;

(iv)	The prisoner and his relatives are given a period of two months to pay the amount of K2, 500.00 as payment of compensation to the victim and his relatives;

(v)	The compensation and peace reconciliation ceremony should be witnessed by Police Officers (Kainantu) and the Probation Officer (Kainantu); and

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

Cases cited:

Aihi –v- The State (No.3) [1982] PNGLR 92
Golu –v The State [1979] PNGLR 653
Public Prosecutor –v- Tardrew [1986] PNGLR 91
The Public Prosecutor –v- Done Hale (1998) SC 564
The State –v- Mais (2014) N5838
The State –v- Sheekiot (2011) N4454 
The State –v- Konos (2010) N4157 
The State v Kavena (2015) CR NO. 1444 OF 2014, 21 September2015, N6085
The State v Matao (2015) CR NO. 168 OF 2015, 21 September 2015, N6084

Counsel:

B Barbara Gore, for the State
Mr Samuel Ifina, for the Prisoner

JUDGMENT ON SENTENCE

30th November, 2015

1. POLUME-KIELE J: The prisoner appeared before me on the 5th of November 2015. He pleaded guilty to one count of unlawfully causing grievous bodily harm to one Aisem Maku, an offence under Section 319 of the Criminal Code. The offence of grievous bodily harm carries a maximum penalty of 7 years imprisonment. The provision 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 9th of July 2014, CB 96 of 2014; marked as Exhibit "A" relating to the defendant Vincent Nemao during which he admitted to using a bush knife to cut Aisem Maku on the right hand on the morning of Monday 1st of July 2014, between the hours of 9.00 a.m. and 9.30 a.m. at Aibara Village, Obura Wonenara, Eastern Highlands Province.

(ii)	The Statements of State witnesses namely Max Kutua, Police Constable, the Interrogating Officer, and the Corroborator namely Senior Constable Salvador Komau who interviewed the prisoner on the 9th of July 2015; including the statements of Lotty Tubavi; Anton Noni dated 17th July 2014 and Aisem Maku dated 8th July 2014 respectively, all confirmed the identity of the prisoner and his demeanour at the time of the commission of the offence. In addition the affidavit deposed to by Dr Thomas Koimbu of the Division of Health, Eastern Highlands Province, (Kainantu Rural Hospital) on the 6th of August 2014 confirmed the injuries sustained by the victim. In that the medical report confirmed that the victim sustained a deep u-shaped laceration on the dorsal side at the base of the fingers and the distal end of the second metacarpal bone. The wound is clean and 15 cm long. The victim also suffered loss of blood, pain and anxiety as a result of these injuries.

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 under s 319 of the Criminal Code.

Antecedent Report
 
4.	The prisoner is a male adult from Aibara Village, Obura Wonenara District, in the Eastern Highlands Province and is 51 years old. The prisoner lives in Aibara Village with his two wives and 13 children. The prisoner is educated up to Grade 8 level. The prisoner has been employed as a Local Land Mediator for some time. He also earned other income through the sales of quarry from his land at about K300.00 per quarter. The prisoner is a member of the Seventh Day Adventist 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 2nd of November 2015 and since the revocation of his bail on the 2nd of November 2015, he has been held in custody for a period of 28 days 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 that due consideration be given to his case as he is a community leader who had been actively involved in a lot of mediation processes involving his community and surrounding areas. He also stated that he is a married man with two wives and a number of children; one of whom is accepted to attend school in the Philippines. The school fees for this course are about K29, 000.00 and the prisoner is worried that by being in custody, he will not be in a position to provide for his upkeep and payment of school fees whilst his son is studying overseas. He also said sorry for cutting the victim.

7.	 However, prior to making a decision on sentence, the defence counsel, Mr Ifina on behalf of the prisoner applied for directions to be issued to the Community Based Corrections Officer to prepare a Pre-Sentence Report (PSR) and Means Assessment Report (MAR) on the prisoner to determine whether or not the prisoner is a good candidate to be placed on probation supervision or has any means of making paying compensation payment if this Court was minded to make a ruling in relation to probations supervision or compensation payments. The Court in this instance directed that the Probation Officer, prepare such Reports and have it furnished to this Court, reports which I have perused. In addition I have heard submissions on sentence from Counsels for and on behalf of the prisoner and the State on the 18th of November 2015 for and against a custodial sentence.

Pre-Sentence Report

8.	However, before I touch on the issue of imposing a sentence, let me discuss briefly the Pre-Sentence Report and the Means Assessment provided by the Probation Officer, Mr Bennet Amuino on the prisoner. According to the PSR, the prisoner is from Aibara Village, Obura Wonenara District in Eastern Highlands Province and he is 51 years old. The prisoner lives in the Village with two wives and his 13 children. The prisoner is educated up to Grade 8 level and is engaged as a Local Lands Mediator. The prisoner sometimes compliments his sustenance with the sale of coffee beans from his coffee garden to support his family plus the sale of quarry from his land. The prisoner is a member of the Seventh Day Adventist Church. The prisoner is a first time offender and has been in custody when he was remanded on the 2nd of November 2015. 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. 

9.	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 Pre-Sentence Report 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 in custody for 28 days. The Probation Officer in his overall assessment of the prisoner recommended that the prisoner is a suitable candidate for Probation period on terms and conditions. These are:

(1)	The prisoner can be placed on 100 hours community work orders at the Aibara SDA Church to be supervised by the SDA Pastor;

(2)	The prisoner can report to SDA Pastor for three sessions of counselling;

(3)	The prisoner can make compensation to the victim and the victim’s relatives to maintain peace and reconciliation in the community;

(4)	The prisoner relatives can be given a period of six months for the payment of compensation.

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

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

(7)	The CBC Office, Kainantu should furnish six months report to the Court

Mitigating Factors

10.	The mitigating factors in favour of the prisoner were 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. 

Aggravating Factors

11.	The aggravating factors against the prisoner are that a dangerous weapon was used, that is a bush knife, and use of excessive force, the victim was unarmed and that this type of offence is very prevalent.

Submission on Sentence

12.	Mr Ifina on behalf of the prisoner submitted that this case is not very serious in comparison to other grievous bodily harm cases. While Mr Ifina conceded however that the victim sustained lacerations to the right hand, and has since recovered from his injuries, the victim is healthy and able. The offence is aggravated by the fact that the prisoner used a bush knife to attack the victim, which is a very prevalent offence. But at the same time submitted that the prisoner 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. Consequently, Mr Ifina submits that a sentence of 1 to 2 years is appropriate and in support of this argument made references to a number of cases, that is the case of The State –v- Sheekiot (2011) N4454 and The State –v- Konos (2010) N4157 which had been taken into account and discussed in the judgment. He also submits that this court exercise its discretion to suspend the wholly or partly this sentence with conditions as recommended in the Pre-Sentence Report dated 18th of November 2015.

13.	Ms Gore, Counsel for the State, however submitted that this type of incident is prevalent. She submitted further that such incidents ought to have been amicably settled between the parties instead of the prisoner taking the law into his own hands. On that note, I refer to sentiments expressed in the case of State v Kavena (supra) which involved a grievous bodily harm case where I had stated that “taking the law into your own hands is disrespectful to human dignity” as “this expression of anger exhibited an apparent lack of respect for the law”. Of concern to this Court is that fact that the prisoner had been actively involved in mediation but when confronted with a situation such as this case; the prisoner had failed to exercise such mediation skills in his own given circumstances and disposition. Furthermore, the Medical Report submitted confirmed wounds sustained by the victim which had been inflicted by a forceful use of a sharp metal weapon (bush knife) to the arm. The victim was treated at the Kainantu Rural Hospital and then released. In addition, the prisoner by his own plea, admitted to have attacked the victim with a bush knife, a lethal weapon.

14.	The offence of unlawfully causing grievous bodily harm under Section 319 of the Code carries a maximum penalty of 7 years imprisonment. It is however, well established law that the maximum penalty for any offence is always reserved for the worst instances of that type of offence and also well settled law that each case must be treated on its own merits and its own set of facts and circumstances as held in the case of Golu –v The State [1979] PNGLR 653; Aihi –v- The State (No.3) [1982] PNGLR 92 and Hane –v- The State [1984] PNGLR 105.

15.	Counsel for the State submitted that your offence is aggravated by the fact that you used a bush knife on an unarmed victim and that such an offence is very prevalent in PNG. Whilst granted that you are not a threat to the community and that this is your first offence and you have expressed remorse for your action including a favourable PSR; it is further submitted by the State that a deterrent sentence of 12 months imprisonment as held in the case of the State v Kavena (supra) which can then be suspended at the Court's discretion would be an appropriate penalty. Furthermore, the PSR recommended some form of compensation to be paid to the victim however she argued that the payment of compensation should been made prior to coming to Court as it would indicate some form of remorse on the part of the prisoner. Nonetheless the PSR recommended that if compensation was ordered then it should consist of a payment of cash component of K2, 500.00 and kind as payment of compensation. The payment of compensation is considered a standard norm in a Papua New Guinean society, such as your Aibara community and thus it is at the discretion of the Court.

Sentencing criteria

16.	Whilst it is the task of this Court to determine an appropriate sentence to be imposed on you, in that; considerations must also be taken into account in relation to whether or not this case deserves the imposition of the maximum penalty of 7 years imprisonment and also to consider whether if the maximum penalty is to be imposed, should consideration be given in terms of suspending wholly or partly a sentence once imposed. 

17.	Deciding what is an appropriate sentence is not an easy task for this court or a judge as there is no formula or mechanism through which a sentence is rated. The Court in all circumstances is guided by the particularities of a given case, circumstances, and antecedents of the offender including interests of the State and or society generally; plus the accepted objectives and purposes for sentencing. Furthermore, consideration will also be given to sentencing guidelines established by case law and tariffs, including those limited areas of sentencing guidelines enacted by legislation. The court has very wide discretionary powers under Section 19 of the Code to suspend wholly or partly a sentence once imposed depending on the circumstances of a case. However for purposes of consistency and parity, this Court is also guided by principles already established by case law in relevant facts and circumstances.

18.	For your case, the offence you pleaded guilty to, is very prevalent. A number of these cases have come through the courts; some of these cases (reported and unreported) have been cited by both your Defence Counsel and the Lawyer for the State. References to these cases where relevant will be used to assist this court determine an appropriate sentence. A case which established the guidelines in setting down the starting point for an offence under s 319 of the Criminal Code is that of the case of the State –v- Konos (2010) N4157. This case involved an offender who attacked his nephew with a piece of timber which resulted in the fracture of his knee and other superficial lacerations to his body. Cannings J., in his decision in this case, held that the starting point for an offence under Section 319 of the Code should be 3½ years. Matters which his Honour took into account in determining penalty here was the mitigating factors in favour of the offender, which included his guilty plea, no prior convictions, de facto provocation, use of a blunt object which caused the risk of fatal injury and early admissions. However, the aggravating factors against the offender in that case included the facts that the injury sustained by the victim was serious, the offender took the law into his own hands, lack of compensation and reconciliation, his Honour in that case, imposed a sentence of 3 years. This sentence was fully suspended with conditions because of a favourable pre-sentence report.

19.	In another case again, handed down by his Honour Cannings J is that the case of the State –v- Sheekiot (2011) N4454, His Honour again set the starting point at 3½ years. There the offender pleaded guilty to cutting his cousin sister on the neck with a bush knife. The offender pleaded guilty and made early admissions and paid compensation as well. However, he attacked the victim on a vulnerable part of her body with a lethal weapon and had a prior conviction. His Honour also sentenced the offender to 4 years which was also fully suspended on terms.

20.	In order to determine an appropriate sentence to be imposed, this Court is guided by the starting point for GBH established by the cases of State –v- Konos (supra) and State –v- Sheekiot (supra) and thus say that the appropriate sentence in this case should be set at 3½ years with adjustments upwards or downwards depending on the circumstances of your particular case and applying the guidelines established relating to the aggravating factors that are present in situations 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; 
(vii)	where there is pre-planning

21.	There are situations where some cases will attract sentences that will be set below the starting point of 3½ years as established in the case The State –v- Mais (2014) N5838 where the prisoner pleaded guilty to cutting his brother on the left shoulder with a bush knife. The Court in that case took into account his guilty plea, his co-operation with the police and had no prior convictions. On other hand, the prisoner had used a lethal weapon on his brother who was unarmed. The Court in this case imposed a sentence of 3 years imprisonment. None of this was suspended.

22.	With regard to case against you; this Court noted that there are a number of mitigating factors in your favour. These are that you pleaded guilty to the charge, have no prior convictions and co-operated with the police. In addition, your family has indicated that they will assist with the payment of some compensation to the victim and his family and that you also appear genuinely remorseful.

23.	However, this Court also noted that you attacked the victim with a bush knife, an offence which a very prevalent one in Papua New Guinea and these are taken as aggravating factors against you and this then leads to the question as to what should be the starting point in relation to sentence in your case. 

24.	Whilst the circumstances in this case do show that you did not pursue the victim and that there is no pre-planning in the attack, it is also noted that the victim and his relatives had mobilised and approached you and your family and home without invitation can be intimidating as well and thus it is reasonable to say that the aggravating factors which I have cited above warrant a sentence below the starting point due to the fact that you pleaded guilty and are a first time offender. However, it should be pointed out that this type of offence is very prevalent and thus a sentence must be seen as a deterrent so that offenders are discouraged from re-offending and that others are discouraged from committing crimes of this nature and or taking the law into their own hands. 

25.	In the short space of time that I have been sitting in this Court, a number of cases such as the cases of the State v Matao, CR No 168 of 2015, 21 September, N6084 and State v Kavena, CR No 1444 of 2014, 21 September 2015, N6085, where victims however innocent have suffered injuries of varying degrees on their persons due to range of degree of anger which have involved the use of all kinds of weapons however lethal. In order to deter such behaviour, it is proper that a sentence of appropriate proportion be imposed on you and for this, I sentence you to a term of 3 years imprisonment, however, I also note that you have already been in detention for 28 days and thus deduct the period of 28 days pursuant to s 3 (2) of the Criminal Justice (Sentences) Act from the term of your sentence. This then leaves the balance of 2 years 11 months 2 days of the sentence to be served. 

26.	The next issue is to consider whether the balance of your sentence of 2 years 11 months 2 days be suspended. Firstly, suspension of a sentence is at the discretion of the Court, to be exercised on proper principles and if it is recommended by a Pre-Sentence Report (Public Prosecutor –v- Done Hale (1998) SC 564). Secondly, suspension may also be appropriate if it encourages reconciliation and restoration of damaged relationships. (Public Prosecutor –v- Tardrew [1986] PNGLR 91). For your case, the PSR was favourable with recommendation for a suspended sentence with terms as this will enable you to reconcile you with the victim and re-establish your role as a mediator with the victim and his extended family and your overall community

27.	This Court has noted the PSR recommendation for probationary supervision orders for you and on that note, this Court is hopeful that a suspended sentence will allow you to reconcile with the victim, his relatives and your community as well. This is because in your previous role as a mediator, it will be good to see that you are able to employ the technics and skills of mediation and reconciliation and payment of compensation in your own circumstances. 

28.	For these reasons, a sentence of 3 years imprisonment is imposed on you. I deduct the period of 28 days that you have been held in custody pursuant to s 3 (2) of the Criminal Justice (Sentences) Act which leaves the balance of 2 years 11 months 2 days term to serve. In the exercise of discretion pursuant to s 19 of the Criminal Code, the sentence of 2 years 11 months 2 days is wholly suspended on terms:

(i)	The prisoner is placed on 100 hours community work orders for a period of one year from the date of his release from custody to be supervised by the SDA Pastor, Ababa;

(ii)	The prisoner is report to SDA Pastor for three sessions a month for counselling;

(iii)	The prisoner shall pay compensation to the victim and the victim's relatives in the sum of K2,500.00 and shall maintain peace in the community;

(iv)	The prisoner and his relatives are given a period of two months to pay the amount of K2, 500.00 as payment of compensation to the victim and his relatives;

(v)	The compensation and peace reconciliation ceremony should be witnessed by Police Officers (Kainantu) and the Probation Officer (Kainantu); and

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

Orders accordingly.

________________________________________________________________
The Public Prosecutor: Lawyer for State
The Public Solicitor: Lawyer for Prisoner