N6185

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1168 of 2013

THE STATE

-v-

LAPAN TUPULIT

Kavieng: Kangwia, J.
2015: 24 & 28 July

CRIMINAL LAW- Sentence - Grievous bodily harm with intent s 315 (b) & (d)- Convicted after trial where prisoner elected to remain silent – Intention to cause specific result attracts sentence up to life imprisonment – Courts not giving much thought in sentences imposed where offence treated same as GBH under s 319 with sentence range at 5-6 years 

CRIMINAL LAW – Sentence - Compensation – offender's offer of K1, 500. 00 with suspension orders insufficient – Victim sought K5, 000. 00 which was maximum under Criminal Law (Compensation) Act - No PSR – no suspension of sentence without supporting report - No suspension without conditions - Compensation of K2, 500. 00 adequate 

CRIMINAL LAW - Sentence –Apology after 2 years – Injury rendered heavy use of left arm useless – prisoner treated as first time offender - Consistency in sentencing dissuades a quantum leap– deterrent and retributive sentence warranted- Sentenced to 5 years imprisonment with deductions for time in custody pending trial –Balance of sentence to be suspended after payment of compensation.

Cases cited: 

Edmund Gima & Siune Arnold v State (2003) SC730
Public Prosecutor v Sidney Kerua & Billy Kerua [1985] PNGLR 85;
State v Brian Wadada (CR 885 of 2013)(Unreported Judgment dated 21 May 2015 
State v Inapero Susuare (1999) N1880; 
State v So'on Taroh (2005) N2675;
State v Jamumei Lawrence (2009) N3117;
State v Lionel Gawi (2005) N2951;
 Acting Public Prosecutor v Don Hale (1998) SC 564; 
State v Peter Pepa (2010) N4146; 
State v Yale Sambrai (2005) N2886; 

Counsel:

A. Bray, for the State.
M. Mumure, for the Prisoner.

28 July, 2015

1. KANGWIA, J: Lapan Tupulit appears as a prisoner for Sentence. He was convicted after a trial on one count, that he intended to do Grievous Bodily Harm (GBH) and did Grievous Bodily Harm to one Passingan Milvang, an offence contrary s. 315 (b) & (d) of the Criminal Code Act (CCA).

2. The brief facts were that on 18 December 2012 the prisoner went to where the victim was and asked if the victim had reported him. This was followed by the prisoner chopping the victim on the left shoulder with a bush knife. The injured victim was assisted to the hospital for treatment. He sustained serious injury to the left shoulder area effectively rendering useless the full use of his left arm.

3. The State could not confirm any prior convictions hence he is treated as a first offender.

4. The prisoner is 35 years old and married with one child. He has 2 brothers and 2 sisters. Both parents are alive. He has no formal education.

5. On his allocutus the prisoner said; "I say sorry to the Court for what I did. I ask for leniency with probation. I have K1, 500: 00 according to relatives to compensate and settle the problem under custom."

6. On his behalf, Mr. Mumure submitted that the Defence conceded the serious injuries to the victim but the Court should determine the penalty on its own merits and should not attach high tariffs in sentencing; that the sentence range of the Court for the offence was currently around 5 to 6 years. Mr. Mumure then cited the following cases for the Court's consideration.

7. The State –v- Peter Pepa (2010) N4146 where a first time offender who paid instant compensation after causing multiple wounds on the victim including a cut to the Achilles was sentenced to 6 years on a guilty plea. 
 
8. In the State –v- Tamumei Lawrence (2007) N3117 the prisoner was sentenced to six years on a guilty plea to a group attack on the victim. 

9. It was also submitted that the prisoner offered to pay K1, 500.00 compensation which the Court should consider. The prisoner had been in custody for 2 years and 2 days awaiting trial and any suspension of sentence was left to the Court's discretion.

10. For the State Mr. Bray submitted the following as aggravating factors;

-	The attack was unprovoked. No reason was offered for cutting the victim.
-	The prisoner used a dangerous weapon.
-	There was presence of a strong intention to do GBH.
-	Injury caused was serious and life threatening.
-	The offence was prevalent.

11. It was submitted that a sentence to reflect personal and public deterrence was appropriate in light of the offence being prevalent.

12. While conceding the defence submission on the sentence range for the offence, Mr. Bray suggested that 6 years was appropriate and any suspension of sentence should be with conditions.

13. As for the K1, 500: 00 proposed compensation Mr. Bray offered that the victim during instructions preferred compensation of K5, 000: 00 as the left arm was rendered useless for heavy work.

14. The offence the prisoner was convicted of under s. 315 (b) & (d) of the Criminal Code. The relevant parts are in the following terms:

s. 315 Acts intended to cause Grievous Bodily Harm or prevent apprehension 

A person who, with intent –
(a)	. . .
(b)	to do some grievous bodily harm to any person; or does any of the following things is guilty of a crime –
(c)	…
(d)	unlawfully wounding or doing a grievous bodily harm to a person; or
(e)	. . . 
 Penalty: Subject to section 19, imprisonment for life.

15. Section 315 creates an Intention to Cause a specific result as an element of the offence. Therefore any offence under s 315 (if proved) becomes more serious attracting a maximum penalty of life imprisonment than its cousin offence under s 319 which carries a maximum penalty of 7 years imprisonment.

16. In my humble view the penalty provision under the offence charged has been accorded inadequate thought and consideration by the Courts as shown by the following cases.

17. In the Public Prosecutor –v- Sydney Kerua & Billy Kerua [1985] PNGLR 85 the two offending brothers were sentenced to 1 year 9 months each for unlawful wounding with intent to cause GBH. On appeal for inadequacy of sentence the Supreme Court substituted the sentences with 4 years & 2 years respectfully.

18. The victim in that case was hospitalized for 13 days and received medication for over two months for the injuries sustained in a persistent assault on him by the prisoners and others in a mob attack.

19. In the State –v- Inapero Susuare (1999) N1880 where the offender who cut the victim on the head and nose with an axe was sentenced to 3 years with 2 years of it suspended with conditions.

20. In the State –v- Yale Sambrai (2005) N2886 the offender cut the victim on the head with a bush knife inflicting a serious injury. As a first time offender who pleaded guilty to the charge, the Court sentenced the offender to 2 years.

21. In the State –v- Lionel Gawi (2005) N2951 the offender cut the victim on the head with a homemade metal axe. Others also attacked the victim. Compensation was paid early and on a guilty plea the Court sentenced the offender to 4 years.

22. In Tamumei Lawrence (2007) N3117 the offender cut the victim on his upper left arm. He was later attacked with sticks and stones. The victim underwent several operations. The Court sentenced the offender to 6 years.

23. In the State –v- Peter Pepa (2010) N4146 the offender cut the victim several times with a bush knife on his face, right arm and right leg. The Court sentenced the offender to 6 years with part of the sentence suspended on conditions.

24. The cited cases show that the average sentence under s 315 (GBH with intent) are generally below 6 years imprisonment. Those sentences were imposed notwithstanding that the maximum prescribed penalty under s 315 was life imprisonment. Owing to the prevalence of the offence where grievous bodily harm is caused, sentences should be higher for purpose of personal and public deterrence.

25. Despite the seemingly lenient sentences cited I am also mindful of the principle of proportional and consistent sentencing which dissuades me from considering a sentence that may amount to a quantum leap in the present case. I propose not to take a quantum leap.

26. The aggravating factors in this case far outweigh those in mitigation. The prisoner denied the offence and raised self defence, yet elected to remain silent. He offered no explanation on the self defence alleged. Self defence was never featured nor present at the trial. The Court and the State were made to incur time and expenses on a futile denial. 

27. Usually an offender who wanted to avoid culpability would go out of his way to offer an explanation or justify his actions. That is not the case here.

28. On his allocutus the prisoner indicated that his family had K1, 500.00 to compensate the victim. However, Mr. Bray submitted that the victim during instructions preferred K5, 000.00 if compensation was to be a part of the sentence.

29. There are no supporting reports such as a Pre-Sentence Report for purposes of compensation or even a suspended sentence. 
 
30. Although a sentencing Court has discretion pursuant to s. 19 of the Criminal Code Act, to impose other sentences including suspension, the Supreme Court in Acting Public Prosecutor –v- Don Hale (1998) SC 564 and followed in Edmund Gima and Siune Arnold –v- the State (2003) SC 730 said that there can be no suspension of sentence without a report supporting such suspension and on good basis or without imposing any condition.

31. The underlying reason being that suspension of sentence was a form of punishment to be served outside of a prison setting.

32. In my view, where a Court exercises its discretion to suspend a sentence without a report supporting such action, at least a condition for such suspension would suffice. If compensation were ordered as a condition of suspension it would adequately satisfy the principles laid down by the cited Supreme Court cases. 

33. As to the injury the victim sustained, the Doctor's initial report is the only supporting document evidencing injury. There was no follow up or a more recent medical report on the status of the injury. 

34. At the trial the victim was asked to show the Court the injury sustained during cross-examination. My observation in Court showed what appeared to be a deformed left shoulder with protruding joints and nasty scars. It was a sight after 2 years from the day of attack. That in any laymen's view reflected an injury that was very serious and permanent in nature. It would call for a sentence that was both deterrent and retributive.

35. There is neither explanation nor evidence of why the prisoner went to where the victim was. He did not go there to do shopping as reflected in his counsel's cross-examination of State witnesses. The stores were closed. He did not buy anything either. 
 
36. After meeting up with the victim he uttered one question and without waiting for a response he cut the victim. It can safely be inferred that the prisoner followed the victim with one purpose and that was to harm or injure the victim. His actions were in my view pre-mediated and intentional. Death could have ensued as well.

37. The offence is prevalent. Its cousin offence under s. 319 Criminal Code Act seems more prevalent.

38. In respect of the prevalence of the offence under s 319, I restate what I said in the case of The State –v- Brian Wadada (CR 885 of 2013, Unreported Judgment dated 21st May 2015) as follows;

"This is a case where the prisoner committed GBH on another, an offence that is prevalent. The use of an offensive weapon to cause GBH is a common feature of GBH in this country. It may not be long before this Country is inundated with maimed or disfigured persons from attacks with weapons without a second thought."

39. That observation was made in a case where the offender cut his maternal uncle on the face with a brush-cutter used in oil palm. The uncle told the offender to reduce the volume of his radio when the offender retaliated and cut him. In the Pre-Sentence Report the uncle forgave him and did not want any imprisonment for the offender saying the 2 years in custody awaiting trial was sufficient. The offender was sentenced to the rising of the Court to conform to the victim's wishes.

40. Although that statement was made in the context of a decision under s319 CCA it nonetheless applies also to offences under s315 - GBH with intent, s322 -unlawful wounding and even attempted murder under s304. 

41. The prisoner in his allocutus apologised to the Court for committing the offence. That in my view is not an expression of genuine remorse. The apology did not come on the back of an admission. Secondly, the apology came more than two years after the offence was committed. On top of that, the remorse was not accompanied by any effort at reconciliation. Apology by words alone after conviction means nothing. The State and the Court were put to incur time and expenses. The apology came on a conviction after trial. Any mitigation of sentence that would be available for an admission or genuine remorse is not available in this case.

42. Having said all that, what is an appropriate sentence for the prisoner? As stated earlier a deterrent sentence was demanded owing to its prevalence. The sentence range from the cited cases average 5-6 years' imprisonment. Similarity and uniformity in sentencing in line with the cited cases dissuades me from imposing a sentence marginally outside the sentences imposed in those cases. 

43. Finally, there is nothing in mitigation apart from the prisoner being a first time offender and the offer of K1, 500.00 as compensation. However the two factors are unable to persuade me from imposing a custodial sentence. I deem a sentence of 5 years was appropriate.

44. The next question is whether I should suspend a part or whole of the sentence?

45. The Supreme Court has determined that there should be no suspension without a report (See Don Hale, Edmund Gima & Siune Arnold (supra)).

46. In the present case there is no Pre-Sentence Report. There is no report from his community apart from a contribution of K1, 500. 00 for compensation. It was incumbent on the prisoner to seek PSR but failed to do so. A suspension of sentence would be most improper in that situation.

47. However, the Supreme Court in the cases referred to also said that a suspension of sentence was permissible where conditions were set. That set the basis for the exercise of discretion to apply where suspension was deemed appropriate.

48. The common condition that a Court can set under circumstances as the present case is the payment of compensation to a victim. Even where a PSR was not available the Court could in certain instances order compensation as a part of its sentence. 

49. In the present case to require a PSR would pose hardship and delay given the location of the victim and prisoner's relatives on Taskul. He has spent more than two years in custody awaiting trial. I therefore deem that a suspended sentence with conditions for compensation is appropriate without a PSR.

50. As to what amount of compensation should be awarded the Criminal Law (Compensation) Act provides for a maximum of K5, 000: 00 that a Court could determine. The victim through his counsel preferred K5, 000.00 as compensation which coincidently is the maximum amount permitted by law. The prisoner offered to pay K1, 500: 00 as compensation.

51. In view of the serious nature of the injury sustained with no offer of any explanation by the prisoner the amount suggested by him is inadequate. I deem a sum of K2, 500.00 is appropriate under the total circumstances of this case. 

52. I further add that although compensation is no substitute for a penalty in a crime, substantial award of compensation in offences such as the present case would also act as a deterrent to some extent. Persons would desist from or have second thoughts about committing such an offence if they were put on notice that they stood to pay substantial awards of compensation from the Court in lieu of imprisonment or both if they did commit a similar offence. 

53. In addition to that, a victim of a bodily harm would not go empty-handed. He would be more satisfied of receiving something tangible through a Court Order for the pain and suffering that he went through than getting nothing out of a prison term for the offender. 

54. Any small amount of compensation awarded or an award made that was not proportionate to an injury sustained would certainly have no deterrent effect or satisfaction by a victim.

55. To adequately accommodate what I have stated it would require a shift in the sentencing regime of the Courts now in practice. For sake of discussions, where a person sustained loss of two teeth would it be a quantum leap to sentence the offender to 10 years but suspended wholly or in part with a condition that he paid K20, 000. 00 as compensation? 

56. I am aware that it would be a law for the rich to pay their way out of crime and subject the poor to severe punishment but deterrence cannot be achieved with the type of sentences imposed at present. 

57. That position would also call for a review of the Criminal Law (Compensation) Act as far as it relates to the amount of compensation that can be lawfully awarded by a Court. The present maximum of K5, 000. 00 provided in that Law is in my view inadequate for the present time and restrictive of the Courts' sentencing discretion.

58. After all that has been said, I consider a sentence of 5 years imprisonment appropriate and so sentence the prisoner accordingly.

59. From the 5 years, the time spent in custody awaiting trial shall be deducted. The balance of the sentence shall be suspended only after the prisoner's relatives pay the victim K2, 500. 00 as compensation.

60. Pending payment of the compensation the prisoner shall serve the balance of the sentence at CS Kavieng.

61. The report on the payment of compensation shall be furnished to the Court through the Police Investigator of this case for formal orders for suspension to be issued.

________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner