N5960

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 997 of 2013

THE STATE

v.

SHEM TOKENAKI

Alotau: Toliken, J
2014: 16th July, 09th September, 07th November
2015: 19th February

CRIMINAL LAW – Sentence – Grievous bodily harm – Plea – Guilty – Accused and friends attack victim with sticks and knives – Victim sustained major and minor lacerations – Injuries – Not life threatening - Victim treated at local Health Centre and discharged – Mitigating and aggravating factors considered – Appropriate starting point and Head sentence considered – Suspension considered – Criminal Code Ch. 262, s 319.
 
Facts:

The prisoner and his friends, armed with bush knives and sticks, were 	on the road between Okeboma and Okuyoukopu Villages on Trobriand 	Island, waiting for the victim with whom they were angry over something that he had apparently done. When he arrived they attacked him with sticks and knives. The victim received three major lacerations and three minor ones to various parts of his body but none of these was life threatening. He was hospitalized at the local Health Centre and later discharged. No permanent injury or disability was diagnosed. The prisoner pleaded guilty to one count of grievous bodily harm.

Held: 

(1)	The starting point for the offence of causing grievous bodily harm is 3 ½ years. (State –v- Sheekiot (2011) N4454 and State –v- Konos (2010) N4157 per Cannings J. followed)

(2)	Where any or all of the following aggravating factors are present then a head sentence above the starting point should be imposed:

(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

(3)	The prisoner's mitigating factors are; he pleaded guilty, a first time offender, cooperated with the police, a simple inadequately educated villager, a youthful offender, remorseful and compensation had been paid. 

(4)	The aggravating factors are; the prisoner was in the company of no others, they attacked the victim with sticks and knives, this offence is a very prevalent one in the Milne Bay Province and there was some pre-planning.

(5)	Appropriate sentence is 4 years imprisonment. The prisoner is sentenced to 4 years imprisonment less the period spent in custody.

(6)	Appropriate case for suspension. Sentence is wholly suspended 	and prisoner is placed on 2 years probation with additional conditions that he will not participate in any group or village fights of any sort whatsoever, he will not consume any form of intoxicating liquor and will within 6 months pay compensation to the victim. The compensation shall consist of 5 large clay pots valued at K100.00 each, 8 medium clay pots valued at K50.00 each and K500.00 cash.

Cases cited:

Golu –v The State [1979] PNGLR 653
 Aihi –v- The State (No.3) [1982] PNGLR 92
The Public Prosecutor –v- Done Hale (1998) SC 564
Public Prosecutor –v- Tardrew [1986] PNGLR 91
Aihi –v- The State (No.3) [1982] PNGLR 92
Golu –v The State [1979] PNGLR 653 
The State –v- Mais (2014) N5838
The State –v- Sheekiot (2011) N4454 
The State –v- Konos (2010) N4157 

Counsel:

R Auka and H Roalakona, for the State
C Kambua, for the Prisoner

SENTENCE

19th February, 2015

1.	TOLIKEN, J: On the 16th of July 2014, Shem Tokenaki you pleaded guilty to one count of unlawfully causing grievous bodily harm to Tauduya Motetum on the 18th day of January 2013 between Okeboma and Okuyoukopu village, Losuia, Milne Bay Province. This is an offence under Section 319 of the Criminal Code Ch. 262. 

2.	The brief facts are that on the date in question you and your friends were on the road between Okeboma and Okuyoukopu on Trobriand Island, waiting for the victim Tauduya Motetum with whom you were angry over something that he had apparently done. When Tauduya approached you and your friends you all attacked him with sticks and knives which you were armed with. Tauduya called for help and villagers came in to help him but you and your friends ran away. The State alleged that when you hit the complainant you caused him grievous bodily harm and you had no lawful excuse when you did him harm. 

3.	I confirmed your plea after reading the committal depositions then convicted you. I wasn't able to administer the allocutus then because you wanted a Pre-Sentence Report (PSR). I directed the Probation Service to prepare one but since it was not convenient and possible to compile a report without travelling to the Trobriand Islands, I adjourned the matter to the September sittings of the Court. When the matter came up again before the Court on 09th September 2014 the PSR wasn't available as the Probation Service had difficulty securing funds to travel to the Island but I nonetheless administered the allocutus and heard submissions on sentence from counsels. Your lawyer advised the Court that you still wanted the PSR so I adjourned the matter to the November sittings. I advised counsels that they were at liberty to make supplementary submissions after the PSR was filed. The PSR was finally filed and I heard supplementary submissions on the 07th of November 2014. I was, however, unable to pass sentence then so I do now.

4.	Let me now turn to your personal particulars. You come from Okeboma Village, Losuia, Milne Bay Province. You were 20 years old at the time of the offence so you would be just over 21 years old now. You are an adherent of the United Church and were educated up to the 8th Grade only. You're a first time offender. You were apprehended on 13th of May 2013 so up to the time of your conviction you had been in custody for 1 year and 3 months.

5.	On allocutus this is what you said:

"My confessional statement given during my Record of Interview is the truth and nothing but the truth. I admit that I was solely responsible for the victim's injuries. I beg this Court for mercy and pardon. I am the 1st born of 4 children in our family, my mother is very old and so as my father. I am the only one who supports the family. I asked to be sent home because we had already settled (reconciled) with the victim's family. Police Officers witnessed the compensation and reconciliation and also the village magistrate. That is my plea."

6.	Your Lawyer Ms. Kambua submitted that your case is not serious when compared with other cases. While conceding that the victim sustained three (3) major lacerations and three (3) minor ones, he was admitted and treated at the Losuia Health centre and then discharged. She said the victim's injuries were not life threatening though he was attacked with sticks and knives. She conceded that this was a group attack but says that the victim did not sustain any fractured bones or permanent injuries or disability.

7.	Counsel cited the following factors as mitigating your offence:

•	you're a first time offender
•	you pleaded guilty early 
•	you co-operated with the police
•	you're a simple villager who is inadequately educated
•	you expressed remorse
•	you are a youthful offender
•	compensation has been paid.

8.	Counsel conceded though that your offence is aggravated by the fact that you were in the company of others, you used knives and sticks on the victim and that this is a very prevalent offence.

9.	She submitted that you are not a threat to the society and since this is your first offence you are sorry for your action and would never repeat it again. She was of the view therefore that a sentence of 2 years would be appropriate which can then be suspended with conditions.

10.	The State submitted that this was a matter that ought to have been amicably settled with the victim. However, you and your friends took the law into your own hands. Counsel, Mr. Auka cited the following aggravating factors against you-

•	use of knives to attack the victim
•	use of excessive force
•	you were in the company of others
•	the victim was not armed 
•	this offence is prevalent

11.	Mr. Auka, however, conceded that the PSR was favourable to you but called for a deterrent sentence of 3 years which can then be suspended at the Court's discretion.

12.	The PSR is favourable to you. It indicates some form of compensation was paid to the victim though no details were given. Nonetheless the author is of the view that if further compensation was ordered then it should consist of 5 large clay pots valued at K100.00 each, 8 medium clay pots at K50.00 each and cash of K100.00. This I understand is the standard compensation in your society.

13.	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 that the maximum penalty for any offence is always reserved for the worst instances of that offence. It is also well settled that each case must be treated on its own merits and its own set of facts and circumstances (Golu –v The State [1979] PNGLR (653); Aihi –v- The State (No.3) [1982] PNGLR 92).

14.	My task then is to decide what an appropriate sentence for you should be. And to do that I must consider the following issues:

1.	whether your case deserves the imposition of the maximum penalty of 7 years
2.	whether any part of your sentence be suspended once I fix a head sentence.

15.	The task of a sentencing court or judge is not an easy one because sentencing is not a science. The court is not guided by some mathematical formulae nor does it rely on some inflexible sentencing tariffs or guidelines. Rather the court is largely guided by the circumstances of each particular case, the particulars or antecedents of the offender, the interest of the State generally and accepted objectives and purposes of sentencing and any sentencing guidelines set by the Supreme Court or in those very rare instances tariffs set by legislation. But in all this, the court has very wide discretionary powers under Section 19 of the Code.

16.	To promote consistency and parity, the Court is also guided by what other judges have decided in cases of similar nature and circumstances.

17.	The offence you pleaded guilty to is a very prevalent and there are numerous cases - reported and unreported – which I do not have the time to canvass in any great detail. Your lawyers have cited several of these cases to assist me in arriving at an appropriate sentence. I will make reference only to those cases that I think are more similar to the circumstances of your own case.

18.	In a number of cases His Honour Cannings J., had held that the starting point for an offence under Section 319 of the Code should be 3½ years. For instance in the State –v- Konos (2010) N4157, the offender attacked his nephew with a piece of timber fracturing his knee and causing many superficial injuries to his body. His Honour took into account the offenders 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 against the aggravating factors which included the facts that the injury sustained was serious, the offender took the law into his own hands, lack of compensation and reconciliation, he imposed a sentence of 3 years. This was fully suspended with conditions because of a favourable pre-sentence report.

19.	In 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.	I agree that the starting point for GBH should be 3½ years. This can then be adjusted up or down depending on the circumstances of a particular offence. But generally 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. This may be 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.	Of course some cases will necessarily attract sentences below the starting point of 3½ years. A case in point will be The State –v- Mais (2014) N5838. There the prisoner pleaded guilty to cutting his brother on the left shoulder with a bush knife. His Honour Cannings J. took into account his guilty plea, the fact that he co-operated with the police and had no prior convictions. He used a lethal weapon on his brother who was unarmed so he was served a sentence of 3 years. None of this was suspended.

22.	Let me now turn to your case and let me to start with your mitigating factors. You pleaded guilty to the charge, you have no prior convictions and co-operated with the police, your family had paid some compensation to your victim, and you're a youthful offender, being only 20 years old when you committed the offence. You also seemed genuinely remorseful.

23.	You were, however, in the company of three others when you attacked the victim with sticks and knives and this offence is also a very prevalent one here in the Milne Bay Province. This was also not a case where you acted in the spur of the moment. The facts show that you and your friends actually went looking for the victim so there was pre-planning on your part. These I take to have aggravated your offence. What then should be the starting point for you? 

24.	As I indicated above, the starting point should be 3½ years. And in my opinion I should think that the aggravating factors which I have cited warrant a sentence above the starting point despite the fact that you pleaded guilty and are a first time offender.

25.	This offence is very prevalent and sentence must be such that offenders are discouraged from re-offending. Others must also be discouraged. Too many people are taking the law into their own hands. Too many victims whether innocent or otherwise continue to lose limbs or are permanently maimed by this seemingly uncontrollable expression of anger resulting in the use of all sorts of weapons, lethal or otherwise.

26.	For the purpose of personal and general deterrence but also to renounce this type of behaviour, I think that an appropriate sentence for you should be 4 years. I therefore sentence you to 4 years imprisonment. I however, deduct one year and 11 months for the period that you spent in custody prior to your sentence. This should leave you with a balance of 2 years and 1 month. Should any of the balance of your sentence be suspended?

27.	Suspension of a sentence is entirely at the discretion of the Court. The exercise of this discretion is, however, done on proper principle. First, a sentence may only be suspended if it is supported by a Pre-Sentence Report. (Public Prosecutor –v- Done Hale (1998) SC 564) Second, suspension may also be appropriate if it encourages reconciliation and restoration of damaged relationships. (Public Prosecutor –v- Tardrew [1986] PNGLR 91) So is your PSR favourable and will suspension reconcile you to the victim and restore your relationship with him and his extended family and clan?

28.	Your PSR indeed recommends probation supervision for you and I also believe that a suspended sentence will reconcile you to the victim and his people as well. In Melanesia generally reconciliation is, however, incomplete without something tangible passing to the victim - compensation. Hence if I am to suspend any part of your sentence, you must pay adequate compensation. I acknowledge that you're a simple villager from the Trobriand Islands where the cash economy is small if not non-existent. However, I understand that you have a thriving culture that places more weight on traditional forms of compensation than it does to monetary compensation, so I will endorse the type of compensation recommended in the PSR. But if I am to suspend, how much of your sentence should be suspended?

29.	I feel that the period which you have spent in custody – 1 year and 11 months – is sufficient punishment for you so I propose to wholly suspend the balance of your sentence and place you on probation for a period of 2 years with additional conditions. These will be that you will not participate in any group or village fights of any sort whatsoever, you will not consume any form of intoxicating liquor and you will within 6 months pay compensation to the victim Tauduya Motetum. The compensation shall consist of 5 large clay pots valued at K100.00 each, 8 medium clay pots valued at K50.00 each and K500.00 cash.

Orders accordingly.
________________________________________________________________________
The Public Prosecutor: Lawyer for State
The Public Solicitor: Lawyer for Prisoner: