N5995

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1472 of 2014

THE STATE

V

JESERAL KOMBLAU
Respondent

Vanimo: Geita J
2015: June 4, 11, 15

CRIMINAL LAW – Guilty Plea – Victim hit on the head with a hammer three times resulting in permanent paralysis on left side of body – In public – No remorse – no compensation paid – First time offender – Grievous Bodily Harm – Section 319 Criminal Code.

CRIMINAL LAW- Sentencing – Aggravating factors outweigh mitigating factors – Grievous bodily harm – probation considered inappropriate – Early guilty plea rewarded – Deterrence sentence opted for – Sentenced to 6 years with 2 years suspended – Ordered to pay K5, 000 to defray victim's hospital expenses.

Cases Cited

State v Bradley Bai, Cr 880 of 2014, 16 February 2015
State v Joe Boala (2013) N5261
State v John Aiyoka (2014) N5936
State v Ludwina Waiguma (2007) N3188

Counsel:

Mr. Emmanuel Thomas, for the State
Mr. Baptist Fehi, for the Prisoner

JUDGMENT ON SENTENCE

15th June 2015

1. GEITA J: You pleaded guilty to one count of doing grievous bodily harm to Richard Pinai contrary to Section 319 of the Criminal Code Act. The offence of grievous bodily harm carries a prison sentence not exceeding seven years.

Brief Facts

2. I accepted your guilty plea but entered a provisional plea of guilty and then proceeded to read the depositions handed up in support of the charge against you. In your record of interview given to police you admitted to the charge. Your Lawyer confirmed instructions on your guilty plea. A guilty plea was then formally entered on your behalf with a conviction. The brief acts are these: On the afternoon of August 6, 2014 you approached the victim as he was watching a soccer match. You questioned him over a past incident involving your aunt's house and began hitting him on his head three times with a hammer to which he sustained a depressed right skull measuring about 4-5 cm in diameter. The victim fell to the ground unconscious and was rushed to the hospital. The incident happened at Damil Primary School playing field in Vanimo. The victim is now paralysed on the left side of his body.

3. The medical evidence forming part of the depositions confirms findings of a depressed skull fracture about 4 -5 cm in diameter with bone fragments and blood clothe. He is recovering well however is paralysed on the left side of his body.

Criminal History

4. No prior convictions have been recorded against your name and I accept that position as presented to me by the State Prosecutor.

Allocutus 

5. In your allocutus or when you were asked if you had anything to say about the punishment that should be considered you said this was your first time to appear before a National Court and you asked for leniency. You said you were sorry to the victim and his relatives for the harm caused to him. You also said sorry to your family members and expressed your willingness to pay compensation.

Mitigation Factors

6. 	1. No prior convictions, first time youthful offender
 2. Expression of remorse in allocutus
 3. Early guilty plea
 4. De facto provocation

Aggravating Factors

7. 	1. Use of dangerous weapon, hammer
 2. Prevalence
 3. Permanent injury caused to the victim
 4. No genuine remorse shown
 5. Violent crime committed in a public place

Pre Sentence Report

8. A pre-sentence report prepared and submitted on your behalf by Probation Officer Ben Kasanda on 10/06/2015 recommended your suitability for part non-custodial sentence of probation with conditions. Some initial work on your means assessments report showed your parents inability to come up with any form of compensation payment. This was evidenced by you and your parents inability to pay the traditional 'bel kol' monies in such situations as is the practise now in Papua New Guinea. You come from a family of five children having reached grade 10 education. Your parents appear to be law abiding citizens with your father as a senior pastor of the Assembly of God Faith and your mother, a lay worker and member of the Violence against women and children group in Vanimo. As I understood from your pre sentence report your upbringing was within a Christian home until you got back slidden into the world. You rebelled against your parents for not supporting you financially to upgrade your marks and roamed the street instead until this crime.

Community Attitudes

9. The views of your community were sought through your Community Leader John Wotong who expressed deep concern for your parents and the rough times given them by your aggressive behaviour. He is of the view that you pose a real danger to the community and should be locked up. Former Ward 5 Councillor Alphonse Yuno has some praise for you however say that when you are under the influence of liquor you have no respect for your parents and others around you. The victim's father and relatives feel very strongly that you should be sentenced to prison. They say that you pose a real threat to the community in the way you attacked the victim using a weapon nearby. Your failure to pay any form of compensation coupled with your unruly behaviour in your community under the influence of alcohol recently has demonstrated your inability to live harmoniously within your community, they said.

10. It is very disheartening and sad though to note that your parents now feel very strongly that you should be sent to prison to have you rehabilitated as their attempts to have you corrected often resulted in them being harassed and assaulted. In their own words for you to realise what "respect" is all about. The most recent assault being last month when you were released on bail to wait your court appearance. Rather sadly your actions have forced your parents to think this way towards you. As it can be seen from your pre sentence report, all the persons interviewed feel for you however urge that you have an attitude problem and must serve some time in prison.

Submissions on Sentence - Defence

11. In his oral submissions Defence Lawyer Mr. Fehi submitted that a part custodial and non custodial sentence be considered in line with the views of the community. In support of his submissions on your behalf he referred the Court to the following two cases: in the first case of the State. v John Aiyoka N5936 2014, the prisoner pleaded guilty on the charge of grievous bodily harm: A bush knife was used, left arm severed, alcohol present, rampage in public. A head sentence of 4 years was imposed but wholly suspended with conditions. The second is in the most recent case I completed here in Vanimo in February this year. (State. vs. Bradley Bai CR 880 of 2014, 16 February 2015). The prisoner entered a guilty plea, first time offender, bush knife used, lower left arm severed, presence of alcohol, some compensation paid. I sentenced the prisoner to 2½ years and wholly suspended the sentence with conditions. Mr. Fehi submitted that the circumstances of the case do not warrant the imposition of the maximum 7 years jail sentence. Furthermore, the prisoner's early guilty plea, no prior conviction, youthful offender were factors favourable to you. He however conceded that the crime was prevalent with permanent injuries caused to the victim which were aggravating factors against the prisoner. He submitted that court consider a starting point of 3 years to be apportioned with custodial and non custodial in equal terms and conditions.

Submissions on Sentence – State

12. The State Prosecutor Mr. Emmanuel Thomas submitted that the crime was violent and committed in a public place with a dangerous weapon, a hammer rendering the victim paralysed permanently. The prisoner showed no genuine remorse and should be punished harshly with a sentence of up to 4 years. The court was also referred to the following cases in support:

1.	State v Ludwina Waiguma (2007) N388	Guilty plea, dangerous weapon used, vicious assault, stab wound, unprovoked assault. Sentence to 4 years.	
2.	State v Joe Boala N5261	Guilty plea, victim hit with paddle resulting cuts to his head. Some compensation paid. Community views considered. 3 years wholly suspended with conditions.	

13. In deciding the appropriateness of a sentence to be imposed to the factual situation before me, I have had the benefit of submissions from both lawyers on all relevant issues. I also have had the benefit of a pre sentence report presented to me. In distinguishing the two cases referred to me by Mr Fehi for the prisoner, 1. His sense of judgments was not impaired in any way; he was sober at the time of the assault, 2. No genuine remorse was shown usually by payment of some compensation or 'bel kol' money, 3. Vicious injury caused to a vital part of the body, head, rendering the victim permanently paralysed, 4. The assault was unprovoked. The degree of seriousness in this case in my considered view is much more serious. It follows that the recommended sentences advanced by Mr. Fehi is grossly inadequate and not proportionate. The distinguishing features in the cases put before the court by State is in the lower three years suspended sentence to a high four years' incarceration. In the prisoner's case a hammer was used on the vital part of the body causing permanent paralysis to the victim's left side. The degree of seriousness in this case was therefore high and a punishment other than a prison sentence would be a travesty in my view.

Court: Remarks

14. It is often said that children brought up in Godly homes are most vulnerable to temptation hence it is incumbent on them to keep the faith and not wander off into the world. Your father described you as God-fearing and that you kept the faith until 2013 when you took to the streets in rebellion. Understandably you are an ambitious young man aspiring to further your education. You know your parents best, you know you have other brothers and sisters in your family, your parents are missionaries and obviously do not earn as much. They will be rewarded in heaven. Despite your parents financial shortcomings, you continued to harass them to find money and support your education? I consider your actions to be very egotistic, greedy and narrow minded. You appear to me to be a healthy strong young man. What's stopping you from using your grade 10 education to help yourself in a small way to fund for your education? I know of other young boys and girls with marks lower than you who have excelled due to sheer hard work, without their parents support. I am very mindful of the fact that to send you to prison, a first time youthful offender is not the best of options. However after having addressed my mind to other sentencing options available to me and taking into account the factual situation before me, your rehabilitation and personal deterrence appears most high in my mind.

15. Your plea of de facto provocation in my view is flawed. As to your early guilty pleas, I will give special dispensation as I firmly believe that accused persons must be rewarded for their early guilty pleas. Besides other numerous reasons for these, the savings gained in not running long drawn out trials remains high and real. A nominal deduction will be considered. Your remaining mitigating factors are outweighed by your aggravating factors. Might I add here that my task as trial judge and sentencing judge is exercised judicially based on all evidence before me from both sides? Each case is different with particular circumstances and in most situations will ultimately determine the kind of sentence that must be imposed.

Sentence

16. Due to the foregoing reasons I consider a head sentence of six years of which two years will be suspended. That will leave you with four years to be served at Vanimo Goal. I order that two years of your four years sentence will be suspended from the time you pay a reasonable compensation of K5, 000.00 to the victim to defray his hospital expenses. I do not consider part non custodial sentence or Probation appropriate this time around. Your bail will be returned to you.

Orders accordingly,

_________________________________________________________
Public Prosecutor: Lawyer for the State 
Public Solicitor: Lawyer for the Prisoner