N6335

                                             PAPUA NEW GUINEA	
[IN THE NATIONAL COURT OF JUSTICE] 

CR NO.462 OF 2009

BETWEEN

THE STATE

AND
TOBBY SIUNE

Waigani: Liosi, AJ
2016: 13 June

PRACTICE AND PROCEDURE - Criminal Law - Sentence – Grievous bodily harm – Criminal Code Section 319 – Guilty plea – Offender threw a rock hitting the victim on the head causing a depressed skull fracture 

Held:

1.	Maximum sentence under Section 319 of Criminal Code is 7 years Imprisonment – Appropriate starting point is 2 years.

2.	Mitigating factors are that he pleaded guilty, it was an accident, compensation of K400.00 was paid, no prior convictions, the victim has recovered from the injuries and has a favourable Pre-Sentence Report.

3.	The aggravating factors are that the offender was drunk and the stone is a deadly weapon.  He was a village court magistrate at the time of the offence.

4.	Head sentence of 3 years imposed wholly suspended on conditions.

Cases cited:

Acting Public Prosecutor v. Don Hale SC 564 
Public Prosecutor v. Thomas Vola (1981) PNGLR 412
State v. Ali Kewa Job CR 1189 of 2006 Unnumbered and Unreported Judgment of DAVID J. 15th December 2009. 
State v. Wabi (2009) N3662

Counsel:
Mr. P. Tengdui, for the State 
Mr. M. Yawip, for the Prisoner

Introduction

 13th June, 2016 

1.	  LIOSI AJ:   On the 28th April 2016, I convicted the prisoner on one count of Grievous Bodily Harm of one Antonia Gandin, an elderly female at Gembogl Station, Chimbu Province, contrary to section 319 of the Criminal Code on his guilty plea. A Pre-Sentence Report was applied for, hence the adjournment to today.
Brief Allegations of Facts  	
2.	The brief allegations of facts upon which the prisoner pleaded guilty are these; on the 30th November 2008, the prisoner was at Gembogl Station. It is alleged that at that time he was in the company of some friends and they were drinking beer. At about 5 pm in the evening the accused went to his house and started having an argument with his wife and fought with her. The fighting attracted a lot of people who came to the accused residence to watch the argument and the fight. The accused got annoyed at the people for congregating at his house to watch the domestic argument between himself and his wife. He picked up a rock and threatened to throw it at the crowd to scare them off. Instead he swung the rock away from the crowd and into a nearby garden where the victim was working. The rock hit the victim on the head causing her life threatening injuries. The victim was rushed to the Kundiawa General Hospital where she was admitted. She was hospitalized for 16 days and was diagnosed with a depressed skull fracture. The offender was arrested and taken to the Police Station in Kundiawa where he was charged for the offense. The offender was granted and was on Police bail. The offender since then absconded bail and was on the run until his recapture last year. The State alleges that the prisoner’s action of throwing the missile, intending to threaten away the crowd directly caused the injuries to the victim, which action was unlawful. State has now presented an Indictment against the accused charging him with one count of unlawfully causing grievous bodily harm to Antonia Gandin pursuant to Section 319 of the Criminal Code. 

Allocutus 

3.	On his allocutus the offender said the following. On the 30th November 2008, he was at Gembogl Station with his two colleagues drinking some beer at his house. Whilst they were drinking his wife finished gardening came home and argued with him. She then grabbed a stone and tried to hit the prisoner with it. He said he blocked her hand and took the stone off her then swung the stone backwards. He didn’t know who was at the back. The stone he threw landed on the victims head injuring her. The victim was taken to the hospital. He says he had paid compensation by giving K400.00 to the councillor who gave the money to the victim. After receiving the money, they arrested him so he’s in Court. 

4.	Whilst his case was pending his wife and family ran away to Kimbe. He thought of his life and went to Kimbe to bring them back. When he went to Kimbe, he found out that his wife had sold his children to another man and went to Rabaul with her new husband. She sold the children at K1, 200.00 and K1, 500.00 respectively. When he went to reclaim his children, he was told that the children had already been bought and so he had to reimburse the money to get his children back. 

5.	Had no family there so he had to do marketing to reimburse the money to take his children back. For one full year in Kimbe he was doing marketing to reimburse the money paid for his children. Because of that he faced a very big problem and did not appear in Court. He asked the Court to have mercy on him. 
Pre – Sentence Report 
6.	In compiling the report, information was obtained from Ruth Gom the offender’s mother, Antonia Gandin the victim, Jack Nakane a community leader from Komkane clan, Gembogl District and Joe Teye the accused brother. The Report states that the prisoner is very sorry and remorseful towards the victim who is an elderly mother and says he had no intention to cause any injuries to the victim. The offender indicated that he will pay compensation to the victim. 

7.	The prisoner has no previous convictions. He has no records of behaviour problems in the community as revealed by the community. He is not likely to commit another crime in future and is not a threat to the community. Consequently the report recommends the offender as being a suitable candidate for probation supervision. 

8.	The report also recommends imposition of compensation in monetary terms plus goods such as pigs to be considered. The report further states that the accused village and residence is half a kilometre away from Gembogl Station and the probation service does have access to government officer’s who can be appointed as voluntary probation officers to supervise and monitor the prisoner for rehabilitation purposes. 
Submission by Defence Counsel 
9.	Mr. Yawip submits in mitigation the following: 
The prisoner pleaded guilty to 1 count of grievous bodily harm pursuant to section 319 of the code which carries a maximum of 7 years imprisonment in hard labour. However he urges the Court to use its discretion under section 19 of the Criminal Code. 

10.    The prisoner is 34 years old and comes from Auganigl Village, Gembogl, Chimbu Province. He is married with 4 children. He was initially arrested on 13th January 2009 and was on police bail until he was rearrested on December 2014 for non appearance and has been in custody since. He submits that there was no intention to cause injuries to the victim. It was all an accident. The prisoner paid K400.00 the next day to the victim to get medical attention. The prisoner has no prior convictions, he has pleaded guilty and the victim has recovered. He submits an appropriate sentence would be 3 – 4 years suspended sentence. 
States Submission   
11.	Mr. Tengdui of counsel for the State submits that in considering an appropriate sentence, the range of sentences in grievous bodily harm cases under section 319 of the Criminal Code need to be revisited. He cites two cases; 

a)	State v. Wabi (2009) N3662; 
In this case the prisoner was a school teacher. As punishment for coming late to classes, the prisoner hit a late coming student with a one meter ruler on the wrist and right forearm causing severe injuries. Yalo, AJ in Mendi imposed 2 years imprisonment in hard labour wholly suspended on terms including an order of K1, 000.00 compensation payment and three live pigs. 

b)	State v. Ali Kewa Job CR 1189/06, 
Unnumbered and unreported judgment of David J delivered on the 15th December 2009. The prisoner and victim were husband and wife who had an argument. The prisoner got a bush knife and chopped the victim on her right leg. Despite treatment the wound did not heal and the leg got amputated. The prisoner was sentenced to 5 years imprisonment in hard labour less time spent in custody. The remainder was suspended wholly on terms. 

12.	In this case, the offender recklessly threw a stone hitting the victim on the head. The victim suffered a depressed skull fracture. He  submits the aggravating factors included a vicious attack causing life threatening injuries, a stone was used in a careless manner committing the offence, no genuine remorse was shown by paying compensation, offense was committed by a law officer, a village court magistrate and  the offence is prevalent. He submits the circumstances do not disclose a worst case scenario to attract the maximum penalty. However at the time of offending the prisoner was under the influence of homebrew, an illegal substance and was the village court chairman. This factors call for a deterrent sentence. That a head sentence of 3 years is appropriate as the case falls between the above two cases. The issue of suspension of sentence is a discretionary matter (Public Prosecutor v.  Thomas Vola (1981) PNGLR 412) to be exercised on some proper basis. Furthermore there can be no suspension unless supported by a Pre-sentence report. (Acting Public Prosecutor v. Don Hale SC 564).  In the event of a suspension, he urges the court for an order for compensation to be paid to the victims is one of the conditions of a suspended sentence. 
Decision  
13.	The maximum penalty for the offence is 7 years under section 319 of the Criminal Code.  I will use a starting point of 2 years given the circumstances of the case. The range of sentences where an offensive weapon is used has been 3 – 5 years imprisonment depending on the circumstances of each particular case. In deciding on an imposition of a head sentence both aggravating and mitigating factors needed to be weighed out. 

14.	In mitigation, the following factors were considered; he pleaded guilty to 1 count of grievous bodily harm, there was no intention to cause the injury, he has paid K400.00 as compensation to the victim and he has no prior convictions. I further note the prisoner has spent 1 year 6 months in pre- trial custody. 

15.	In respect of aggravating factors, I note and accept all the other factors. However, I do not agree this was a vicious attack given the fact that I have accepted it was an accident. I nevertheless note the injuries sustained were serious as the victim sustained a depressed skull fracture and there may be some permanent disability sustained. I note from the medical report that the victim was discharged in a stable condition on the 16th of December 2008 and was to be reviewed at the surgical clinic on a regular basis. There however appears to be no further reports on any further reviews or report of any permanent disability. I therefore give benefit of this doubt to the prisoner. 

16.	Considering the range of sentences and the circumstances of the offence, I impose a head sentence of 3 years. The prisoner has served 1 year 6 months in pre –trial custody which I deduct. That leaves the balance of 1 year 6 months to be served. Should any of the sentence be suspended? Suspension of sentence is a discretionary matter (Public Prosecutor v. Thomas Vola (1981) PNGLR 412. Further there can be no suspension unless supported by a Pre-Sentence Report. (Acting Public Prosecutor v. Don Hale) SC 564.  

17.	I note strong recommendation by the Pre- Sentence Report for the prisoner's suitability for probation supervision. I exercise the Courts discretion to wholly suspend the remaining balance of the sentence herein on the following conditions noting views particularly that of the victim and the prisoner. 

The offender is to:- 
1.	Immediately enter into his own recognizance to keep the peace and be of good behaviour.
2.	During the period of the suspended sentence the prisoner must be home between the hours of 6 am – 6 pm at his Augenigle Village, Gembogl. 
3.	He shall not consume any form of alcohol or homebrew during the period of his suspended sentence of 1 year and 6 months. 
4.	Within 6 months from the date of decision the prisoner shall pay compensation to the victim the sum of K1, 000.00 cash and 2 live pigs. 
5.	If any of these terms are breached, he shall be brought before the court to answer why he should not be locked up to serve the balance of the term of 1 year 6 months. 
6.	The matter returns on 14 December 2016 for status check of the conditions. 

Conclusion  

18.	Accordingly, the prisoner is sentenced as follows; 

1.	The prisoner is sentenced to 3 years Imprisonment in Hard Labour.
2.	Pre-trial custody period of 1 year 6 months is deducted.
3.	Resultant length of sentence to be served 1 year 6 months.
4.	Amount of sentence suspended 1 year 6 months. 
5.	Time to be served in custody – Nil. 

Sentenced Accordingly, 

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