N6357
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 278 OF 2015
 
STATE 

V

POKAI KANGI

Mendi: Ipang, J
2016:  6, 12, 14 July

CRIMINAL LAW – Sentence – Criminal Code Act, Chapter 262 – Section 315 (b) (d) – with intent to do grievous bodily harm did grievous bodily harm to the victim – Offender took aim with his factory made shot gun and fired a shot at the victim – pellets hit left side face of the victim causing injury to victim eye – Plea of guilty. 

CRIMINAL LAW – Practice & Procedure – Sentencing practice – maximum sentence reserved for worst type of sentences – compensation considered as a mitigating factor.  

Cases cited:

Goli Golu-v-State [1979] PNGLR 635
State-v-Daniel Kapen [2013] PGNC 300
State-v-Kawin [2001] PGNC 42; N2167	

State-v-Nipa Homolpi (2004)	
State-v-Peter Pendin [2013] PGNC 292
State-v-Pokira Kadog [2-15] PGNC 24
State-v-Susure (1999) PNNC 58
Taiba Maima-v-Sma [1971-72] PNGLR 49	

Counsel:

Ms. S. Luben, for the State
Ms. C. Koek, for the Offender

DECISION ON SENTENCE
14th July, 2016

1.	IPANG  J:   You pleaded guilty to one (1) count of with intent to cause or do grievous bodily harm unlawfully did grievous bodily harm to one Ralawe Kato on the 6th of September, 2014 contrary to section 315 (b) (d) of the Criminal Code Act, chapter 262. This is the decision on your sentence.

2.	  The brief facts on which you pleaded guilty and for the purpose of your sentence are as follows; on the date mentioned 6th September, 2014 you and your son Lesley were involved in a fight in which Lesley cut one Wane Napuna with a knife. You and Lesley then went to your house and got firearms. You were armed with a factory made shot gun and Lesley was armed with a home-made shot gun. The victim Ralawe Kato was with another person and both walked towards you and Lesley. You aimed your gun and fired a shot at the victim. The victim received pellet wounds to the left side of his face causing injury to his left eye. 

The Offence
3.	The Offender pleaded guilty to one (1) count of pursuant to section 315 (b) (d) of the Criminal Code Act, chapter 262. This provision reads;

“315. Acts intended to cause grievous bodily harm or prevent apprehension.

A person who with intent –

(a)...
(b) to do so some grievous bodily harm to any person; or 
(c)...
(d) unlawfully wounding or doing a grievous bodily harm to a person;
Penalty: Subject to section 19, imprisonment for life.”

4.	The maximum prescribed penalty is no doubt subject to section 19, imprisonment for life. The sentencing practice is that maximum sentence should be reserved for worst type (s) of cases. See State-v-Kawin [2001] PGNC 42; N2167; Goli Golu-v-State [1979] PNGLR 635; Taiba Maima-v-Sma [1971-72] PNGLR 49.  

Issues

5.    What would be the appropriate sentence for the Offender?

6.    Does the circumstances of this case warrant imposition of maximum penalty?

7. 	In order to reach an appropriate sentence for the Offender, there are number of factors which I have to consider. Some of these factors may favour the Offender and others will be against the Offenders.

	Antecedent Report

8. 	   The Antecedent Report tendered in to Court by the State Prosecutor Ms. Luben records nil prior convictions against the Offender. 

Allocutus

9. 	  In allocutus, the Offender said sorry to Court for wasting Court’s time. He said sorry to the victim, to the Village Court Officials, to the Pastors and his church members. He said he has painted bad image for Ialibu. 

Pre-sentence Report

10.  	Ms. C. Koek for the Offender requested for a Pre-sentence Report and I have ordered one for the Offender. The Pre-sentence Report presented to the Court revealed that; 

	The Offender, Mr. Pokai Kangi comes from Pale village in the Kewabi LLG of Ialibu/Pangia District, Southern Highlands Province. He lives in his semi permanent house that has four (4) rooms with nine (9) occupants that include his wife, Nanoli, his old mother and children. He stated that since his arrest for this crime, he has remanded in Southern Highlands Province complying with his bail conditions for the last eighteen (18) months. He said that Pale village and the surrounding areas are generally peaceful. According to the Offender, his father is from Pale village and he is deceased. His mother is from Mambi village and she is still alive. The accused has six (6) brothers and one (1) sister of the family of seven (7) siblings. He said that his relationship with both of his parents and siblings was good and that he grew up in a generally good family with good parents. He further stated that the good and supportive relationship is still maintained. Their reaction to his offence was one of surprise and could not believe this happened to him. They supported his bail. 

	He stated to be married to a good Christian and supportive wife and mother of the six (6) children.

	1. Welsey Pokai	(M) Age 24 years 3rd Business Studies – UPNG, Waigani

	2. Lesley Pokai	(M) Age 17 years Grade 11 – Aiyura National High School
	
	3. Iso Pokai		(M) Age 14 years Grade 8 – Pale Primary School

	4. Cres Pokai		(F) Age 12 years Grade 1 – Pale Primary School

	5. Ninipa Pokai	(F) Age 8 years Grade 3 – Pale Primary School

	6. Sona Pokai		(M) Age 4 years Grade 1 – Pale Primary School

	His wife Nanoli describes their marriage as good and happy. That the accused is a good husband and family man that looks after the family well. He is also sober and does not take alcohol or any form of illicit drugs. Arguments that occur are the usual minor ones that happen in a marriage setting caused by disagreements and misunderstandings, she said. 

	Ability to Pay Compensation		
	
	Compensation according to village custom has been paid, which are;

	1. 36 live pigs worth K44, 980.00	@ K44, 980.00
	2. Cash					@ K8, 000.00

	Total						   K52, 980.00

The compensation payment was witnessed by the policemen of Ialibu, community and village leaders, members of the accused and victim’s clans and villages. Senior Sergeant Kuir of Ialibu Police Station confirmed and verified the compensation payment. Should there be any further monetary orders by this Court the accused has stated that he would need the assistance of his famiy and relatives. 

11.   Mitigating Factors

•	pleaded guilty, serves Court’s time and State’s time for putting up a        trial;
•	    first time offender;
•	expressed genuine remorse;
•	   offender is of matured or old age
•	    a family man
•	compensation was paid

12. 	   Aggravating Factors

•	use of factory made shot gun to commit the offence
•	the offence committed is serious

•	prevalence of the offence
•	injury cause to the left eye
•	it was a pre-mediated attack
•	victim had no part in the first fight and was unarmed

Submission by Defence

13.   	Ms. Koek for the Offender submitted that the Court having heard from the prisoner in his allocutus, in respect of the prisoner’s plea, it is for the court to show him mercy when determining his sentence. We are aware of the fact that the charge of intending to cause grievous bodily harm is a serious offence and is becoming a prevalence offence here in our society. The charge carries a maximum penalty of imprisonment of life; however, the sentencing court can use its discretion under section 19 of the criminal code to impose a lesser sentence. 

14. 	    Koek submitted that such worse instances of worse case type category would be one of which the Question of fact involved any serious or worse aggravating factors or planned attacked, group attack, dangerous weapons such as a knife or fire arm was used to commit the offence, there was some form of permanent injuries sustained by the victim, no compensation paid. 

15.     In this case, the offence was committed with the use of a gun, there was an intention to cause grievous bodily harm, there was only one attacker, compensation was paid and this was a provoked assault in the non-legal sense. There was an incident earlier in Ialibu station in which his son accidently cut a bystander during a peace mediation when he sung his bush knife out of frustration. In retaliation, the victim of the busk knife wound came with his relatives to burn down the offender’s residence when he opened fired at them to scared them off but the victim received pallet wounds; however, we submit that the Court must look at the mitigating factors and circumstance of the case, as the mitigating factors in this case outweigh aggravating factors.

16.  	Defence rely on the case of State-v-Susure (1999) PNNC 58. In that case the prisoner pleaded guilty to one count of intends to cause grievous bodily harm (315). The prisoner and the victim were good friends. That evening they had beer together beside a river side some distances away from the prisoner’s house. When they finished their beer, they departed to their respective homes. After arriving home the prisoner discovered he had no fire to light his smoke so he returned to the river side to fetch fire. During his brief absence his friend, the victim, made his way into the house and into the bed room where his wife was trying to sleep with their baby. There he tried to rape her and a struggle ensued. The prisoner had the commotion as he got near his house and enquired with his wife who told him what had happened. The prisoner with the use of his axe cut him twice on his head and nose. On a guilty plea, the court therefore, sentence the prisoner to three (3) years imprisonment. He was ordered to serve only one (1) year and the remaining was suspended and he was placed on probation with conditions that the prisoner shall compensate the victim with K1, 000.00 cash, one (1) cow and some garden foods.  

17.  	Defence further rely on the case of State-v-Nipa Homolpi 2014. This is a case which was dealt with here in Mendi National Court by His Honour Justice Kassman. The Offender, 60 years old plead guilty to one count of with intent to cause grievous bodily harm pursuant to section 315 (b) (d) to the victim James So. He stabbed the victim with a knife at the back of his left chest. The most venerable part of the body. The Court considered that he was a first time offender, plead guilty compensation was paid and sentenced the offender to three years imprisonment. Time spend in custody was deducted and the rest of the sentence was wholly suspended. He was then placed on one year good behaviour and was further ordered to pay K1, 000.00 court fine. Further he was also ordered to pay K500.00 compensation to the victim. 

18.  	Koek submitted that, in this case, this Court must consider that the prisoner is a first time offender with a clean record. He had been a good citizen prior to his arrest, he is of old age and that he is the sole provider of his family in which four of his children are of school age, he had paid compensation, he had expressed remorse to this Court and to the victim and his family. This honourable Court must consider that the mitigating factors outweigh the aggravating factors. 

19.  	Finally, Defence submitted for a head sentence of three (3) years be imposed and be wholly suspended and that he be of one year good behaviour bond with conditions such as community work. 

Submission by State

20. 	    State submitted that the Court must consider each case on its own set of facts and circumstances surrounding the case. Both mitigating factors and aggravating factors need to be taken into account in determining the appropriate sentence. That there are numerous cases of causing grievous bodily harm with intent (s.315 code) which have come before the Courts. Sentences have ranged from suspended sentences to custodial terms. 

	Court’s Analysis

21.	   In State-v-Daniel Kapen [2013] PGNC 300 the National Court in Madang convicted the prisoner of grievous bodily harm pursuant to s.319 of the Criminal Code Act after a trial found him not guilty on the charge of causing grievous bodily harm with intent under s.315 of the Criminal Code Act. The prisoner was a policeman who fired a shot in to the feet of a youth who was in a group of disorderly drunkards. The victim suffered serious and permanent injury. Prisoner was sentenced to five (5) years imprisonment. Two (2) years was suspended on certain conditions. The balance of the sentence was to be served in custody. 

22.	     In State-v-Peter Pendin, [2013] PGNC 292 the accused was indicted with one (1) count of grievous bodily harm (s.315) (b) (d) of the Criminal Code Act. The prisoner had used a bush knife to cut the victim. The victim was an unsuspecting innocent person. The prisoner cut her on the head then pursued her when she fled for her life. The prisoner was swinging his bush knife at her back. The victim put up her hand to protect her head. Her hand was completely severed at the right forearm elbow joint. The Court heard that it was a worst case of grievous bodily harm. He was sentenced to sixteen (16) years imprisonment. Three (3) years was suspended and he was to serve thirteen (13) years.

23.  	In State-v-Pokira Kadog, [2015] PGNC 24 the Court sentenced the prisoner to six (6) years imprisonment. None of the sentence was suspended. This was a case where the prisoner attacked his brother on suspicions that the brother was having an affair with his (prisoner’s) wife. Prisoner approached the victim from behind and cut him several times with a bush knife.

24. 	       This is a case in which an offensive weapon, a factory made shot gun was used to commit the offence of with intent to commit grievous body bodily harm did commit the grievous bodily harm. The use of such a weapon and the nature of bodily injury sustained by an unarmed and defenceless victim make this present case very serious. The circumstance does not warrant the Offender to have fired the shot straight at the victim. There was no evidence that the Offender fired a warning shot. There was no explanation given as whether his life was in danger or that of his son Lesley.

25.	      I take note of the mitigating and aggravating factors. The antecedent report and what the prisoner said in allocutus. Also noted the amount of compensation paid. I am of the view this case is not a worst type of case which would warrant the imposition of the maximum penalty of life imprisonment. I would apply section 19 of the Criminal Code Act and impose a lesser sentence. 

26.  	I consider the appropriate sentence for the Offender would be five (5) years custodial sentence. I deduct two (2) months, two (2) weeks for Pre-Sentence period spent in custody. This will leave a balance of four (4) years, 09 months, two (2) weeks to be served. I suspend two (2) years for plea of guilty, compensation paid and expression of remorse. Offender will serve two (2) years, 09 months and two (2) weeks. I suspend balance of the sentence and place the Offender on two (2) years probation and that the Offender is to undertake Community Work at Pale Primary School under supervision of the Head Master, Village Court Magistrate Nane Rami and Peace Officer Pikia Kaki. Community Work to be facilitated by Probation Officer for a period of four (4) hours per week, on Saturdays for duration of 08 months. 

   Sentenced accordingly,

____________________________________________
Public Prosecutor:  Lawyer for the State
Public Solicitor:     Lawyer for the Offender