N6427
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR No. 1632 OF 2015

THE STATE

V
REMIX AIMIMI EDDIE

Alotau:  Toliken, J
2016:   06th, 20th July

CRIMINAL LAW – Sentence – Grievous bodily Harm – Plea – Juvenile offender - Serious injuries sustained – Permanent impairment to effective use hand – Some de factor provocation – Prior conviction – Guiding and sentencing principles under Juvenile Justice Act 2014 applied – Interest and welfare of juvenile paramount – Need for correction and rehabilitation – Need for juvenile to acknowledge and take responsibility for his action – Sentencing options considered – No other option available except custody – Appropriate Sentence – 3 years less time in custody – No suspension - To be served at Juvenile Section of Giligili Corrective Institution – Criminal Code Ch. 262, s 319; Juvenile Courts Act 1991.

Cases Cited:

The State v JB (A Juvenile); CR 1059 of 2015 (Unnumbered judgment dated 10th February 2016)
The State v Konos (2010) N4157 
The State v Lawasi (2015) N5964 
The State v Sheekiot (2011) N4454
The State v Tokenaki (2015) N5960 

Counsel:
R. Roalakona, for the State
C.Kambua, for the Prisoner

JUDGMENT ON SENTENCE

20th July, 2016

1.	TOLIKEN J.	 Remix Aimimi Eddie, on the 06th of July, you pleaded guilty to one count of unlawfully causing grievous bodily harm to one Lohia Wilson Napthalai on 29th June 2015. And in so doing you contravened Section 319 of the Criminal Code Ch. 262 (the Code).

2.	The brief facts put to you to support the charge are that on the night of Monday 29th June 2015, the complainant met you at the Informal Market near the Transit Lodge here in Alotau. He gave you K20.00 for smoke, but a bystander grabbed the money from your hand and ran away. Seeing this, the complainant got angry and swore at you, and a fight ensued between the two of you. You ran up to the Compound to escape further assault and the complainant followed you up. He searched for you, but could not find you so he went back to the main road and proceeded to walk towards Goilanai. You ran down to the road and followed the complainant with a bush knife and cut him with it. After cutting him you ran away, leaving the complainant bleeding heavily. A passerby flagged down a passing Police vehicle and the complainant was taken to the Alotau General Hospital.

3.	You admitted these facts. After perusing the committal court depositions I confirmed your plea and then convicted you. 

4.	At this juncture it is instructive to mention that a Medical Report by Dr. Westin Seta dated August 7, 2015 revealed that the complainant –

“… sustained bush knife slash wounds to his left upper arm and the right forearm. 
Examination revealed a left wrist drop indicative of an underlying radial nerve injury. This in jury was associated with laceration over the upper third of the anterior arm.

The wound in the right forearm was confirmed to have entered deeply into the extensor muscles with the resultant finding being the difficulty to extend the fingers of the hand.

These injuries are serious and will require specialist repair done to the muscles of both sites of injuries along the repair of the radial nerve on the left upper limb.

It may be another six weeks before he undergoes surgery.”

5.	 The offence of unlawfully causing grievous bodily harm carries a maximum penalty of 7 years imprisonment. The Court can, however, impose a lesser sentence if the circumstances warrant it.  The maximum penalty is of course usually reserved for the instances of a particular offence.

6.	I must therefore impose an appropriate sentence for you. And to do that I must determine, firstly, whether this is a worst case that should attract the maximum. If I find that it is, then I might well give you the maximum. However, if it is not, then I must impose an appropriate sentence for you below the maximum.

7.	You were 16 years old when you committed this offence hence, you were a juvenile. This means that you will be treated differently from adult offenders. In sentencing you I must therefore be guided principally by the provisions of the Juvenile Justice Act 2014. I have summarized the guiding principles and principles of sentencing juveniles in  the case of The State v JB (A Juvenile); CR 1059 of 2015 (Unnumbered judgment dated 10th February 2016) in the following terms –

	10.	Section 20 (3) of the Juvenile Justice Act provides that as far as is practicable, the National Court shall sit and conduct its proceedings in accordance with that Act.

	11.	Section 6 of the Juvenile Justice Act provides for the general principles that must guide a court or persons exercising jurisdiction or power over a juvenile.  Among other things, special considerations apply in respect of proceedings against juveniles because of their youth and vulnerability, and therefore, they must be treated separately from adults. They are entitled to enhanced protections to ensure that they are treated fairly and that their rights are respected. The best interests of the juvenile are the primary or paramount consideration. Juveniles must be held accountable for their actions, but emphasis should be rehabilitation and reintegration, while acknowledging the juveniles’ lack of maturity and their limited capacity to appreciate the consequences of their actions. They must be dealt with in an individualized manner and there must be proportionality between the circumstances of the juvenile, the nature of the offence and the interest of society. And within the limits of proportional accountability, measures to be taken against a juvenile must ones that reinforce respect for societal values, encourage restorative justice for harm done to victims and to the community.  Where appropriate, parents, the juvenile’s family, the community and other agencies must be involved in rehabilitating and reintegrating a juvenile. (Section 6(a)(b)(j)(k)(l)).

	12.	The Juvenile Justice Act (PART VII:  SENTENCING OF JUVENILE OFFENDERS), provides for the powers, purpose and factors to be taken into consideration when sentencing juvenile offenders against the general principles under Section 6 of the Act.

	13.	Section 75 of the Act provides in mandatory terms that juvenile offenders shall be sentenced according to Part VII of the Act.  Section 75 provides:-
	
		“75.	JUVENILES TO BE SENTENCED IN TERMS OF THIS              PART

(1)	Notwithstanding any other Act or law, if a Court is satisfied that
			pleads guilty to the offence, the Court shall impose sentence on
	        the juvenile in accordance with this Part.

(2)	A Court that sentences a juvenile for an offence shall disregard
			a requirement under any other Act or law that an amount of money
			or term of imprisonment shall be the minimum penalty for the offence”.

	14.	This provision cannot be any clearer – juveniles, because of their special status, will be treated entirely differently from adult offenders.  Minimum penalties have no application when it comes to sentencing juveniles.  To that end, a sentencing court is also not strictly bound by precedents (Section 77 (2)). 

	 15.	Section 76 provides for the purpose and principles of sentencing juvenile offenders in the following terms:-

		“76.	PURPOSE AND PRINCIPLES OF SENTENCING
	
(1)	The purposes of sentencing juvenile are to -

(a)	Encourage the juvenile to understand the consequences of and be accountable for the harm caused by his or her actions; and
(b)	Promote an individual response which is appropriate to the juvenile’s circumstances and proportionate to the circumstances surrounding the offence; and
(c)	Promote the rehabilitation and reintegration of the juvenile into the family and community; and
(d)	Ensure protection of the public.

(2)	A Court that imposes a sentence on a juvenile shall determine the sentence in accordance with the principles set out in Section 6 and the following principles:
(a)	The sentence shall be proportionate to the seriousness of the offence and the degree of responsibility of the juvenile for that offence; and
(b)	the sentence shall –
(i)	be the least restrictive sentence that is capable of achieving the purposes set out in Subsection (1); and

(ii)	be the one that is most likely to rehabilitate the juvenile and reintegrate him o her into society; and

(iii)	promote a sense of responsibility in the juvenile, and an acknowledgement of the harm done to the victim and the community; and

(c)	the sentence shall have regard to the juvenile’s age and limited capacity to appreciate the consequences of his or her actions; and

(d)	the sentence shall and result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances; and

(e)	if appropriate, juveniles shall be permitted to remain in the community; and

(f)	deprivation of liberty shall be used only as a measure of last resort, for the shortest period necessary to achieve the purposes set out in Subsection(1).

(g)	Section 77 provides for the factors which sentencing a juvenile.  These include:-

(a)	The seriousness of the offence and the circumstances in which it was committed.

(b)	The juvenile’s degree of participation in the commission of the offence.

(c)	The harm done to the victim and whether it was intentional or reasonably foreseeable.

(d)	The age, maturity, education, health character and attitude of the juvenile.

(e)	The juvenile criminal history (if any) and his response to previous orders in respect of past offences.

(f)	The availability of community services and facilities to assist the juvenile and his willingness to avail himself to such services and facilities.

(g)	Any proposal offered by the juvenile or his parents for the future improvement of the juvenile.

(h)	The views of a Juvenile Officer or other persons who are involved in the education or custody of the juvenile.

(i)	Information contained in a Pre-Sentence Report.

(j)	Any time spent in custody while awaiting trial.

	16.	And as I have noted above, the court is not bound by precedents.

	17.	The Act also provides that a court may before imposing sentence, refer a juvenile offender to a Community Based Conference (established under Part III – of the Juvenile Justice Act) for the purpose of making recommendations to the court on an appropriate sentence (Section 78).

	 18.	It is also mandatory that a written pre-sentence report be filed before a court imposes sentence (Section 79).

	19.	Section 80 of the Act provides for what appears to me to be an exhaustive list of sentencing options.  These include:-

(a)	An Order discharging the juvenile without further action.
(b)	Good behaviour not exceeding 12 months.
(c)	Reprimand.
(d)	Counselling.
(e)	Supervision and guidance order not exceeding 12 months by a specified adult or mentor.

(f)	Attendance of a non residential vocational training or rehabilitation programme.

(g)	Order for restitution.

(h)	Compensation by way of personal service to the victim.

(i)	Restitution in kind for loss, damage or injury suffered by victim not exceeding K5,000.00.

(j)	Community work.

(k)	Fine not exceeding K500.00.

(l)	Probation not exceeding 3 years.

(m)	Commitments to a juvenile institution chosen by the Director of Juvenile Justice Service.

(n)	Term of imprisonment at the juvenile section of a Corrective Institution for period not exceeding 6 years if order is made by a Juvenile Court or a court of summary jurisdiction and where order is by National Court for a period prescribed for an adult offender in similar circumstances.

(o)	Defer passing sentence for a specific period and subject to conditions.

	20.	And in sentencing a juvenile, a Court is obligated to ensure that he understands the purpose and effect or the consequences if he breaches the Order (Section 80 (5)).

	21.	Section 81 restricts the use of Custodial Sentences.  It provides that imprisonment may be imposed only if the Court has considered all the alternatives under the Act (Section 80) and determines that there is no reasonable alternative or a combination therefore is available to it.

	22.	Furthermore, a juvenile shall not be sentenced to a term of imprisonment unless he is 14 years of age or older and has committed an indictable offence (Section 81(2)).

	23.	I have gone into some detail on the general guiding principles set out in Section 6 of the Act, the purpose and principles of sentencing, and the court’s sentencing powers and options  (Sections 75, 76, 77, 80, 81 of the Act) because I feel that it is important that you be accorded the protection that the Act provides.  So let me now get back to your case.”

8.	So with that summary of the guiding and sentencing principles for juveniles like you, let me proceed on.

9.	You are now 17 years old.  According to Pre-sentence Report you were born on 10th June 1999. You are originally from Sasambata Hamlet in Orita Village of the Northern Province.  You are basically illiterate having gone as far a Grade 4 only. Both your parents are now deceased. Your father passed away in 2012 and your mother passed away only last month. There are 7 of you in the family (a brother and 5 sisters) and you are the eldest. You are a member of the United Church. You have one summary conviction for unlawful assault for which you were goaled for 3 months in 2014. And you have been in custody since your arrest for one year.

10.	You said that you did not mean to do what you did to the complainant. You said you used the knife on him because he used the “K” word on you and then assaulted you. You said he was a big man and you felt pain when assaulted you, and that prompted you to do what you did.

11.	Ms. Kambua submitted in your behalf that whilst the maximum penalty is 7 years imprisonment, the Court has discretion to impose a lesser sentence ,and further that the Court should be guided the Juvenile Justice Act 2014 when determining an appropriate sentence for you.  Counsel refers to several factors that should mitigate your offence and asked that the period you spent in custody be deducted from your sentence, and that the balance be suspended.

12.	Your Pre-sentence Report reveals that you openly confessed your offence and accepted full responsibility for your criminal behaviour. You offered to pay compensation to the complainant, but I cannot see how you can do that given your situation. The Author of the pre-sentence report left it pretty much to Court to impose and appropriate sentence on you. 

13.	Ms. Roalakona for the State submitted that this is yet another case of grievous bodily harm and the use of violence to try and sort out a problem. Because the offence is so prevalent, coupled with the fact that you are not a first time offender, Ms. Roalakona called for a deterrent sentence of 3 – 5 years.

14.	Now, your case does not fall under the worst instances of the offence. However, I would rate your culpability at mid-level, judging by the seriousness of your offence and the harm that resulted from it. There is the use of a bush knife on the victim, who sustained serious wounds to his left upper arm and the right forearm which caused nerve damage, which, in turn resulted in the complainant not being able to extend the fingers of the hand.

15.	While I am not bound by precedence, as we have seen, I think that it is appropriate, even for juveniles like you for a starting point to be fixed 3 ½ years for this offence be it on a plea conviction or after trial. (The State v Sheekiot (2011) N4454; The State v Konos (2010) N4157 per Cannings, J; The State v Tokenaki (2015) N5960; The State v Lawasi (2015) N5964) 

16.	The following factors mitigate your offence:

1.	You pleaded guilty early to the charge.
2.	You were provoked in the non-legal sense.
3.	You acted alone.
4.	You did not pre-plan to attack the complainant.

17.	There are, however, aggravating factors. These are – 

1.	You used a dangerous weapon to attack the complainant.
2.	Your attack did not consist of a single blow but two.
3.	You acted with a high degree of deliberativeness when you went after the complainant after he left the Compound, and no longer posed any danger to you.
4.	The complainant suffered serious injuries which will have permanent impairment to the effective use of his hand.
5.	This offence is very prevalent in this province.

18.	So what should then be an appropriate head sentence for you? As we have seen above, I am very much guided by the guiding and sentencing principles under the Juvenile Justice Act. Your interest and welfare is of paramount consideration. However, you must also be made to accept the consequences of your action, not only on the complainant, but most importantly on yourself. And you must take full responsibility for that.

19.	There are numerous sentencing options available to me under Section 80 of the Juvenile Justice Act. These options include such things as a discharge without further action, good behaviour bond, reprimand, counselling, supervision and guidance order, attendance a non residential vocational training or rehabilitation programme, an order for restitution of up to K5000 and compensation, community work, a fine not exceeding K500, probation not exceeding 3 years, commitment to an institution of the Director’s choice, term of imprisonment at a juvenile section of a Corrective Institution. 

20.	Section 81, however, provides that imprisonment should be used only as a last resort, and only where there are no viable options available to the Court. So what are the non-custodial options available to me?

21.	Your pre-sentence report does not specifically recommend probation or any other options under Section 80. Your parents, who would normally be providing the primary guidance and discipline for you, are sadly no longer around. And I am not sure nor have I been told who will take on that responsibility of caring for you and your 6 other siblings. It appears to me therefore that there is no other option available to me, but to impose a custodial sentence. But, the question then is, for how long.

22.	Your sentence must primarily be geared towards correcting and rehabilitating you, as well as deter you from further going down the road of delinquency. By the time you come out of it, you will have hopefully learned that decisions that we make always have consequences, whether good or bad, for us. You have a previous conviction for assault – an offence of violence. You therefore seem to have a propensity to violence and that must be corrected, because violent people often always meet a violent end. Hence, your sentence must be long enough to rehabilitate you while at the same time also protect the larger community out there. 

23.	I have set a starting point of 3 ½ years. I am not bound to follow what sentences I have imposed on other offenders – even juveniles – because the Juvenile Justice Act says that you must be given individualised treatment in order to fully promote your best interest and welfare. 

24.	In the circumstances, I think that an appropriate sentence for you should be 3 years. I therefore sentence you to three years imprisonment. From that I deduct 1 year for the period you have spent in custody, leaving you with a balance of 2 years. None of the balance will be suspended and you will serve your sentence at the Juvenile Section of the Giligili Corrective Institution.

Orders accordingly. 

_____________________________________________________________
The Public Prosecutor: Lawyers for the State
The Public Solicitor   : Lawyers for the Prisoner