N6848
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 659 0f 2015

THE STATE
 
V 

HARRIS BUPEI

Vanimo: Injia CJ
2015: 19th August
2016: 18th April

CRIMINAL LAW- Sentence- Grievous bodily harm- Guilt plea - Victim and offender related- Victim and offender come from same family unit - Compensation negotiated and paid between relatives - No victim impact statement showing he was a party to the compensation negotiations and accepted the compensation- Compensation has its own benefits but is no answer to crime- Appropriate sentence- 4 years imprisonment- Criminal Code, s 319
 
Held:
1.	Customary compensation order is not appropriate because:

(1)	Compensation within the family, whatever the form and amount or value may be, may serve little or no purpose or utility because the damage done to relationships within the family will heal over time as the family will continue to exist as a coherent family unit, whether or not compensation is paid.

(2)	The victim’s silence on the subject of compensation.

(3)	The amount of compensation sought by the relatives is beyond the statutory limit of K5,000 prescribed by the Criminal Law Compensation Act 1991. Even if the K5,000 were ordered to be paid, the effect of it is that the sentence will be reduced by 6 months only. That kind of sentence is not within the period that I have in mind for this offence.
Counsel:

J Done, for the State
L Siminji, for accused

18th April, 2016

1.	INJIA CJ: The accused pleaded guilty to one count of doing grievous bodily harm contravening s 319 of the Criminal Code which carries a maximum penalty of seven (7) years imprisonment.

2.	Section 319 provides:

“A person who unlawfully does grievous bodily harm to another person is guilty of a crime” and is liable to “imprisonment for a term not exceeding seven years”.

3.	The following definition of the term “grievous bodily harm” is found in Section1:

“Grievous bodily harm” means any bodily injury of such nature as to endanger or likely to endanger life, or cause or likely to cause permanent injury to health”.

4.	The brief facts are derived from the version of facts that were offered by the State for purpose of arraignment on which the guilty plea was made by the accused and recorded by this Court; and those facts that are derived from the committal court depositions which are consistent with the version of facts agreed to. The victim, one Robert Utan and the accused are related as cousins. On the morning of 12 November 2014, the victim was sitting on the veranda of his house when the accused and accompanied by a few of his relatives, in concert, approached him, argued with him and attacked him. The attack was in retaliation for reporting the prisoner to the local councillor for stealing betel nut from the victim’s garden. The victim fell to the ground, was kicked and he vomited. The accused who held a bush knife cut the victim and as the victim lifted his right hand to protect himself, the bush knife fell on his left arm and completely severed it. The victim was rushed to hospital where he was admitted and treated for the injury. His right wrist was amputated and healed. 

He was discharged from the hospital 23 days after admission.  

5.	The victim and the accused being related, their relatives have engaged in peace negotiations to restore their relationship that was damaged by the incident and to settle the matter by payment of compensation. The Pre-Sentence Report prepared by the Community Based Corrections Officer in Vanimo contains details of these negotiations. It is reported that a demand for compensation by the victim’s relatives once stood at K20,000. Compensation in the sum of K1,000 has been paid already and another K1,000 paid recently. There is no impact statement from the victim himself and his own attitude towards the offer and acceptance of the K2,000.00 compensation paid so far. 

6.	The accused and counsel on his behalf acknowledge the seriousness of the crime and the permanent injury inflicted on the victim. However they seek a wholly suspended sentence on conditions with regard to free labour work to be performed for the victim and further compensation payment to the total tune of K5,000.00 which apparently is the maximum amount of compensation payable under the Criminal Law Compensation Act 1991.

7.	The accused relies on the following other mitigating factors:

(1)	His stable family background, and the need to support  his mother and 3 young  children to look after in the absence of their father who passed away;
(2)	His prior good character. He is educated to Secondary School level and a member of the Catholic Church;
(3)	He is a first offender;
(4)	Pleaded guilty to his first offence. Saved the Court time and expense;.
(5)	Cooperated with the police in readily admitting the offence; 
(6)	Expressed genuine remorse in open court;
(7)	Paid compensation in the sum of K2,000 and offer to pay more if given the opportunity;
(8)	The offence was committed within the extended family group over an internal dispute;
(9)	The accused was under the influence of home brew alcohol;
(10)	The victim offered some de facto provocation, in that the victim also participated in the argument leading to the attack; and
(11)	All the other things favourable to the accused that are contained in the PSR in support of a recommendation that the accused be imprisoned for a non- custodial  or a wholly suspended sentence with conditions for payment of K5,000 compensation within six (6) months.

8.	The accused’s counsel submits a sentence within the range of sentence imposed in the case of State v Issac Wapuri [1994] PNGLR 271 (18 months wholly suspended sentence for someone who cut the victim on his face) is appropriate.

9.	Counsel for the State submits an appropriate sentence that reflects the seriousness of the crime that left the victim with a permanent disability with an amputated right hand is warranted.

10.	With regard to the principles applicable to the Court’s exercise of its sentencing discretion, I prefer to adopt a statement of the principle from the Supreme Court’s decision in Manu Kovi v The State (2005) SC 789, because a part of that statement concerns the court's attitude towards the customary compensation for serious crimes that I consider are apt to the circumstances of the case before me. The statement appears in the context of an appeal on sentence in a homicide case, however the statement is of equal relevance and application to crimes of violence generally. The Supreme Court said:

“ The maximum punishment is always reserved for the worst case of its kind. Generally, all relevant mitigating and aggravating factors are taken into account in determining the appropriate sentence but as to what weight is given to those factors is in the discretion of the court.  In relation to mitigating factors, the cases distinguish between ordinary or common mitigating factors and special mitigating factors.  Ordinary mitigating factors include the accused’s prior good character, stable good family background,  education  and  religious  background,  first offender,  guilty plea,  remorse  and co-operation with the police.  Special mitigating factors include the offender’s very young or very old age, poor health and payment of customary compensation.  The first two (2) factors pose no difficulty as they have been recognized in numerous cases before the courts.  The third one needs amplifying.  

Compensation for physical and non-physical injury to a  person wrongfully inflicted by another person(s) is widely practiced in many PNG traditional societies.  Compensation for injury or damage to personal property  is also widely practiced in traditional societies in PNG.  Indeed compensation for personal injury and injury to personal property is a universal principle. …

Compensation is a relevant mitigating factor.   Whilst the Courts acknowledge that compensation should not be used to pay for crime and that no amount of remorse or compensation will restore loss of life, it is an important mitigating factor.  The amount or value of compensation will vary depending on the special circumstances and values of each traditional society.  The weight to be given to compensation by the Court will also vary depending on different factors involved such as the existence of custom of compensation for death wrongfully caused, request or demand for compensation made by the deceased’s relatives and response given by the accused’s relatives, the amount or value offered and accepted, expression of genuine remorse accompanying the payment, the amount the offender himself has paid or contributed, promptness of the response or payment, cessation of animosity and restoration of peace between the two sides of the conflict and so on.  

In order for compensation to be regarded as an ordinary or special mitigating factor, two important indicators are the form and amount or value of compensation paid.  Payments in the form of money is almost indispensable in modern times. …

The amount or value of compensation often varies.  In terms of money, it is difficult to fix any specific amount or figure for compensation but some guidance may be obtained from the maximum amount of compensation prescribed under the Criminal Law (Compensation) Act 1991, which is K5,000   Despite the limit fixed by the Act, cases before the Courts  show that compensation of amounts in excess of K10,000 are common in homicide cases5.  In our view, compensation amount or to the value of between K5000 and K10,000 or over is a substantial payment which would take the payment out of the “ordinary mitigating factor” category and place it in the “special mitigating factor” category.  

The weight to be given in ordinary mitigating factors and special mitigating factors  will vary.  Usually ordinary mitigating factors may be given less weight than special mitigating factors.  These mitigating factors are then balanced against the gravity of the killing and the sentence imposed reflects the aggregate effect of this balancing act and in the end, the sentence imposed must fit the crime.  Because homicide offences like robbery and rape is a serious crime of violence, the gravity of the circumstances of the killing in a particular case, may far outweigh the ordinary mitigating factors or even special mitigating factors and render them insignificant.

 In relation to aggravating factors,  these include whether there was deliberate  intention to harm, the use of dangerous or offensive weapon, pre-planning and pre- meditation, duration of the attack, multiplicity of injuries inflicted on vulnerable parts of the body, the high degree of force used, nature and extent of the injury inflicted on vulnerable parts of the body, group involvement and the infliction of other cruel or inhuman acts in effecting the crime, the special position of the victim in the community, whether victim is under disability such as old or young ages.  The cases do not distinguish between ordinary and special aggravating factors.  However, depending on the particular circumstances of the case, some of these aggravating factors may be regarded as special or more grave than others and may warrant the imposition of severe punishment.

11.	Applying those principles with appropriate modifications to GBH cases, this case involves infliction of serious bodily injury or grievous bodily harm that has left a person’s right hand amputated. The victim was hospitalized for over 3 weeks. The attack involved the use of an offensive weapon with such viciousness and force that the blow severed the right wrist. For an attack to be carried out in this fashion on someone close within the family group indicates hatred that is not usually present within family circles. The attack was carried out in a group and has left the victim with a permanent injury on his right hand for the rest of his life. The attack appears to be pre-meditated. There is information that the accused was under the influence of alcohol but that should not be an excuse. 

12.	There could be, I believe, other forms of injury inflicted on the person of another with hate and viciousness that could be life threatening that could be far worse than this particular injury.  This particular injury and the circumstances under which the injury was inflicted does not fall into the worst category, however it does in my view, fall into somewhere between the middle and worst category of GBH cases.

13.	Little is known of the attitude of the victim himself on these restorative peace efforts being undertaken between the families of the victim and the accused and compensation package being negotiated and paid or offered to be paid. Unfortunately, the CBC Officer who obtained statements from the relatives did not obtain the victim’s own statement and I am unable to know what his attitude is. Be that as it may, compensation has its benefits but compensation is no answer to a crime. 

14.	I accept all the mitigating factors that have been put before me, including compensation that has been already paid. In my view, further compensation order is not an appropriate punishment in the circumstances of this case for three reasons, as follows:

(a)	 Compensation within the family, whatever the form and amount or value may be, may serve little or no purpose or utility because the damage done to relationships within the family will heal over time as the family will continue to exist as a coherent family unit, whether or not compensation is paid.

(b)	The amount of compensation sought by the relatives is beyond the statutory limit of K5,000 prescribed by the Criminal Law Compensation Act 1991. Even if the K5,000 were ordered to be paid, the effect of it is that the sentence will be reduced by 6 months only. That kind of sentence is not within the period that I have in mind for this offence.

(c)	The victim’s own silence on the subject of compensation is telling. He is a mature man of 34 years (according to the medical report) who can speak for himself because he is under no disability. These compensation negotiations have been going on for some time, one would expect that efforts should have been made to contact him to give his position. From these, I can only assume that he does not want to be compensated personally for what he has suffered.

15.	Balancing all these factors, those in favour and those against him, the need for a punitive and deterrent sentence is warranted in the end. Had it not been for the mitigating factors present, I would have imposed a higher sentence. There is a strong need for this Court to emphasise to the members of this family and the community at large that it is wrong to use violence to resolve disputes between close relatives or members of the same extended family and this can only be achieved by a firm punishment. In saying this, I do understand the arguments on the converse - that it is not in the interest of the preservation of the family unit to severely punish someone who has gone out of the way to inflict personal injury on one of its own members because the punishment could destroy the family rather than do any good. That is true, I agree. However, the paramount consideration is always the community’s interest in the protection of the family unit from those within the family unit bent on destroying the family unit. If attacks carried out in the family by members within the family that results in causing GBH or death go unpunished or punished not severely enough, other persons determined to do this kind of thing will not be deterred. Individual victims within the family too would be left with a feeling of grievance and a sense of injustice.

16.	 In arriving at the appropriate punishment, it may be convenient to have access to the sentencing trend for GBH cases by the high Courts. I am not assisted by counsel by reference to any cases of grievous bodily harm under s319 of the Criminal Code. The cases cited to me by counsel were decided more than 10 years ago and offer little assistance in this regard. Working away from Port Moresby on a week-end, and in the short time I have today, I am unable to access the National Court's newly established PNG Sentencing Database established with the support of the Judicial Commission of New South Wales,   to get some idea on the sentencing trend in the last few years. Notwithstanding the unavailability of that data, I would have thought that GBH cases being a prevalent offence in this country, sentences for GBH would have increased generally in the last 10 – 15 years.

17.	In all the circumstances, given the maximum sentence of 7 years imprisonment, I consider that a sentence of 4 years imprisonment in this case is appropriate and impose the same. I deduct the pre-trial custody period of 1 year 4 months and four days. He will serve the remainder of 2 years 7 months 26 days. The appropriate warrant will be issued shortly after we adjourn.
_______________________________________________________________
Public Prosecutor:  Lawyer for the State
Public Solicitor:  Lawyer for the Accused