N6289

PAPUA NEW GUINEA
 [IN THE NATIONAL COURT OF JUSTICE]

CR NO.215 OF 2016

THE STATE

V

PAULIAS TOPIA

Kokopo: Lenalia J.
2016: 22nd, 30th& 1st April

CRIMINAL LAW – Grievous bodily harm – Guilty plea – Sentence – Matters           for consideration – Criminal Code s.319, Ch. No.262	

CRIMINAL LAW – Grievous bodily harm – Not worse type case – Suspended 
sentence appropriate – Sentence of 12 months appropriate and fully suspended with order for 2 years good behavior bond.

Cases cited:

The State v David Saun (2005) N2192
The State v Kerry Rubin Trowen (2004) N2239
The State v Patrick Kimat (2005) N2947
The State v Toparan Walangur (2006) Cr. No. 1760 of 2003

Counsel:

Mr. L. Rangan, for the State
Mr. P. Kaluwin, for the Accused

1st April, 2016

1.  LENALIA J:  The accused pleaded guilty to one count of unlawfully causing grievous bodily harm to Marakan Kuai on 3rd December 2015. The offence was committed at Sikut/Matupit Re-Settlement area Pomio District, East New Britain Province. This is an offence against s.319 of the Criminal Code. 

2.   The above section provides:

319. Grievous bodily harm.

A person who unlawfully does grievous bodily harm to another person is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.”

Agreed Facts

3.     For purposes of sentence, the brief account of what occurred on this case is that, between 7pm and 8.30pm on the above date, (3.12.2015) at Sikut/Matupit Re-Settlement blocks the victim was with his family in his house when a person by the name of Taupa Worin (accomplice) entered into the victim’s premises and started arguing with him. When the victim came outside from his house to the road, the commenced held on to the victim’s hand and started punching the victim on his eyes. The accomplice (Taupa Worin, not yet arrested) was under the influence of alcoholic liquor. 

4.    Fearing for his safety and that of his family, the victim ran to a nearby house where there was light. While running, he fell down near a fire place and the piggery. As he was trying to get up, the prisoner came upon him and he threw a full bottle of SP brown bear on the head of the victim. He picked up a piece of dried firewood and hit the victim and also used an iron cooking stand to hit the victim’s body. 

5.   The medical report conducted by H.E.O Ms. Lute Burangat of Gelegele Health Centre notes the following injuries:

•	loss of one tooth, and two moveable ones,

•	parts of the body and face swollen,

•	when examined, the HEO found associated locked jaws, and mouth could not be opened,

•	left and right lateral ribs suffered severe pains,

•	head sustaining bruises

6.    The HEO commented that, the victim suffered severe pains from application of force caused by a piece of firewood and an iron bar. 
	
Addresses on Sentence.
	
7.    On his last say, the prisoner said, he is sorry for what he did. 

8.    Ms. Kaluwin asked the court to consider the following mitigations:

•	the prisoner’s guilty plea,

•	his expression of remorse,
 
•	the terms of the pre-sentence report,

•	no serious injuries suffered, and

9.     Counsel asked for leniency on sentence.

10.    Mr. Rangan submitted on the aggravating factors and asked the court to impose a deterrent penalty. Counsel asked the court to consider the following aggravations:

•	prevalence of this offence;

•	sentence should fit the offence committed,

•	court should impose similar sentence as in other grievous bodily harm cases depending on the seriousness of the offence and that,

•	Compensation should be considered.

11.    Counsel submitted that the court should impose a penalty to fit the seriousness of this offence. 

Pre-Sentence Report.

12.    Persons contacted during interview:
•	The prisoner – he told the writer of the P/S/R that he has been a law abiding citizen and he never been to court before,
•	He is an active member of the United Church,
•	Promise to return and be a law abiding citizen.
	
•	Mr. Paul Wanjik Community Leader – spoke highly of the offender as an active member of community,
•	The offence has spoiled the relationship of the family members of the offender and the victim,
•	The community leader admitted the offender was drunk that evening,
•	There was a sorcery related problem between the offender and the victim which had not been settled,
•	He said compensation is necessary to bring normalcy to affected family members, and 
•	He wants the family members to achieve reconciliation soon after the case is completed.

•	Mr. Esau Toivat – Disciplinary Committee Member – confirms what the community leader Mr. Wanjik said about the offender’s standing in their community,
•	Confirms that the offender involves himself in both church and community work responsibilities,
•	He witnessed what the prisoner throwing a beer bottle at the victim’s head,
•	Soon after the offence was committed, the offender’s family members met to discuss compensation and reconciliation,

•	Mr. Patrick Awas – Ward Member’s Rep – shared same sentiments as other community leader,
•	Suggested that if community work order is given, the nearby Primary School, the Health Centre and the Community Hall are areas where work could be done if community work order is considered,
•	He is eager to arrange for compensation and reconciliation,
•	After the crime was committed, he was one of those members which tried to arrange for compensation and immediate reconciliation

•	Family Concern – to restore the relationship between the offender’s family members and those of the victim Marakan Kuai.

Application of Law.

13.    The prisoner is charged with an offence punishable by the maximum of 7 years imprisonment, (see s.319 of the Criminal Code). The court has power to impose a term lower than 7 years by application of sentencing discretion pursuant to s.19 of the Code.

14.    The court should cite a number of cases to illustrate on sentencing trends involving grievous bodily harm cases. The maximum penalty of 7 years imprisonment was imposed on Kerry Rubin the offender in The State v Kerry Rubin Trowen (2004) N2239. That was a case where the prisoner forced his two wives to strip naked before him and he inflicted certain permanent injuries on to their bodies by using a hot knife. The facts of the above case were more serious than the current case.

15.    In The State v David Saun (2005) N2192 the court imposed a term of three (3) years. The sentence was wholly suspended. In The State v Toparan Walangur (2006) Cr. No. 1760 of 2003a case in Kokopo whereretired Judge, Lay, J; imposed a sentence of four (4) years. Because the prisoner had spent more than a half of the imprisonment term awaiting custody, the balance was fully suspended.

16.    In The State v Patrick Kimat (2005) N2947 a similar case involving a single blow to the forehead of the victim. The blow resulted in a fracture of the frontal bone. He was sentenced to 12 months imprisonment which was fully suspended.

17.    The court has considered all addresses on sentence by the offender and the two lawyers. I have considered sentences that were imposed on various cases I have referred to. I am the view that some of the cases referred to were more serious than the current one. In the exercise of the sentencing discretion given this court by s.19 of the Criminal Code, the prisoner is sentenced to a term of 2 years imprisonment. The court suspends the whole sentence on the following conditions: 

1.	You are placed on 24 months, probation with orders that you return to the village and pay compensation to the victim in the amount of K100.00. 

2.	On top that, you shall also pay as part of the compensation order 50 Tolai shell money.

3.	You shall report to the Community Correction Officer and give an account of the compensation payment after 14 day from today’s date.  

4.	Shall complete compensation payment within two weeks.

___________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused.