N6759

		PAPUA NEW GUINEA
	[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1850 OF 2016

THE STATE

V

OGI SONGE

Kimbe: Miviri AJ
2017	:  12th &16th April, 16th, 23rd & 26th May 

CRIMINAL LAW- plea-GBH S 319 CCA-nephew stone uncle-cut with bush knife-life threatening injuries-no compensation-dispute over non-payment of compensation village-custodial sentence-non custodial sentence

Cases cited:
Nil
Counsel:
A Bray, for the State 
B Popeu, for the Defendant
					
DECISION 
26th May, 2017 

1.    MIVIRI AJ: On 2nd September 2016 at around 7.00pm Ogi Songe the accused and the victim Male Munding were at Muledami. They live close by to each other. The victim was complaining that you did not compensate his wife for assaulting her. Frustrated you approached the victim, threw a stone assaulting him on his face and a confrontation took place between the two of you. You then confronted him and threw a rock that landed on his face causing some of his teeth to fall off and he fell to the ground, you came with a bush knife and cut him on his head and back causing him Grievous Bodily Harm.

Law

2.     You acted contrary to Section 319 of the Criminal Code.

 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.

3.    The state prosecutor tendered the committal file and I read it confirming your guilty plea of Grievous Bodily Harm pursuant to Section 319 of the Criminal Code. You were armed with a bush knife at Muledami that you used to cut Male Munding on his back and head for which he was admitted to the Kimbe General hospital with serious life threatening injuries and because of the professional medical health he was saved.

Allocutus

4.   In allocutus, you said: “Yes before court sentence me I ask court for good behaviour bond. My leg is paralysed whilst in prison. My father is alive mother is deceased. My father married new wife they never look after me. I live in block purchased and have a trade store and look after myself. My leg is paralysed and I am unable to find a job. I am a regular church goer. I ask the court to be lenient on me. I ask the court to sentence me to the 8 months period in custody. I am sorry for what I did I will not do it again”

Section 13 & 25 Probation Act

5.    Defence counsel made an application under Section 13 and 25 of the Probation Act for a probation report to be furnished to court including a means assessment report. The court adjourned to 28th April 2017 for the report both to be furnished to court. As the reports were not ready matter was further adjourned to 15th May 2017 when the reports were ready and submissions by both counsel was heard and matter was adjourned for sentence to 23rd May 2017. Court was not ready and so was adjourned to today Friday the 26th May 2017 for sentence to be passed upon the defendant.

Defence Submission

6.    On the 13th April 2017 the prisoner who is the nephew of the victim pleaded guilty to the charge of Grievous Bodily Harm under Section 319 of the Criminal Code. He is 34 years old, resides at section 10 Bush Camp and is from Kumbit Village, Kabwum, Morobe Province. He is educated to grade 10 at Poinini Agricultural Tech High School in 2003. He is unemployed but self-employed in the coconut plantation that he has planted back at Muledami and also has a small canteen that he runs including making food gardens to sustain himself. He readily admitted the matter to police and has maintained right up to now. His plea is not recent but has been consistent and maintained all along. The injuries to the victim were caused as a result of being provoked by what was said. The victim was drunk and under the influence of alcohol. He swore at the prisoner repeatedly and Prisoner reacted by throwing a stone that hit the victim then followed with a bush knife to the head and the back. He was taken to the Kimbe General Hospital treated and discharged on the same day.

Prosecution Submission

7.   The Prisoner used a stone then a knife upon the victim. Both offensive and dangerous weapons. The offence is a prevalent offence, though it is not the worse offence. K1000 was already paid to the victim who has received and wants compensation than a jail term. He wants the other K1000 to be paid rather than see the defendant prisoner go to Jail. The probation and the Means Assessment Report are favourable to the Prisoner and recommend him favourably.

8.   This was a family setting of uncle and nephew son of brother argument over compensation to be paid to the aunty by the nephew. The victim uncle was drunk and repeatedly uttered provocative words that made the nephew stone the uncle who fell and then he picked up a bush knife and cut him on the head and the back. Medical report by Doctor Owen Botty dated the 12th September 2016 shows no residual or disabilities as a result. The Probation Report and the Means Assessment Report did not want the Prisoner to go to jail again but asked for compensation. Here K1000 was already paid and the victim has demanded K2000 so a further K1000 is yet to be paid to settle the matter. The defendant has no prior conviction and has pleaded guilty to the charge. There are no grudges now as victim wants compensation rather than a prison term. The Prisoner has been in custody for 9 months 1 week 2 days on remand. Any further custodial sentence would aggravate the relationship and in any case the prisoner had a pre-sentence report that recommended probation with conditions of settlement with compensation.

9.    The formal orders of the court are:  

1)	Ogi Songe you are convicted and sentenced to three (3) years imprisonment IHL.

2)	 9 months 2 weeks is deducted for remand.

3)	2 years 2 months 2 weeks IHL suspended wholly on 2 years Probation Order on the usual conditions and in addition that you –

(a)	Shall within 48 hours, report to the Probation Officer;

(b)	Shall reside at Section 10 Muliadami Settlement, Kimbe and nowhere else without leave of the National Court;

(c)	Shall not leave Kimbe or WNB Province without leave of the Court; 

(d)	Shall attend church every weekend for service and worship and submit to counselling;

(e)	Shall not consume, or deal with any form of liquor, alcohol or drug;

(f)	Shall keep the peace and be of good behaviour;

(g)	Shall within 5 months as of today 26th May 2017 pay the victim, Male Munding compensation;

(i)	K1, 000 cash
	(ii)	Pig valued at K400
	(iii)	Garden food at K200 

(h)	The reconciliation and compensation payment are to be attended and witnessed by the Probation Officer, Station Commander of Kimbe Police Station, the Arresting Officer, Committees Mang Morros and Mati Male, Pastor Levi Laima.

(i)	The occasion for the reconciliation and compensation payment is to be recorded and a report filed at the National Court Registry by the Probation Officer;

(j)	The Probation Officer shall file a report on the responses and progress of the probationer every six months with the first report due on 26th November 2017 and at any other time or interval as the National Court may order upon application;

(k)	In a breach of any of these Probation Orders your Probation shall lapse and you shall be arrested to serve the whole term of your sentence. 

(l)	These orders shall be listed for mention on the call-over in 1st Monday June, 2019. 

(m)	In the event that the conditions are not complied with, then your probation would have been breached and you will be liable to be imprisonment for the balance of the sentence suspended and remaining.

Orders Accordingly,
______________________________________________________
Public Prosecutor:   Lawyer for the State		
Public Solicitor:        Lawyer for the Defendant