N6768
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO 164 OF 2017

THE STATE
V
STEVEN TUMU

Kimbe: Miviri AJ
2017	:19th   22nd & 23rd May

CRIMINAL LAW - plea-GBH S 319 CCA-bush knife used-drunken argument-right hand left hand and ankle-right forearm disability-50 year old defendant-38 year old victim-PSR MAR –custodial –non custodial sentence.
 Cases cited:
Anna Max Marangi v. The State (2002) SC702
State v Tito Isana & Tony Wartoto CR 1317 of (2016) 
State v Naiwa [2004] N2710  
State v Sasoropa (No 2) [2004] N2569 
Counsel:
A. Bray, for the State 
B. Popeu, for the Defendant
					DECISION ON SENTENCE
 23rd May, 2017 
1	MIVIRI AJ: On the 6th October 2014 at Section 10 here in Kimbe you unlawful did grievous bodily harm upon one Amen Mark contrary to Section 319 of the Criminal Code.

Facts on Arraignment

2	On 6th October 2014 at Section 10 Kimbe you Steven Tumu and Amen Mark were consuming alcohol and playing cards. At about 2pm an argument developed between the two of you. Amen Mark assaulted you and Tolar Subu. Amen Mark bit you on your chest. You got a bush knife and cut the victim on his right hand and leg. The victim suffered injuries to his hands and leg and now has a permanent disability of his right forearm. His elbow joint was exposed and he was bleeding profusely. He was admitted to the Kimbe General Hospital for a month.

Plea

3	You pleaded guilty to the charge and the facts set out above. I entered a provisional plea of guilty subject to the reading of the file. The file was tendered for me to read and I confirmed that you were armed with a bush knife that you used to cut Amen Mark firstly on the right hand, the left hand and left ankle joint. He was admitted to the Kimbe General Hospital for a month and is now left with a permanent disability to the right forearm. I confirmed that all the elements of the charge of grievous bodily harm under Section 319 of the Code was made out by evidence so I returned a guilty verdict on indictment of Grievous bodily harm and confirmed your provisional plea.

4	Your antecedent report was tendered you had no prior convictions.

Allocutus

5	In allocutus you said:

 “I would not have caused this problem we were playing cards he said you are not winning. I fought him and ran away; he followed me calling where Steven Tumu. I defended myself and swung knife. I came here in 1974 was here 1975 Papua New Guinea got independence. This is my first time in court. I married three wives and have got 12 children. I push lawn mower to earn money to look after family. Court, he made trouble on me be lenient on me. I have paid K2, 700 in cash compensation already to the victim. I am in custody give me probation”

Section 13 & 25 Probation Act

6	Your lawyer has submitted that a Probation Report with Means Assessment Report be furnished to the court in accordance with Section 13 and 25 of the Probation Act. The state did not object and conceded to the application. I ordered that the probation service provide both reports by the 3rd of May 2017. The probation report was tendered into court on the 18th May 2017 and both lawyers addressed the court on the basis of both reports.

Defence submission

7	You are 49 years old from Tambus, Laiagam, Enga Province. You were resident at Section 10 Kimbe West New Britain. You are married, the report from the Probation says you are married to three wives and you have 12 children. 

8	The offence is prevalent and a weapon was used and the victim suffered serious injuries. You do not have any prior conviction. You made early admissions and your plea saved the court time and resources in hearing your case on trial. There was no pre planning and there was de facto provocation. Initially it was a fist fight but then you got a bush knife and armed with it you lifted it up told Amen Mark that you were insane and that you will cut him and end up at Lakiemata. You delivered the blow at the neck of Amen Mark who lifted his right hand up to defend himself and was cut there. He fought back at you and another one Sugu Tolar came and assisted you and both of you fought him. You further cut him on his left hand and left ankle. He was rushed when unconscious to the Kimbe General Hospital where he was admitted and treated for a month before he was discharged. Amen Mark has permanent disability of the right forearm. You say that you have paid compensation in the sum of K2700 that it was your family who have paid. 

9	Your lawyer urges that following the case of State v Tony Wartoto and Tito Isana (2016) N6762, after a guilty plea to Grievous Bodily harm under section 319 of the Criminal Code, I imposed a sentence of 3 years IHL which was wholly suspended on a 3 year Probation order on conditions that compensation was paid to the victim and the defendants do free community work supervised by the probation officer and a pastor of the united Church in the locality. Pertinently because of the age of the defendants, and also because there were no residual injuries to the victim who had since fully recovered from the bush knife attack by the defendants. This case had the pre-sentence report confirm the compensation that was paid by evidence from the recipients of the compensation.

10	He urged that I treat you similar. You are 50 years old and not a teenager as was in that case. Compared to them you are well versed in life and ought to know what is right and wrong a lot better than they were. Your case the victim has denied the receipt of the compensation in the sum of K2,700.

11	In my view, inputs from the deceased relatives as well as the police, especially the police investigating and arresting and or charging officer necessary if a pre-sentencing report is to be considered fair and well balanced and serve the interest of justice. I view this important because it is the relatives of a deceased person or the victims of an offence are the persons who really feel and suffer the loss of a life and or the sufferings that criminal acts bring upon them. They are the ones that demand justice. Thus, unless the courts are able to take into account the kind of punishments these persons wish to see an offender receive, any punishment imposed may not necessarily be justice to them. This may lead to an apprehension of justice not being done and an offender let off lightly.

12	As for inputs from the police investigating officer, I consider that appropriate and important because they alone will be in a better position to tell the court what kind of a person a prisoner is. That they will do, having regard to whole process of receiving complaints of an offence being committed, investigating into it followed by an arrest of the offender and charging him. They would also be in a better position to say whether the prisoner who is waiting for his sentence is a threat to society and therefore, needs to be locked away or a non-custodial sentence on terms would be appropriate. It would be defeating the whole purpose of law enforcement, if offenders who deserve to be dealt with severely are left of easily based on a pre-sentencing report which highly favours an offender without any inputs from the police and other sectors of the community who have a right or interest in seeing offenders receive a punishment which befits the offence they have committed. It may also be counterproductive to send an offender back to the society on say a suspended sentence or probation without knowing whether the police will approve of such sentence and they will be in a position to help police compliance of any terms that may be imposed. Allowing for inputs from the police will also help eliminate the risk of offenders failing to meet any conditions that may be imposed on offenders for letting them out of prison. It will also help encourage better police work for they will come to appreciate that the courts appreciate their work and or the role they play in society." State v Sasoropa (No 2) [2004] N2569.

13	  I adopt this as relevant here and applicable to the facts of this case particularly when the presentence report here is not complete. The prisoner claims that his family has paid the compensation but that is not evidenced in the probation report. He says he has three wives none of whom have provided any support in the report to prove payment of the compensation that he claims was paid by his family to the victim. There is no evidence that the victim has been paid compensation. The victim says he neither refuses compensation nor attempts to make peace with the prisoner. He totally refused compensation. Family concern cannot be confirmed as attempts by probation to see close relatives has failed. It does not speak well when the prisoner is contending that whilst he was in custody compensation was paid by his family outside.

14	The probation report says that the prisoner must be disciplined to stay out of trouble. It is unspeakable for a 50 year old man with three wives and 12 children to be the subject of discipline at the hands of probation. He is not a teenager but a matured man of 50 years of age. The Probation report is not balanced so as to be material that the court will consider in passing sentence.

15	The means assessment report does not disclose any basis upon which compensation can be paid if ordered. He is not employed, does not have any savings or family who can support in the payment of the compensation if the court orders. The claim that K2, 700 was paid is baseless given the facts above. He is financially down not employed anywhere if he was to be given time where would he get the money to make payment. Compensation is not realistic but merely a cover without any substance to assist in the consideration of an appropriate sentence.

Prosecution submission

16	Section 319 maximum penalty was 7 years. The maximum penalty was reserved for the worse type and this was not the worse type. The use of bush knife was prevalent and a deterrent sentence was called for. The defendant was not a youthful offender. He would have been wiser with age but did not demonstrate that here. The medical report showed disability of the right forearm. The victim denied receipt of K2700 compensation that the defendant contended was paid. The injuries are extensive in that, there was severed median nerve, severed ulna nerve, severed bicep tendons, severed radial artery, laceration 20 cm long on the forearm and laceration 10 cm long on the left ankle. All in all a total of 30 stitches were applied externally and internally. He will suffer from permanent disability of the right forearm.” This is according to Doctor Peter Yama medical report dated the 27th October 2014.

18.	In State v Irowen [2002] PGNC 99; N2239 (23 May 2002) in Wewak Justice Kandakasi sentenced the defendant to 7 years IHL where the defendant stripped both his wives naked and then cut the first wife on the shoulder almost severing the hand, and then cut the second wife on both legs, left ring and small finger. Both were admitted and sustained life threatening injuries there and could have died had it not being for a pastor and his wife who saved them. The first wife suffered 25 percent permanent disability to the shoulder. The second wife could not be assessed as to her disability as at the time of judgement as she was still being treated at the hospital. A Cumulative sentence of 14 years IHL was imposed.

19.	In State v Naiwa [2004] PGNC 58; N2710 (22 June 2004) Justice Kandakasi in Wewak imposed a custodial term of 5 years IHL where the defendant was charged with grievous bodily harm of his sister in law where he cut off her hand with a bush knife rendering her left hand useless. He had pleaded guilty and was a first offender. No compensation was paid and the defendant did not have the means to pay compensation if ordered. 

20.	In State v Hianu [2006] PGNC 75; CR 1767 OF 2005 (25 August 2006) Justice Cannings in Buka sentenced the defendant to 4 years IHL for smashing a full bottle of beer on the face of the victim who suffered the permanent loss of his other eye as a result. Two years was imposed in custody and 2 years was suspended on a non-custodial term with conditions for payment of compensation. 

21.	In State v Jopping [2004] PGNC 108; N2678 (24 September 2004) Justice Kandakasi sentenced the offender to 6 year IHL but suspended for cutting and in passing sentence his honour had this to say which I consider are applicable and which I apply in your case here, “ Persuaded by these considerations, I imposed wholly suspended sentences in The State v. Micky John Lausi (2001) N2073; The State v. Dobi Ao (N0.2) (01/05/02) N2247 and many others. I have done that only in cases where there were well-balanced pre-sentence reports representative and reflective of the community’s view on the kind of penalty that an offender should receive and where the victims were receptive to restitution or compensation and a non-custodial sentence. These factors exist in your case, making it an appropriate case to suspend either the whole or part of your sentence. Having regard to all of the foregoing considerations, I consider a suspension of a substantial part of the remaining part of your sentence appropriate. Accordingly, I suspend 3 years and 8 months, leaving you to serve 4 months in hard labour less the 12 days you have already spent in custody awaiting your trial and decision on sentence.

22.	In your pre-sentence report Amen Mark the victim does not accept compensation and he does not confirm your assertion that indeed your relatives paid K2,700 as you claim. In the report he says he needs to be compensated for what you did to him. The report goes on to state there was no compensation to right the wrong. That further down Amen Mark refused to accept compensation payment from you and even to accept peace with you to date. There was ample time to be compensated for what you did to him, he has totally refused compensation.

23.	It is clear that there is disagreement over the compensation between you and the victim and the probation report has not helped with the dispute and has placed it before me with that dispute current. You have cut the victim with a bush knife for a 50 year old man that is how you have behaved here and for the court to consider alternatives to imprisonment it must be satisfactory and safe that there is proper material before it upon and on the basis of which it stands to give the non-custodial penalty. That does not appear to be so here for you as there is a dispute over compensation, whether or not it was paid how much was paid, and what is the situation on it for the victim, is he accepting or not accepting and the reasons.

24.	The court has unfettered discretion in its powers one of which is the sentencing powers laid out in Thress Kumbamong v The State (2008) SC1017 where it answers this question very well stating that the sentencing discretion is never fettered or dictated in a certain direction or position. All matters raised in a case must be considered to the full extent due in law relevant with all other matters that are before it to arrive at a just sentence. The wishes and expression of the victim are part and parcel of and together with all other matters that are placed before court will be given due weight according to law, and the facts and circumstances to arrive at a just sentence. Sentencing is not dictated or tied down by tariff or range but dependent on the facts and circumstances and tariff or range will be part of the process and will be considered on the level due to it: The State v Clifford Rangit (2017) N6767.

Case here

25.	You have used a bush knife here upon Amen Mark which could have easily turned into a murder or wilful murder. It is therefore important to start with what the supreme court has stated regarding the use of knives. In Anna Max Marangi v. The State (2002) SC702, the Court noted this in the context of the ready use of kitchen knives to commit serious crimes such as murder or manslaughter and stated in these terms:

"To our knowledge, there are increasing instances of manslaughter and murder killings coming before the Courts in which a knife is used to settle domestic differences, with fatal consequences. The use of readily available kitchen knife to settle one’s domestic grievances is prevalent in this country." 

26.	Your offence is the start to murder or manslaughter or wilful murder depending. And it is a very prevalent offence here in Kimbe and I note this in sentencing State v Philip Piapia (2017) N6763. This is one of the most prevalent offences in this Province West New Britain Province.  In this week alone I have had to deal with almost 15 cases involving the use of bush knives with grievous results upon the victim predominately with residual injuries after the best medical hands here at the Kimbe General Hospital. This is a drain on the logistics resources manpower of the hospital caused by individuals like you. The hospital should be using its resources time energy manpower for genuine cases of illness not violence as is the case here. There are also cases of murder and wilful murder that are also before this court here in Kimbe alone which are the end result of the use of bush knives upon the deceased there. There is not a week that goes by without a committal to this court of this offence of grievous bodily harm as perpetrated here with Bush knives. The minimum in a week as I have noted here and which I have had to deal with before my court are almost 10 to 15 in a week. It is therefore a very serious matter which must be addressed and reflected in the sentence that I impose upon your case. The deterrent effect to you and others similar must be stressed in the sentence that is passed upon here.

27.	Your case is a very serious case because you repeatedly cut Amen Mark with the bush knife. You say that you were defending yourself. There is no weapon which was in the hands of the victim that is before this court which prompted you to attack as you did. There is no payment of compensation as you claim and you do not have the means to effect payment of compensation if orders were made to that effect. The victim is not accepting compensation. He has permanent disability of the right forearm. You are 50 years old married with three wives and 12 children who are not confirmed by the pre-sentence report. Originally you are from Tambus, Laiagam, Enga Province. You do not have any prior conviction. This is your first offence. You saved the court time and resources with the guilty plea to the offence. You are a mature 50 year old man and no doubt this sentence will deter you and others with similar inclination. Even though the victim has refused compensation and settlement, the court in its discretion considering that you have pleaded guilty and that you are a mature man with no prior convictions gives you a chance to make peace with the victim that there are no existing grievances or grudges between the two of you into the years ahead. You no doubt will find the means to end this matter once and for all as failure is time in jail that has been suspended after you are released from Lakiemata. And in all the circumstances I make the following orders:

(1)	You sentenced to 4 years IHL. 

(2)	You shall serve 2 years IHL in jail at Lakiemata Corrective Institution.

(3)	Upon release you shall enter into and be on probation for 2 years on the usual terms under the Probation Act with further orders that:

(a)		You shall within 48 hours report to the Probation Officer;

(b)	You shall perform 4 hours of community work at a worksite to be approved by the Probation Officer;

(c)	You shall keep the peace and be of good behaviour at all times;

(d)	You shall not take liquor or any form of intoxicating substance or drugs during the period of your probation;

(e)	You shall attend church every weekend for service and worship whilst on probation; 

(f)	You shall undergo counselling from your local pastor for a number of times as may be determined by the counsellor;

(g)	Within 3 months  upon release you are to reconcile and compensate Amen Mark as follows:

(i)	Cash payment of K1,000;

(ii)	One mature or adult pig valued at K700 

(iii)	Garden food to the value of K300

(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, Ward Councillor Kimbe Local level Government;

(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 1 November 2019 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, 2021. 

Orders Accordingly.
__________________________________________________________________

Public Prosecutor : Lawyer for the State		
Public Solicitor  	: Lawyer for the Defendant