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State v Moko [2017] PGNC 321; N6970 (17 August 2017)

N6970

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 285 of 2017,
CR 286 of 2017,
CR 287of 2017,
CR 288 of 2017

THE STATE

V

BONAVENTURE MOKO, MICHAEL MOKO, WILLIAM MOKO, SILAN MOKO

Bali (Makiri CM Parish): Batari, J
2017 : 10, 17 August,

CRIMINAL LAW – Sentence - Grievous bodily harm – Accused gang attacked victim over female relative with bush-knife and rocks – injury to face, dislocated jaw, loss of teeth - grievous bodily harm - Seriousness of - Plea - Mitigation – De facto provocation – Compensation – use of – offenders members of same family – relevance of - Sentence of 4 years suspended on terms appropriate – Criminal Code (Ch. No. 262) s.319

Held:

(1) Before exercising judicial discretion, in sentencing, the sentencing authority must bear in mind the threefold purposes of punishment namely, retribution, deterrence and reformation. [para 6, 7]

(2) The prevalence of a crime is an objective fact to weigh against subjective elements like good character and antecedent. [para 5, 6]

(3) Compensation may be ordered if the order for compensation will advance the interest of justice. [para 14, 15]
(4) Where the case involves close family members, it is important to assess the facts of each individual case and acknowledge the social context in which the offence occurred. [para 14]

(5) The discretion to suspend must be exercised on proper basis, assisted with the community view from where the offender is resident, as collated in a pre-sentence report by the Probation Officer. [para 16, 17]

(6) To promote personal deterrence, reformation or rehabilitation suspended sentence is common where factors of first time young offender, advanced aged or good character and good family background are present. [para 17, 18]

Cases Cited

Kesino Apo v The State [1988] PNGLR 182.
Prosecutor v. Bruce William Tardrew (1986) PNGLR 91.

Public Prosecutor v Don Hale (1998) SC564
Public Prosecutor v. Thomas Vola (1981
State v Willie Missia (2010) N4180

The State v Paul Jumbugu (2012) N4627

SENTENCE

The prisoners pleaded guilty to unlawfully causing grievous bodily harm and the following reasons for sentence were delivered.

Counsel:

A. Bray, for the State
A. Kunuma, for the accused

17 August, 2017

1. BATARI J: The four accused persons pleaded guilty to unlawfully causing grievous bodily harm on 10/12/16 at Lambe Village, Vitu Island, Talasea, West New Britain, contrary to s. 315 of the Criminal Code. The offence carries the maximum of 7 years imprisonment.
   
2. The short account of the offence is that on the date in question, the accused, Bonaventure Moko met with his girlfriend, Sylvaria in a pre-arranged meeting in the bushes of Lambe Village. Sylvaria’s brother, Sephart Pake tracked them and chased the accused away. Bonaventure then reported the incident to his father Michael Moko and brothers, William and Silan. His family members accompanied him to accost Sephart Pake. They trailed him to the beach armed with stones, slings and bush knife. The victim Nelson Inni was with Sephart Pake when they shot him with a sling. One of them then struck him on his face with the bush knife. Another threw a rock on his face causing the victim, concussion and dislocation of the jaw. The victim also suffered permanent loss of three teeth. Other injuries sustained were superficial and non-permanent.
   
3. The court depositions indicated an alarming and terrifying attack. The accused persons were collectively aggressive, prompting others to retaliate. Surprisingly there was less damage and casualty. The resulted injuries the victim sustained, though not life threatening, could have been fatal.
   
4. Nelson Inni was an innocent victim. The accused persons caught him unaware and attacked at his most vulnerable moment. It was a cowardly attack in which he sustained permanent loss of teeth. The prisoners’ offence falls into the serious category of grievous bodily harm cases.
   
5. I also bear in mind that this type of offence is most widespread and continues to be committed in increasing frequency throughout the country. The prevalence of a crime is a matter, a judge is entitled to take into consideration. It is an objective factor to weigh against subjective elements like good character and antecedents.
   
6. The statutory maximum penalty for this offence under s. 319 of the Criminal Code is seven years imprisonment. It is not mandatory because of the discretionary power vested in the court under s.19 of the Code, to impose a lesser term under settled principles of sentencing. Accepting that the function of the law is to protect society from crime, it is incumbent on the sentencing judge in assessing sentence, to bear in mind the threefold purposes of punishment namely, retribution, deterrence and reformation.
   
7. So, the exercise of discretionary judgment within wider limits in the particular circumstances of each case should attempt to strike a balance between those compelling purposes. The sentencing judge must balance all varying factors between the circumstances of the particular offence and the community interest to see that those with anti-social behaviour repay the society their wrongs, and on the other hand, the competing personal circumstances and interests of the individual offender.
   
8. I have ordered a pre-sentence report and a means assessment test to assist me with this difficult task of deciding the appropriate sentence. Probation Officer, Mrs Elizabeth Passingan of the Community Corrections & Rehabilitation Services has responded with some efficiency and I commend her for the two comprehensive reports now before the Court.
   
9. The person backgrounds of each accused are set out in the presentence reports. Suffice to say the accused persons are members of the same family. The father Michael Moko is age 54 years. William I think is the first born. He is aged 32 years. Silan Moko is aged 23 years and Bonaventure is 18 years. He is still in school. They have all pleaded guilty with good backgrounds. This is a first conviction for each prisoner. The community view on their social standing is favourable with the suggestion that they be punished outside prison with community work orders. This supports the consideration of a prior good conduct.
   
10. Some elements of provocation falling short of the legal defence precipitated the attack. The first accused, Bonaventure reported Sephart Pake’s aggression towards him to his relatives. He also told them Sephart Pake had challenged him to a duel and had collectedly labelled them cowards. They reacted immediately and Nelson Inni became a victim of being at the wrong place and wrong time. The prisoners attacked the victim when he least expected it. He was not a threat to anyone of them. Had they simply exercised common sense and restraint, they would not be in court today. Be that as it may, they must pay for their malicious conduct.
    
11. The prisoners have offered to pay compensation. The victim is agreeable to that proposition.
    
12. An order for compensation payment is an option open to the Court under the Criminal Law (Compensation) Act 1991. Section 2 makes it mandatory for the Court when considering punishment, to also consider whether in the circumstances of the case, compensation should be ordered. Section 3 sets out factors to be considered in making compensation orders if the order for compensation will advance the interest of justice: The State v Paul Jumbugu (2012) N4627.
    
13. Such objective may be achieved if the offender can be usefully punished in some other alternative way to serve the retribution and reformation aspects of sentencing. Payment of compensation is a relevant consideration towards that end. The limit of compensation the Court can impose under the Act is K5,000.00. Any excess claim beyond that amount may be a subject of a separate civil suit action.
    
14. I am satisfied that an order for compensation will serve the justice of this case, it being domestic related. It is important to gauge the particular facts of cases of this type and acknowledge the social context in which the offence occurred. In this case, close family members are affected. Their cultural obligations and commitments to each other are deeply rooted. In such activity as bride price or compensation payment, funeral expenses, etc., they rely on each other for help and support. That is the fundamental consideration an order for compensation will seek to address. See Kesino Apo v The State [1988] PNGLR 182.
    
15. All these leads to whether to impose a jail term or not. I consider that a jail term will serve the justice of this case. The range for similar type offence is 4 to 6 years. I proposed to impose a sentence within that range.
    
16. I have had regard to the principles on suspension of sentence on the issue of whether that option is appropriate. Section 19 (1)(d) of the Criminal Code empowers the court to consider whether to partially or fully suspend the term of the sentence imposed. The discretion to suspend must be exercised on proper basis, (Public Prosecutor v. Thomas Vola (1981) PNGLR 412) assisted with the community view from where the offender is resident, as collated in a pre-sentence report by the Probation Officer: Public Prosecutor v Don Hale (1998) SC564.
    
17. In Public Prosecutor v. Bruce William Tardrew (1986) PNGLR 91. The three broad categories in which suspension may be appropriate are:
    
    1. where suspension will promote the personal deterrence, reformation or rehabilitation of the offender;
    2. where suspension will promote the repayment or restitution of stolen money or goods; and
    3. where imprisonment will cause excessive degree of suffering to the particular offender, for e.g. because of bad physical or mental health.
       
18. For the intended purpose of promoting personal deterrence, reformation or rehabilitation under the first category and medical grounds under the third category above, the discretion to suspend sentence or part thereof has been commonly exercised where factors of first time young offender under 18 years, or advanced aged, or good character and good family background are present. See, State v Willie Missia (2010) N4180
    
19. I am satisfied that the sentence of the Court should be both useful to the community and to you. The sentence will serve the community interest because you will be given a jail term. It will also benefit you because I propose to suspend part of that sentence and place you on probation.
    
20. You are sentenced as follows:
    
    1. Four years imprisonment IHL.
    2. I suspend the four years to be served on the usual probation orders AND in addition each of you:
       • (i) Shall within 48 hours of your release today, report to the Probation Officer;
       • (ii) Shall pay K4,000.00 plus one pig valued at K1,000.00 as compensation and reconcile victim Nelson Inni within three months of today on or by 17 November, 2017; bail be refunded and converted as compensation part-payment;

(iii) Shall perform 400 hours of Community work at a worksite to be approved by the National Court;

(iii) Shall reside at a place approved by the National Court;
(iv) Shall not leave your place of abode, Bali-Vitu LLG area or West New Britain Province without written approval of a Judge;
(v) Shall attend church every weekend for service and worship and submit to counselling;
(vi) Shall not consume any form of liquor, alcohol or drug;
(vii) Shall entered into your own recognizance to keep the peace and be of good behaviour for four years with surety in the sum of K1,000, each and in default six months imprisonment;
(viii) Shall have a satisfactory probation report submitted to the National Court Registry as required;
(ix) Shall appear before the National Court as and when required for assessment of your progress on probation.

3. The Probation Officer shall file six monthly reports and whenever required by the National Court on your progress on probation until discharged.
4. In the event of a breach of any of these conditions, you shall be brought before the National Court to show cause why you should not be called upon to pay the surety condition in addition to being incarcerated to serve the suspended four year imprisonment term.

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Public Prosecutor : Lawyers for the State
Public Solicitor : Lawyers for the Defence