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State v Lisio [2017] PGNC 323; N6961 (19 May 2017)

N6961

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1731, 1732, 1733 of 2016

THE STATE

V

APOLOSA LISIO, ROBIN MELESKIT, ROBSON LISIO

Kandrian: Batari J
2017: 9, 19 May

CRIMINAL LAW– Sentence - Grievous bodily harm - Accused unlawfully assaulted and cut victim’s hand with bush knife - Seriousness of – plea - mitigating factors – compensation payment – payment of prior to charge – remorse - 4 years appropriate with probation orders.

Cases Cited

Nil

Counsel

A. Bray, for the State
D. Kari, for the Accused

SENTENCE

19^th May, 2017

1. BATARI J: On 9 May, 2017 the three of you pleaded guilty to the offence of unlawfully causing Jonah Kulinah, grievous bodily harm. You are back in court again today to receive your sentence.

2. The offence of unlawfully causing grievous bodily harm carries the maximum sentence of seven years under s. 319 of the Criminal Code. That is not mandatory because of s. 19 of the Code. In the intervening period that I had to ponder your sentences, I have to consider presentence reports (PSRs) and means assessment reports (MARs) in respect of each one of you. The reports compiled by Probation Officer, Mrs Delker Samuel whose prompt response is most commendable, are comprehensive and informative.

3. The PSRs and MARs are intended to assist the Court explore available sentencing options under s.19 of the Code, besides imprisonment. The findings, views and recommendations of the Probation Officer made under the Probation Act (Chapter 381) are relevant where a court requires assistance in deliberating the most suitable method of dealing with a convicted person before it. However, there should be no misapprehension that a court ordered presentence report is a guarantee for non-custodial sentence.

4. The common facts which also formed the basis of your punishment are briefly that on 13 November, 2015 you Apolosa Lisio and Robson Lisio were upset over talks of the victim, Jonah Kulinah the then HEO of Kandrian Health Centre, making sexual advances towards your married sister. You confronted the HEO at Kandrian Station and assaulted him. Robin Meleskit joined the two of you, armed with a bush knife. The victim grabbed the knife and tried to wrestle it from Robin but the knife injured his thumb and ring finger. Robin then struck the victim on his right arm.

5. A medical review conducted by a Dr Lawrence Warangi of Kimbe General Hospital, confirmed a bruised left shoulder, knife wounds to the right elbow, right thumb and ring finger. The doctor assessed that the injury to the right elbow joint may cause the victim some degree of disability.

6. The attack and the resultant injury were unwarranted. You had heard rumours and decided to act on such mere talk without giving the victim the opportunity to defend himself through the formal dispute resolution avenue. In short, you took the law into your own hands. You caught him unaware and unguarded and caused him sudden pain, discomfort and stress without good cause. You must surely know at this day and age, it is a very serious matter to attack another person with a weapon and that you will be punished for the unlawful act. You must surely know a knife is such a dangerous weapon; it can bring about dire consequences.

7. Furthermore, such gang attack as yours is a cowardice act. There are so many instances of such happenings, hardly a day goes by without reports of someone being gang attacked and caused serious bodily harm. The trend of being temperamental and indiscreet resort to violence brings bad name and image to this beautiful country and the people. It is in the community interest that those with such behavioural attitudes meet with adequate punishment.

8. The aggravating features of your offence are therefore:

1. the attack was planned and sudden;
2. use of weapon;

100. the victim suffered injuries, the major being an elbow injury;

4. prevalence of the offence of unlawfully causing grievous bodily harm;
5. deliberate violation of the law and the health of the victim.
   

9. In your favour, there are facts from the offence and from your personal circumstances which mitigate your conduct and lessen the gravity of your offence. From the offence, I accept there was no serious fight when you Apolosa Lisio and Robson Lisio accosted the victim. And you Robin Meleskit only used the knife after the victim tried to wrestle it from you. It was a spur of the moment attack not repeated.

10. I also accept from the facts, presence of provocation falling short of the legal defence. Rumours were rife in the small rural town of Kandrian of the victim making sexual advances towards your sister. You were naturally upset and that prompted you all to attack the victim as you did. This human frailty goes to explain your conduct. It does not exonerate you from criminal guilt.

11. I take into account another factor in your favour. You did not attack an innocent stranger. The fight was fuelled by the victim’s suspected conduct towards a close family member and there seemed to be some truth in that. At the time of the incident, your sister and her husband were also pursuing the victim for compensation over the same issue. You could have then simply joined your sister and brother in-law in that lawful pursuit and you will not be in court today.
12. Your personal backgrounds are usefully set out in your PSRs and MARs. I have perused and considered each report and the views expressed therein. The reports will be read into the records. The most important facts as submitted by your lawyer, Mr Kari are that you are all young first time offenders with good educational upbringings. The community leaders who were interviewed also spoke highly of your personal behavioural attitudes in the community. The leaders are prepared to participate in your rehabilitation if the option to place you on probation is ordered.

13. Apolosa Lisio, you are 20 years old from Ais village outside Kandrian station and still single. In 2014 you left school at grade 9 due to your father’s ill health and death the same year. Your father was then the President of Kandrian Coastal Local Level Government. You now live at your family property in Kandrian and have expressed noble desires to follow in your father’s footsteps and intend to finish your schooling towards that end. Your local church pastor, Mack Kivia of Kandrian SDA Church commended your involvement in church activities. He expressed surprise at what you did and if you are placed on probation, the pastor is prepared to support you with counselling and spiritual encouragement.

14. Robin Meleskit, at 22 years you are married from Apugi village at Apugi Island just off Kandrian station. You completed grade 9 in 2009 and took on employment with Gatoni Construction Company, acquiring carpentry skills on the job. You left in 2012 aspirating, to improve your skills in that occupation with further studies. At the time of the offence, you were a youth leader with the Anglican Church. Apugi Island Anglican Church Layman Joachim Sol confirmed that as the Youth Chairman of the Church, you are responsible for outreach programs for villages both in the Coastal and Inland Kandrian LLG areas. Joachim Sol is ready to give counselling and spiritual nurturing as part of your rehabilitation. Your church elder is also willing to participate in oversighting your probation conditions if ordered.

15. Robson Lisio is aged 27 years and single following a failed marriage. You come from Ais village and like your co-accused/relative Apolosa Lisio, you are living in the family property at Kandrian station. Your father and Apolosa’s father were bothers. Both served as President of Kandrian Coastal Local Level Government. After completing grade 12 at Kimbe International School in 2007 you pursued further studies through Open Campus in 2008 and 2009. Your job search in Lae was disrupted with the passing of your father and you had to return to Kandrian. You have expressed the desire to pursue further studies towards a professional career. Your local church pastor, Mack Kivia of Kandrian SDA Church also exalted your church activities involvement and was surprised at what you did. He is willing to provide counselling and spiritual nurturing if you are placed on probation.

16. From the presentence reports, there is some indication of each one of you having lived a responsible life. You, Apolosa and Robson apparently come from affluent families. This supports a good background as alluded to earlier. The community attitude and the victim’s attitude gathered from your PSRs are supportive of compensation payment and non-custodial sentences. The victim will settle for K10,000.00. He has acknowledged receipt of K3,000 paid prior to court proceedings. He expects payment of the balance.

17. Other common factors in your favour are your plea of guilty and expression of remorse. A plea of guilty has always been regarded as a mitigating factor. It is indeed an effective mitigating factor for the lesser serious cases of violence such as causing grievous bodily harm in this case.

18. A wrong-doer who readily admits his or her wrongful conduct accepts responsibility for breaking the law. It is a sign of contrition and acceptance of the consequential punishment that would follow. A plea of guilty supported by an early admission to the police or other persons in authority does make an open expression of remorse in court, genuine. That is the situation in this case.

19. Besides, you have prior to your arrest, paid some monetary compensation to the victim. You have offered to pay further compensation if the court ordered. This gesture adds to your guilty plea and contrition. I accept you are genuinely sorry for your conduct.

20. I have also considered, as the court is required to do under the Criminal Law (Compensation) Act 1991, compensation as part of punishment. At a glance, this is an appropriate case for consideration of compensation orders. The victim will accept compensation payment but only in monetary value.

21. Under s.2 of the Act, it is mandatory for the Court when considering the punishment to be imposed for an offence, 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.

22. It is trite that the sentencing policy is not all about going to prison. The interest of justice may well be served if the offender can be usefully punished in some other way. An order for payment of compensation in addition to other punishment is one of those options. The limit of compensation the Court can impose under the Criminal Law (Compensation) Act is K5,000.00. Any excess claim beyond that amount may be a subject of separate civil suit action.

23. I am satisfied that an order for compensation will meet the justice of the case before this Court. The enmity between the victim and the prisoners has been amicably resolved at the outset through reconciliation and bel kol moni payment and both parties will be happy with any court ordered compensation.

24. I am also satisfied that a term of imprisonment is called for to drive home to you individually as well as warn others they will meet with imprisonment if they break the law.

25. The sentence I propose to impose should be both useful to the community and to you personally. 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 the whole of that sentence and place you on probation. Your case falls into the range of three to six years for similar type offence. I proposed to impose a sentence within that range

26. You are sentenced as follows:

1. Four years imprisonment IHL.
2. The whole term is suspended and you are to be released forthwith and placed on the usual probation orders. IN ADDITION, YOU;
   1. Shall report to the Probation Officer within 48 hours after your release from custody;
   2. Shall pay compensation of K3,000.00 each in cash direct to the victim, Jonah Kulinah. The K3,000.00 already paid is taken into account and apportioned equally amongst the three of you with the balance of K2,000.00 each to be paid within three months or by 19^th September, 2017;
   100. Shall reside at your current place of abode as approved by the National Court;
   4. Shall not leave your place of abode, or Kandrian station or West New Britain Province without written approval of the National Court;
   5. Shall each perform 800 hours of unpaid community work at a work site approved by the National Court;
   6. Shall attend church every weekend for service and worship and submit to counselling;
   7. Shall not consume any form of liquor, alcohol or drug;
   8. Shall keep the peace and be of good behaviour;
   9. Shall have a satisfactory probation report submitted to the National Court Registry as required;
   10. Shall appear before the National Court as and when required for assessment of your progress on probation.
       
3. The Probation Officer shall file, a report on your payment of compensation in October 2017 and thereafter, six monthly reports and whenever required by the National Court, on your probation until discharged after the probation period of four years.
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 incarcerated to serve the remaining term of imprisonment.
   

______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused