N7027
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 231 OF 2017

THE STATE

V

SIMON TAGI

Kimbe:	Miviri AJ
2017	:	07th June

CRIMINAL LAW - Practise & Procedure -  Sentence - offence of GBH-threw back oil palm harvesting sickle thrown at him-cut buttocks & back-escalation of family dispute-serious & prevalence of

CRIMINAL LAW – sentence - offence of GBH - early admission-plea-factors in mitigation - compensation paid-favourable probation report-non custodial sentence 3 years IHL 3 years GBB on conditions shall enter into Probation order.

Facts

The defendant looking for his wife went to the house of the mother in law. He did not find his wife there so he argued with his mother in law. He returned back home and then went back to apologise to his mother in law. He was set upon by the victim and other boys who threw a sickle used to harvest oil palm at him. The defendant picked it up and threw it back towards the direction of where the victim and the boys were pursing him. The victim was cut in the buttocks and treated at the hospital and he recovered later. The victim received compensation from the defendant in the sum of K1000.00.

Held
 
1.	No lawful excuse to assault with sickle.
2.	Injury to buttocks no residual injury.
3.	Pleaded guilty
4.	K1000 compensation paid 3 days after assault.
5.	Favourable pre-sentence report.
6.	3 years IHL all suspended on 3 years GBB on conditions shall enter into a 2 years’ Probation Order.

Cases cited:

Anna Max Marangi v. The State (2002) SC702
Goli Golu-v-State [1979] PNGLR 635
State v Heni [2008] PGNC 206; N3541 
State v Songi [2017] PGNC 120; N6759 
State v Wepo [2016] PGNC 164; N6356 
State v Tumu [2017] PGNC 130; N6768 
State v Songi [2017] PGNC 120; N6759 
State v Jul [2005] PGNC 180; N 3167 
State v Paraka [2002] PGNC 29; N2317 
State v Naopa [2003] PGNC 89; N 2411 

Counsel:

D. Kuvi, for the State
B. Popeu, for the Defendant
					
SENTENCE
8th August, 2017 

1.	MIVIRI AJ: This is the sentence of the court upon a guilty plea to Section 319 grievous bodily harm entered by the Prisoner who threw back in the general direction of boys who were pursing him including the victim an oil palm harvesting sickle which inflicted a cut to the buttocks and back of the victim who has since recovered.

2.	The preliminary background facts were that the Prisoner had argued with his wife who sought refuge in her mother’s house. On 27th September 2016 he went in search of her to accoster her back to the family home where both resided with 6 children of theirs and an adopted son. He was unsuccessful and his frustrations came out onto his mother in law where he verbally abused her and assaulted another there. He went home but felt bad so came back to apologise to both, but was set upon by the victim Ricky Ngava with other boys, one of whom threw an oil palm harvesting sickle missing him and landing in front. He picked it up effected what is the subject of the sentence now. 

Issue

3.	What then is an appropriate sentence here against the Prisoner?

Law

4.	Section 319 carries the maximum penalty of seven years imprisonment but obviously that would not be the case here as it is not the worst case of its kind. Goli Golu-v-State [1979] PNGLR 635. An appropriate sentence would be the total result of assessing the aggravating and the mitigation circumstances together with any other special or extenuating circumstances of the case. At the outset there was no lawful excuse upon the Prisoner for his actions. The injury was life threatening as the victim was bleeding but successfully treated without any residual injuries following.

Aggravation

5.	What the prisoner did was a culmination or the climax of a domestic matter between him and his wife. According to his antecedent report obtained by police he was born in 1975 so that at the date of sentence was 32 years old. He had six children ranging from 17 years old, to the youngest at 1 and half years old. By this fact it was evident that he was emotionally charged up when his wife did not return. But it was not an excuse in law or life to take the matter out on his in-law. It was evident that he ill-treated his mother in-law and the verbal abuses he uttered to her and the assault upon a relative triggered the other relatives to stand in wait should he return which he did, and they pursued him throwing the oil palm sickle that he retrieved and retaliated with to inflict the injury upon the victim. It would not be ignored that it was a probable cause of his actions that it would culminate as it did here. His verbal abuse of an elderly in-law drew the other members of the family against him. The family as a basic unit of society must be protected by sentences that will deter those within to ensure observance of the law and maintain order. Deterrent sentences must be imposed to reflect. See State v Wepo [2016] PGNC 164; N6356 an example of what happens if there is no order and observance of law within the family between the husband and the wife.

Mitigation

6.	Fortunately here there was no residual injury and the victim had since recovered from it well. Prisoner pleaded guilty confirming his initial admittance to the police in his record of interview. And three days after the offence he paid K1000 to the victim and was going to get a pig in addition when he was apprehended. What the Prisoner has done shows his genuineness to bring normalcy and his acceptance of the fact that he has committed a wrong. It is well placed as a mitigating factor that must weigh heavily in his favour because it is shaking off the dust and dirt and renewing so to speak. Through his counsel he submitted that he will pay a pig valued at K700 to the victim in further settlement of the matter. Which is by itself a very genuine and responsible act to erase any further doubt that there are no grudges or grievances in the family? 

7.	The pre-sentence report ordered detailed out the circumstances of the offence as set out above. It was favourable to the Prisoner recommending a non-custodial sentence with supervision. It confirmed the payment of the K1000.00 to the victim on the 30th September 2016 which was three days after the commission of the offence. And that the Prisoner was a first time offender who led a good life in the community. He took responsibility for his wrong he paid without a formal court order.

8.	He was a 48 years old man according to the pre-sentence report, but born in 1975 according to the police antecedent report, the latter more probable as the wife was also aged similarly in the 30s, married with 6 natural children and an adopted son. A practising Catholic by faith with no previous breaches known and recorded in law. He was from Balabolo village in the Talasea District educated to grade 8 at Hoskins high School in 1988, but did not go further as no school fees. He did a certificate in carpentry at the Moramora Vocational School in 2012. He is mainly a subsistence farmer and has 2 hectare cocoa blocks and a hectare of oil palm which adds to his upkeep of the family.

9.	In the pre-sentence report the mother in law confirmed that the K1000 paid was already received by the victim who had wanted to withdraw the case initially but was late. Speaking on behalf of the son (victim) the mother in law was concerned about the Prisoner. Any sentence imposed must balance that a wrong was committed but that the sentence should not be so that the prisoners own family was divided and made volatile and prone to deterioration within both his immediate and extended family. Prisoner will go back to his family it is important that the sentence must accommodate this fact. Both the victim and his willingness to find a lasting solution to their relationship is important factor which I give effect to in this sentence.

10.	Grievous Bodily harm under section 319 is a very serious offence looked at from the point of view of the State, society, community and particularly the victim. Because the victim suffers as a result of the cut or injury inflicted. Defined under section 1 of the Criminal Code, “means any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health”. It invokes a serious defiance of the rule of law and distorts law and orderliness in society. It is one of the elements always invoked in murder and therefore is not a light matter in the sentence because addressing it is putting a warning a deterrent to murder or manslaughter or even wilful murder. Here in West New Britain Province it is one of the most prevalent offences because of the easy availability of the bush knife as a tool but here turned into a menacing weapon be it in this offence or armed robbery. Any sentence that is imposed must have this back drop which must be addressed and here I do that in so passing sentence upon the Prisoner: State v Tumu [2017] PGNC 130; N6768. 

11.	I am mindful also of the fact that the Supreme Court had this to say:

 “We endorse His Honour’s emphasis on the use of a knife as a lethal weapon to kill another person as unacceptable under any circumstances. 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. It is becoming a silent lethal weapon, far more dangerous than other potentially dangerous weapons like axes, bush knives or even guns. The reason for this is because the knife is readily available, it can be easily concealed, and used on unsuspecting unarmed victims who are usually taken by surprise, and used in a calculating and precise manner, that the human body is easily penetrated and vital organs are damaged or even severed. It seems to us that more lives are being lost in this country today from the use of the knife than with any other weapon. Therefore, a strong punitive and deterrent sentence is required”. Anna Max Marangi v. The State (08/11/02) SC702. 

Here the appeal against the sentence was dismissed confirming the initial sentence of 9 years passed for Manslaughter.

12.	A sickle is a very sharp knife whose purpose is to harvest oil palm with and not to be used as was the case here as a weapon. It was thrown by one of the accomplices of the victim but good fortune was on the side of the Prisoner, he was not injured, the converse could not be said of the victim. Both the victim and the Prisoner have a lesson to learn from each other. And which lesson is drawn out by the Supreme Court as follows; firstly two wrongs do not make a right, secondly prevalent use of the knife in all criminal offences of homicide and other criminal offences and the immediate need to curb, control, stop and to deter its illegal use. Thirdly to educate our people that resorting to violence will only create instability, insecurity, lawlessness, and disorder in the community. Fourthly to protect the safety and security of the family as a basic unit of society. But by the same token the welfare and good name of the family cannot be used by a Prisoner in what is due in law to him as is the case here for the wrong that he has perpetrated upon society and the State. He must be accorded what the law rightly bestows upon him given the facts, figures and circumstances rolled for him.

13.	In State v Heni [2008] PGNC 206; N3541 here in Kimbe on the 11th December 2008, Justice Cannings was deliberating where the Prisoner had because of a previous attack by the victim upon seeing him in the same pmv attacked him with the bush knife cutting him on the hand and also fracturing it. The wound was 8 cm long and 2 cm deep and required seven internal and eight external stitches. Joel also suffered a fractured wrist. Victim was rushed to the health centre nearby and treated. His honour considered 4 years IHL for grievous bodily harm under section 319 as appropriate given the facts that the attack was in a public motor vehicle were there were other passengers who were traumatized and could have been hurt by the bush knife that he used there. There was on going conflict between the two.

14.	Here the conflict between the Prisoner and his wife has led to another confrontation with the mother in-law and then other members of the family are drawn in leading to this offence. The Medical report by Doctor Owen Botty of the accident and emergency Kimbe General Hospital dated the 6th October 2016 evidences a buttock wound managed on the 28th September 2016.  The attack was at around 11.00 pm on the 27th September 2016 with an oil palm knife. The examination revealed an open wound on the superior edge of his buttocks/back. The wound is 5cm in depth and 10cm horizontally and was actively bleeding, it was sutured dressed and discharged. Favourable to the prisoner is that there are no residual injuries here. As I have said in other cases that have come before me, the sparse resources of the hospital must be used for those who are genuinely ill and have sought the medical expertise of the Kimbe General Hospital. There is no war zone here in Kimbe where the hospital is the Emergency centre for those who have been injured in the war. The sentence is tailored to deter others who have similar inclination as the Prisoner.

15.	In State v Songi [2017] PGNC 120; N6759, I determined and adjudged the fate of a nephew the Prisoner who had stoned the uncle victim and then cut him with a bush knife. He had also paid K1000 and was going to pay a further K1000 total sum of K2000 but did not as was taken in by the law. He had pleaded guilty to Grievous bodily harm under section 319 of the Code. A favourable pre-sentence report was tendered on his behalf before the court. The victim did not want further incarceration but the Prisoner was told to pay compensation to settle the matter. The sentence imposed there was 3 years IHL minus the period in remand and the balance was suspended on 2years probation order with conditions attached primarily because of the family situation and there being no residual injuries as a result and that there was provocation in the non- legal sense. 

16.	The present case poses similar that the parties value their relationship and want no further incarceration upon the Prisoner and are content with the compensation that is paid. The submission by both counsels is that the effective range of sentences given the facts and circumstances here would be 3 to 4 years imprisonment and would be consistent with the general tariff and range of sentencing by this court: State v Tumu [2017] PGNC 130; N6768 is the converse where there were permanent injuries as a result of the attack remaining so 2 years was ordered in jail and the remaining 2 years was suspended on 2years Probation order. That is not the case here there is no permanent injuries that remain as a consequence of the offence. Compensation has been paid of K1000 which has been accepted by the victim in settlement of the matter. If viewed in total the mitigating outweighs the aggravating. Further to this is that the prisoner has in good faith through counsel submitted he is willing to pay a pig valued at K700 to the victim. 

17.	The discretion to suspend sentence under section 19 of the Code can be exercised provided that there is a presentence report which is balanced and independently verified as a basis upon which the discretion can be exercised: State v Jul [2005] PGNC 180; N 3167; State v Paraka [2002] PGNC 29; N2317; State v Naopa [2003] PGNC 89; N 2411. Here the presentence report is favourable to the Prisoner and is a balanced report as the views of the complainant is noted as being that he is content with the  compensation that the Prisoner has paid of K1000. There is no injuries residual to the initial. Given these I consider it appropriate to impose 3 years IHL against you Simon Tagi for the crime of grievous bodily harm caused to Ricky Ngava. In the exercise of my discretion under section 19 of the Criminal Code, I suspend the entire 3 years IHL on 3 years Good behaviour Bond on the conditions: 

(i)	You shall enter into and be on probation for 2 years on the usual terms under the Probation Act with further orders that:

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

(iii)	You shall perform 4 hours of community work at a worksite to be approved by the CBC Office;

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

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

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

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

(viii)	Within 3 months  you are to reconcile and compensate Ricky Ngava as follows:
One mature or adult pig valued at K700
Garden food to the value of K300

(ix)	The reconciliation and compensation payment are to be attended and witnessed by the Probation Officer, Station Commander of Talasea Rural Police Station, the Arresting Officer, Chairman of Balabolo Village Court and Village Court Officials;

(x)	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;

(xi)	The Probation Officer shall file a report on the responses and progress of the probationer every six months with the first report due on 7th February 2018 and at any other time or interval as the National Court may order upon application;

(xii)	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.

(xiii)	These orders shall be listed for mention on the call-over in 7th August, 2019. 

Orders accordingly,

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