N7251

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 554 OF 2016

  THE STATE

V

JUDE MISILI

Kimbe: Miviri AJ
2018: 22 March, 10 & 11 May

CRIMINAL LAW – PRACTICE AND PROCEDURE – GBH S319 CCA-Plea-left hand digits cut – PSR MAR favourable to prisoner-victim prepared to accept compensation – no residual injuries-suspended sentence with conditions for compensation.

Facts

Accused cut the left arm of the victim over allegation that he had sworn at his uncle the previous day. 

Held

Plea of guilty
First offender
No residual injuries
Suspended sentence conditions for compensation.

Cases: 

State v Irowen [2002] PGNC 99; N2239 
State v Ogi Songe [2017] N6759 
State v Philip Piapia [2017] N6763 
State v Steven Tumu [2017] N6768 

Counsel:

C. Sambua, for the State	
R. Bellie, for the Defendant
						
SENTENCE
11th May, 2018
 
1.	MIVIRI AJ: This is the sentence of a man who pleaded guilty to grievous bodily harm.

Short facts

2.	The Prisoner accused the victim Erex Daniel of swearing at his uncle. He raised a bush knife and cut him on his left hand as he lifted it up to defend himself from the blow inflicted. This happened on the 19th October 2013. The injury was life threatening.

Charge Grievous Bodily Harm

3.	The charge was laid pursuant to section 319 of the Criminal Code that, “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.

4.	Prisoner entered a guilty plea confirming his admissions to police. The file tendered confirmed. Defence counsel made application for presentence and means assessment reports under the Probation Act to be furnished in particular to confirm if both victim and prisoner had settled the matter amongst themselves.

5.	Both these reports have been filed now in the consideration of this sentence upon the prisoner. And I take due consideration of all relevant matters within both for and against in the determination of this sentence upon the prisoner.

Antecedents

6.	Prisoner is 25 years old single from Kwalakesi village Hoskins. At the time of the sentence he was resident in his village with his parents. He was a grade 10 graduate from Poinini Agricultural School in 2013 with no formal employment record. Nor did he have any record of prior conviction known to the law.

Allocutus

7.	Prisoner did not say anything in response. Though he confirmed the initial admission to the police in the record of interview dated 22nd October 2013. Explaining that he did what he did because the victim swore at his uncle with word depicting out female genitalia. He asked also to compensate the victim. In this regard the presentence report confirmed that he had paid K500 to the victim which was confirmed by the victim. The victim asked for K1000 as the total sum from the prisoner. Both reports were favourable to the prisoner and recommended a non-custodial term under probation supervision with conditions.

Aggravation 

8.	He acted without any justification in law when he delivered the blow with the bush knife cutting the left hand of the victim. Medical evidence in court by Senior Surgical Registrar Doctor Peter Yama showed severed 2nd, 3rd, 4th digits. He was admitted to the surgical ward the same day. And taken to the operating theatre and the tendons were repaired under local anaesthesia. As at the date of the medical report 23rd October 2013 he was unable to use his left hand for six weeks. There was no review and it was not known whether the injury was permanent. 

Issue

9.	Given all what is the appropriate sentence for the prisoner here?

Appropriate Sentence

10.	I start with the maximum sentence prescribed by that section which is 7 years imprisonment. At the outset this offence poses the element of grievous bodily harm usually associated with murder charge, and in that regard is a very serious offence. The facts set out here do not depict the imposition of the maximum sentence. And relevant in this regard are the fact that he pleaded guilty and has expressed willingness to compensate victim for the injury caused, on top of the initial payment of K500 that he made on the 16th April 2018. He has demonstrated that he has his family support to ensure that he is paid further. To which the victim has responded positively in the presentence report. There are no serious residual injuries emanating. But it was a very serious offence which grievously effected 2nd, 3rd, and 4th digits. It was wrong for him to take the law into his own hands as he did against the victim over an allegation he heard that victim swore at his uncle and assaulted his cousin. And there was clearly immediate need to bring back the parties to be at peace which they had started already amongst themselves. It was therefore a genuine attempt to amend and reconcile for the better. But an offence denounced because it broke law and order. And it was necessary to ensure there was protection of the law accorded and in so doing deterrence against the prisoner personally and any others with similar inclinations. Reformation of the prisoner was also in view as he was educated to grade 10 at Poinini Agricultural Technical high School.

11.	Also that similar cases that had come before the court of family members or close knit members often drew sentences at mid range of 3 to 4 years suspended with conditions for compensation reformation and rehabilitation of the prisoner. Where there is use of a weapon with serious life threatening injuries as in State v Irowen [2002] PGNC 99; N2239 this court imposed the maximum penalty of 7 years cumulative where both wives were cut with a bush knife almost killing them but they survived because they were taken quickly to the hospital but came out with serious residual injuries. There is immediate need to protect the community from this offence.

12.	Where a nephew attacked an uncle with a bush knife cutting him causing a life threatening injury this court imposed 3 years IHL part custodial and part non custodial with conditions for payment of compensation State v Ogi Songe [2017] N6759. Where there is demonstrated by clear evidence to mend family or relationship and there is means to ensure compliance of compensation orders this court has gone ahead to impose sentence giving effect, State v Philip Piapia [2017] N6763. See also State v Steven Tumu [2017] N6768. The sentence has been in the mid-range of 3 to 4 years part custodial and part suspension in each case.

13.	In the present case that has been demonstrated by the presentence and means assessment reports and the facts and circumstances of the case which I set out above. And it would be disproportionate to consider otherwise then to follow suit because like cases should be treated alike. Due regard must also be paid to the fact that what is just and proportionate is depended on each case by its facts and circumstances and the sentence is swayed accordingly. 

14.	Here I determine that the just and proportionate sentence given all set out above is 3 years IHL and I so impose that upon the prisoner. 

15.	Further in the exercise of my discretion in the light of all set out above I order that sentence to be wholly suspended on a Probation order for the same period on conditions as follows:

(i)	You shall enter into a probation order for 3 years on conditions;

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

(iii)	You shall be resident at Kwalakesi village Hoskins Kimbe at all times in the course of your probation period.

(iv)	You shall not leave this place of resident or Kimbe without leave of this court during the course of your probation period;

(v)	You shall perform 600 hours of community work at a worksite to be approved by the Probation Office;

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

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

(viii)	You shall attend your local South Sea Evangelical church every Sunday for service and worship whilst on probation;
 
(ix)	You shall undergo counselling from Theu Balia Ward Development committee for number of times as may be determined by the counsellor;

(x)	You shall within 5 months as of the date of this order make restitution to Erex Daniel in the sum of K 600 cash and a live pig valued at K400.

(xi)	The restitution shall be witnessed by your probation officer, the police informant, and Theu Balia Ward Development Committee, Kwalakesi village.

(xii)	The Probation Officer shall file a report on the responses and progress of the probationer every six months and at any other time or interval as the National Court may order upon application;

(xiii)	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.

Ordered Accordingly,
__________________________________________________________________Public Prosecutor:  Lawyer for the State	
Public Solicitor: Lawyer for the Defendant