N7481

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 30 OF 2018

THE STATE

V

LEVI NUAK KUNAI

Kimbe: Miviri AJ
2018: 13 February, 12, 13 March

CRIMINAL LAW – PRACTICE AND PROCEDURE – GBH S319 CCA-Plea-fractured left arm-brother & sister-PSR MAR favourable to prisoner-victim prepared to accept compensation in settlement-no residual injuries-suspended sentence with conditions for compensation.

Facts:

Accused hit the left arm of his sister with a piece of timber in the course of an argument and broke the bone within.

Held

Plea of guilty
First offender
Blood brother and sister
No residual injuries
Suspended sentence conditions for compensation

Cases Cited

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

Counsel:

A. Bray, for the State	
D. Kari, for the Defendant
						
 SENTENCE

13th March, 2018 

1.	MIVIRI AJ: This is the sentence of a brother who hit his blood sister with a piece of timber on the left arm and broke the bone.

Short facts

2.	The Prisoner argued with his blood sister Aidah Nuak Seringian on the 19th August, 2017 at Sarakolok Oil Palm Settlement over the subject block in the course of which he broke her ulna bone with a piece of timber. It was a life threatening injury.

Charge Grievous Bodily Harm
3.	The charge was laid pursuant Section to 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.	And I start with the personal antecedents of the prisoner that he was 42 years old married twice from Vunadavai village East New Britain Province. Initial marriage did not persist because of the unfaithfulness of the wife. He had three children there.  His recent marriage was stable with a child. He was educated to grade 10 in 1994 George Brown High School in East New Britain and was formally employed as a driver with the Disaster office from 2014 to 2015 but resigned to take care of his family 5 hectare block from which he earned K300 to K400 from sale of oil palm sustaining himself. He was of the united Church faith at Saraklok where he resided but his Pastor one Ruben Karvuvu confirmed that because of the matter in court he was not committed. The Pastor volunteered to be his volunteer Probation officer should it be granted.

Allocutus

7.	Here he confirmed that the dispute arose over the block of land of their parents upon which both resided. He apologised to the court and to GOD for what he did promising not to do it again and for sentence to be served outside.

Aggravation 

8.	He acted unlawfully breaking the Ulna bone of his small sister with a piece of timber. She sustained when she raised her left hand to defend herself from the blow he inflicted. He escalated the dispute between them over the subject land which was not owned by both of them but was of their parents. It was a serious offence and there were no residual injuries that flowed from it. But it effected the family relationship between both and all others within. And it was a prevalent offence.

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 remorse and willingness to compensate his small sister for the injury caused her. He has demonstrated that he has the means to ensure that she is paid. She has indicated positively to that. There are no serious residual injuries emanating from what he did to her. But it was a very serious offence which grievously effected her in that her ulna bone in her left arm was broken and placed in plaster for 4 to 6 weeks. It was wrong for him to take the law into his own hands as he did against a family member over a block of land not owned by either of them but their parents. And there was clearly immediate need to bring back the family together. 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 and maintenance of the family union was important and fundamental to stop reoccurrence of the matter. Balanced out with the fact that he was a first offender who was 42 years old married with three children and that the offence was against his blood sister. 

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 (23 May 2002) 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. That is the extreme which isn’t the case here. But family members must be protected like any other person by the law and this court has imposed similar.

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 (27th May 2017). 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 (17 May 2017); see also State v Steven Tumu [2017] N6768 (23 May 2017). 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 there has been demonstrated by the pre-sentence 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 for the crime of grievous bodily harm committed upon his sister Aidah Nuak Seringian contrary to section 319 of the Code. 

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 Saraklock Section 1 block 775 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 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 United church every Sunday for service and worship whilst on probation; 
(ix)	You shall undergo counselling from your local pastor Ruben Karvuvu 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 Aidah Nuak Seringian in the sum of K 1000.cash and 30 param Tolai shell money and a live pig valued at K400.

(xi)	The restitution shall be witnessed by your probation officer, the police informant, Pastor Ruben Karvuvu and Saraklock village court magistrate.

(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