N7527

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 989 OF 2018

THE STATE

V

SAKARIAS MON

Vanimo: Geita J
2018: 7th 10th 18th September

CRIMINAL LAW – Sentence - Victim cut with a bush-knife resulting in amputation of the lower left arm –Grievous bodily harm, Criminal Code Section 319 – Guilty. 

CRIMINAL LAW — Sentencing — Aggravating factors outweigh mitigating factors - Grievous bodily harm — Probation considered inappropriate - Early guilty plea rewarded.

Cases Cited:

The State v Alois Kohu Lombei: CR No. 1357 of 2015
The State v Issac Nagi (2017) N6965

Counsel:

MrRaphael Lumen, for the State
Mr Michael August, for the Accused

JUDGMENT ON SENTENCE

18th September, 2018

1.	 GEITA J: 	 You pleaded guilty to one count of doing grievous bodily harm to Markus Awan contrary to section 319 of the Criminal Code Act. The offence of grievous bodily harm carries a prison sentence not exceeding seven years.

Brief Facts

2.	I accepted your guilty plea but entered a provisional plea of guilty and then proceeded to read the depositions handed up in support of the charge against you.  In your record of interview given to police you elected to remain silent. Your Lawyer confirmed instructions on your guilty plea. A guilty plea was then formally entered on your behalf with a conviction. The brief facts are these:  On Monday 29 January 2018 at around 11 am you and the victim were summoned to attend a mediation in which custody of a shotgun left behind by late Paul Buep was to be discussed. However prior to the mediation proper you armed yourself with a busk knife, approached the victim in an aggressive manner and cut him on the lower part of his left arm with the bush knife you were carrying. The victim now has a permanent disability with his left arm amputated as a result of the injury. The medical evidence forming part of the depositions confirms findings of the nature of the injury and eventual amputation.

Criminal History

3.	No prior convictions have been recorded against your name and I accept that position as presented to me by the State Prosecutor.

Allocutus

4.	In your allocutus or when you were asked if you had anything to say about the punishment that should be considered you said this was your first time to appear before a National Court and you asked for leniency as you have six children to look after. You said you were sorry to the victim and his relatives for the harm caused to him. You also expressed your willingness to pay compensation and to help the victim build his house and to make a garden for his family.

Mitigation Factors

5.	1.	No prior convictions, first time youthful offender
	2.	Expression of remorse in allocutus
	3.	Guilty plea
	
Aggravating Factors
	
6.	1. Use of dangerous weapon, bush knife
	2.Prevalence
	3. Permanent injury caused to the victim 
	4. No genuine remorse shown
	5. Lack of provocation and pre-planning
	5. Violent crime committed in a public place

Pre- Sentence Report

7.	A pre- sentence report prepared and submitted on your behalf by Probation Officer Marilyn Binjarion 14/09/ 2018 was slow to recommend you for probation based on the seriousness of the crime you have committed. Instead a part non-custodial sentence of probation with conditions was recommended. Your means assessment report showed your ability to pay compensation payment. You come from a family of five children. You are married with 6 children of your own. Your community respects you as a hard working leader who is always prepared to speak up for others. 

Submissions on sentence - Defence

8.	In his oral submissions Defence Lawyer Mr. August submitted that a wholly suspended sentence be considered on the strength of mitigating factors which outweigh aggravating factors: The accused was a first time offender, he pleaded guilty and was willing to pay compensation. In support of his submissions on your behalf he referred the Court to the case of The State v Issac Nagi (2017) N6965. In that case the accused pleaded guilty to grievous bodily harm in which the victims left arm was cut with a bush knife resulting in amputation –He was sentenced to 4 years which was wholly suspended with conditions. Some element of provocation was present in that case however his mitigating factors seem to have outweighed the aggravating factors. Mr August submitted that Court consider a head sentence of 4 years less pre-trial custody period of 7 months with the remaining balance of the sentence to be suspended with conditions.

Submissions on Sentence - State

9.	The State Prosecutor Mr. Raphael Lumen submitted that the aggravating factors outweigh the mitigating factors, especially in light of the amputation of the victim’s left hand causing a permanent disability. Furthermore there was some element of pre planning and disrespect of a lawful mediation process in the village. He submitted that that the sentencing trend for grievous bodily harm cases under section 319 Criminal Code for injuries not considered serious attracts sentences ranging between 3 – 4 years and in more serious cases, including permanent injuries sentences range between 5 to maximum 7 years. Although the pre-sentence report was favourable to the accused his conduct and behaviour tells a different story.  He is short tempered and a danger to the community. The prisoner showed no genuine remorse and should be punished harshly with a sentence of up to 6 years. Mr Lumen said the accused plea for the welfare of his children were self-serving to avoid a jail term. The Court was urged to be guided by the case of The State v Alois Kohu Lombei: CR No. 1357 of 2015. In that case I sentenced the accused to 8 years with some suspensions and conditions. The charge was laid under section 315 Criminal Code. Mr Lumen submitted that there were factual similarities which the Court could consider in sentencing the accused in this case. He submitted that a head sentence of 6 years be considered.

10.	In deciding the appropriateness of a sentence to be imposed to the factual situation before me I have had the benefit of submissions from both lawyers on all relevant issues. I also have had the benefit of a pre-sentence report presented to me. In distinguishing the case referred to me by Mr August for the prisoner: 1. There was some element of provocation; 2. Genuine remorse was shown; 3. Mitigating factors outweigh the aggravating factors. It follows that the recommended sentence advanced by Mr. August on behalf of his client grossly inadequate and not proportionate. The distinguishing feature in the case put before the Court by State is that the charge was under section 315 Criminal Code which attracts a higher penalty as opposed to section 319 with maximum 7 years sentence. However I do agree with Mr Lumen that there are factual similarities in both cases. In the accused’s case the attack was pre-planned, unprovoked and committed in public place at the place of mediation. Permanent disability resulted with amputation. It follows that the degree of seriousness in this case was therefore high and a punishment other than a prison sentence would be a travesty in my view.
 
Court: Remarks

11.	As to your early guilty plea I will give special dispensation as I firmly believe that accused persons must be rewarded for their early guilty pleas. Besides other numerous reasons for these, the savings gained in not running long drawn out trials remains high and real. A nominal deduction will be considered. Your remaining mitigating factors are outweighed by your aggravating factors. Might I add here that my task as trial judge and sentencing judge is exercised judicially based on all evidence before me from both sides? Each case is different with particular circumstances and in most situations will ultimately determine the kind of sentence that must be imposed.  

Order

12.	Due to the foregoing reasons I consider a head sentence of 5 years less pre-trial period of 7 months of which two years will be suspended. That will leave you with 2 years and 3 months to be served at Vanimo Goal. Out of that one year will be suspended from the time you pay a reasonable compensation of K5000.00 to the victim to defray his hospital expenses. 

Sentenced accordingly.
________________________________________________________________
Public Prosecutor: Lawyer for the State
 Public Solicitor: Lawyers for the Accused