N7577

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1092 OF 2018

THE STATE

V

AARON KAKI

Bialla: Miviri AJ
2018: 12 & 20 November

CRIMINAL LAW – PRACTICE AND PROCEDURE – GBH S 319 CCA- Plea-Prisoner reacted to victims bush knife that cut his forehead – victim punched to the ground – then cut on the face with bush knife – life threatening injury – victim brought matter upon himself –prisoner used force over & above – prevalent offence – deterrent sentence.
Facts
Prisoner got cut on his forehead when victim swang bush knife at the post which slid cutting him on his forehead. Prisoner retaliated punched him down picked up same bush knife and cut him on the face with it.

Held
Prevalent offence
Guilty plea
Life threatening injury
Strong and deterrent sentence
3 years IHL

Cases Cited: 
The State v Hagei [2005] PGNC 60; N2913 
The State v Hianu [2006] PGNC 75; CR 1767 OF 2005 (25 August 2006)
The State v Heni [2008] PGNC 206; N3541 
The State v Irowen [2002] PGNC 99; N2239 
The State v Waimba [2016] PGNC 430; N6954 

Counsel:

D. Kuvi, for the State
B Takua, for the Defendant
						
   SENTENCE
20th November, 2018
1.	MIVIRI AJ:  This is the sentence of Aaron Kaki who pleaded guilty that he cut the nose of one Mathias Balupa with a bush knife.

Short facts

2.	Prisoner Aaron Kaki was sitting near a post adjacent to the store of one Colleen Natimbo. It appeared there was a dispute between Colleen Natimbo and the victim who was pursuing armed with a bush knife that he struck at the post where prisoner was sitting on the night of 23rd March 2018. The knife slid and cut the forehead of the prisoner. He reacted and punched the victim down to the ground. Then picked up the bush knife and cut the victim on the nose.

Charge Grievous bodily Harm

3.	He was charged and pleaded guilty to unlawfully causing grievous bodily harm pursuant to section 319 which had imprisonment not exceeding seven years as its penalty. Obviously given his facts and circumstances he will not be sentenced to seven years but a determinate term proportionate.

Mitigation

4.	Prisoner would not have reacted as he had had it not been for the victim acting as he did over his son informing that Colleen Natimbo had taken possession of a mobile phone that victim gave to the son. Rather than follow a process to peacefully settle the matter victim came armed with a bush knife. He paid no heed to the other persons who were within that vicinity when he acted as he did. At the time that he swung the bush knife at the post of the store belonging to Colleen Natimbo it did not occur that the prisoner was sitting adjacent to the post and accident as did happen will occur. Prisoner reacted as any other normal human being would react given the situation causing what was caused the victim. It was the victim who brought it upon himself as rightly pointed by the prisoner in his allocutus, “I would not have acted as I did if the victim had done what he did to me.” And this is clear in view that he had no part in what victim had with the owner of the trade store. What was between them ought to have followed amongst them and not invoked to involve the whole community as was demonstrated. The victim was also wrong in taking the law into his own hands and to taking it out on innocent persons like the prisoner. The reaction of the prisoner was instant and in response he could not be held unilaterally responsible sentence must apportion taking account. Prisoner where he was did not expect that he would be the subject of an attack. For the victim he must follow the process of law either in the committees set up in the blocks for these purpose, or the village court, or go to the person at fault and to settle it at that level. Picking up a bush knife is not a lawful way to settle disputes or grievances as he has found out the hard way being cut on the face and nose. Respect must be accorded and observance of the rule of law must be heeded. 

Antecedents

5.	Prisoner is originally from Ireleya village Wabag Enga Province. He is a first offender aged 38 years old. He is married and is a subsistence farmer at Vilelo Section 7 Block 795 and has been resident there for 18 years. And is of the seventh day Adventist mission. He supports himself on the oil palm produced and sold from his block. 

6.	In allocutus he stated that he took and proposed initiative to pay for the medical in the sum of K500 which was refused by the victim demanding K2500. Including payment of compensation of K1000 which was also refused by the victim insisting on K6000. He pleaded to be accorded mercy in the sentence that was passed and stressed it was the victim who brought the actions. In my view these are extenuating circumstances which will bear in the final sentence upon the prisoner. He has pleaded guilty and it speaks well. And similar position has been taken by this court as in State v Hagei [2005] PGNC 60; N2913 (21 September 2005) where the death penalty was envisaged but avoided because of the peculiarities of the case against the prisoner. In similar way I take heed in the sentence upon the prisoner given. Victim is not altogether with clean hands to use civil law he contributed and that will show out in the sentence passed.

7.	A single photograph head on of the victim shows a blooded nose. It does not depict well to determine extent of injury. The medical report dated the 16th February 2018 is not compatible in the light of the fact that the injury was caused on the 23rd March 2018. It is more than probable that the medical report has its dates wrong as to when it was written. Because the author Clinical Health Extension officer Jeffery Huvi says he saw the victim at 10pm on the night of the 23rd March 2018. That he had sustained a knife wound cutting the nose all through leaving part of it hanging. The cut was 10cm and 2 incisor upper teeth were mobile and painful. The report details the treatment and recovery of the victim. There is deformity to his normal anatomy of the nose. By his injury he too will learn that grabbing a bush knife will not solve a problem. For the prisoner he must be deterred to not go over and beyond necessary to preserve life and limb to be excused in law as recently shown in State v Michael Dau [2018] PGNC 407; N7518 (17 October 2018) prisoner was attacked in his house by the victim accompanied by two others. He sustained cuts to his body that required treatment at the hospital that brought him back to life. He was brought on a stretcher to the hospital. He speared victim in the thigh then cut off his wrist and leg. He acted over and above necessarily to preserve himself and therefore the sentence imposed was 5 years IHL but the remainder after time in custody was deducted suspended on a probation order with conditions following suit.
8.	That is a more serious case than the present because the conviction was for section 315. It is not parallel with State v Hianu [2006] PGNC 75; CR 1767 OF 2005 (25 August 2006) the defendant was sentenced to 4 years IHL for smashing a full bottle of beer on the face of the victim who suffered the permanent loss of his other eye as a result. 2 years was imposed in custody and 2 years was suspended on a non-custodial term with conditions for payment of compensation. The prisoner has reacted because of the actions of the victim as in State v Heni [2008] PGNC 206; N3541 (11 December 2008) in Kimbe on the 11th December 2008 Prisoner reacted over a previous attack by the victim upon seeing him in the same PMV he retaliated with a bush knife cutting him on the hand fracturing it as a result. The wound was 8 cm long and 2 cm deep requiring seven internal and eight external stitches. Joel also suffered a fractured wrist. He was rushed and successfully treated at a nearby health centre. The court imposed 4 years IHL for grievous bodily harm under section 319 as appropriate given that the attack was in a public motor vehicle in it there were other passengers who were traumatized and could have been hurt by the bush knife that he used there. There was ongoing conflict between the two. Comparable that is a more serious case than the present. Because it is instant here prisoner reacts immediately to the actions of the victim inflicting the injury he does. Whereas the former is of one harbouring a long outstanding feud and then when they meet taking it out inflicting the injuries that are inflicted. It is therefore serious compared. Here time would not be as high as that given the facts.
9.	In the State v Waimba [2016] PGNC 430; N6954 (18 May 2016) 8 years IHL was imposed upon the prisoner under influence of homebrewed alcohol who cut the face of a policeman investigating a criminal complaint. Comparably the scene here would draw 3 years IHL as appropriate given all set out above. He has pleaded guilty with favourable recommendations from the presentence and means assessment reports before the court dated the 19th November 2018. Both he and the victim are in agreement to have compensation paid and the matter resolved in that light. All live at the same locality and it is important to maintain that relationship in the community there for all. There is nothing adverse out from the facts and circumstance to so consider contrary. The prisoner is prepared to pay K2000 in cash and a pig valued at K1000.  Victim has not voiced contrary. In all fairness bearing all set out above it is adjudged that for the crime of grievous bodily harm pursuant to section 319 of the Code the prisoner is sentenced to 3 years IHL.
10.	And in the exercise of my discretion pursuant to section 19 of the criminal Code taking due account of all the sentence of 3 years IHL is fully suspended on 3 years good behaviour bond on conditions ;-
(i)	You shall enter into a probation order for 3 years
 
(ii)	You shall within 48 hours report to the Probation Officer;

(iii)	You shall be resident at Vilelo section 7, Block 795 Bialla at all times in the course of your probation period.

(iv)	You shall not leave this place of resident or Bialla 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 Seventh Day Adventist Church every Sabbath for fellowship and worship whilst on probation; 
(ix)	You shall undergo counselling from your local Seventh Day Adventist Pastor for number of times as may be determined by the counsellor;

(x)	You shall within 4 months as of the date of release from Jail make restitution to Mathias Balupa in the sum of K1000 in cash, a pig valued at K600 and garden food valued at K300.

(xi)	The restitution shall be witnessed by your probation officer, the police informant, Florian Namtasia Village Peace officer Vilelo Community policing and Pastor Toring Andep of PNG Bible Church.

(xii)	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;

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

(xiv)	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.
11.	Bail is refunded forthwith
Ordered accordingly,

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