N7870
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 221 OF 2018

THE STATE

V

ESROM JETHRO HAGO

Kerevat:  Anis J
2019:  8, 15, 16 & 20 May

CRIMINAL LAW – Sentence – grievous bodily harm – section 319 - Criminal Code Act Chapter No. 262 – appropriate sentence – type of punishment – whether compensation appropriate - whether suspended sentence and imposed conditions appropriate under the circumstances

Facts

The prisoner pleaded guilty to the offence grievous bodily harm.  The prisoner used the victim’s bush knife to cut him on his lower left hand.  His lower bone ulna was exposed as a result of the deep wound, and he has lost sensory functions to his 4th and 5th index fingers of his left hand.

Held

1.	“Bush-knife related offences are common in the country.  A bush-knife is a dangerous weapon.  Deaths, serious assaults and threats that may be linked to other serious crimes occur with the aid of or with the use of bush-knives.”

2.	A punitive or deterrence sentence was warranted in this case.

3.	“This is a Criminal Court proceeding.  The Court’s core function is to punish law breakers with convictions and sentences.  Its core function is not to award compensation, but if it does so like for example awarding compensation under the Criminal Law (Compensation) Act 1991, it would be to punish a prisoner and it would be based on different criteria and rationality, that is, unlike for example compensation that is awarded by a court of civil jurisdiction.”

4.	The prisoner was sentenced to 3 years imprisonment.  The time served in custody was deducted and the balance of his sentence was fully suspended with imposed probationary conditions.

Cases cited

Saperus Yalibakut v The State SCRA No 52 of 2005, (27.04.06)
Steven Loko Ume v. The State (2006) SC836

Counsel

Ms J. Batil, for the State
Mr N. Katosingkalara, for the Accused

SENTENCE

20th May, 2019

1.	ANIS J:	The prisoner pleaded guilty to the offence grievous bodily harm on 8 May 2019.  The Court heard submissions on sentence on 16 May 2019 and reserved its ruling to today at 9:30am.

2.	This is my ruling.

BACKGROUND

3.	The incident started in the early hours of the morning, that is, at 1am on 5 September 2017.  The prisoner was drunk at that time.  He was at a place called Pawa Haus at Warongoi in East New Britain.  He approached the house of Wally Gubby (the victim).  The prisoner pushed the door of the victim open and went inside the house.  The victim, who was asleep inside, saw the prisoner so he took out his bush-knife and pushed the prisoner out of his house.

4.	Early that morning, around 6:30am, the victim confronted the prisoner in front of the prisoner’s house with a bush-knife.  The victim cut the prisoner on his right forearm with the bush-knife.  The victim tried to escape after that, but he slipped and fell to the ground.  The prisoner got the same bush-knife off from the victim and swung it at the victim.  The victim lifted his left arm to protect himself and he was cut right there.  The victim bled heavily from his wound.  He was admitted to the Warongoi Rural Hospital and later onto the Nonga Base General Hospital in Rabaul.  There the victim underwent surgery and treatment to his left hand.  The victim sustained a life-threatening injury with loss of function to his left land.

5.	The prisoner pleaded guilty to the above summary of facts.

ISSUE

6.	The main issue of course is to determine the fitting punishment for the prisoner.

PERSONAL INFORMATION

7.	The prisoner is 25 years old.  He was educated up to grade eight (8) in high school.  He did not excel further after that.  He has some work experience.  He worked as a labourer with Niugini Gold Ltd for about three (3) months in 2010.  His recent employment was with GK Construction.  He worked there until he was charged with the offence.

8.	He is married and has three (3) children, ages between two (2) to four (4) years old.  His wife now looks after them in the village.

ANTECEDENT REPORT

9.	The prisoner has no prior conviction. 

ALLOCATUS

10.	The prisoner said quite a lot of things at allocatus.  Let me summarise them.  He said he respects the Court in relation to what he had done.  He said that it was the victim that started the fight.  He said the victim cut him with the bush-knife.  He said after that, the victim tried to run away but he fell down to the ground which was when he got the victim’s bush knife and cut the victim on his left hand.  He said the victim’s family demanded a pig from him.  He said he bought a pig for K500 and gave it to the victim and his family on 8 September 2017.  He said there had been attempts to mediate the matter.  He said he did not had the full amount of what was agreed upon at mediation for him to pay.  He said he had K500 cash and that was what he gave to the victim.  He said in total, he paid the victim K1,000.  He said the victim and his family were dissatisfied which was why they had told police to arrest and charge him.

11.	He said after the incident, the victim and his family threatened him and his family.  He said they told him that they would cut his family members into pieces like pigs.  He said he feels like his family needs his support.  He said because of the incident, his family will be neglected by his in-laws, so he wants to be there for them.  He said his mother had died.  He said his father is alive and currently works as a pastor in New Ireland Province.  

12.	He wants the Court to make a reasonable decision based on what he has said.  He asks that the Court should give him a good-behaviour bond or suspended sentence.

MITIGATING/AGGRAVATING FACTORS

13.	I note submissions by both counsel on mitigating and aggravating factors.  In my view, the mitigation factors are, (i), first time offender, (ii), early admission, and (iii), guilty plea.  The aggravating factors, in my view, are, (i), use of offensive weapon, (ii), victim suffered serious life-threatening injury, and (iii), victim’s loss of function to parts of his left hand, that is, his 4th and 5th index fingers.  

EXTENUATING CIRCUMSTANCES

14.	The admitted facts show that the victim had attacked and cut the prisoner first.  The bush-knife was the victim’s.  The victim used it to cut the prisoner on his right hand and as he was about to flee, he tripped and fell, which was when the prisoner took the same bush-knife and swung it at the left hand of the victim.

15.	I find that the action of the victim amounted to de facto provocation.  I will regard that as an extenuating circumstance.

OTHER MATTERS OF FACT

16.	The prisoner has pleaded guilty.  As such, he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocatus or in submissions that are not contested by the prosecution.  See case: Saperus Yalibakut v The State SCRA No 52 of 2005, (27.04.06).  Therefore, I will take into account the following:

(i)	The victim and his family had issued threats to the prisoner and his family;
(ii)	A ward committee member described the victim as someone who contributes nothing to the ward but rather as someone who causes trouble and uses the community leaders to bail him out.  He also described the victim as a drunkard.
(iii)	The prisoner and the victim have a history of dispute over their blocks of land; they are married to two (2) sisters whose father owns the land where they live.
(iv)	The mediation had resolved that both men were wrong, and it set terms for both men to comply in terms of paying compensation.  For the prisoner, it was agreed that he would pay the victim K2,300.  As for the victim, it was agreed that he would pay K500 to the prisoner.  The prisoner paid K1,000 in cash and kind (i.e., a pig worth K500 and K500 cash) to the victim.  The victim did not pay anything to the prisoner.

SENTENCE

17.	The offence grievous bodily harm carries a maximum sentence of seven (7) years.

18.	I note submissions and case authorities presented by both counsel in this regard.  For the State, the case authorities relied upon indicates a sentence range from two (2) and half years to five (5) years.  For the defence, it submits that a sentence of two (2) years would be suitable for the prisoner.

19.	In my view, the starting point would be three (3) years imprisonment.  I note that the injury sustained was life threatening.  For example, the victim could have died from loss of blood.  And the victim appears to have sustained some permanent injuries to his left hand.  The prosecution submits that offences that involve use of bush-knife are prevalent in the county and therefore a deterrence sentence is required.  I agree.  Bush-knife related offences are common in the country.  A bush-knife is a dangerous weapon.  Deaths, serious assaults and threats that may be linked to other serious crimes occur with the aid of or with the use of bush-knives.  A punitive or deterrence sentence is therefore warranted in this case.

20.	In regard to the aggravating factors and deterrence sentence, I will impose one (1) year sentence under each heading.  This will see the sentence increase to five (5) years.  The next things to note are the mitigating factors.  In my view, if I add the mitigating factors together with Other Matters of Fact, it should reduce the sentence.  In this case, I will allow a discounted sentence of two (2) years.  This will then see the sentence being reduced from five (5) years to three (3) years.  I will impose a final sentence of three (3) years imprisonment upon the prisoner.

TYPE OF PUNISHEMNT

21.	The next question I have is this.  Will I impose full, partial or no suspended sentence for the prisoner? 

22.	To reach a decision, I take the following into consideration.  Firstly, I refer to the pre-sentence report by the Community Based Corrections.  The report was prepared by Senior Probation Officer Nigel Amos and it was filed on 15 May 2019.  In my view, I regard the report as balanced and fair.  The report considered the views of people from both sides, namely, those of the prisoner and those of the victim.  It also noted comments of independent persons like for example a ward member of the area where the offence was committed.  The report recommended that the prisoner was a suitable candidate for probation.  My second consideration is this.  I take into account the extenuating circumstance namely de facto provocation.  I have addressed that above in my judgment.  When I apply that, it should reduce the severity of the offence committed by the prisoner and which to me would suggest that suspended sentence and probation may be better options for the Court to consider.  As stated by the Supreme Court and I quote in part, extenuating circumstances relate to the circumstances of the offence which reduces or diminishes the gravity of the offence whereas mitigating factors are usually unrelated to the circumstances of the offence.  See case:  Steven Loko Ume v. The State (2006) SC836.  The third consideration is this.  The prisoner had co-operated with police; he had attended to mediation and I note that although he did not fully comply with what had been agreed upon, which was to pay a sum of K2,300 to the victim, he paid to the victim a total sum of cash and pig that were valued at K1,000.  This to me, shows the prisoner’s sincerity to the victim, to his community, and to the law, that is, in relation to the offence that he had committed.

23.	When I add all these, I am satisfied that the prisoner qualifies for suspended sentence to be imposed with probationary conditions.

COMPENSATION

24.	There is suggestion of willingness to pay compensation by the prisoner and willingness to accept on the part of the victim and his family.  However, I refuse to make any orders to that effect.  Firstly, I note from the means assessment report that the prisoner does not have any real means to pay compensation.  I note that the prisoner and his wife appear optimistic in their views in the report, but I am not sure whether these can be translated into real commitments.  The second reason is this.  In my view, various information show that the prisoner had been reasonable in the earlier mediation exercise between the parties.  However, I note that there had been no co-operation shown by the victim and his family.  The prisoner had paid some form of compensation, that is, K1,000.  The victim and his relatives did not pay anything to the prisoner as had been agreed through mediation.  They were dissatisfied with what the prisoner had paid them which was why they had the prisoner arrested and charged.  The third reason is this.  The prisoner has pleaded guilty to the offence.  He has a conviction record against his name which will remain with him for the rest of his life.  He has served almost one and a half years in prison whilst awaiting his trial.  He has now been sentenced to three (3) years imprisonment.  In my view, the prisoner has and will continue to be punished for his crime.

25.	If the victim wishes to seek compensation, he may do so and there are legal avenues available under law for that.  This is a Criminal Court proceeding.  The Court’s core function is to punish law breakers with convictions and sentences.  Its core function is not to award compensation, but if it does so like for example awarding compensation under the Criminal Law (Compensation) Act 1991, it would be to punish a prisoner and it would be based on different criteria and rationality, that is, unlike for example compensation that is awarded by a court of civil jurisdiction.

PRE-SENTENCE PERIOD

26.	The prisoner has been in custody for one (1) year four (4) months.  I will exercise my discretion and deduct one (1) year four (4) months from his sentence of three (3) years.

SUMMARY

27.	This is my summary on sentence for the prisoner:  I impose a sentence of three (3) years upon the prisoner.  The prisoner’s time served in custody shall be deducted from his sentence.  I will also order that the balance of his sentence after that be wholly suspended with imposed conditions.  In relation to the probation conditions, the prisoner shall report to his probation officer in Kokopo for six (6) months starting next month once every month, that is, on the first Mondays of each month.  The prisoner shall not consume alcohol and shall keep the peace and to be of good behaviour at his village for the duration of the probation period.  The prisoner shall not leave East New Britain during the probation period without first notifying and seeking the approval of his probation officer.  And the prisoner’s probation officer is at liberty to and may enter the prisoner’s home during reasonable hours.

ORDERS OF THE COURT

Length of sentence imposed	3 years	
Pre-sentence period in custody to be deducted	1 year and 4 months	
Sentence balance remaining	1 year 8 months	
Amount of sentence suspended	1 year 8 months	
Time to be served in custody	Nil	
Conditions: 	1.  The prisoner shall report to his probation officer in Kokopo for a period of six (6) months starting next month, that is, June 2019, on the first Mondays of each month.
2.  The prisoner shall not consume alcohol during the probation period.
3.  The prisoner shall keep the peace and to be of good behaviour during the probation period.
4.  The prisoner shall, immediately after Court, give details of his current location address to his probation officer.  He shall not leave East New Britain Province during the probation period without first obtaining permission from the probation officer.
5.  The probation officer is at liberty to enter the prisoner’s home during reasonable hours 	
Place of custody	Nil	

___________________________________________________________
Office of the Public Prosecutor:	 Lawyer for the State
Office of the Public Solicitor:	Lawyer for the Prisoner