N7985

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 388 OF 2019

THE STATE

V

DANNY DIRONA

Alotau: Toliken, J.
2019: 15th July, 28th, 30th August

CRIMINAL LAW – Sentence – Grievous bodily harm – Plea – Prisoner cuts uncle’s arm with bush knife  – Mitigating and aggravating factors considered – Appropriate sentence – 3 years less time in custody – Suspension – Appropriate case for – Criminal Code Ch. 262, s 319. 
		
Cases Cited: 

Avia Aihi v The State (No.3) [1983] PNGLR 92
Goli Golu v The State [1979] PNGLR 653
Kesino Apo v The State [1988] PNGLR 182
The State v Bupei (2016) N6848 
The State v Konos (2010) N4157
The State v Lami Kursi; CR NO. 880 of 2015 (13.05.16) 	
The State v Nicky Lawasi (2015) N5964
The State v Tokenaki (2015) N5960

Counsel:

A Kupmain and J Apo, for the State
P Palek, for the Prisoner

					SENTENCE

30th August, 2019
	
1.	TOLIKEN J:  Danny Dirona on Monday 15th July 2019, you pleaded guilty to one count of unlawfully causing grievous bodily harm to Nevi Aaru, an offence under Section 319 of the Criminal Code Ch 262 (the Code).

BRIEF SUPPORTING FACTS

2.	On 24th October 2018, at Kihikihiuna Village on Logea Island, Samarai-Murua District, you were drunk and got involved in a fight. The complainant had gone to a creek to fetch water in a bucket and was on his way back. He tried to stop you because you drunk and disorderly but you attacked him with a bush knife instead. You cut him on the left arm and also cut the bucket full of water which he was carrying. You inflicted a deep cut to the complainant’s left arm.
    
3.	I entered a provisional guilty plea which I confirmed after satisfying myself that the evidence in the committal court depositions supported your charge. I then convicted you.

4.	Your Lawyer requested for a pre-sentence report (PSR) and the matter was adjourned for a report to be prepared. The Probation Officer had been ill lately and was thus unable to furnish your report sooner. He finally did and I heard you and the lawyers on question of punishment on 28th August 2019.    

THE OFFENCE

5.	The offence of unlawfully causing grievous bodily harm carries a maximum penalty of 7 years imprisonment. However, the maximum penalty is reserved for worst instances of an offence. Each case must also to be treated on its own merit or peculiar facts and circumstances. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1983] PNGLR 92) 

ISSUE

6.	The issue for me then is; what should be an appropriate sentence for you? If I consider that this is a worst offence I can sentenced you to 7 years which is the maximum. If it is not then I must impose a lesser sentence.  

ANTECEDENTS

7.	You are 25 years old and come from Kihikihiuna Village on Logea Island. You are single and are the first born in a family of 7 siblings. Your parents are still alive and you are a member of the Kwato Church. You have not completed your Primary School Education having gone up to Grade 5 only before dropping out. This is your first offence. You have been in pre-trial detention for 10 months and 6 days.

 ADDRESSES TO THE COURT

8.	You apologised to the Court, to God and to the State for breaking the law. You also apologised to the community, the victim and his family and asked that the Court show you mercy and place you on probation.

9.	Your Lawyer Mr. Palek submitted that yours is not a worst case of GBH and therefore you should get a sentence below 4 years. He suggested that you be sentenced to a period between 1 – 3 years. He cited several factors which he said should mitigate your offence such as your lack of prior conviction, early guilty plea and the fact that you co-operated with the police by surrendering yourself. Counsel also said that the complainant who is your uncle attacked you with 4” x 4” piece of timber hence you were provoked in the non-legal sense. He acknowledged though that this is a prevalent offence and that you used an offensive weapon.
 
10.	Counsel also cited a few decided cases and says that at least one of them – The State v Bupei (2016) N6848 per Injia CJ.) - bears some similarity to your case. I will come to the details of this case a little later, but Mr. Palek said that ,as in your case, the offender there was also drunk and also used a bush knife to attack his victim who was related to him.
	
11.	Mr. Palek referred to your PSR which he said is a balanced one which favourably recommends probation supervision for you with conditions including compensation. The PSR in fact reveals that you and your immediate family offered to compensate your victim in cash and kind to value of K3000, comprising of a cash component of K800, 1 x live pig valued at K1500.00, 10 x baskets of yam at K100 each, and 10 bunches of banana  at K50.00 each.  The victim and his brother want you to reconcile with them but want you to pay K2500 in cash, one pig valued at K1000, 5 x baskets of yams at K100.00 each and K500 worth of store goods. 

12.	Counsel submitted therefore that you be given a suspended sentence and placed probation.
 
13.	 Mr. Kupmain asked the Court to consider several factors. First, you attacked your maternal uncle which is a grave infraction or offence in your society. Second, your attack on your uncle was vicious and while the PSR says that you are not a danger to the community, Counsel submitted that you can be very dangerous to other members of your community especially when considered against the wide spread of alcohol by persons in your age group. Counsel asked “If you reacted violently against you close relative, how would you react to those who are not related to you? However, if that the Court is inclined to give a suspended sentence Counsel then submitted that a lengthy period of probation would be appropriate to allow you to be rehabilitated.

WHETHER A WORST OFFENCE

14.	This is not a worst offence when viewed objectively. I assess your culpability to be at mid-level. In The State v Konos (2010) N4157, Canning, J set the starting point for this offence at 3 ½ years. I follow this case and set your starting point at 3 ½ years. 

COMPARATIVE SENTENCES

15.	Now let me just consider a few cases to give you an idea about the kind of sentences had been imposed on offenders for this type of offence.
 
16.	The State v Konos (supra): The offender there pleaded guilty to fracturing his nephew’s knee. He also inflicted other superficial wounds to the victim’s body. As we have seen above, His Honour Cannings J held that the starting point for this offence ought to be 3 ½ years. His Honour then imposed a sentence of 3 years which he then wholly suspended on condition.

17.	The State v Bupei (supra): There the offender and a few of his relatives confronted the victim, a cousin of his, and attacked him for reporting him to the village councillor for stealing betel nuts from victims garden.  The victim fell to the ground and they kicked him as he lay there vomiting. The offender who was armed with a bush knife swung the knife at the victim and as he lifted his right hand to protect himself the knife landed on his left hand completely severing it. The victim was hospitalised and his amputated hand completely healed. His Honour the Injia CJ sentenced the prisoner to 4 years imprisonment. His Honour, did not think, however, that it was appropriate to order compensation in those circumstances. He was of the view that compensation, where close relatives are involved, will not serve any utility as their relationship will heal over the passage of time regardless of whether or not compensation is paid.

18.	The State v Nicky Lawasi (2015) N5964: The offender there was returning from a dance party with a cousin brother and the victim. They were all drunk. The victim and the offender’s cousin got into an altercation and upon seeing the victim trying to attack his cousin the offender picked up a dry stick and hit the victim on the head knocking him unconscious. He then assisted the victim to the hospital and later surrendered to the police. On his guilty plea I sentenced him to 2 ½ years less time in custody and wholly suspended the balance.
 
19.	 The State v Tokenaki (2015) N5960: There the offender pleaded guilty to one count of grievous bodily harm. He and his friends, armed with bush knives and sticks, were on the road between Okeboma and Okuyoukopu Villages on Trobriand Island, waiting for the victim with whom they were angry over something that he had apparently done. When he arrived they attacked him with sticks and knives. The victim received three major lacerations and three minor ones to various parts of his body but none of these was life threatening. He was hospitalized at the local Health Centre and later discharged. No permanent injury or disability was diagnosed. I sentenced the offender to 4 years imprisonment less time in custody. The balance was fully suspended with conditions including compensation.

20.	The State v Lami Kursi; CR NO. 880 of 2015 (13.05.16). The offender pleaded guilty to causing GBH on the victim by stabbing him repeatedly on different parts of his body. In the early hours of the date in question the offender was walking along the main road at Bubuleta village with other youths. They were under the influence of alcohol when they met the victim. He flashed a torch on the victim’s face and then attacked him with a small kitchen knife, stabbing the victim repeatedly on several parts of his body inflicting serious injuries on the victim. The victim had to be hospitalized for his injuries. His treatment included grafting skin to a wound on his elbow. Even though the offender pleaded guilty and was a first time offender and a favourable Presentence Report, I sentenced to 3 years less time in custody. None of this was suspended.

DELIBERATIONS ON YOUR CASE

21.	Having set a starting point of 3 ½ years for you, I need now to impose an appropriate sentence for you. To do that let me consider your mitigating and aggravating factors.

Mitigating Factors	

22.	I find the following mitigating factors in your favour:

23.	
•	You pleaded guilty early to the charge thus saving time and money for the State.
•	You co-operaed with the police by giving yourself in voluntarily.
•	You are a first time offender.
•	You are a youthful offender.
•	You are an unsophisticated and adequately educated villager.
•	You did not pre-plan to attack the victim. 
•	You were provoked in the non-legal sense. The State has not negatived your assertion that you cut your uncle because he had assaulted you with a 4” x 4” piece of timber. Hence this can be appropriately taken in account in your favour. (Saperus Yalibukut v The State (2006) SC 890)  
•	You have expressed remorse and have shown this by offering to compensate and reconcile with your uncle the victim.
•	Your victim has recovered completely but may suffer from reduced strength in the use of his hand.
•	Your attack on your maternal uncle is self-inflicting and especially so in your matrilineal society where uncles are normally the custodians of the clan’s landholdings and ancestral history. (Kesino Apo v The State [1988] PNGLR 182) 

Aggravating Factors

24.	Against you though are the following aggravating factors:

•	You used an offensive weapon.
•	You were intoxicated.
•	This offence is very prevalent in this province and continues to rise.

Appropriate Sentence 
 
25.	So what should be an appropriate sentence for you, and what should be the object of your a sentence?
  
26.	The object of any sentence on you should be three-fold. Firstly to punish you, secondly and more importantly to rehabilitate you and to deter you personally and other who may be similarly inclined. Whether you are rehabilitated or not depends principally on you. I say this because regardless of how well meaning State institutions such as the Courts, Correctional Services and Community Based Corrections Services are, they cannot force or compel you to change and turn around and away from your criminal behaviour. You are not a hardened criminal as yet. This is your first offence and I am sure that your 10 months of incarceration will have taught you how important one’s personal liberty is. 

27.	You were intoxicated when you attacked and cut your uncle whose only concern was to stop you from being disorderly. In your drunken state, you spurned your uncle’s good intentions and attacked him with a bush knife. For all we know things may turned out quite differently as they often do in circumstances like this. You may have ended up killing your uncle and you would be in greater trouble than what you are currently facing. 

28.	It must be stated quite clearly that this offence is indeed very prevalent. There is too much violence in our society generally, but more specifically in this province which has a reputation of being the most peaceful in the country. Unfortunately that reputation is fast slipping away. Armed robberies, robbery at sea, homicides, serious assaults such a GBH and sexual offences are becoming very prevalent. These offences are largely committed by villagers like you thus making our villages very unsafe for peace loving people.
 
29.	When it comes to resolving disputes, people are resorting too quickly to violence. No longer do they resolve disputes amicably through traditional and formal dispute settlement authorities such as village chiefs or the Village Courts. And the result often is disastrous to everyone involved. Somebody is maimed, or lose limb permanently or otherwise, or loses his or her life and families are destroyed or rendered dysfunctional. Stiff sentences are therefore needed for personal as well as general deterrence.

30.	In your case I accept your mitigating factors but these must be balanced with your aggravating factors, which, even though lesser numerically are qualitatively significant. You attacked your uncle with a bush whilst intoxicated. Your intoxication obviously affected your judgement which at your age cannot be said to be well developed and reasoned. The prevalence of this offence requires that you be given an appropriately stiff sentence so that you are not only punished but also deterred and rehabilitated. Mr. Kupmain is correct in saying that if you can attack your uncle in the manner you did , then given the abject abuse of alcohol in our villages, what is there to stop you from doing the same to those not related to you?
  
31.	 You must therefore take responsibility for your offending. Unfortunately criminal behaviour often leaves other victims apart from the person harmed. Those victims such as the victim’s family members and of course the offender’s family members are totally innocent. But they must unnecessarily suffer out of no fault of their own.

32.	You would have come to the realisation that what you did has affected your immediate family and your relationship with your maternal uncles and other clan members. You have disturbed the peace and harmony within the clan and for that you must take the responsibility of restoring the damage you caused. That you have done by proposing to compensate and reconcile with your uncle the victim. And that is commendable.

33.	In the case of The State v Bupei (supra) the former Chief Justice expressed the view that compensation and reconciliation are not necessary in cases involving closely related parties because damaged relationships can heal over time. I am not sure I can agree with that. While it may be true that relationships of this nature do heal over time, there are numerous others which have not healed despite the passage of time and despite the closeness of the relationship. Therefore not every damaged relationship between those related by blood can heal over time.
 
34.	Whether compensation needs to be paid to a victim must ultimately depend on the views of the victim himself. He may very well refuse compensation, but if he does demand compensation then it is his right to do so, and no court should refuse to order compensation in a criminal case unless it is beyond the amount allowed under the Criminal Law Compensation Act or the offender totally lacks the means to pay whether in cash or kind.
 
35.	The victim in Bupei did not ask for compensation and on that point alone Bupei can be distinguished from the present case where the victim, your uncle had asked that you compensate him. It may very well be that that is what is expected of you in your Logea custom. I will, therefore not follow Bupei because I am of the firm opinion that you must compensate and reconcile with your uncle.

SENTENCE

36.	All things considered I think that an appropriate sentence for your should be 3 years. I therefore sentence you to 3 years imprisonment less the 10 months and 6 days you had been in pre- trial detention.

SUSPENSION

37.	Should any of the balance of sentence be suspended? I think that this is an appropriate case for a suspension. I will therefore suspend the balance of your sentence and order that that you enter into a period of probation for 2 years with additional conditions.

ORDERS 

38.	The sentence and order of the Court are therefore as follows:

(1)	You are sentenced to 3 years imprisonment less the time you spent in pre-trial detention which 10 months and 6 days.
(2)	The balance of your sentence is wholly suspended and you are placed on probation for a period of 2 years with the following additional conditions –
(a)	You shall within 6 months from today reconcile with and pay the following as compensation to your uncle Nevi Aaru in the presence of the PCBCO and community leaders of Logea :
(i)	K2000.00 in cash,
(ii)	1 x pig valued at K1000.00, and
(iii)	5 x baskets of yam valued at K100 each; and
(b)	You shall not consume any form of intoxicating liquor or consume any narcotics such as marijuana.
(c)	You shall perform 120 hours of unpaid community work for the Logea Primary School under the supervision of the Head Teacher who shall be appointed as VPO.

39.	 You have the right to appeal to the Supreme Court within 40 days if are aggrieved by the sentence.

Ordered accordingly,
_________________________________________________________
The Public Prosecutor:   Lawyer for the State		
The Public Solicitor:   Lawyer for the Prisoner