N8061
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO.  993  OF  2016

THE STATE

V

DAVID MATALAU

Kokopo:  Susame AJ
2019:  20th, August, 4th & 23rd September

CRIMINAL LAW – Offence – Grievous bodily harm s.319 Criminal Code – Plea – Aggravating factors outweigh factors in mitigation – Punitive deterrent appropriate - sentence 4 years starting sentence – 6 years effective sentence. Time in custody deducted – Balance of sentence 5 years 11 months 27 days

Cases Cited:

The State v Kerry Reuben Trowen (2002) N2239
The State v Konos (2010) N4157
The State v Morris Kramar CR NO. 1375 of 2018 (10 May 2019)
The State v Pennningso Vube Cr No. 1123 of 2007

Counsel:

Mr. G Tugah, for the State
Ms. C Pulapula, for the accused. 

DECISION ON SENTENCE

23rd September, 2019

1.	SUSAME AJ:	 You were convicted on your plea for one count of grievous bodily harm charge under s 319 of the Criminal Code on 20 August 2019. Decision on your sentence was reserved and is now being delivered. 

Facts

2.	The facts upon which you were convicted are as follows. The attack on the complainant occurred at about 10.00 o’clock in the night on 26 March 2016. Complainant got off a PMV truck and was walking up to Sonoma College with his friend Londe Richard. They came upon you and your friend at the boom gate. 

3.	Complainant asked you and your friend if you had met some guys on the road as they had threw stones at them.  One of you replied this was your territory and you do roam around at night. One of you flashed a torch directly at the complainant’s eyes. Complainant went for the torch and tried to remove it. You then called out he is the one same time swinging a bush knife slashing his face. In fear complainant and his friend ran to the campus. You went after them and cut the complainant again twice on his back. Complainant ran to the security guard’s house while his friend ran to the boy’s dorm. Complainant called out to the guard but he never responded. You kept chasing him and chopped him twice on the head.

Address on Sentence

4.	In your address on sentence at allocutus you said you were sorry to the court for what you have done.  You would like to say sorry to the court for the family at home. You asked the court for mercy. Court to be lenient on you and place you on good behaviour bond. That is all. 

Submissions

5.	Court has heard submissions. They have been considered. 

Sentencing Considerations

6.	The offence of grievous bodily harm carries 07 years maximum imprisonment term. Maximum penalty could be considered if features and circumstances of the case are very grave or aggravating to be considered as the worst type.  That has been the sentencing trend in this jurisdiction. There are certain aggravating factors which makes your case quite serious. Mr Tugah had asked court to impose the maximum sentence. I decided against it because you have pleaded guilty and saved court’s time and resources. You cooperated with the police and made early admissions of your guilt. This was your first conviction. 

7.	Most of the aggravating factors have been canvased by Mr. Tugah in his submission which Court will incorporate. These are: 

1.	A lethal weapon was used
2.	Attack was unprovoked.
3.	Victim was unarmed
4.	Victim was chased and slashed multiple times on his face, back and head.
5.	Attack was committed in the night
6.	Offense is quite prevalent. 
7.	There was no reconciliation and compensation paid to the victim. 

8.	You expressed remorse for your actions. You asked the court to be merciful and lenient on you. You pleaded for conditional release on good behaviour bond. Your lawyer also asked the court to impose a suspended sentence with conditions.  

Pre- Sentence Report

9.	Court allowed the pre-sentence report to be received after submissions were heard.  The report contains additional information, about yourself your family, their views. Victim’s views were not obtained because according to the author he had left for his Province and could not be located. As such it will serve no good purpose if compensation is ordered as a condition if a non-custodial sentence is considered.  

Sentencing Guidelines & Tariffs

10.	Counsels have referred the court to several decided cases in their respective submissions. They offer some guide and are not binding on this court. The cases were decided on their own peculiar circumstances and set of facts. I will not list them all here. The sentences imposed started from as low as two years suspended sentence in The State v Pennningso Vube Cr No. 1123 of 2007 by his Honour late Justice Lenalia and maximum of 7 years imposed by Kandakasi J ( as he then was) in The State v Kerry Reuben Trowen (2002) N2239. 

11.	Mr Tugah had asked the court to consider 3 years and half as the starting point following The State v Konos (2010) N4157. That is the decision of the National Court and is not binding on this court.  In The State v Morris Kramar CR NO. 1375 of 2018 (10 May 2019) I considered head sentence of 4 years as appropriate.  I will follow and maintain that position given the prevalence of attack on individuals with the use of lethal weapons such as grass knives and bush knives this modern day and age.  

12.	This is a serious life threatening offence committed on a person who almost lost his life prematurely. You were determined to attack him because you chased him around and at different spots you slashed him with the knife on different parts of his body. If there was any conflict between you and the victim then what is the justification for use of knife?

13.	Courts will not tolerate individuals like you who use lethal weapons like bush knives to attack other persons as a way of settling conflicts that can easily be resolved amicably through the accepted legal or customary forums. Courts has the duty to protect people’s lives against such vicious and life threatening attacks on other people’s lives.  When you commit a very serious crime such as this you will be jailed and separated from your family. That is a natural consequence of you breaking the rule of law.  Plea by your family will not save you from going to jail.  You will be sentenced based on the facts court has convicted you on and not any other facts as alluded to in the pre-sentence report. A punitive deterrent sentence is appropriate. 

14.	Four years will be the starting sentence.  Considering the aggravating factors which weigh against you sentence will go up to near maximum by two years.

15.	You are sentenced to 6 years with hard labour. 

16.	Pre - sentence period of 1 month & 3 days in custody shall be deducted from the 6 years sentence. 

17.	The balance of 5 years 11 months and 27 days will be served at Kerevat Jail subject to further remission by the Kerevat Jail Command. 

18.	Your cash bail shall be refunded to you forthwith. 

19.	Summary of sentence 

Head Sentence	  4 years	
Effective Sentence	  6 years	
Period in Custody	   1 month  3 days	
Balance of sentence to serve	   5 years 11 months 27 days 	

__________________________________________________________
Office of the Public Prosecutor:	Lawyers for the State
Office of the Public Solicitor:	Lawyers for the Prisoner