N7732

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1311 OF 2016

THE STATE

V

JOHN TINE

Kimbe: Miviri J
2019: 12th February

CRIMINAL LAW – PRACTICE AND PROCEDURE – GBH S 319 CCA– Plea–knife cut – head frontal scalp– lacerations –residual injuries – argument presence in yard – PSR MAR ordered – favourable to prisoner – prevalent offence – breach of bail – shot injured by Police – permanent injury – disable leg injuries – deterrent sentence
Facts
Prisoner cut the victim on the head with a knife causing serious life threatening injuries after they argued.

Held
Guilty plea
Residual injuries
Good PSR MAR
Strong and deterrent sentence
3 years IHL

Cases Cited: 
Public Prosecutor v Tardrew [1986] PNGLR 91
Pauta & Susuve v The Commissioner of CIS & Ors [1982] PNGLR 7 
The State v Aihi (No 3) [1982] PNGLR 92 
The State v Irowen [2002] PGNC 99; N2239 
The State v Waimba [2016] PGNC 430; N6954 
The State v Philip Piapia [2017] N6763 
The State v Steven Tumu [2017] N6768 
The State v Tupulit [2015] PGNC N6185

Counsel:

J Apo, for the State
D Kari, for the Defendant
SENTENCE
5th March, 2019 
1.	MIVIRI J: 	This is the Sentence upon John Tine of Pari village, Kundiawa, Simbu Province who pleaded guilty to cutting a neighbour with a bush knife causing him Grievous Bodily Harm.

Short facts

2.	On the 3rd October, 2014 at Gigo Settlement between 10 and 11 o’clock in the night, Joe Adith, the victim drove into his yard. He saw figures at the back there. He went armed with a bush knife to enquire who they were. An argument developed with the Prisoner, one of the persons there. He got a knife and cut Joe Adith on his head. Who sustained laceration to his head and was treated at Kimbe General Hospital. Prisoner unlawfully caused Grievous Bodily Harm to the victim.
 
Charge

3.	He was charged with Grievous Bodily Harm pursuant to Section 319 of the Code. It read, “A person who unlawfully does grievous bodily harm to another person is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.”

4.	Prisoner was not justified in law for the injuries that he caused upon the victim. It was a life threatening injury and the victim continued to suffer from it. Medical evidence obtained under hand of Doctor Jack Marcus Medical Officer dated the 17th October, 2014 showed Joe Adith 49 year old male was treated at the Kimbe General Hospital Accident and emergency on 3rd of October, 2014. He had head injuries from severe laceration of the frontal scalp of the head where semicircular skin of the head was lifted off leaving exposed the skull bone and was bleeding very badly. He had associated lacerations to the left forearm right flank of the stomach. The wounds were cleaned skin was sutured back under local anaesthetics with 17 stitches. Two wounds in the stomach and the forearm were cleaned and dressed. He also received intravenous fluids antibiotics and pain relieving tablets. Stitches were removed after seven days and on review were a large scaring tissue on the frontal scalp. He often had headaches and dizziness in the head and now loss of memory after that severe head trauma. 

5.	It is a very serious injury with lingering residual injuries. The determination to inflict is numbered by the injuries on the body, which could have easily led to death. Neighbours in suburbs must respect each other and live harmoniously. K1000 was paid by the sister and mother of the offender to the victim who has confirmed receipt. Prisoner has paid K300, 16 param (tambu) shell money equivalent to K160 which has been accepted by the victim. There is peace settlement and mending of the relationship between both parties. 

Aggravation

6.	The offence is aggravated because Grievous Bodily Harm, “means any bodily injury of such a nature as to endanger or likely to endanger life, or to cause or be likely to cause permanent injury to health,” section 319 Criminal Code. Which is the status of the victim confirmed by the Medical Report. The head is one of the most vulnerable parts of the body. Injury to it will inevitably cause death and the records of the court will confirm the many instances emanating. Here the facts depict a matter that could have been easily resolved between both prisoner and victim as they were adjoining neighbours at the same settlement Gigo. It did not need to end up as they did in a fight with the use of knives. Because as happened victim was injured grievously to the head. It could have been easily the prisoner because victim also had a knife at that time. Both could have easily succumbed to serious injuries and even death. Random attacks as demonstrated here depict no respect for the rule of law. For both, Gigo is in Kimbe and both are aware of the law. To tamper with the realm and ambit of the law in this way must be seriously punished. Joe Adith was enquiring as to who were within his immediate vicinity. It should not have led to the prisoner attacking if his own approach was not what neighbours should be, respecting each other living together with each other harmoniously. By arming himself with a bush knife he in a way provoked the prisoner into acting as he did. From the evidence it appeared that Joe Adith himself was under the influence of liquor. It makes sense that he did not recognize a neighbour resident for many years. He contributed to his demise by running armed with a bush knife coupled with the fact that he was effected by alcohol. Inciting resurrecting disorder unlawfulness here in this province is prevalent and must end. The rule of law is supreme and will continue to send forth its tentacles into society to stop those who dare to defy. Use of knives as a weapon is rampant throughout this province at the pick of those who defy the law must meet no leniency from the courts. In this particular case there must be a balance drawn. The victim was armed with a bush knife and the prisoner used a knife upon the head of the victim after avoiding a swing by the latter. 

7.	I take due regard that the Prisoner is a disabled man at the hands of Police when he was shot whilst in breach of bail allowed in the offence. It emanates from the offence and will be balanced in the sentence passed. Presentence report details he is immobile without the aid of crutches. He has continued to appear in court in this manner. In the light of Pauta & Susuve v The Commissioner of CIS his servants & agents [1982] PNGLR 7 (19 February 1982) his sentence will reflect to balance that only by law is sentence passed not otherwise. And sentence must be proportionate to the crime set out by its own facts and figures which I do so here.

8.	Given the prevalence of this offence there has been no amendment to the penalty provision it remains 7 years maximum in a worst case, Aihi v The State (No 3) [1982] PNGLR 92 (5 March 1982). Worst cases have seen for instance in State v Irowen [2002] PGNC 99; N2239 (23 May 2002) 7 years cumulative under section 319 was imposed upon the prisoner for torturing, cutting, causing indecencies and indignities upon them over accusation of extra marital affair almost killing but leaving them with serious residual injuries, see also State v Waimba [2016] PGNC 430; N6954 (18 May 2016). Comparatively the facts of that case do not par with the present therefore a determinate term is due at the lower end of the scale. In this respect submission by both counsel are on point that the lower end of 3 years would suffice given all set out here. It is a serious offence and will draw a higher sentence but for the matters set out here. Each case will draw its own sentence by its own facts and that I do here.

Allocutus

9.	John Tine stated, “We fought and I shook hands with him and gave him four live chickens. My father died I am living with my mother. My leg is not good I am living very hard life. What I did I am very sorry” 

Mitigation

10.	The Prisoner is 33 years old married with a son from Pari, Kundiawa, Simbu Province. He has no record of any prior conviction. He is educated to Grade 4 at Gigo Primary School in 1997. But did not continue as his father had left and he did not have the means to continue. He found work as a security guard with Bayside Inn working there for 4 years earning fortnightly K 250 to K260. He was seen by an influential person whilst there who helped him secure employment with Nivani as a roller operator for 8 years. He committed the offence whilst in that employ and has since being terminated but survives by income earned from a small market stall outside home. He does not have any other means of cash except K5, 655.90 from his savings with NASFUND. He is unable to secure work because of his injury to his leg. He was shot by Police rearrested for breach of his bail. Both bones in his lower leg and ankle joint are shattered. He cannot be up and standing for long periods. He cannot walk without the aid of his crutches. And is hopeful that he will undergo medical reconstruction there to allow him to work properly. Without which he can effectively seek out paid employment with Nivani or any other company. Together with the help of his sister he has paid to the victim K1000 and two live chicken as part compensation. He is prepared to pay a further K1000 witnessed by leaders in the community and village court officials. His mother has voiced support to help prisoner pay any compensation if ordered. This would be in the vicinity of K400 as she also does some marketing. He follows neighbours to the SDA or the United Church. 

11.	Local village court magistrate Joe Wama states that the Prisoner has never been in trouble before within the community. And he is prepared to supervise him should the court so order, and to reconcile with the victim. Ward member ward 1 Kimbe Urban LLG also supports that prisoner is a humble person with no previous bad record within. He has no objections if the court were to release him back into the community. He is also prepared to supervise him.

12.	The victim Joe Adith knows the prisoner well for many years as a quiet man and neighbour until the attack.  

13.	Given all these facts and circumstances and taking due regard of Tardrew, Public Prosecutor v [1986] PNGLR 91 (2 April 1986) it would be proportionate to give effect to suspension of the sentence upon this material to promote personal deterrence, reformation and rehabilitation of the offender. That the suspension will promote repayment or restitution. And imprisonment will be disproportionate. This is drawing from section 19 of the Code. It would fall in with what this court has done in State v Philip Piapia [2017] N6763 (17 May 2017); see also State v Steven Tumu [2017] N6768 (23 May 2017). The sentence there were mid-range of 3 to 4 years part custodial and part suspension including  State v Tupulit [2015] PGNC N6185 (28 July 2015) where 5 years was imposed, K2500 was paid as compensation, time in custody was deducted and the balance was suspended on a probation order. 

14.	Here Prisoner has now become a disabled man and will endure that as a continuation of this offence upon him. He has together with his family not waited for formal orders of the court but set it upon himself to make good the wrong by payment of compensation, details which I take into account. He is willing and prepared to make further payment of K1000. The victim has asked for compensation by way of a pig that he can divide out with his family in settlement over the matter. That is not uncustomary in a Papua New Guinea setting but must be kept within reasonable limits of the facts of the case.

15.	Given this the sentence of the Court is 3 years in Light labour for the offence of Grievous Bodily Harm pursuant to Section 319 committed upon Joe Adith. That sentence will be wholly suspended pursuant to Section 19 of the Code on a Probation Order for the same period on conditions as follows:

(i)	You shall enter into a probation order for 3 years on conditions;
(ii)	You shall within 48 hours report to the Probation Officer;
(iii)	You shall be resident at Gigo 2, Kimbe Urban LLG Kimbe West New Britain Province at all times in the course of your probation period.

(iv)	You shall not leave this place of resident or Kimbe without leave of this court during the course of your probation period;
(v)	You shall perform 300 hours of light labour during the course of your probation order as directed by your probation officer.
(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 within 3 months or by or before Tuesday the 05th June 2019 make restitution to Joe Adith in the sum of K500 in cash and a live pig valued at K500 with garden food in the value of K200. 
(x)	The restitution shall be witnessed by your probation officer, the police informant or corroborator, Joe Wama Village Court Magistrate.
(xi)	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 within 14 days after discharge which is 25th June 2019;
(xii)	The Probation officer shall file a report on the responses and progress of the probationer every four months and at any other time or interval as the National Court may order upon application;
(xiii)	In breach of any of these Probation Orders your Probation shall lapse and you shall be arrested to serve the whole term of your sentence now suspended.
(xiv)	Bail Money is ordered refunded forthwith

Ordered Accordingly
__________________________________________________________________Public Prosecutor:  Lawyer for the State	
Public Solicitor   : Lawyer for the Defendant