N8354

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 1121 OF 2019

THE STATE

v

PATRICK NUHWON PIHMBOU

Lorengau: Kirriwom J
2020: 2 & 10 June

CRIMINAL LAW – Sentence – GBH – Plea of guilty –De facto provocation - Three years imprisonment - Wholly suspended with conditions – Criminal Code, s.319

Cases Cited:

The State v Martin Konos [2010] N4157 
The State v Kana Paulus [2019] Cr. 1079 of 2018 (Unreported)

Counsel:

P Kaluwin, for the State
K Pokiton, for the prisoner

REASONS FOR SENTENCE
10th June, 2020
1.      KIRRIWOM J: The prisoner pleaded guilty to unlawfully doing grievous bodily harm to one Jacob Hakai, contrary to section 319 of the Criminal Code. The offence took place on 9th January 2019 near or beside a graveyard where burial of the prisoner’s late father was still in progress. The victim, an uncle of the prisoner and half-brother of the prisoner’s late father, the deceased, provoked the prisoner when he questioned the family over their decision to bury their father on the land where he was being buried, that had been subject of dispute between him and their father. The prisoner who was intoxicated at the time reacted spontaneously to that challenge by attacking the victim with a bush knife.
2.     The prisoner is a young man aged 19 years old from Mundripureu village, Lorengau, Manus Province. His mother is alive but unwell and in her seventies. He is the last born in the family of six children, four males and two females. His education only went as far as Grade 7 and he was unable to continue further when his father became ill and both parents moved to Lae for the father’s treatment in the hospital in Lae that took a long time until he passed away and his body was flown home for burial.
3.     I note that the prisoner is quite remorseful for his actions which he blames his uncle for provoking the assault when he confronted them with other people, also armed with bush knife. But he regrets his actions and the injury he caused on the victim who he said was his father’s half-brother as they are from the same mother but different fathers. He said he wants to pay compensation to his uncle if given opportunity to do so.
4.     The offence carries a maximum penalty of seven years imprisonment. Mr. Pokiton submits that an appropriate punishment would be within the range of 2-3 years and wholly suspended. He referred me to The State v Kana Paulus [2019] Cr.1079 of 2018 (unreported), one of my decisions delivered here in Lorengau in my last circuit where I sentenced the prisoner to 3 years and suspended the entire sentence on the condition that the prisoner compensated his brother (victim) in the sum of K500. That was a case where the victim, the prisoner’s brother was willing to accept compensation and did not want his brother to go to prison. Similarly, in The State v Martin Konos (2010) N4157 the prisoner pleaded guilty to GBH and was sentenced to three years imprisonment but suspended on condition that he paid compensation of K500 to the victim.
5.     In sentencing the prisoner, I take into account his plea of guilty, expression of remorse, prior good record, de facto provocation where the victim raised a sensitive and on-going issue of land when the prisoner and family were already in the process of completing the burial of the prisoner’s father on the disputed land, the victim was insensitive to the mood that the family was in ie. they were in mourning and the burial was in its advanced stage and no amount of protest on the part of the victim would change the course of events that had progressed which was already far too late for the victim to avert unless he wanted confrontation. And that is what happened here. He therefore has himself to be blamed for the harm caused to him.
6.     I note from the PSR that an attempt to reconcile with the victim through payment of compensation did not materialize for reasons not clearly articulated by the report. But I do note that the victim avoided being interviewed by CBC officer for purposes of compiling the PSR requested by the court in this matter. That only aggravates the victim’s own predicament rather than negating any exercise of discretion on the part of the court in its resolve to reconcile the parties in the sentence imposed.
7.      I accept the prisoner’s willingness to compensate the victim as the means of reconciling with him. I note that the prisoner has been in custody for one year, two months and almost three weeks. 
8.     I therefore sentence the prisoner to three years imprisonment and deduct the time already spent in custody which now leaves him with one year, eight months and one week. I suspend the remaining term on conditions:
i.	That the prisoner compensates the victim Jacob Hakai in the sum of K2000 within six months from today which event must be witnessed by the CBC officer and community leaders and recorded for reporting to this court.
ii.	That the prisoner shall keep peace and be of good behavior for two years
iii.	That the prisoner shall refrain from consuming alcohol and or drugs and other intoxicating substances for a period of two years from the date of this order.

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