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State v Bonny [2020] PGNC 321; N8534 (25 June 2020)

N8534

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1039 OF 2020

THE STATE

V

WANPIS BONNY

Kokopo: Suelip AJ
2020: 9^th, 12^th & 25^th June

CRIMINAL LAW - Sentence-Plea - Guilty- grievous bodily harms - 319 of the Criminal Code Act- prisoner is brother in law to complainant - complainant swung bush knife at prisoner and missed- prisoner got bush knife and swung at complainant and cut his hand - complainant sustained serious injury to his 2^nd, 3rd, 4^th and 5^th fingers on his right hand - sentence of 2 years, wholly suspended with conditions

Cases Cited

Goli Golu v State [1979] PNGLR 653

The State v Sheekiot (2011) N4454

The State v Komos (2010) N4157

The State v Tokenaki (2015) N5960

The State v Paranis [2009] PGNC 145; N3761

The State v Songe (2017) N6759

State v Sam [2018] N7512

State v Sinkil [2018) N7509

The State v Kevin Ambai [2018] PGNC 74; N7154

The State v Hilary Lemia [2012] PGNC 179; N4817

The State v Kos [2013] PGNC 221

The State v Sam Piapin [2009] PG.NC 227; N3585

State v Albert Kavena [2015] PGNC 188

The State v. Hago (2019) N7870

The State v. Timi [2012] PGNC 369; N4610

The State v Rummits [2012] PGNC275, N4900

The State -v-Boala [2013] PG.NC 180, N5369

Legislations

Section 319 of the Criminal Code
Section 3(2) of the Criminal Justice (Sentences) Act
Section 19(e) of the Criminal Code Act.

Counsel

G Tugah, for the State
S Pitep, for the Prisoner

SENTENCE
25^th June, 2020

1. SUELIP AJ: On 9 June 2020, Wanpis Bonny, a 27-year-old male of

Agivu Village, Okapa, Eastern Highlands Province, was indicted on one count of unlawfully causing grievous bodily harm to one, Nalepa Vaiamo. It is alleged that the offence was committed on 3 April 2019 at Wangawanga Village, East New Britain Province.

2. The prisoner's personal particulars are that he is 27 years old and single.

His mother is deceased. He attended school only up to grade 2 and was living and working as a security guard at Ulaulatava in Kokopo when he was arrested. He is a member of the Seventh Day Adventist Church.

3. The prisoner appears from custody whilst awaiting trial and pleaded guilty to the charge.

4. Parties made submission on sentence on 12 June 2020.

5. This is now my decision on sentence.

Facts

6. The State alleged that on 3^rd April, 2019, between 11pm and 12pm, the accused was at Wangawanga Village located at the Palavirua Ward, Kokopo Nunamani LLG in Kokopo, East New Britain Province. He was at the house of one David Aleida.

7. At the same time and place, Nalepa Vaiamo (the complainant), came around looking for his wife and found her there, sitting and talking with the accused. Seeing this, the complainant got angry, so he got a bush knife and

swung it at the accused. The knife missed the accused. The accused then tackled the complainant to the ground and he struggled to get the knife off the complainant. David Aleida then came in between them and stopped them.

8. Some minutes later, the accused got the bush knife, ran towards the complainant, and swung it, aiming his head. The complainant blocked the knife with is right arm and the knife cut his hand. The complainant was brought to the hospital. He sustained a serious injury to his right hand (2^nd, 3^rd, 4^th and 5^th fingers).

9. The State alleges that the accused's actions contravene Section 319 of the
Criminal Code because he caused grievous bodily harm to Nalepa Vaiamo.

Issue

10. What is the appropriate sentence?

Antecedent report

11. The prisoner has no prior convictions.

Pre-sentence term

12. The prisoner has been in prison since 23 April 2019 and has remained in

custody to date for 1 year, 2 months and 2 days.

Allocutus

13. The prisoner says this is his first time to stand before the Court and

apologizes. He says his parents have passed and he is sorry for causing grievous bodily harm to the victim and in doing so, he broke the law of the government. He says he will compensate the victim with K500.

Mitigating factors

14. The counsel for the prisoner submitted the following as mitigating factors in this case that the Court should take into consideration, that the prisoner is young and is a first-time offender, the victim instigated the fight when he swung the bush knife at the prisoner, the prisoner was provoked in that the victim decided to badly assault his sister in front of him, the victim has been treated and does not have any permanent injuries, the prisoner cooperated when the Police arrested him, he entered an early plea of guilt during his Record of Interview and the prisoner expressed genuine remorse to the court and the victim who is his brother in law.

Aggravating factors

15. Factors against the prisoner includes that the victim sustained injuries due to the actions of the prisoner, the prisoner used a weapon namely a bush knife to inflict the injuries on the victim, and that the offence of grievous bodily harm is prevalent in society.

The Offence

16. Section 319 of the Criminal Code provides:

319 GRIEVOUS BODILY HARM

A person who unlawfully does bodily harm to another person is guilty of a crime. Penalty: Imprisonment for a term not exceeding seven years.

17. In order to prove the offence of grievous bodily harm pursuant to s. 319 of the Criminal Code, the State must show evidence to establish that the prisoner caused serious bodily harm to another person and that he did it unlawfully.

18. I have read the depositions and I have confirmed the plea of guilty.

Submission on sentence

19. Ms Pitep, on behalf of the prisoner submitted that although the Criminal Code Act imposes a maximum penalty of seven years for the offence of grievous bodily harm, the nature of the offence committed by the prisoner is not of the worst type and therefore it does not warrant the penalty of seven years. She relies on the case of Goli Golu v State [1979] PNGLR 653 where it is held that the maximum penalty must be reserved for the worse type case. She asked to invoke the Court's discretion under s. 19 to impose a sentence lesser than the maximum penalty.

20. As regards the proper head sentence, Ms Pitep submitted that in light of the circumstances of the offence committed, the appropriate starting point is 3 ½ years as seen in The State v Sheekiot (2011) N4454, State v Komos (2010) N4157; and State v Tokenaki (2015) N5960.

21. The prisoner's counsel relied on the following cases:

(i) In the Kokopo case of The State vs. Kevin Ambai [2018] PGNC 74; N7154, the offence in this case was committed in Warongoi, East New Britain. The prisoner had approached the victim and confronted him asking him if he (the victim) had reported him to the Police. The prisoner and the victim were walking together and arguing when the prisoner pulled out a bush knife and swung it at the victim. The victim lifted his arm to block the knife, but the knife cut his wrist. The prisoner pleaded guilty to grievous bodily harm under s319 of the Criminal Code.

The prisoner was sentenced to a term of five (5) years imprisonment. One year, one month was deducted for the period he was in custody. Remainder of the sentence was suspended upon the prisoner being placed on Probation for a period of four (4) years.

(ii) In another Kokopo case of The State v Paranis [2009] PGNC 145; N3761, the prisoner, being enraged by stories he heard from his two friends that the victim and his friends had sworn at them, used a bush knife in causing injuries to the small finger and adjacent tendons of the Victim's hand. The prisoner entered an early guilty plea to grievous bodily harm. The Court imposed a sentence of 2 years which was fully suspended with conditions.

(iii) In yet another Kokopo case of The State v Hilary Lemia [2012] PGNC 179; N4817, the prisoner and the victim all live up at Warongoi, East New Britain Province. The Prisoner and his wife had been having marital problems. Prior to the commission of the offence, the wife of the prisoner had sought refuge at the house of the victim by hiding there. When the prisoner heard this, he took his bush knife and cut the victim. The victim sustained three deep cuts on the right side and one deep cut on the left side of the face. The prisoner pleaded guilty to grievous bodily harm. The Court in this matter imposed a sentence of four (4) years which was fully suspended with conditions.

(iv) In The State v Kos [2013] PGNC 221, the prisoner is the husband of the victim. He used an axed to amputate two of the victim's fingers during an argument in which the prisoner suspected the victim of having extra-marital affairs. He was sentenced to four (4) years imprisonment in hard labour. The pre-sentence period was deducted and the 3 remaining years were suspended with conditions.

(v) Finally, in The State v Sam Piapin [2009] PGNC 227; N3585, the prisoner and the victim were close neighbours. They had a dispute early one morning over land boundary. At the time the prisoner had a spade which he swung at the victim. In an attempt to protect himself, the victim put her arms up, but the spade came with so much force that it amputated the victim's ring finger. David, J sentenced the prisoner to 3 years imprisonment less time spent in custody. The balance of two years was suspended on terms including doing free community work during the period of suspension.

22. The prisoner's counsel submitted that all the cases discussed above are

related to the hand and the fingers. However, the injuries sustained in all these cases she says, are more serious in that the fingers were actually amputated whilst in the case of State v. Ambai, the tendons were severed whereas in this case, there were injures to the tendon but the tendons were not totally severed nor was any of the victim's fingers amputated.

23. She submitted that the sentences in these cases ranged from 3 to 5 years

and were wholly or partly suspended with conditions. She further submitted that the injuries in this case is not as serious as those discussed in the cases above and therefore, a sentence below the starting point can be imposed.

24. The prisoner's counsel also discussed the case of State v Albert Kavena [2015] PGNC 188, wherein Polume-Kiele J stated that the starting point of 3½ (three and a half) years set out in the above cases of State v Sheekiot (supra) and State v Konos(supra) is subject to adjustment upwards or downwards depending on the relevant facts and circumstances of a particular case including the various mitigating and aggravating factors as set out in the above cases. The 7 aggravating factors set out in the case of State v Sheekiot are as follows:

(i) there is use of a lethal weapon such as a bush knife or axe on an

unarmed victim;

(ii) the offender inflicts injury on a vulnerable part of the body; (iii) the offender is part of a group;

(iv) the offender inflicts multiple injuries on the victim;

(v) the offender attacks the victim with a non-lethal or lethal weapon and the victim suffers permanent disability or life-threatening injuries;

(vi) the victim is unarmed or innocent; and

(vii) where there is pre-planning.

25. Ms. Pitep submitted that when we apply the guideline to this case, there are only 3 aggravating factors out of the 7 listed above:

(i) there is use of a lethal weapon namely a bush knife;

(ii) the offender inflicted injuries on a vulnerable part of the body;

(iii) the offender inflicted multiple injuries on the victim.

26. She submitted that since there are only 3 out of 7 aggravating factors found in this case, this should render a head sentence below the starting point of three and half years. She says further that having looked at the mitigating factors, the aggravating factors, and the comparable cases, it is seen that the mitigating factors in this case outweigh the aggravating factors. In addition, she says that the extent of injuries in the above comparable cases are more serious than the injuries sustained in this case and the range of sentencing imposed in those cases was 3- 5 years. Based on the circumstances of this case, Ms Pitep submits that a sentence of 3 years would be the appropriate sentence.

27. Mr Tugah, for the State submitted the following mitigating factors are present in this case before the Court and they are in the prisoner's favour. These factors are that the prisoner is a first-time offender with no prior conviction, that the prisoner had pleaded guilty hence, saving Court's and State's time and resources in conducting a trial and that the prisoner made admissions to police and cooperated with the police. He further submitted that the State conceded that there was some de facto provocation on the part of the victim when he assaulted the prisoner's sister in front of the prisoner.

28. As regards the aggravating factors, the State submitted that the following aggravating factors are present in this matter and they are peculiar to this case where the victim suffered cuts to his 4 fingers from one blow, that the attack involved a bush knife, that this is a serious act of violence, that the attack is unnecessary as there are proper ways of dealing with the argument rather than violence, that the victim went to the hospital on his own medical expenses, and that the prevalence of the offence in the society and the need for deterrence.

29. To guide the Court, the State has submitted the following as comparable cases:

(i) In the Kokopo case of The State v. Hago [2019] PGNC 148; N7870 (20 May 2019), the prisoner pleaded guilty to the offence of grievous bodily harm. Prisoner used the victim's bush knife to cut the victim on his lower left hand. His lower ulna bone was exposed as a result of the deep wound and he lost sensory functions to his 4^th and 5^th index fingers of his left hand. The Court held that "bush-knife related offences are common in this 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. It was also held that a punitive or deterrence sentence was warranted in this case. The prisoner was sentenced to 3 years imprisonment, time spent in custody deducted and the balance fully suspended with imposed probationary conditions.

(ii) In The State v. Timi [2012) PGNC 369; N4610 (14 March 2012), also at Kokopo, the accused pleaded guilty to GBH under s.319 of the Criminal Code. The prisoner cut the victim's left knee with a bush knife after a fight. The prisoner was sentenced to two years in hard labour, pre-trial custody period was deducted, and the balance was wholly suspended on conditions.

(iii) In The State -v- Rummits [2012] PGNC275, N4900 (21 November 2012), the offender pleaded guilty to one count of GBH. She attacked the victim with an iron rod fracturing her skull which at time of sentence had healed but the doctor's opinion was that the victim would continue to suffer life-long post-traumatic symptoms as well as being susceptible to Post-cerebral Concussion Syndrome. David J. sentenced the prisoner to 4 years imprisonment. His Honour wholly suspended the sentence on condition that the offender paid K1000 find and K5000 compensation within 5 months and performance of community service.

(iv) In The State -v- Boala [2013] PGNC 180, N5369 (25 September 2013), the prisoner pleaded guilty to causing GBH to the victim, an officer of the National Maritime Safety Authority (NMSA) by hitting him with a paddle on the arm and head resulting in a fracture to the victim's left arm. The offender had no prior convictions, acted alone and acted in the spur of the moment. His Honour Geita AJ. (as he then was), however, was of the view that this attack on an officer of a law enforcement agency was serious. His Honour sentenced the prisoner to 4 years imprisonment part of which was suspended on terms.

30. In conclusion, the State submitted that any grievous bodily harm offence is serious and is prevalent in our society, hence it calls for both personal and general deterrence and this case is no different, considering the prevalence of the offence and the fact that there was a serious assault, a custodial sentence is warranted in this case. Finally, the State submitted that a warning should be sent to the general public and any would be offenders out there that such acts should not be tolerated.

31. The issue before the Court is the appropriate sentence for the prisoner. Whilst Ms. Pitep for the prisoner submitted that although the offence committed by the prisoner is serious, it is not of the worst-case type attracting the maximum penalty prescribed under s. 319 of the Criminal Code Act. On the other hand, Mr Tugah for the State, submitted that any grievous bodily harm offence is serious and is prevalent in our society, hence it calls for both personal and general deterrence and this case is no different, considering the prevalence of the offence and the fact that there was a serous assault, a custodial sentence is warranted in this case. Finally, the State submitted that a warning should be sent to the general public and any would be offenders out there that such acts should not be tolerated.

32. Are the facts of this case so serious that the maximum penalty must be imposed? If not, what is the lesser penalty? The Court has a very wide discretion to impose a sentence below the maximum penalty under Section 19 of the Code based on proper judicial principles.

33. There is no Pre-Sentence Report nor statements from the family or community with views of the prisoner and what is available to rehabilitate the prisoner. Hence, I am not assisted in this regard.

34. In consideration of the facts and the circumstances of this case with the case precedents cited by both counsels, I am of the view that this is not a worst case and so, I will impose a lesser penalty to the maximum penalty of 7 years imprisonment.

35. 35. In summary of the prisoner's submissions, the offence committed by the prisoner is serious, however not extensive. There were injures to the tendon, but the tendons were not totally severed nor was any of the victim's fingers amputated.
    

36. This is a family related violence and the prisoner has shown genuine remorse to the victim who is his brother in law.

Application of facts to the law

37. The mitigating factors in the prisoner's favour are that the prisoner is young and is a first-time offender, the victim instigated the fight when he swung the bush knife at the prisoner, the prisoner was provoked in that the victim decided to badly assault his sister in front of him, the victim has been treated and does not have any permanent injuries, the prisoner cooperated when the Police arrested him, he entered an early plea of guilty during his Record of Interview and the prisoner expressed genuine remorse to the court and the victim who is his brother in law.

38. There is also no Victim's Impact Statement and so there is no confirmation on whether the victim is still suffering from the injuries he sustained.

39. Further, the prisoner submitted that he was provoked and caused the injuries to the victim and the State conceded that there was in fact some provocation when the victim assaulted the prisoner's sister in front of him.

40. The State conceded to the following mitigating factors which are that the prisoner is a first-time offender with no prior conviction, that the prisoner had pleaded guilty hence, saving Court's and State's time and resources in conducting a trial and that the prisoner made admissions to police and cooperated with the police. He further submitted that the State conceded that there was some de facto provocation on the part of the victim when he assaulted the prisoner's sister in front of the prisoner.

41. Having considered all of the above, I am satisfied that the appropriate penalty for this prisoner is a sentence for 2 years.

Should an or part of the head sentence be suspended?

42. The prisoner has been in remand since 23 April 2019 and so he has been in custody to date for 1 year, 2 months and 2 days. The prisoner's counsel submitted that the pre-sentence custody term be deducted pursuant to s.3(2) of the Criminal Justice (Sentence) Act which gives this honourable Court the power to do so.

43. The prisoner's counsel further submitted that in considering as to whether the remainder of the sentence should be wholly suspended, she asks the Court to look at the circumstances surrounding the prisoner's act of violence on the victim who is also his brother-in-law again and take into account the fact that the victim in this matter was the one who started the argument with the prisoner. The prisoner's counsel submitted that the victim not only tried to cut the prisoner with the bush knife but he also assaulted his wife, who is the prisoner's sister in the presence of the prisoner and their elder brother.

44. Ms Pitep further submitted that this is a one-off incident and will not happen again and the prisoner is genuinely remorseful when he apologized before this Court and he seeks to make peace with his brother-in-law. She submitted that being a youthful offender, the time he has spent in custody is sufficient for the prisoner to realize that his actions were wrong and in breach of the law. The prisoner is also generally a person of good character and will not be a threat to society if he is given non-custodial sentence.

45. Ms Pitep also submitted that the Court exercise its discretion under s.19(e) of the Criminal Code Act and suspend the remaining sentence of 1 year, 2 months and 2 days and impose a non-custodian sentence by weighting out the circumstances and the facts of the case.

46. She finally submitted that the Court should further impose conditions that the prisoner should enter into his own recognizance to keep the peace and be of good behaviour during the period of suspension and whatever conditions the Court deems fit.

47. I agree in general with the prisoner's counsel's submissions, and in consideration of all the above factors, I make the following orders.

(1) The prisoner is sentenced 2 years imprisonment.

(2) His pre-sentence term of 1 year, 2 months and 2 days is deducted from the head sentence.

(3) The balance of his term of 9 months and 28 days is wholly suspended on the following conditions: -

(a) that he pays the sum of K500 as compensation to the victim, who is his brother in law in front of all his family members within 2 months from today.

(b) he shall enter into his own recognizance without surety to keep the peace and be of good behaviour during the period of suspension.

(c) he shall not change his residential address at Kokopo unless he has given the National Court Registry reasonable notice of his intention to do so and the reason for the proposed change.

(d) he shall not leave Kokopo town without the leave of this court during the period of suspension.

(e) he must attend his local Church every weekend for service and worship and submit to counselling.
(f) he shall not consume alcohol or drugs.

(g) if he breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence,

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Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisone