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State v Gart [2020] PGNC 514; N8533 (25 June 2020)

N8533

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1342 OF 2019

THE STATE

V

GIDEON GART

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

CRIMINAL LAW - Sentence – plea – grievous bodily harm with intent s. 315 Criminal Code – two separate fights – victim’s small finger cut off and knee slashed with bush knife – 4 years sentence – partly suspended with conditions.

Cases Cited

Goli Golu v. State [1979] PNGLR 653
The State v. Kos (2013) N5365
State v. Pire (2016) N6319
State v. Jimmy (2018) N7246
The State v. Hago (2019) N7870
The State v. Roga (2012) N4804
The State v. Tamunei Lawrence & 2 Ors (2007) PGNC 17
State v. Toluana (2011) N4417
The State v. Taroh (2004) N2673

Counsel

G Tugah, for the State
N Katosingkalara, for the Prisoner

SENTENCE

25^th June, 2020

1. SUELIP AJ: On 9 June 2020, the prisoner, a 45-year-old male of Palamanda, Hagen Central, Western Highlands Province, pleaded guilty to one count of causing grievous bodily harm with intent pursuant to section 315 of the Criminal Code.

2. This is now my decision on sentence.

Facts:

3. The facts of this case are these. On the 23 June 2019, the prisoner and the complainant, Daniel Mark were at Raniolo Settlement in Kokopo, East New Britain Province. At that time, they were watching the second State of Origin match. After the game ended around 9:30pm to 10pm, the complainant and his friends were drinking beer at the venue. The prisoner then came and had an argument with the owner of the TV over a gen-set. There a fight broke out between the prisoner and the complainant and was stopped by bystanders. The complainant was then pulled to his house. The prisoner followed the complainant to his house and again, another fight broke out at the complainant’s house. They were again stopped, and the accused was pulled away. Early next morning at around 4am to 5am, the prisoner went to the complainant’s house, kicked opened the door and asked the complainant’s friend, Noel Simon as to the whereabouts of the complainant. At the same time, the complainant woke up from his sleep. When the prisoner saw him, he swung the bush knife at him and chopped off his right small finger. He then hit the complainant with the blunt side of the bush knife several times before the complainant ran outside the house. The prisoner then followed him outside and slashed his left knee with the bush knife. The complainant fell to the ground and as the prisoner lifted the bush knife to hit him again, he was shouted at by the neighbours to stop. The State charged the prisoner with one count of causing grievous bodily harm with intent pursuant to section 315 of the Criminal Code.

The offence

4. Section 315 of the Criminal Code provides the following:

315. Acts intended to cause grievous bodily harm or prevent apprehension.

A person who, with intent –

(a) to maim, disfigure, or disable any person; or

(b) to do some grievous bodily harm to any person; or

(c) to resist or prevent the lawful arrest or detention of any person,

does any of the following things is guilty of a crime –

(d) unlawfully wounding or doing a grievous bodily harm to a person; or

(e) unlawfully attempting to strike a person with a projectile; or

(f) unlawfully causing an explosive substance to explode; or

(g) sending or delivering an explosive substance or other dangerous or noxious thing to a person; or

(h) causing any substance or thin referred to in Paragraph (g) to be taken or received by a person; or

(i) puts a corrosive fluid or destructive or explosive substance in any place; or

(j) unlawfully casts or throws a fluid or substance referred to in Paragraph (i) at or on a person, or otherwise applies any such fluid or substance to the person of a person.

Penalty: Subject to Section 19, imprisonment for life.

5. The maximum penalty for the offence is imprisonment for life, subject to s. 19 of the Criminal Code.

Personal particulars

6. For purposes of sentencing, the prisoner’s personal particulars are these. He is married with 4 children, all of whom are in school. He has been living at Raniolo since 2011 with his family. He is unemployed and is engaged in informal marketing to sustain his family financially. He is a member of the Seventh Day Adventist Church

7. As regards his previous criminal records, the prisoner is a first-time offender and has no prior convictions.

Allocutus

8. During allocutus, the prisoner said this is his first time to stand before the Court and apologized to the Court. He also apologized to the complainant and his family. He said in 2017, the complainant broke into his house, and stole some of his properties including 2 penny boxes belonging to his daughters. He said that this incident now with the complainant happened in 2019. He said on 23 June 2019, the complainant got a bush knife and went to cut him and on the next day, he went and fought with the complainant. The prisoner said he is sorry for what he has done. He said that after the complainant was discharged from the hospital, they demanded compensation from his wife and daughters and got K2,200.

Prisoner’s submission

9. For the prisoner, the mitigating factors in his favour include his plea of guilt, no priors, de factor provocation by the victim and the prisoner acted alone. The aggravating factors against him include the use of lethal weapon, permanent loss of right small finger, offence prevalent in society, ambush attack on the victim early in the morning whilst he was asleep inside house, and he broke and entered the victim’s house.

10. His counsel, Mr Katosingkalara referred to Goli Golu v. State [1979] PNGLR 653 where it was held that the maximum penalty must be reserved for the worse type case. He argued that the circumstance of the offence committed by the prisoner is not the worse type hence, it does not warrant the maximum sentence of life imprisonment. He also relies on s.19 of the Criminal Code for the Court to exercise its discretion to impose a lesser sentence.

11. Counsel further argued that in weighing the mitigating factors against the aggravating factors, they balance out. He said, however, that this Court should put more weight on the fact that is that he is a first-time offender and has pleaded guilty before this Court. He also argued that there has been some money paid to the victim and his relatives by the prisoner’s wife as shown in her affidavit, and this should be taken in prisoner’s favour as a mitigating factor.

12. It is also argued that the offender sincerely expressed remorse to the victim and his family during allocutus for the injuries he caused to him, and his remorse is genuine since he pleaded guilty, thus accepting responsibility for the injury the complainant suffers.

13. The prisoner’s counsel relied on the following comparable cases to guide the Court in determining the appropriate sentence:

(i) In State v. Kos (2013) N5365, the prisoner was provoked by news of his wife, the victim, having extra martial affairs with another man. He was further provoked when incoming calls from other men appeared on victim’s phone, so they fought and he got an axe and cut off fourth and fifth fingers on her left hand. Prisoner pleaded guilty, had no priors, made early admissions in the Record of Interview, prior good character, de factor provocation, sole attacker, violence in domestic setting, fingers permanently amputated, offensive weapon used, victim locked inside room, and offence prevalent. His Honor, David J sentenced to 4 years, less pre-sentence custody, and balance wholly suspended on probationary conditions.

(ii) In State v. Pire (2016) N6319, the prisoner was a party to a land mediation. Prisoner got angry by words from victim, argued with victim, then cut victim on left arm using a knife. Offender pleaded guilty, no priors, cooperated with police, express remorse, offenders house burnt in retaliation, moderate de factor provocation, injury sustained not on vulnerable part of body, multiple wounds, deadly weapon used, committed in presence of village court officials, vicious attack, and prevalent offence. Liosi AJ (as he was then) sentenced to 4 years, less pre-sentence term, balance wholly suspended.

(iii) In State v. Jimmy (2018) N7246, the offender was involved in a group fight. Victim was amongst the opposing party. Victim lifted a bamboo to swing it when prisoner cut his left hand using a knife, which resulted in it being amputated. Offender was juvenile at date of offence, had no priors, used offensive weapon, attached in the dark, victim’s education disrupted, and offence prevalent. Kangwia J sentenced to 4 years, less pre-sentence custody term.

(iv) In the Kerevat case of State v. Hago (2019) N7870, the victim angered by prisoner disturbingly entered their dwelling house in the night. He armed himself with a knife and approached the prisoner in the morning and cut the prisoner’s right hand using it. He fell when escaping so prisoner got the knife and cut the victim’s left hand using it. Offender had no prior, made early admissions, pleaded guilty, de factor provocation on the part of the victim, offensive weapon used, life threatening injury and loss of function 4^th and 5^th index finger. Anis J sentenced to 3 years, less pre-sentence custody, and balance wholly suspended.

14. Mr Katosingkalara submitted that the circumstances of the present case is similar to that of State v. Kos (supra), however the difference is that in that case, two fingers were amputated whilst in this case only one finger was severed and the left leg was slashed. The prisoner’s counsel noted in the medical report that no permanent injury results from the wound on the left leg of the victim. Therefore, it is submitted that, because the only permanent injury is amputation of small finger, the appropriate head sentence should be 3 years and the custody period be deducted. He also asked the Court not to suspend any sentence for the personal safety of the prisoner.

State’s submission

15. Mr Tugah, for the State, firstly objected to the use of the prisoner’s wife affidavit for biasness and denied payment of any monies made to the victim and his family. He also argued that the prisoner has not genuinely expressed remorse as he gave excuses for his actions as he has blamed the victim for instigating the issue. Hence, the State argued that the affidavit of the prisoner’s wife and the lack of remorse expressed by the prisoner be given less weight or no weight at all. However, in the State lawyer’s affidavit filed on 17 June 2020, he confirms that the victim did receive the K2,200 paid by the prisoner’s wife for the family’s safety, not as compensation. This fact is taken into account to determine the appropriate sentence.

16. The State further argued there are mitigating factors in the prisoner’s favour. These include the prisoner being a first-time offender with no prior conviction, the prisoner pleading guilty hence saving the Courts time and the State’s resources in running a trial, and the prisoner making admissions to and cooperating with the Police.

17. As regards the aggravating factors, the State argued that the following aggravating factors are present in this case: -

(a) the use of an offensive or dangerous weapon namely a bush knife.

(b) it was a vicious attack (dawn attack) which involve some degree of planning. The attack happened in the night towards the early hour of the morning of the 24 June, 2019 at around 4am to 5am while everyone including the victim were fast asleep.

(c) the victim suffered multiple injuries. One defensive cut to his right hand and another on his left leg and was he was also hit several times with the blunt side of the bush knife on his back.

(d) the victim suffered a permanent injury (i.e. loss of the right small finger which was completely amputated).
(e) the victim suffered both physical and mental trauma or stress.

(f) the victim will have to now live without his right small finger and the scars for the rest of his life.

(g) medical expenses suffered by the victim as he spent a month at the hospital.

(h) prevalence of the offence in the society and the need for deterrence.

18. To guide the Court, the State submitted the following as comparable cases.

(i) In The State v. Roga (2012) N4804, this was a similar offence involving 4 accused person who pleaded guilty to a charge of unlawful causing grievous bodily harm (GBH), under section 315 of the Criminal Code. It was a mob attack where the victim’s left thumb was amputated and there were cuts inflicted on his head and back. The mitigating factors considered were that the accused pleaded guilty, no prior convictions and they pleaded guilty to a serious offence hence saving Court’s time and resources in running a trial. Aggravating factors considered are use of offensive weapons namely bush knives, group attack, victim suffered multiple wounds, he permanently lost the use of his left thumb, the accused walked from their settlement to the victim’s village to inflict the injuries. In this case prisoners were sentenced to 8 years in hard labour for the three young offenders with partial suspension and 4 years for the 4^th prisoner with wholly suspension with conditions (with special consideration given to his age being of old age and the extent of his participation).

(ii) In the Kokopo case of State v Tamunei Lawrence & 2 Ors (2007) PGNC 17 by Justice Lay, the victim was gardening and was attacked by the offender without provocation. The victim suffered serious knife wounds. His left upper arm was cut through to the bone, the back of his left shoulder involving the shoulder joint was cut, there were cuts to the posterior upper right chest and right forearm involving the elbow. There was prompt compensation payment. The Court held that GBH with intent is a serious crime which required an immediate custodial sentence. The injuries inflicted were very serious and life threatening, and the appropriate sentence was one of 6 years in hard labour for each of the offenders.

(iii) In State v Toluana (2011) N4417, also at Kokopo, the two offenders pleaded guilty to causing grievous bodily harm with intent under s.315 (b) (d) to Peter Woollcot (Jnr). They approached the victim with bush knives and Kivung swung a bush knife at the victim on the left side of the victim’s head, chin and jaw. This caused life threatening injuries to the victim. The injury sustained was 30cm long and it was deep wound which involved a complex facial bone fractures which he went to Australia for proper medical treatment. The Court considered a custodial sentence to be appropriate. Offender Kivung was caught by Section 8 of the Criminal Code, ToLuana who was the main perpetrator was sentenced to 10 years less pre-trial custody and Kivung was sentenced to 9 years less pre-trial custody.

(iv) In The State v Taroh (2004) N2673, the accused cut the victim’s hands three times with a bush knife during a confrontation arising from a land dispute. He was sentenced to 8 years imprisonment. His Honour Kandakasi J (as he was then) said that the sentence for GBH under s.315 of the Criminal Code should be above the sentence of GBH under s.319 of the Criminal Code.

19. The State also presented a Victim Impact Statement, where the 19-year-old victim from Kiripia village, Tambul District, Western Highlands Province say he was hospitalised for a month at the hospital and this has caused him and his family a great expense. Further, he says that as a direct result of the offence, he has completely lost his small right finger. He no longer is able to restore nor use his small right finger as it was completely chopped off and as stated by the medical report, it is 100% loss. This has caused him not to grab or hold things properly. He cannot enjoy what he likes doing like play rugby or do gardening (e.g. He cannot hold an axe properly) because of the loss of his right small finger and also because of his wounded left knee. He cannot stand for long hours because if he does, his knee hurts. It also hurts when he plays rugby with his friends.

20. In conclusion, the State said the offence under s.315 is not only serious but also prevalent in our society, hence it calls for both personal and general deterrence. Thus, this case should warrant an immediate custodial sentence and in light of the comparable cases cited, a sentence range between 8 to 10 years is appropriate. Further, 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 accepted and should not be tolerated in our society.

Consideration

21. The issue before the Court is what the appropriate sentence for the prisoner is. Whilst Mr Katosingkalara for the prisoner argued that although the offence committed by the prisoner is serious, it is not of the worse case type attracting the maximum penalty prescribed under s. 315 of the Criminal Code Act. On the other hand, Mr Tugah for the State, submitted that any grievous bodily harm offence with intent 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. 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.

22. 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.

23. There is no pre-sentence report or statements from the family or community with views of the prisoner and what resources are available to rehabilitate the prisoner. Hence, I am not assisted in this regard.

24. In consideration of the facts and the circumstances of this case with the case precedents cited by both counsels along with the mitigating and aggravating factors, I am of the view that this is not a worse type case and so, I will impose a lesser penalty to the maximum penalty of life imprisonment.

25. I have also made the comparison of the cases provided by both counsels and agree with the prisoner’s counsel that the facts and circumstances of those submitted by the prisoner’s counsel are more relevant to this case then the ones submitted by the State, which present extreme circumstances and injuries that are more serious and life threatening.

26. Having considered all of the above, I am satisfied that the appropriate penalty for this prisoner for causing grievous bodily harm with intent is a sentence for 4 years.

Should all or part of the head sentence be suspended?

27. The prisoner has been in remand since 26 June 2019. To date, he is in custody for 11 months and 29 days, a day short of an anniversary. The prisoner’s counsel argued 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.

28. The prisoner’s counsel further argued that in considering as to whether the balance of the sentence should be suspended, he says that the prisoner is not willing to pay any compensation to the victim and his family. His wife, in her affidavit, says the atmosphere between them and the victims’ relatives is still tense and therefore, as far as the safety of the prisoner is concerned, he must not be released on suspended sentence and that he serves his sentence in prison.

29. On the other hand, the State says that a s.315 offence is serious and is prevalent in our society, hence it calls for both personal and general deterrence, thus this case warrants an immediate custodial sentence, which a sentence range between 8-10 years is appropriate. In doing so, a warning is sent out to the general public, and any would be offenders out there that such an act should not be accepted and should be tolerated in our society.

30. Before I make the orders on penalty, I wish to make a comment about the payment of K2,200 to the victim by the prisoner’s wife. Both counsels say that the payment is not to be regarded as compensation but for the “safety of the prisoner’s family”. Such practises should not be encouraged or maintained in society where payment is made for citizen’s safety as it contradicts our Basic Rights provided for in our Constitution. We all have the right to life, liberty, security of the person and the protection of the law and these rights cannot be restricted by a fellow citizen. Hence, the victim and his family should not restrict or threaten the prisoner’s family in any manner or form. If they are threatening the prisoner’s family, they are in breach of the Constitution’s preamble.

31. Therefore, in consideration of all the above factors, I make the following orders:

(1) The prisoner is sentenced 4 years imprisonment.

(2) His pre-sentence term of 11 months and 29 days be deducted from the head sentence.

(3) He shall serve another year in custody for his personal safety.

(4) The balance of his sentence is suspended, and he is at liberty to either remain in custody or return to his family on the following conditions: -

(a) that he pays the sum of K3,000 as compensation to the victim and his family within 2 months from his release from custody to be witnessed by the Ward Member and the Probation Officer in Kokopo.

(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 Raniolo, 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: Lawyer for State
Public Solicitor: Lawyer for Prisoner