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State v Isidor [2021] PGNC 332; N9003 (21 May 2021)

N9003

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 617 OF 2020

STATE

V

GABBY ISIDOR

Bialla: Batari J
2021: 20^th & 21^st May

CRIMINAL LAW- sentence – unlawful assault causing bodily harm - accused grabbed young victim by shoulder and push him against the wall causing fracture of collar bone - seriousness of – plea – mitigation – compensation - use of – sentenced to maximum 3 years term with probation orders appropriate.

Prisoner pushed a primary school boy against the wall resulting in a fractured collar bone. He pleaded guilty to unlawfully causing bodily harm.

Held:

1. To determine the degree of seriousness and the culpability of the offender in sentencing, the sentencing authority must start with the maximum penalty prescribed by legislation and carefully consider the way the offence was carried out. Lawrence Simbe v The State [1994] PNGLR 38.
   
2. In a plea of guilty, the sentencing authority may safely allocate a percentage reduction of 25% to 33% from the appropriate head sentence where there is an early admission and a subsequent plea of guilty.
   
3. The use of any stationary or immoveable object like a wall, post, pole, hard surface, boulder, to hurt and cause bodily harm or injury to another person is akin to use of a weapon.
   
4. Orders for compensation is open to the sentencing authority to consider under the Criminal Law (Compensation) Act 1991 as mandatorily required under s. 2 of the Act when considering the punishment to be imposed for an offence if that will advance the interest of justice.
   
5. Payment of compensation in a criminal proceeding is not a bar to liberty in a civil suit by the victim to pursue a claim above the amount ordered.
   
6. The orders for payment of compensation of K2,000.00 in addition to the maximum sentence of three years wholly suspended are appropriate in all the circumstance of the case.
   

Cases Cited
State v. Chan Alois and Augustine Tutu (2008) N3668
John Elipa Kalabus v The State [1988] PNGLR 193
Lawrence Simbe v The State [1994] PNGLR 38
Manu Kovi v The State (2005) SC789

Counsel
Mr. C. Sambua, for the State
Mr. B. Takua, for the Accused

SENTENCE

21^st May, 2021

1. BATARI J: Gabby Isidor unlawfully assaulted one, Kenneth Mano and caused him bodily harm. He pleaded guilty. This is his sentence.
   

Background

2. On the afternoon of 20 March 2020 while returning home from work, Gabby Isidor met his brother-law, Junior Aaron, and wife Lucy and they told him the victim had assaulted their son at school. Gabby followed the couple to the victim’s home where he assaulted Kenneth and pushed him against the kitchen wall. As a result, Kenneth sustained a fractured collar bone.
   

Legislative basis for sentencing

3. The maximum sentence for unlawfully causing bodily harm under s. 340 of the Criminal Code is, three years. The term is not mandatory because of s.19 of the Code which authorises the sentencing authority to impose a lesser term as the circumstances of each case may warrant.
   

Sentencing principles

4. The duty of the Court to impose a just sentence is fundamental to the sentencing discretion being fairly exercised. In essence, when deciding the appropriate punishment, the sentencing authority will start with the maximum penalty prescribed by legislation and carefully consider the way the offence was carried out, the degree of seriousness of the offence and the culpability of the offender: Lawrence Simbe v The State [1994] PNGLR 38; John Elipa Kalabus v The State [1988] PNGLR 193; Manu Kovi v The State (2005) SC789.
   
5. There are two competing fundamental interests the Court must weigh up. The first is the seriousness of the offence and community interest to see that those who break the law are punished personally and as a measure of repaying the society their wrongs. The second is the personal circumstances and interests of the individual prisoner.
   

The offence – seriousness of

6. The offence of causing unlawful bodily harm is a misdemeanour, sometimes reduced from the more serious offence of grievous bodily harm due to legitimate explanation or extenuating circumstances. Needless to say, any form of assault occasioning bodily harm is always a very serious matter as it invariably involves use of weapons, sometimes resulting in life threating or permanent injuries. This in effect, increases the seriousness of the offence.
   
7. Unlawful assault occasioning bodily harm is one of the most prevalent offences of violence. Government and mission influences have permeated the length and breadth of this nation for over many years, yet people do not seem to appreciate, the laws of this country exist to enforce and maintain peaceful, harmonious, and orderly society and the communities we live in. People continue to resort to violence and ignore established institutions and processes to resolve disputes resulting from real or imagined causes.
   
8. The progress from the old to the new modern ways seem to have had little impact and changes to attitudes. So, it is always a very serious matter when the people take the law into their own hands. Those who offend will expect to meet with severe penalties for their antisocial conduct.
   

Considerations and sentence

9. The prevalence of the offence is against the offender. In this case, as commonly encountered, the offender acted in reprisal, in defiance of the rule of law and common sense to amicably settle his nephew’s grievance. Gabby’s conduct was a clear manifestation of taking the law into one’s own hands.
   
10. Three other factors from the offence add to the gravity of Gabby’s conduct. The first is the age difference. Gabby is an adult aged 25 years. His nemesis is a schoolboy aged 16 years. The young man obviously stood no or little chance against his attacker’s brute strength.
    
11. Second, Kenneth sustained a shoulder injury when Gabby pushed him against the kitchen walls. I think it would take more than mere pushing to cause a fracture of the collar bone. Gabby most likely banged Kenneth’s shoulder against the wall with such force as to cause the shoulder injury. That also indicates a strong intention to cause the young victim serious bodily harm.
    
12. Third, the injury was the direct result of the offender using the wall as an aid to attack the victim. The use of the wall or the use of any stationary or immoveable object like a wall, post, pole, hard surface, boulder, to hurt and cause bodily harm or injury to another person is akin to use of a weapon. That aggravates the offence and makes the conduct of the offender most serious.
    
13. For the prisoner, his background is the starting point. At 25 years, Gabby is a first-time young offender. He is single and usefully employed with Hargy Oil Palm company as an electrician. He has pleaded guilty and expressed remorse. I consider that his expression of remorse is genuine as it has support in his early admissions to the police and his subsequent plea of guilty.
    
14. A guilty plea is a factor that may in appropriate cases substantially mitigate criminal conduct. It can also act as an incentive itself to plead guilty. The value of a plea factor should be clearly articulated by a sentencing policy so that the accused knows with certainty, the advantage of pleading guilty early. In the State v. Chan Alois and Augustine Tutu (2008) N3668, Lay J suggested a discount of 25% to 33% from the appropriate head sentence as follows:
    

“I therefore consider that it is important, to encourage early pleas of guilty in appropriate cases, that is in cases where the accused is guilty, for the court to have a clearly enunciated policy so that the accused person can know with some certainty what the advantage is of an early plea. Except in cases of horrific personal violence, I propose to adopt the English practice of making a reduction of 25% to 33% from the appropriate head sentence where there is an early admission to police and a subsequent plea of guilty, without any intention of creating a binding strict mathematical formula.”

15. In this case, having taken the course he did after the commission of the offence, the early plea of guilty has avoided costs and time waste to the Court and the State. This is supported by his good background and expression of remorse. His contrition is also found in his early cash payment of K500.00 as compensation with an offer to further recompense the victim.
    
16. In explaining other than excuse his conduct, I am satisfied, that Gabby, as tired as he might have been from his day’s daily chores, would have been looking forward to nothing more than a good evening’s rest. That was not to be when told of the disturbing news of his nephew being assaulted at school. I think it is fair to say, he was caught at his weakest point and unprepared. His angry reaction was prompt and unplanned. He was literally provoked. His informants were partially if not, wholly to blame for his anti-social behaviour.
    
17. On compensation, Gabby has informed the Probation Officer of his intention to pay a further K1,000.00 to the victim. The victim’s parents had initially demanded K5,000.00. However, they are not pressing for that amount after learning Gabby has pleaded guilty and will be punished by the Court.
    
18. Compensation payment is an option open to the sentencing authority under the Criminal Law (compensation) Act 1991. Section 2 of the Act makes it mandatory for the Court when considering punishment to be imposed for an offence, to also consider whether in the circumstances of the case, compensation should be ordered. Section 3 sets out factors to be considered in making compensation orders if the order for compensation will advance the interest of justice. The factors to take into account are:
    
    1. Nature and seriousness of the offence,
    2. Degree and nature of any personal injury suffered by the victim;
    100. Any other factors from the offence or the offender’s attitude which may be considered in mitigation or aggravation of punishment;
    4. Any relevant customs regarding compensation;
    5. Report on “means”
    6. Other relevant matters.
       
19. I have had regard to those matters. The Probation Officer’s report on “means assessment” shows, that Gabby has several sources to generate income from. He is employed and has an oil palm block with regular sales. His sister and brother in-law will assist, his other family members may also assist to pay compensation within a month.
    
20. Having considered the seriousness of the offence, the extent of injuries the victim sustained and the victim’s willingness to reconcile with the offender, I propose to order compensation in addition to the sentence I will impose. This in my view will advance the interest of justice.
    
21. The award I am about to order will not stop any further Court action the victim may file for compensation. He may pursue his personal claim through the civil courts for damages. For the personal injury sustained, any eventual award for assessment of compensation in a civil suit will take into account the award ordered in this case. Whether the result of any such legal action would be an award of greater compensation from the offender is a question for another cause which I need not answer here.
    
22. Pursuant to s. 6 of the Criminal Law (compensation) Act, I order that the offender compensate the victim in cash and kind as follows:
    
    1. The offender shall pay compensation of K2,000.00 in cash,
    2. Compensation shall be paid direct to the victim,
    100. K500.00 shall be deducted from the principal amount as already paid,
    4. The balance of K1,500.00 shall be paid within two months of today’s dated or by 21 July 2021.
       
23. The term of imprisonment I will impose will reflect the seriousness of the offence and the interest of the community that those who offend must meet with an imprisonment term. The facts of this case in my view, fall into the most serious category warranting the maximum penalty.
    
24. I consider too that an alternative to imprisonment is warranted on the Probation Officer’s recommendations. This will benefit both the community and the individual offender as he will keep his employment, pay compensation and it will not cost the State to incarcerate him.
    
25. Furthermore, the experiences that the offender has gone through are sufficient to have driven home to him at personal level, the serious consequences of his anti-social behaviour.
    
26. Gabby Isidor is sentenced to maximum term of three years under s. 340 of the Criminal Code, with hard labour. The whole term is suspended. He is to be released and placed on probation for three years on the following conditions:
    
    1. In addition to the usual probation orders Gabby Isidor SHALL:
       
       1. Within 48 hours, report to the Probation Officer,
       2. Pay K2,000.00 compensation as ordered above,
       100. Reside at a place approved by the National Court,
       4. Not leave his current place of abode, Bialla or West New Britain Province without approval of the National Court,
       5. Keep the peace and be always of good behaviour,
       6. Have satisfactory report submitted to the National Court Registry,
       7. Appear before the Court as and when required for assessment of his progress on probation.
       8. Appear in Court on 16 July 2021 at Bialla at 9.30am for review of the compensation orders.
          
    2. The Probation Officer shall file six monthly reports and whenever required on the probationer’s progress on probation until discharged.
       
    3. In the event of any breach of these probation terms and conditions, the probationer shall be brought before the National Court to show cause why he should not be imprisoned for the remaining term of imprisonment.
       

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