N8968

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 15 OF 2021

BETWEEN:
THE STATE

AND:
HARRY BOII

Vanimo:   Rei, AJ
2021:  18th & 21st May

PRACTICE & PROCEDURE – Criminal Law – what is the appropriate sentence – S.322 of the Criminal Code Act – Unlawful wounding – time deducted - K2,000 compensation to each victim – Plea

Cases Cited:

State -v- Benjamin Makile (2016) N6251	
The State -v- Joseph Pingin [2001] N2169
The State -v- Mario Ako [2013] N5405
The State -v- Dominic Ken [2016] N6345
The State -v- Joseph Pingin [2001] N2169
Public Prosecutor   - v- Don Hale [1998] SC 564

Counsel

Ms. L. Jack, for the State
Mr. P. Moses, for the Defendant

DECISION ON SENTENCE

21st May, 2021

1.	REI, AJ. The prisoner was charged on the 9th July 2020 for unlawfully wounding another person Camillus Bei thereby contravening Section 322(1)a of the Criminal Code.

2.	He entered a plea of guilty on the 15th of May 2021 and the matter adjourned to the 20th of July 2021 for submission on sentence.  The plea of guilty was confirmed upon my perusal of the Committal Submissions on Sentence were made on 20th May 2021.

3.	I have had the opportunity of perusing the submissions of both Counsel on this matter.

4.	From the submissions filed, I note the prisoner is 32 years.

5.	The accused was under the influence of liquor when he committed the crime.  The facts are that around 1:00 am the accused went to the complainants premises armed with a bow and arrow and tried to attack one Tefo Move.  A fight erupted and the prisoner speared Augustine Bei on the buttock.  In the ensuing encounter, the prisoner stabbed Camillus Bei in the area of the stomach thereby causing him grievous bodily harm.

MITIGATION FACTORS

6.	The mitigating factors are that:

•	First time offender of no prior conviction
•	Pleadedguilty
•	A good person and family background

AGGRAVATING FACTORS

7.	Aggravating factors are:

•	Lethal or dangerous weapons used – spear
•	Injury sustained at a vulnerable part of the body – stomach where food is stored.
•	Prevalence of the offence in PNG and this Province Vanimo, WSP
•	Alcohol related
•	Serious assault
•	Prisoner did not genuinely express remorse to the victim.

SENTENCE

8.	Although this is a case in which a non-custodial sentence may be imposed, I do not think the prisoner deserves that leniency.

9.	I have noted that the aggravating factors outweigh the mitigating factors.

10.	I take special note of the Pre-sentence Report (“PSR”) in which it is noted that the Community from where the prisoner comes is against the prisoner being given a non-custodial sentence.

11.	The views expressed by the mother Mrs. Rita Boiare is serious in the PSR. 

12.	His wife Regina Boii expresses the same sentiments as the mother.  But do these remarks outweigh the concerns raised by the community on the conduct, behaviour and attitude of the prisoner?

13.	If the prisoner was mindful of his father’s disability and his mother’s ailing conditions, he should have had second thoughts.  He did not.  He choose to do what he did knowing very well he had those responsibilities hanging on his shoulders.

14.	Both Augustine Bei and Camillus Bei express the view that the prisoner should be imprisoned because of his bad behaviour in the community in which he is a member.  It appears from PSR that he is responsible for the welfare of his parents and siblings.  It is a great responsibility with which respect is accorded, he forgot all of this and ventured into committing this crime.

15.	The prisoner has therefore continuously caused problems and harassed people in the community.

16.	The life of serenity, peace and homeliness, is spoilt by the prisoner because of his drunken behaviour.

17.	They have requested for part custodial sentence as a deference to himself and to others.

19.	The PSR at paragraph titled “Family Concerns” reports says that the prisoner’s mother is concerned for him and that his father is blind.  She says she is needed by the family to build their house as there is no one to do that since the father is blind.

Case Laws

Comparable cases:

20.	In the case of The State -v- Joseph Pingin [2001] N2169, the accused pleaded guilty to one Count of Unlawful Wounding of the victim.  This is a case where the accused approached the accused and told him to stop calling his brother a Sorcerer in public.

That resulted in a fight.  That fight was stopped and the accused went away to his house.  However, some minutes later the accused came out of his house with a bush knife and cut the victim on his right shoulder and he fell to the ground.

The victim was taken to Boram Hospital and was appropriately treated and later discharged.  The accused upon his plea of guilty was sentenced to a head sentence of 3 years, and of the 3 years, accused was ordered to serve 1 year less pre-trial custodial term.  Further ordered that the balance of 2 years suspended with condition including payment of K5,000 as compensation to the victim with 6 months from the date of sentence.

22.	In the case of The State -v- Mario Ako [2013] N5405, the accused pleaded guilty to the charge of Unlawful Wounding and was sentenced to 2 years wholly suspended with conditions.  This is a case where the accused went to victim’s house in the vehicle and bumped the gate to the premises down.  The accused entered the victim’s house and fought with the victim.  In the course of the fight, the accused stabbed the victim with a small knife on his left thigh.  The victim received a stab wound to the left thigh as a result and was admitted to the hospital.

23.	In the case of The State -v- Dominic Ken [2016] N6345, the accused pleaded guilty to Unlawful Wounding and was sentenced to 2 years wholly suspended on conditions that he enter into a recognizance to keep the peace for 2 years and that he pay K500.00 compensation to the victim within 2 months from date of sentences.  In this case the accused was under the influence of alcohol and at the material time was with his wife and their child.  An argument occurred and during the argument the accused picked up a stone about the size of a folded fist and threw it at his wife.  However, the stone missed her and instead hit the infant victim on her forehead and caused a deep wound.  Victim was rushed to the hospital and was treated and later discharged.

24.	In the case of The State -v- Stanley Pipi [2017] N7204, the accused was drunk when he kicked and damaged the victim’s bamboo fence.  The victim confronted the accused and hit him with a flat side of the bush knife at his back.  The accused’s father intervened and escorted the accused away.  The accused returned with some people and attacked the victim.  The accused used the bush knife and slashed him at his back.  The victim was admitted to the Kerema General Hospital where the wound was treated and it has healed up.  The accused was charged with unlawful wounding under s.322 of the Code.  The Court imposed a sentence of one year IHL, 3 months and 3 weeks spent in custody was deducted and the balance of 8 months and 1 week was wholly suspended on conditions that the prisoner enters into recognizance and promise to keep peace and be on Good Behaviour Bond for period of 8 months 1 week.

Mitigating Factors

•	Early Plea of guilty, saves court and State time
•		First time offender
•		Remorseful and repentant in his allocates
•		No permanent injuries sustained
•	Acted alone

Aggravating Factors

•	Victim suffered injuries
•	Offensive weapon was used
•	Prevalence of the offence

25.	Weighing all of this on the balance, I am of the opinion that the prisoner deserves to be imprisoned because of his violent behaviour in the community which has been repeated over the years.

26.	The case of State -v- Benjamin Makile (2016) N6251 and the cases discussed here, the range of sentences to be imposed in a situation of similar nature has been set at the minimum of 18 months to a maximum of 3 years provided for in the Criminal Code Act.

27.	The following sentence is imposed:

(i)	The prisoner is to be imprisoned for a term of 3 years
(ii)	Time spent in prison be deducted and the prisoner is left with 25 months
(iii)	The prisoner is placed on suspended sentence of 13 months.
(iv)	The prisoner shall pay compensation of K2,000 each to Alphonse Bei and Camillus Bei which payment shall be made within 12 months from the date of release.
(v)	The prisoner shall not leave Vanimo for the period of twelve months of suspension unless leave is granted
(vi)	The prisoner is to abstain from drinking alcohol for the twelve months duration of his sentence.
________________________________________________________________
Public Prosecutor: Lawyers for the State	
Public Solicitor : Lawyers for the Defence