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State v Timbi [2021] PGNC 565; N9306 (24 November 2021)

N9306

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 53 OF 2019

THE STATE

V

JOHN TIMBI
Baisu: Toliken J
2021: 07^th June, 8^th August, 24^th November

CRIMINAL LAW – Sentence – Grievous bodily harm - Guilty Plea – Prisoner injures victim with iron fencing post – Serious injuries – Fractured left forearm, abrasions to cuts to forehead - Criminal Code Ch. 262, s 319.

CRIMINAL LAW - Sentence – Mitigating and aggravating factors considered – Relationship and reason for assault considered – Prisoner a community and church elder – Need for deterrent and punitive sentence – Appropriate sentence – Starting point of 3 ½ years – Head sentence of 4 years less time in pre-sentence detention.
CRIMINAL LAW – Sentence - Suspension – Appropriate case for – Sentence wholly suspended – Probation with additional conditions including compensation – Criminal Law (Compensation) Act 1991.

Cases Cited:

Aihi v The State (No.3) [1982] PNGLR 92
Golu v The State [1979] PNGLR 653
The State v Konos (2010) N4157
The State v Sheekiot (2011) N4454
The State v Siune (2016) N6335
The State v Wabin (2009) N3662
The State v Teine (2021) N8811
The State v Piapin (2009) N3585
The State v Boala (2013) N5369
The State v Komblau (2015) N5995
The State v Kara (2012) N4663

Counsel:

P Tengdui, for the State

E Wurr and D Pepson, for the Prisoner.

SENTENCE

24^th November, 2021

1. TOLIKEN J: INTRODUCTION: John Timbi (prisoner) pleaded guilty for one count of unlawfully causing grievous bodily harm to one Michael Piel (victim) on 02^nd August 2018, an offence under Section 319 of the Criminal Code Ch. 262 (the Code).
   

FACTS

2. The brief supporting facts are that the prisoner and the victim are brothers-in-law. The victim is married to the prisoner’s sister, and they were living together at Dobel, Hagen District, Western Highlands Province. On 2^nd August 2018, between 3.00 – 4.00p.m. the victim was removing a fence which had been erected on his land without his approval when the prisoner came upon him. The prisoner picked up one of the fencing posts which the victim had earlier removed, and approaching him from behind he attacked the victim, striking him on the head and body several times with the post inflicting serious injuries to the victim. These included abrasions and cuts to the forehead and a fractured left forearm as well as other injuries to the back. The victim was hospitalized but later discharged.
   

THE OFFENCE

3. Section 319 of the Code provides for the offence of unlawfully causing grievous bodily harm as follows:
   

319. Grievous Bodily Harm.

A person who unlawfully does grievous bodily harm to another person is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

ISSUES

4. What falls to be decided is what an appropriate sentence for the prisoner ought to be and whether his sentence ought to suspended wholly or in part.
   

SENTENCING PRINCIPLES/COMPARATIVE SENTENCES

5. It is trite that the prisoner will not be given the maximum penalty unless his offending is considered a worst case. What he gets will therefore largely depend on the peculiar circumstances of his case. (Golu v The State [1979] PNGLR 653; Aihi v The State (No.3) [1982] PNGLR 92)
   
6. To that end the task of sentencing involves, first, an assessment of the harm done (actual or foreseeable) and the offender’s degree of moral blameworthiness or culpability to ascertain the objective seriousness of the offending. This will then assist in setting a starting point from which the court may fix a head sentence which in turn will depend on subjective considerations such mitigating and extenuating factors, aggravating factors, and other considerations such comparative sentences or case precedents.
   
7. For this offence, it has been held that a starting point ought to be 3 ½ years. (The State v Konos (2010) N4157; The State v Sheekiot (2011) N4454) I adopt these precedents.
   
8. This offence is prevalent, and the law reports are replete with a litany of cases both reported and unreported. The following cases, a couple of which were helpfully cited to the Court by counsel, show the sentencing trend in cases involving the use of blunt objects to inflict grievous bodily harm only and are cited here for the purpose of consistency.
   
9. The State v Siune (2016) N6335: The offender, a Village Magistrate recklessly threw a stone while intoxicated hitting the victim on the head. The victim suffered a depressed skull fracture. The offender pleaded guilty, had no intention of causing harm, was a first-time offender and had paid K400 compensation to the victim. His aggravating factors, however, included serious and permanent injuries to victim, he showed no genuine remorse, he acted recklessly, he was a law officer, and he was under the influence of liquor. He was sentenced to 3 years imprisonment which was wholly suspended with conditions.
   
10. The State v Wabin (2009) N3662: The offender was a school teacher who punished the victim student for lateness. He hit the victim on the wrist and right forearm with a 1-meter ruler inflicting serious injuries. He was sentenced to 2 years imprisonment which was wholly suspended with conditions including an order for compensation of K1000 and three (3) live pigs.
    
11. The State v Teine (2021) N8811: The offender and the victim are related – the former being the victim’s sister’s grandson. On the date of the incident the offender went the victim’s house. He was angry at the victim for calling him names previously, so he went to the victim’s house to confront him. Not knowing that the victim was standing behind the gate of his premises, the offender flung the gate open. The gate hit the victim on his face, causing him to lose balance and tumble over as the gate was on a down-hill slope. He sustained injuries to his head and was taken to the hospital for medical attention. The offender was charged for unlawful grievous bodily harm and subsequently indicted whereupon he pleaded guilty.
    
12. The prisoner co-operated with the police by surrendering himself to the Police and making early admissions, pleaded guilty early, was a first-time offender, made an offer to pay compensation which was refused by the victim’s relative, expressed remorse, no pre-planning and non-legal provocation. These mitigated his offence.
    
13. The aggravating factors against him were that he was intoxicated when he injured the victim, a frail old man of 65 years of age and the prevalence of the offence. He was sentenced to 2 years imprisonment less time in custody. The balance was wholly suspended on condition that he pay K2000 compensation within 2 months.
    
14. The State v Konos (supra): The offender pleaded guilty to unlawfully causing grievous bodily harm to his nephew by attacking him with a piece of timber fracturing his knee and inflicting many other superficial injuries. He was sentenced to 2 years imprisonment which was fully suspended in view of a favourable pre-sentence report with conditions including payment of compensation and a reconciliation ceremony.
    
15. The State v Piapin (2009) N3585: There the offender and the victim were neighbours and shared a common boundary. A boundary dispute arose between them, and a confrontation ensued. During the confrontation, the offender swung a spade at the victim. The victim lifted her hand to fend off the blow and got hit on the left arm severing her ring finger which had to be amputated. The offender was indicted with one count of grievous bodily harm and pleaded guilty. The court considered that the offender pleaded guilty, was a first-time offender with no prior convictions, and co-operated with the police. It, however, rejected the offender’s expression of remorse as it believed that it was not genuine. The court also considered that the victim’s injury was permanent and therefore sentenced the offender to 3 years imprisonment less time spent in pre-sentence custody. The balance was suspended with conditions including an order for community work.
    
16. The State v Boala (2013) N5369: The offender pleaded guilty to causing grievous bodily harm to the victim. He was the Second Mate to a ship which the victim, a Maritime Safety Officer, had restrained from departing Kimbe after some defects on the ship were identified. The captain tried unsuccessfully over a period of two days to have the ship released for repairs to be carried out in Rabaul, but unfortunately died trying to two days later. Unbeknown to the victim, the offender boarded the ship that the day his captain died in an attempt to give clearance for the ship to sail for Rabaul. Still very angry at loss of his captain he attacked the victim with a paddle. The victim sustained an open wound to the scalp and a fracture to the left forearm.
    
17. The court considered that the offender had no prior convictions, acted alone, pleaded guilty early, he did not use a dangerous weapon and acted in the spur of the moment. The attack on the victim was, however, unprovoked and the court took a strong view of the fact that the victim was attacked for simply doing his duty to ensure that safety standards on ships were maintained, and conditions on ships improved for the safety of both the crew and passengers. The offender was sentenced to 4 years imprisonment which was wholly suspended with conditions including K2000 compensation and probation.
    
18. The State v Komblau (2015) N5995: The victim was watching soccer when the offender, armed with a knife, approached him. He questioned him about an incident involving his (offender’s) aunt’s house and began hitting the victim on his head with the hammer. The victim fell to the ground unconscious and was rushed to the hospital with a depressed skull (right side) which eventually left him permanently paralysed on the left side of the body. The offender was indicted for causing grievous bodily harm and pleaded guilty early. He was a first-time youthful offender and was provoked in the non-legal sense. However, he used a dangerous weapon against the victim and inflicted permanent injuries on him, did not show genuine remorse and the offence was prevalent – factors which the court held against him. The offender was sentenced to 6 years imprisonment, 2 of which were suspended with conditions including K5000 compensation and probation.
    
19. The State v Kara (2012) N4663: The offender there pleaded guilty to unlawfully causing grievous bodily harm to his neighbour. A dispute between the offender's family and the victim's family got out of hand. Stones were thrown. The offender lost control and charged out on the street armed with a bush knife, confronted the victim's husband, threatened him with the bush knife and then approached the victim. He pointed the sharp end of the bush knife against her shoulder while she had her back to him. As she turned around the offender pulled the bush knife across her face. She bled heavily and was rushed to hospital. She suffered superficial facial injuries requiring seven stitches and an eye injury that resulted in impaired vision.
    
20. The offender was sentenced to 4 years imprisonment which was wholly suspended with strict conditions including further payment of compensation. The offence was committed out of frustration and there was no high degree of intention to harm the victim. He pleaded guilty, was a first-time offender, expressed remorse, had already paid some compensation, and had a good pre-sentence report on the one hand. However, he used a bush knife and inflicted wounds to the victim’s face and eye.
    

CURRENT CASE

Antecedents

21. The prisoner is 56 years old and comes from Dobel, Hagen District, Western Highlands Province. He is married with 5 children and has one grandchild. He is illiterate. He is a member of the Tega Lutheran Renewal Church where he serves as an elder as well as a leader in his community. He sustains himself and his family partly from subsistence farming and from rentals from a house he owns. Occasionally he gets employed as a security guard also. He in fact now current works as a security guard at Tininga Supermarket at Dobel. He has no prior convictions.
    

Allocutus

22. The prisoner apologised to the court for his offence and for assaulting his brother-n-law. He said he had offered to compensate the victim with 2 pigs and K3000 in cash, but the victim refused. He told the Court that he had sold the land the victim is living on and after 6 years the victim still owed him K10,000.00. That is the reason, he assaulted him. He said he has 5 children – 3 girls and 2 boys. He is now working for Tininga Dobel as a security guard. Because he has never been in trouble with the law and has a good reputation in his village he asked for a suspended sentence.
    

Submissions

23. Mr. Pepson submitted on behalf of the prisoner that this is not a worst offence and therefore should not attract the maximum penalty. Furthermore, the prisoner’s mitigating factors outweigh his aggravating factors. Therefore, a sentence of 2 years ought to be appropriate in the circumstances, which, the Court in its discretion may wholly suspend.
    
24. The prisoner’s presentence report (PSR) provides further light or details into the issue between the prisoner and the victim. The victim is married to the prisoner’s youngest sister, and they all live around the same area. Their problem arose out of issues associated with land given to the victim’s wife and son by her’s and the prisoner’s father. The prisoner demanded K60,000.00 for it which the victim paid together with a slaughtered pig. The transaction was witnessed by community leaders.
    
25. After some time, the prisoner demanded a further K10,000.00 which the victim agreed to pay. Due to some personal issues the victim delayed payment, and this led directly to the assault on him. Despite the injuries the victim said that he will still pay.
    
26. The prisoner explained what prompted him to assault the victim. He said that a company, Mountain Plumbing, had built an access road through the subject land and were to pay him money for it. On the day of the offence, the prisoner went to see the manager of Mountain Plumbing to ask for part payment but was advised that the victim had instructed him not to release any money to the prisoner. The prisoner left and confronted the victim, demanding an explanation from him. An argument ensued and he assaulted the victim with a fencing post.
    
27. The victim conceded that he and his tribesmen indeed refused to accept the victim’s offer of K3000.00 and 2 live pigs because the prisoner did not show any remorse. The victim said that he is a community leader as well and for that his tribesmen demand K10,000.00 in cash and 10 live pigs. If the court sees fit to order the prisoner to pay compensation, then this must be because he is sorry for his actions and not as a way of escaping punishment.
    
28. Notwithstanding all this, the prisoner is not a danger to the community according to the author of the PSR, but she essentially left it to the Court to impose an appropriate sentence as it sees fit given the circumstances under which the offence was committed and the relationship between the prisoner and the victim. The prisoner’s community leader expressed support for rehabilitating the prisoner as well as for any financial orders imposed on him.
    
29. Mr. Tengdui submitted that the prisoner had a strong intention to cause grievous bodily harm, used an iron fencing post to attack the victim, attacked the victim’s head – a vulnerable part of the body, and attacked the victim unawares. The offence is also very prevalent. Counsel conceded though to the mitigating factors cited by his friend, which I shall presently come to. Counsel also agreed that this is not a worst offence and should therefore not attract the maximum penalty. But since the aggravating factors outweigh his mitigating factors, counsel submitted that a deterrent and punitive sentence of 3 – 4 years ought to be imposed. In its discretion the court may make an order for compensation and suspend the sentence as well.
    

Starting Point

30. Viewed objectively the prisoner’s offending was quite serious when considered against the harm done to the victim and the prisoner’s culpability. A starting point of 3 ½ years is therefore appropriate. What then should be an appropriate head sentence?
    

Appropriate Head Sentence

(i) Mitigating Factors

31. I find the following factors as mitigating the prisoner’s offence –
    
    • He pleaded guilty early for his offence.
    • He co-operated with the police by admitting his offence early.
    • He has no prior convictions.
    • He was of prior good character.
    • He attempted to reconcile with the victim by offering to pay compensation which, however, was refused by the victim and his tribesmen.
    • He still intends to compensate and reconcile with the victim thus indicating remorse on his part.
    • He was provoked in the non-legal sense.
      

(ii) Aggravating Factors

32. Against him, however, are the following factors –
    
    • He had a strong intention to cause harm to the victim.
    • He attacked the victim with an iron pipe.
    • Apart from fracturing the victim’s left forearm he also attacked a vulnerable part of the body - the head.
    • He is a community leader and a church elder.
    • He attacked the victim while he was not looking.
    • This is a very prevalent offence.
      

(iii) Deliberations

33. I agree with Mr. Tengdui that the prisoner’s conduct requires a strong deterrent and punitive sentence because his culpability or degree of moral blameworthiness was quite high. Granted, he may have been frustrated with the victim for preventing him from receiving payment for the access road through land for which he had already sold to the victim for K60000.00 initially and later demanded an additional K10,000.00. In all fairness, ownership of the land would have passed to the victim, who, then had a legitimate expectation to receive payment for the access road, hence, his instructions to the manager of Mount Plumbing to withhold payment.
    
34. This would have called for consultation between the prisoner and the victim, but the prisoner opted to violently confront his brother-n-law and attacked him with an iron pipe inflicting on him serious injuries including a fractured left forearm.
    
35. The prisoner is no ordinary man in his community. He is a community leader and above that a church elder. Much was and is therefore demanded of him and this factor must be rightly held against him as aggravating his offence.
    
36. Leaders of all shades are expected to lead by example and conduct themselves in a manner that is befitting the positions they hold, be it in the community, family, church, or government. When leaders resort to violence to solve disputes, this unfortunately rubs off on young people who look upon them for guidance. There is therefore no wonder why violence is so rampant in our society.
    
37. I do consider the fact that the prisoner immediately offered to compensate the victim which was the proper thing to do both in law and custom. However, the offer for compensation, should not have been seen as an empty token to appease the victim. Compensation is never an end to itself in our Melanesian cultures. Rather it serves the outward manifestation of contrition for a wrong by the offender and a bridge towards the restoration of a damaged relationship which extends beyond the individuals involved to the family units and tribes.
    
38. The victim’s reluctance to accept the prisoner’s offer for compensation is therefore understandable, given his own standing in the community and among his own tribesmen. He demanded K10,000.00 compensation and 10 live pigs. Unfortunately, the court can only award compensation up to K5000.00 under the Criminal Law (Compensation) Act 1991.
    
39. The circumstances of this case are quite similar to those in The State v Piapin (supra) which case also involved a dispute between neighbours and where the offender, as we have seen, got 3 years for his trouble. It is, however, less serious than The State v Komblau (supra) where the offender got 6 years, and rightly so because his culpability was very high judging by the manner in which he attacked his victim with a hammer rendering him permanently paralysed on one side of his body.
    

Sentence

40. And so, having considered all there is to consider, I would think that a head sentence above the starting point ought to be imposed. While the prisoner has some good mitigating factors including non-legal provocation, his early guilty plea and lack of priors and did not inflict permanent and life-threatening injuries on the victim, he must be made to understand that resorting to violence to resolve problems, will result in serious consequences including loss of liberty.
    
41. I therefore impose a sentence of 4 years imprisonment to punish him and hopefully deter him and others as well.
    

Suspension

42. This is an appropriate case for suspension because it will allow the prisoner and the victim who are in-laws to reconcile and restore their relationship together with their respective families and tribesmen.
    
43. I therefore wholly suspend the prisoner’s sentence and place him on probation for 4 years with the following conditions –
    
    1. He shall keep the peace towards Michael Piel.
    2. He shall pay K3000.00 compensation and 2 live pigs valued at K2000.00 each to Michael Piel within 2 months from today.
    3. The payment of compensation shall be witnessed by the Provincial Community Based Correction Officer who shall file a report to the Court to confirm payment of compensation no later than Monday 31 January 2022.
    4. The prisoner shall appear before the Court on Friday 04^th March 2022 to personally confirm to the Court that he complied with payment of compensation.

ORDERS

44. The orders of the Court are therefore:
    
    1. The prisoner John Timbi is sentenced to 4 years imprisonment with hard labour less any time spent in pre-sentence custody.
       
    2. The resultant sentence is wholly suspended, and the prisoner is placed on 4 years probation with the following additional conditions –
       
       • (a) He shall keep the peace towards Michael Piel.
         
       • (b) He shall pay K3000.00 compensation and 2 live pigs valued at K2000.00 each to Michael Piel within 2 months from today.
         
       • (c) The payment of compensation shall be witnessed by the Provincial Community Based Correction Officer who shall file a report to the Court to confirm payment of compensation no later than Monday 31 January 2022.
         
       • (d) The prisoner shall appear before the Court on Friday 04^th March 2022 to personally confirm to the Court that he complied with payment of compensation.
         
    3. The prisoner’s bail is refunded together with any sureties paid by his guarantors (if any).
       

Ordered accordingly.

___________________________________________________________

P Kaluwin, Public Prosecutor: Lawyer for the State

L B Mamu, Public Solicitor: Lawyer for the Prisoner