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State v Adrian [2021] PGNC 671; N9950 (7 May 2021)

N9950

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 468 OF 2019

THE STATE

V

MELCHIOR ADRIAN

Kerevat/Kokopo: Suelip AJ
2021: 13^th, 14^th, 21^st, 22^nd April & 4^th, 7^th May

CRIMINAL LAW – sentence – plea – guilty – grievous bodily harm s.319 Criminal Code – appropriate sentence – offender remorse – victim wants repayment for medical and associated expenses – victim on good talking terms with offender – compensation not considered – suspended sentence with conditions.

Cases Cited

Goli Golu v. State [1979] PNGLR 653
State v. Ray Sheekiot (2011) N4454
State v. Martin Konos (2010) N4157
State v. David Carol [2009] N3762
State v. Gordon Robert & Niligur Maira [2019] N8060

Counsel

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

SENTENCE

7^th May, 2021

1. SUELIP AJ: On 13 April 2021, the prisoner pleaded guilty to one count of grievous bodily harm to one Bevan Esi Jr, thereby contravening section 319 of the Criminal Code.

2. This is my short decision on sentence.

3. The facts are these. On 10 December 2018, the prisoner, the complainant and some other boys were drinking alcohol at the Kerevat riverbank at Kerevat CS compound. As they were drinking, they were tackling each other. The prisoner then lifted the complainant and threw him down on the sand with great force. The complainant sustained a fractured bone on his right humorous which affected his neck. The actions of the prisoner contravened section 319 of the Criminal Code when he unlawfully caused grievous bodily harm to Jr Bevan Esi.

4. Section 319 of the Criminal Code says:

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.

5. The maximum penalty for this offence is imprisonment up to 7 years imprisonment. However, it is now also trite law that the maximum sentence is reserved only for worse type offence as held in Goli Golu v. State [1979] PNGLR 653.

6. The starting point for penalty for the offence of grievous bodily harm under s 319 of the Criminal Code is now set at 3 ½ years as held in the State v. Ray Sheekiot (2011) N4454 and State v. Martin Konos (2010) N4157.

7. Before I consider the appropriate sentence for the prisoner, I will outline his personal particulars. The records show that he is from Passam, East Sepik Province and he resides with his parents at CIS Kerevat. At that time he committed the offence, he was attending FODE at Vunapalading. In the Antecedent Report, it states that he was born on 3 June 1994. This means he will be 27 years old in June this year. Also from his submission, his counsel says he is now 26 years old, a bachelor and also a student at Kokopo Business College. He is also of the Catholic faith. Therefore, he was 23 years old when he committed this offence.

9. The mitigating factors in his favor are:

(i) he has no prior convictions
(ii) he is a young offender
(iii) he pleaded guilty early in his Record of Interview
(iv) he did not intend to hurt the victim
(v) victim is recovering well from injury

10. Against him are these aggravating factors:

(i) use of force in tackling the victim

(ii) victim fractured a bone in his right humorous which affected his neck
(iii) prevalence of the offence in society

11. His counsel referred to a few comparable case authorities but the case of State v. David Carol [2009] N3762 is more relevant and is from this locality. In that case, the prisoner pleaded guilty to the charge under section 319 of the Criminal Code for punching his wife hard on the mouth causing her injuries. He was sentenced to 12 months imprisonment which were wholly suspended with conditions. He was also ordered to pay 100 fathoms of shell money which is equivalent to K500.

12. The State cited the case of State v. Gordon Robert & Niligur Maira [2019] N8060 which is also from this locality. In that case, the two prisoners pleaded guilty to charges under section 319 for assaulting the victim while he was walking on the road. They were both drunk. They were sentenced to 2 years imprisonment less pre-custody time with the balance of their sentence wholly suspended and they were placed on probation. They were ordered to pay the sum of K1,000 cash and 100 fathoms of shell money.

13. I consider the mitigating factors weigh more than the aggravating factors. From the Victim Impact Statement dated 15 April 2021, it shows that the victim is recovering well from his injuries but occasionally feels pain at the affected area when doing heavy work, but he is optimistic that he will fully recover with time. I note that the prisoner is also on good talking terms with the victim. The only thing the victim wants from the prisoner is to pay him K3,000 to recover some of his medical expenses which he says is more than K5,000. More importantly, the circumstances in which the injuries were sustained are from a social gathering of friends where they all were drinking alcohol and tackling each other playfully.

14. This is not a worse type case and in consideration of all the above, I am satisfied that a sentence of 2 years imprisonment is warranted in this case. I will not order any compensation payment as the prisoner and the victim are not from this locality and have different customs, but I will consider some repayment of medical and associated expenses for the victim. He has been on police bail of K500 since his arrest. I will also consider suspending his sentence as he has admitted his guilt early and wish to pay compensation. More importantly, this is his first year at Kokopo Business College which shows his seriousness at education. I therefore suspend his sentence wholly but on the following conditions: -

(i) he will pay the sum of K3,000 in cash to the victim as repayment for his medical and associated expenses within 6 months from today.

(ii) he will enter into his own recognizance and promise to keep the peace and be on good behavior.

(iii) he will not commit another offence.

(iv) he will not consume alcohol or drugs during his suspended sentence.

(v) if he breaches any of these conditions, he will be brought to this Court to show cause as to why he should not be in custody to serve the remainder of his sentence.

15. The Orders of the Court are:

(i) He is sentenced to 2 years imprisonment.

(ii) His sentence is wholly suspended on conditions.

(iii) His Police bail of K500 will be refunded to him and will go towards repayment of medical and associated expenses for the victim.

Orders accordingly.
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Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner