N9956

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1097 OF 2019

STATE

V

BENEDICT URBAN

Kerevat/Kokopo: Suelip AJ
2021: 7th, 17th, 19th, 24th May & 29th July

CRIMINAL LAW – sentence – plea – grievous bodily harm s.319 Criminal Code – relative victim – appropriate sentence – mitigating factors balance out aggravating factors – compensation paid – reconciled with victim – sentence of 2 years – placed on probation for 2 years 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. Albert Kavena [2015] N6085
State v. Gordon Robert & Anor [2019] N8060 
State v. Kevin Ambai [2019] N7154
State v. Samuel Paranis [2009] N3761

Counsel

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

SENTENCE

29th July, 2021
1.	SUELIP AJ:	On 7 April 2021, the prisoner pleaded guilty to one count of causing grievous bodily harm to one Collin Teddy, thereby contravening section 319 of the Criminal Code.

2.	This is my decision on sentence.

3.	The facts are these. On Thursday 1st day of March 2019, between 3:30pm and 5:00pm, the prisoner and his co-accused, Kakulai Bitauma were at Ralalar village, Kokopo District, in East New Britain Province. At that time and place, they were travelling back to Ralalar village on a truck from a customary occasion at Warangoi. While on their way back, the prisoner saw the victim namely Collin Teddy and William Pennie who were standing in front of Karaz Trade Store. William then showed them the bad finger. The prisoner saw that the victim was also standing with him, and he was mad because in the past, the victim had called the prisoner’s “lobo” which means “big hole”. The prisoner and his co-accused then stopped the vehicle, jumped out of the truck and approach William and the victim. His co-accused Kakulai swung his knife three times attempting to cut William, but the knife missed. William dropped his bush knife and ran away. The prisoner then picked up William’s knife and chopped the victim Collin Teddy on his upper left arm. Collin felt blood running down on his left arm and he ran straight to his house. He fell unconscious and was rushed to Vunapope Hospital and then to Nonga General Hospital. The prisoner’s actions contravened Section 319 of the Criminal Code and he is charged with one count of causing grievous bodily harm. 

4.	Section 319 of the Criminal Code provides 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.

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

6.	For purposes of sentencing, the prisoner’s personal particulars are these. He is 45 years old and is from Ralalar village where he also resides. He is married with 3 children. His highest education is at vocational college where he did carpentry. In 2019 when he was interviewed by the Police, he said he was employed by M Joviel Ltd. He is currently unemployed and he is a member of the United Church. 

7.	The prisoner has no prior convictions, and during allocutus, he said he is sorry for what he did. In his Record of Interview, he said it was the victim who showed the bad finger at him and your brother-in-law, Kakulai before he cut him. He also said when he saw the victim showing bad finger at him, he recalled a past incident where the victim swore at his wife in the language with the word “lobo” which meant “big hole” or “traipla hul”. This prompted him and his brother-in-law to react and confront the victim and his friend. 

8.	In favor of the prisoner are these mitigating factors. He is young and a first-time offender with no prior convictions recorded in his name. Further, he pleaded guilty early and saved the Court’s time and resources. He has also paid compensation and reconciled with the victim. There was some degree of provocation when the victim’s friend showed him the bad finger which made him recall a previous incident where the victim swore at his wife. 

9.	Against him, the aggravating factors are these. He was drunk and used a dangerous weapon to inflict serious injuries on the victim’s inner left arm. He is also related to the victim and finally, this offence is prevalent in society. 

10.	The State also submitted as an aggravating factor that there was motive or intention on the prisoner’s part to do harm to the victim because of an earlier incident which triggered the assault. I agree to a certain degree, but I also consider the victim equally responsible as he swore at the prisoner’s wife earlier.

11.	As a guide to consider an appropriate sentence, the cases of State v. Ray Sheekiot (2011) N4454 and State v. Martin Konos (2010) N4157 become relevant where the Court held the starting point for grievous bodily harm under section 319 of the Criminal Code is 3½ years. Further in State v. Albert Kavena [2015] N6085, Polume-Kiele J said that the starting point of 3½ years is subjected to adjustments upwards or downwards depending on the relevant facts and circumstances such as: 

	(i)	the use of a lethal weapon
	(ii)	the offender inflicts injury on a vulnerable part of the body
	(iii)	offender part of a group
	(iv)	offender inflicts multiple injuries on the victim
	(v)	offender attacks victim with a lethal or non-lethal and the victim suffers permanent disability or life-threatening injuries
	(vi)	victim is unarmed or innocent
	(vii)	there is pre-planning

12.	The State counsel referred to three case authorities but the most relevant one is the local case of State v. Gordon Robert & Anor [2019] N8060 where the two prisoners were drunk and assaulted the victim while he was walking on the road. They had punched him on his face, and he fell on the ground. He received injuries to his face and mouth. He was sentenced to 2 years less pre-sentence custody term. His sentence was wholly suspended, and he was placed on probation. He was also ordered to pay compensation for K1000 cash and 100 fathoms of shell money which is equivalent to K500.  

13.	Counsel for the prisoner also cited three case authorities. I will discuss only 2 of them. This first is the local case of State v. Kevin Ambai [2019] N7154 where the prisoner and the victim were walking together on the road and arguing when the prisoner pulled out a busk knife and swung it at the victim who blocked it with his arm and the knife cut his wrist. The prisoner pleaded guilty to grievous bodily harm under section 319 and was sentenced to 5 years imprisonment less time spent in custody. The balance of his sentence was suspended, and he was placed on probation.

14.	The other case is that of State v. Samuel Paranis [2009] N3761. In this case, the prisoner was enraged by stories from his two friends that the victim and his friends had sworn at him. He used a bush knife and caused injuries to the finger and adjacent tendons of the victim’s hand. He pleaded guilty to the offence and was sentenced to 2 years. One year was suspended and he served the balance in custody. 

15.	The only difference between those two cases and the prisoner’s case here is that the injury sustained by the victim here is permanent and the victim is unable to use his left arm to full capacity. 

16.	In the end, the State counsel argued that the prisoner should be sentenced for 3 to 4 years whilst counsel for the prisoner asked that he be sentenced to 2 years. The State further argued that the prisoner should be ordered to pay compensation and any suspension of sentence is within the discretion of this Court. In response, your counsel says compensation has been paid.

17.	In considering his sentence, the mitigating factors balance out the aggravating factors. I also take into account that the prisoner is remorseful, and he has paid compensation and reconciled with the victim, who is a relative. 

18.	In the absence of a pre-sentence report and a victim’s impact statement, I cannot consider the resources available to rehabilitate him or whether he should pay more compensation. I can only consider what is before me. I also note that the injuries sustained by the victim is serious as his left inner arm is now permanently damaged. 

19.	This is not a worse type case and so the maximum penalty will not be imposed. However, because the injuries caused to the victim are permanent and he will no longer use his left arm to full capacity, I impose a sentence of 3 years. 4 days spent in custody before bail will be deducted from the sentence and the prisoner is placed on probation for 2 years on the following conditions: -

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

(ii)	he will not participate in any group fights.

(iii)	he will attend your local United Church every Sunday.

(iv)	he will reside at Ralalar village, Kokopo District, New Britain Province and nowhere else during his probation period.

(v)	he will not commit another or similar offence.

(vi)	he will not consume alcohol or drugs.

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

20. 	The Orders of the Court are:

	(i)	He is sentenced to 3 years imprisonment. 

(ii)	He pre-trial custody term of 4 days is deducted.

(iii)	He is placed on probation for 2 years on conditions imposed.

(iv)	Balance of his sentence is wholly suspended. 

________________________________________________________________
Public Prosecutor:		Lawyers for the State
Public Solicitor:		Lawyers for the Prisoner