N9528
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1123 OF 2020

BETWEEN:
THE STATE

AND:
BENNY KOMBA TIMOTHY

    Waigani: Ganaii, AJ
2022: 10th, February 10th, 21st, 22nd, 29th, 30th March,

CRIMINAL LAW – Sentence – Grievous Bodily Harm – Section 319 of the Criminal Code – Guilty Plea –Single knife wound to the chest - Sentencing principles – Comparable cases – Head Sentence of four years – PSR Favourable to Offender – Willingness to participate in compensation payment – Full suspension 
Cases Cited:
Papua New Guinean Cases

Aieni v Tahain [1978] PNGLR 37 
Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
Saperus Yalibakut v The State SCRA No 52 of 2005, (27.04.06)
State v Gigimesi Steven (2020) N9222
State v Hotsia Geria (2008) N3868
State v Kagai [1987] PNGLR 320
State v Kiaro [2020] PGNC 277; N8610 
State v Kogen [2016] PGNC 39 N6211
State v Penge [2002] PGNC 90; N2244 
State v Pombo [2020] PGNC 482; N8741 
State v Porop [2017] PGNC 93; N6733
State v Wamingi [2013] PGNC 329 N5723 

Overseas Cases 

Veen v The Queen (No 2) (1988) 164 CLR 465  
Legislation

The Criminal Code Act, Chapter, No. 262 of 1974, Section 319, 19
Criminal Law Compensation Act, Chapter No 26 of 1991, Section 2, 3, 5 (3) (b)

Counsel

Ms. S. Suwae and M. Tamate, for the State
Mr. B. Popeu, for the Defendant 		

DECISION ON SENTENCE 

30th March, 2022 

1.   GANAII, AJ: This is a decision on sentence on a guilty plea to a charge of Grievous Bodily Harm contrary to section 319 of the Criminal Code.

Facts

2.	The offender Benny Komba Timothy and the victim Pina Ambrose are known to each other. They are from the same province (Enga) and live in the same area at Hohola, No (1), in the National Capital District (NCD). The offender has a land dispute case with an Engan man named Apel Kitai who also lives in the same area. The land dispute concerns the block of land where the offender resides. Prior to the offence date, the offender saw Pina Ambrose consuming alcohol with Apel Kitai and others. They were singing and saying provocative words targeted towards the offender. They were saying words to the effect that Apel Kitai will live on the land and the offender will have to go. 

3.	The offender heard about this and on the 28th of July 2019, between 10:00 to 10:30 am, she approached the victim and asked her why they were saying such words when they were drunk. The offender told the victim not to go and associate with Apel Kitai. The victim responded by saying that it was a public place and she had every right to go there. The offender was not happy with the victim’s response. They had an argument. This led to a struggle and a knife was produced. The offender used the knife and stabbed the victim once on the left side of her chest resulting in the loss of blood. By-standers noticed that the victim was bleeding and they went to assist her. She was rushed to the hospital and treated for the stab wound to her left chest wall. 

4. 	A recent review report dated 13th December 2021 was prepared during plea negotiations between the State and lawyers for the offender. In this report, the Doctor confirmed that the victim did suffer from a knife wound. She now carries a permanent scar on the left anterior chest measuring 2cm in length and 0.5cm in width. 

Outline of appropriate Considerations 

5.	This court convicted the prisoner after she pleaded guilty to the charge of Grievous Bodily Harm. The maximum penalty for this offence under section 319 of the Criminal Code is a term of imprisonment not exceeding seven years. 

6. 	On the task of appropriating a suitable penalty, the court takes into account these relevant considerations: the statement of facts the offender pleaded guilty to; other facts in the depositions favourable to the offender, her personal particulars and antecedent report, what the offender said in allocutus, the submissions of parties inclusive of the aggravating and mitigating factors; the Victim Impact Statement (VIS), the Pre- Sentence Report (PSR), the law, comparable case precedents and general sentencing trend.
7.	As the offender had pleaded guilty, she will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocatus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State, SCRA No 52 of 2005, 27.04.06).
 
Allocutus

8.	The offender was given an opportunity to say what matters the court should take into account when considering and imposing a punishment. (Aieni v Tahain [1978] PNGLR 37 (24 February 1978). She said the following:

“I say sorry to Pina Ambrose. I have   not stood before the court before and this is my first time. Sorry for wasting the court’s time. I asked the court to be lenient on me. I say sorry to Pina Ambrose. I said sorry to her in our customary way and we shook hands. That is all.”

Pre-Sentence Report

Origin and Place of Residence

9. 	The offender is 42 years old and comes from Puiapak village, Laiagam District of the Enga Province. Currently, she resides at Hohola No (1) with her 10-year-old son. Her father had passed away a few weeks ago. He resided in Hohola for the past 22 years until his passing. There is no mention about her mother and siblings in the PSR. 

Persons Interviewed

10.	The offender’s husband was interviewed. He said the offender and him have a 10-year-old son who is in Grade Six. The victim provoked the offender. The offender’s husband sought leniency from the court. He said they made two attempts to pay compensation but the offer was rejected by the victim who said the amount offered was not enough compared to what she had incurred as a cost after the offence was committed. 

Educational and Employment History

11.	The offender left school in grade three and has had no formal education after that. She has no plans to go to school but is committed to ensuring that her son gets educated. 

Marital Status and Dependents

12.	The offender is married and her only son who is now ten years old and is attending Sabama Primary School. Due to her having no formal education, the offender also has no formal work history. She is self-employed as a street vendor. 

Financial Situation

13.	Being self-employed, the offender and her family survive on the proceeds from the sale of her wares and goods. Her husband works with a private company and supports their survival as well. They do not have savings in the bank. However, the little they did save from time to time was offered to be paid as compensation to the victim, but the victim had twice refused to accept their offer. 

Offender’s attitude towards Compensation and Reconciliation

14.	With the support of her husband, the offender says she is willing to pay some 
compensation amount if the court is to make such an order. She asked the court to give her 12 months to prepare to pay compensation.

Health and Future

15.	The offender has no major health problems. She consumes alcohol occasionally but denies committing the offence whilst under the influence of alcohol.

Victim’s Views

16.	The victim wants the offender to be placed on Good Behaviour Bond with additional condition to pay back the cost incurred by her as a result of the commission of this offence. She has made a Victim Impact Statement (VIS) to that effect and asked the court to consider that. 

Previous Criminal or Probation records

17.	The offender does not have a prior record with the court or a probation supervision record. 

Circumstances of the offence

18.	The victim was with Apel Kaita who has an ongoing land court battle with the offender. The alcohol that the victim consumed was sponsored by Mr. Kaita. They said offensive words against the offender in their Engan dialect. The offender approached the victim to enquire about that incident. The victim responded in a provoking manner which caused them to argue, and struggle resulting in the offender stabbing the victim. The victim says that offender was drunk. 

Offender’s attitude towards the Offence

19. The offender accepted that she was wrong. She took initial responsibility of her actions and organized for compensation payment to be paid to the victim. The victim refused the amount offered, saying it was not enough. The victim asked that the offender meet the cost for medical bills and transportation fares she had incurred in the total amount of K2, 500. 

Potential Danger to the community and Suitability for Probation Supervision

20.	The writer of the report stated that the offender does not have a prior record. However, she may be a threat to the community as she was under the influence of alcohol when she committed the offence with the use of a lethal weapon. 

The Victim Impact Statement (VIS)

21.	In her Victim Impact Statement (VIS), the victim Pina Ambrose stated that due to the injuries sustained to her chest, she is now not able to do hard physical labour and this has affected her roles as a mother and wife, thus affecting her family life. She is experiencing chest pain and she fears that her health may be affected. This has caused a lot of stress on her. 

22. 	The victim says that the total cost incurred by herself as a result of the commission of this offence is K2, 500. These included the cost for transportation fees she had paid to and from the hospital and where she had made payments at the hospital to get access to a Doctor. She had also paid for transportation (including taxi fares) to and from the court houses for herself and police witnesses as the police did not have a vehicle readily available to assist them. The victim said the offender’s initial offer of K1, 200 was not enough considering how much she had incurred. 

Defence Submissions

23.	The mitigating factors are that the offender entered an early guilty plea as per her ROI saving the court’s time and resource. She had expressed remorse which is consistent with her guilty plea, demonstrating that her plea is genuine. There was provocation in the non-legal sense. The knife was the victim’s and the offender disarmed the victim and later used the victim’s own knife to stab her. 

24.	Defence submitted that the wound had healed, and the victim had made a complete recovery from the injuries sustained. Defence submitted that a sentence of between 2-3 years, wholly suspended with orders for good behaviour bond is appropriate in the circumstance. 

State Submissions

25.	State submitted in mitigation that Benny Komba Timothy is a first-time offender; she pleaded guilty saving the Court and State time and resources. She was remorseful. The aggravation is that the offence is prevalent. The offender had used a readily available and concealed kitchen knife as a weapon; the offender was under the influence of alcohol; the stabbing was done to a vulnerable part of the body, i.e., to chest. When examined at the hospital, the victim bled profusely and she had experienced pain and discomfort. She is now unable to do physical labour which has caused her family to miss out on her contribution to the home as a mother and wife. The court is to take note of the VIS. State submitted that a sentence of between 3-4 years is appropriate. 

Application 

26.	It is settled law in this jurisdiction that the maximum penalty for any offence is reserved for the worst kind of case. Principle in case of Goli Golu v the State [1989] PNGLR 653 is applied. Section 19 of the Criminal Code vests the sentencing authority the discretion to impose a sentence less than the maximum prescribed sentence, where the circumstances of the case warrants. 
 	
The purpose for sentencing

27.	The purpose for sentencing is to ensure that the offender is adequately punished for the offence, to prevent crime by deterring the offender and other persons from committing similar offences, to protect the community from the offender, to promote the rehabilitation of the offender, to make the offender accountable for his or her actions, to denounce the conduct of the offender, and to recognise the harm done to the victim of the crime and to the community. Sentencing principle in Veen v The Queen (No 2) (1988) 164 CLR 465 is adopted and applied. 
28.	The punishment that this court will impose should be in proportion to the harm inflicted on the victim. Where society needs to be protected, an offender is entitled to be punished to the extent commensurate with the seriousness of the crime. The sanction should not be too severe or too lenient. Principle in State v Kiaro [2020] PGNC 277; N8610 (30 October 2020. Narokobi, J, applied. 

Relevant Consideration

29.	In State v Hotsia Geria (2008) N3868, Kandakasi, J posed the following questions which are pertinent to determining an appropriate penalty: what the relevant facts pertinent to the case are; what the relevant sentencing trends applied by the courts are; what the aggravating and mitigating factors are; and what the appropriate head sentence should be and should any or part of it be deducted.

Sentencing Trend
 
30. 	In the case of State v Gigimesi Steven, N9222, Cr. No. 762 of 2020, (2020:  15th September, 09th, 10th December), on a guilty plea on the charge of grievous bodily harm, the court imposed a sentence of three years imprisonment in hard labour. The considerations were that the offence was committed in a domestic setting with the use of a kitchen knife. The offender effected two stab wounds, with one of them to the chest of the victim. There was non-legal provocation. The offender had no prior convictions and the sentence was fully suspended. 
31.	In another case of State v Porop [2017] PGNC 93; N6733 (13 April 2017), on a guilty plea to a charge of grievous bodily harm, the court imposed a sentence of three years imprisonment. The facts were that in the course of an attempted fight, the accused took a kitchen knife and struck the victim in the stomach. The medical report showed that the injuries were quite serious involving the intestine being perforated and as such a major operation was performed to save his life. He is still having some pain on the operated side which will take at least 6 months to recover fully. The offender had a prior conviction of similar offence. It is fortunate that an operation conducted on him saved his life. The head sentence was reduced by 1 year and 2 months for pre-trial custodial term. The balance of 1 year and 10 months was served in prison. 
32. 	In the case of State v Pombo [2020] PGNC 482; N8741 (4 December 2020), the offender stabbed the victim three times on the back and once on the right shoulder. The victim was admitted to the surgical ward as a case of spinal nerve injury and paralysis due to the stab wound to the back. On his guilty plea, the offender was sentenced to four years with partial suspension, to serve the balance of 1 year and 6 months imprisonment. 

Summary of Comparable cases

33.	Generally speaking, a majority of reported Grievous Bodily Harm cases in our jurisdiction involve circumstances where use of weapons such as a knife, bush knife, rock, timber, iron and offender’s hands and feet (boots) were used to fracture bones, cut or hit face and limbs, severing hands, fingers, feet and toes resulting in permanent loss of teeth, loss of use of limb, due to severing of hands, feet, and permanent injury to the eyes, etc. For such cases, generally, sentences ranged from 18 months to 5 years with partial or whole suspension ordered with conditions including orders for restitution and compensation. In deciding on whether to suspend the head sentences, the courts considered the aggravations and mitigations and the willingness of parties and the ability of the offender to pay compensation and reconcile. 

34.	The above discussed cases are relevantly comparable to the present case as they involve the use of a lethal weapon namely a knife to stab on a vulnerable part of the body, i.e., the chest and stomach (Steven and Porop cases, supra). In the Pombo (supra) case, the stab wound was to the back and shoulder. In these three cases, sentences ranged from 3 to 4 years imprisonment with full or part suspension with orders for compensation. 

Consideration of the circumstances of this case

35.	As in all cases, the sentence in this matter will be determined having regard to its own peculiar facts and circumstances, the principle in Lawrence Simbe v The State [1994] PNGLR 38 is applied. In this case, Dr Kibob said that although the knife did not penetrate the lungs which could have resulted in an adverse outcome if there was blood loss and tension pneumothorax (collapse of the lung), the victim nevertheless, did sustain a life-threatening chest injury. That is a serious aggravating circumstance of this case compared to the other grievous bodily harm cases generally. Use of a lethal weapon such as a knife on a vulnerable part of the victim’s body such as the chest makes this offence of grievous bodily harm a worst case compared to other GBH cases. For that reason, and in my respectful view, this case should attract a sentence between 3-5 years and no lower than that. 

36. 	Upon further considerations, where the offender pleaded guilty to the charge on the facts that the offence was committed whilst she was being under the influence of alcohol, and did not dispute that on arraignment, the court accepts that to be part of the facts on arraignment to be considered in this sentencing task. I disregard what the offender later stated in the PSR that she was not under the influence of alcohol. On this matter, I reiterate the vital role that both State prosecutors and defence counsels must play in making sure that the facts the offenders are pleading guilty to at arraignment are agreed facts as they will be relied on by the Courts in consideration of an appropriate sentence. 
 
37. 	In her favour, I consider that her guilty plea has saved the court and state time and resources. In the circumstances of the State’s case as it is, it would have been difficult for the state to prove their case on a more serious charge, considering that the State was not able to produce a legible copy of the initial medical report. As a result and in their plea negotiations, a recent medical review report was produced in December of 2021 showing the victim’s present condition. 

38.	Further, I give the benefit of the doubt to the offender, and consistent with the facts she was arraigned on, the knife was not produced by her. I consider also that there was de-factor provocation when in company of Apel Kitai, the victim said provocative words towards the offender. 

Payment of Compensation
 
39. 	The offender had asked for a longer period of time, that is twelve months to prepare for payment of compensation. I note that this case has taken over two years to complete. In my view, giving the offender an extended period of time is not fair on the victim who had to wait for two years for an outcome in this case. Delaying compensation payment any longer is not giving due consideration to the harm done to the victim and the effect the crime has had on her which should immediately be recognized by the sooner or immediate payment of compensation. For the victim, the sooner she can be settled, the better it is for her to put a closure to this case and for her to move on in life.

40. 	Whilst the offender is not formally employed, her husband is employed and was willing to assist her settle on compensation. The offender is involved in the informal sector as a street vendor and is able to raise the funds. I am satisfied that with the support from her husband, she is able to meet the compensation amount that is sought for by the victim. The victim is seeking a reasonable amount of K2, 500 and not the maximum amount of K5, 000 under the Criminal Law Compensation Act. 

41. 	Making an order for compensation to be paid within a shorter period of time achieves the three main sentencing goals. Firstly, considering that the cost of living in the city is high and when put under pressure to make compensation payments, in my humble view, it is considered sufficient punishment for the offender; secondly, such a punishment recognises the harm done to the victim and helps to put her back to the position she was at financially, prior to the commission of the offence on her. Thirdly, it is hoped that the parties will reconcile in the true Melanesian spirit. 

Effect of the Crime on the Victim

42.	The victim stated in her VIS that she now suffers from chest pains as a result of the injuries sustained to her chest. She had not produced any medical report to that effect, neither is this contained in the recent review report. There is also no supporting evidence from persons who were interviewed for example her husband, on whether the victim had been experiencing chest pains. I therefore, do not give weight to that statement. Apart from that, I consider the other immediate effects of the crime on her, when the victim was stabbed which include the loss of blood, the pain and suffering, the stress and worry of being stabbed in a vulnerable part of the body with a lethal weapon, and over time, the financial loss and burden faced. 

Principles of Suspension of Head Sentence

43.	Some case law principles on suspension of head sentences say that suspension is not an act of leniency but is in the interest of the community and to promote rehabilitation and prevent recidivism (tendency of a convicted prisoner to re-offend): State v Kagai [1987] PNGLR 320. Evidence of good character supports suspension. There must be actual evidence and not based on submissions that the offender has good character: State v Kagai (supra). In violent offences, the views of the victim are important when considering suspension of sentence: State v Kogen [2016] PGNC 39 N6211 (19th February 2016) and State v Wamingi [2013] PGNC 329 N5723 (20th June 2013). 

44. 	In consideration of a favourable PSR for the offender where compensation as a form of punishment can be imposed, the willingness of the parties and especially the victim to participate, and the offender’s initiative and attempts to pay for her actions through customary compensation, I am satisfied that the offender is genuine about learning from her mistake and can legitimately be rehabilitated. 

45.	Consequently, serving time in prison for deterrent purpose is not called for. This court must give the parties an opportunity to reconcile and build relationships. Pursuant to the Criminal Law Compensation Act, and the principle in the case of State v Penge [2002] PGNC 90; N2244 (24 May 2002), the court will consider compensation as a means of punishment. This is to encourage reconciliation considering that both the victim and offender are known to each other, they come from the same province and they live in the same community in the suburb of Hohola No (1). 

Head Sentence

46.	Having taken into account all the considerations above, I arrive at a head sentence of four years imprisonment in hard labour as appropriate in the circumstance of this case. 

Suspension

47.	The head sentence of four years imprisonment in hard labour is fully suspended, and the court orders that the offender be placed on Probation for four years with conditions. The orders for compensation are made pursuant to sections 2, 3, and 5 (3) of the Criminal Law Compensation Act. The probation period starts today, the 30th March 2022 and shall expire on the 30th of March 2026. 

Final Orders

Sentence
	
48.	The court imposes the following orders on sentence:

1)	Offender is sentenced to four years imprisonment in hard labour; 

2)	Four years is wholly suspended on the condition that the offender is placed on Probation with conditions. 

Conditions on the Probation Order

49. 	The following conditions are imposed in the Probation Order:
 
1)	The offender shall report to the Probation Office within 48 hours from the time of pronouncement of this order.

2)	The offender shall reside at her known address Hohola No (1), National Capital District. 

3)	The offender shall not leave her place of residence, that is Hohola, in Port Moresby without the leave of this court and during the course of her probation period. If the offender has to change her address, she shall inform the Probation Office of her new or intended residential address.

4)	The offender shall perform 600 hours of community work at a worksite to be approved by the Probation Office.

5)	The offender shall keep the peace with the victim and generally be of good behaviour at all times.

6)	The offender shall not consume alcohol or any intoxicating substance whilst on probation.

7)	The offender shall not commit any indictable or summary offences including the summary offences of Breach of Peace and Possession of Dangerous Weapons whilst on probation. 

8)	The Offender shall pay compensation in the amount of K2, 500 to the victim within a period of three months. 

9)	This matter on the Compensation Order returns to Court on Wednesday 29th June 2022; 9:30 am for review on compliance. 

10)	In default of compensation payment of K2, 500 within three months, the offender shall serve the prison term of four years imprisonment in hard labour. 

11)	The Probation Officer shall file a report on the responses and progress of the probationer once a year for the four years of her probation term. The report shall be filed at the National Court Registry at the end of each of the four probation years, namely at the end of March 2023; end of March 2024, end of March 2025 and end of March 2026.

12)	In breach of any of these Probation Orders, the offender’s Probation shall lapse and she shall be arrested and ordered to serve the term of the four years sentence imprisonment in hard labour.

13)	The offender’s bail sum of K300 is to be refunded forthwith. 

Orders accordingly. 
_______________________________________________________________
Public Prosecutors: Lawyers for the State
Public Solicitors: Lawyers for the Defendant