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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR. NO. 277 OF 2019
BETWEEN:
THE STATE
AND:
GIBSON KEND
Waigani: Ganaii, AJ
2022: 11th, 13th &14th April
CRIMINAL LAW – SENTENCE – Grievous Bodily Harm – Section 319 of the Criminal Code – Convicted after Trial
– Victim bitten on thigh and finger-tip – Principles of Sentencing considered – Head Sentence of three years imposed
– Full suspension – Good Behaviour Bond - Compensation
Cases Cited
Papua New Guinean Cases
Aieni v Tahain [1978] PGNC 13; [1978] PNGLR 37
Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
Public Prosecutor v Tardew [1986] PNGLR 91
State v Boi and Iru [2010] PGNC 202; N4780
State v Dingi (2016) PGNC 249; N6444
State v Geria (2008) N3868
State v John (2011) N4371
State v Karuka (2021) N9281
State v Kennedy [2017] PGNC 91; N6661
State v Kiaro [2020] PGNC 277; N8610
State v Penge [2002] PGNC 90; N2244
State v Sheekiot (2011) N4454
Overseas cases cited
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Legislation
The Criminal Code Act, Chapter 262 of 1974, Section 319
Criminal Law (Compensation) Act, Chapter No 26 of 1991, Section 5 (3) (b)
Counsel
Ms. S. Suwae, for the State
Ms. C. Bomai, for the Defendant
DECISION ON SENTENCE
14th April, 2022
1. GANAII, AJ This is a decision on sentence for the offender Gibson Kend. He was found guilty after a trial and convicted on one count of Grievous Bodily Harm, contrary to section 319 (1) (a) of the Criminal Code.
Facts
2. The victim Presley Kend and the offender Gibson Kend are related. The offender is the nephew of the victim. They are from the Enga Province and both reside at Morata, NCD. On the 7th of September 2018 between 7-8pm, a traditional Engan Moka was taking place inside the residence of the victim Presley Kend at the suburb of Morata. The victim had offered his residence for the Moka to be held. Moka is the name given for the ceremony whereby disputing or warring parties in a conflict gather before the public to witness payment of compensation, settling of differences and reaching of peaceful resolution to their ongoing conflicts. The Moka that evening was held between two warring Engan tribes over issues relating to land ownership and boundary disputes.
3. On that day, whilst everyone had gathered to participate and witness the Moka, the offender walked into the victim’s residence under the influence of alcohol, carrying a boom box, an alcoholic bottle and playing loud music. The offender’s actions and gestures were disturbing the peace and order during the peace ceremony. The victim Presley Kend asked the offender to leave his premises as he was disturbing the peace. The offender refused to leave. After several requests by the victim in asking the offender to leave, the victim approached the offender and pushed him away. The offender held the victim and they struggled. They both fell. Whilst on the ground, the offender bit the victim on his left inner thigh. When the victim reached his hands out to the face of the offender to push his head away, the offender bit the tip of the victim’s left index finger, severing it. The victim suffered from pain and bleeding from both a lacerated left inner thigh and severed fingertip. Consequently, the long-term effect was that the victim suffers from permanent loss of use of tip of his left index finger.
Issue
4. In deciding on an appropriate penalty, the court takes into account the following relevant considerations: the finding of facts, the antecedent report of the offender; what the offender said in allocutus, the submissions of parties inclusive of the aggravating and mitigating factors; comparable case precedents; the Pre-Sentence Report (PSR) inclusive of the deceased’s family’s views; the views of the victim and the applicable and general sentencing legal provisions.
Allocutus
5. In consideration of the principle in Aieni v Tahain [1978] PNGLR 37 the offender was given the opportunity to speak. He said the following:
“I say sorry to the court. The court can impose Good Behaviour Bond on me. I have school aged children. I am not formally employed. I am self-employed and I run a trade store. I also do marketing to sustain a living and feed my children. I say sorry to the court. I ask the court to be lenient on me. That is all”.
Pre-Sentence Report
Origin and Place of Residence
6. The offender is 37 years old and hails from Londol Village, Kompiam- Ambum District of the Enga Province. He resides at Morata One, National Capital District where he had resided for the past 25 years. His parents have passed away. His late father was a village councilor during the early colonial era and was a carrier, carrying health supplies in and around the neighbouring villages in Enga Province. His mother assisted his father in cooking for the early missionaries in the early days of the missionaries first contact into Enga Province. The offender is the fourth born out of a family of four brothers and three sisters. The offender’s siblings have all gotten married and live with their extended families in Morata One. The offender has left his home a long time ago and regards Morata as his home.
Persons Interviewed
7. Two persons were interviewed who made statements in support of the offender. They were Mrs. Mercy Gibson, the offender’s wife and Ms. Rita Kend, the offender’s elder sister. The sum of their view is that the offender is the sole bread winner for his immediate and extended family. He also provides for his two widow sisters whose husbands have died. They seek the court’s leniency for the offender to be given a non-custodial sentence and be ordered to pay compensation.
Educational and Employment History
8. The offender was educated up to Grade Three only and had to leave school due to a severe skin disease. He communicates in fluent Pidgin. He has never been formally employed and has always been self-employed. He is a small businessman, currently operating and managing a Tucker Shop. The proceeds from the shop are used to sustain his immediate and extended family’s survival in the city.
Marital Status and Dependents
9. The offender is married to Mrs. Mercy Gibson who also comes from Londol Village in the Enga Province. They have four children ages 9, 6, and 2 and they have an adopted 14-year-old son. The three school aged children attend Primary School in the neignbouring suburb of Waigani.
Financial Situation and Offender’s attitude towards Compensation and Reconciliation
10. Being self-employed, the offender relies heavily on the proceeds from his tucker shop to sustain the living of both his immediate and extended family. He said he earns K500 within a fortnight but due to the high cost of living in the city, he has had no savings. He has been sustaining his extended family apart from his own immediate family. If the court is mindful to make an order for compensation, the offender is able to pay K3, 500 in cash to the victim. The victim is the offender’s uncle. The offender would like to compensate the victim through their Enga customary ways by making peace and reconciling. He has sought the court’s indulgence and has asked that the court give him a month to prepare for the payment of the compensation.
Health and Future
11. The offender has no major health problems. He said he has changed since the incident occurred. He has quitted consuming alcohol and other intoxicating substances and has started going to church. He is involved in church activities. For his future plans, he said he had no specific plans but to ensure that his children are financially supported to attain their education. He wants to give them the best he can to help them achieve their educational qualifications.
Community Involvement
12. The offender is a member of the Seven Day Adventist Church and attends Church at Morata Two, NCD. The writer was unable to obtain the views of anyone in the community. The writer has attached two character references written by the offender’s Church Pastor and a Community Leader.
Victim’s Views
13. The victim, Presley Kend confirmed that the offender is his nephew. He said the offender did not intend to kill or harm him at that time as the offender was under the influence of alcohol. The offender is now a changed person. He faithfully attends church and is an observer of the Sabbath. The victim has forgiven the offender. The victim said on two occasions, he approached the offender to pay him compensation but the offender wanted the matter to go to court. He leaves it to the court to decide on any orders for compensation.
Previous Criminal and Probation records and Circumstances of the offence
14. The offender does not have a prior record with the court or a probation supervision record. The offender admitted committing the offence. The offender maintained that he had mistakenly bitten victim’s finger.
Offender’s attitude towards the Offence
15. The offender regrets his actions and apologized to the Court, the State and all their family members. Since he is the only bread winner, he seeks the leniency of the court to suspend any sentence ordered on him.
Potential Danger to the community and Suitability for Probation Supervision
16. The writer is of the view that the offender is not a threat to his community where he resides. He is a transformed person and has quitted taking alcohol and drugs. He faithfully attends Church worship and programs. The writer says that being a first-time offender, and based on the views of the community obtained, the offender had realised his wrong, regrets his actions and is suitable for rehabilitation.
17. The writer visited the offender’s residence and confirmed that the offender has erected a small fellowship house catering for 30 plus church members. The writer also confirmed that the offender has a Tucker Shop that he operates from his home.
18. The victim is happy to participate in compensation and reconciliation. The offender has the means and ability to settle. The writer recommends that a non-custody sentence with orders for compensation and reconciliation is appropriate.
Defence Submission on Penalty
19. The following are the aggravating factors: the victim has suffered from a permanent injury to the tip of his left index finger and the offence is prevalent. The mitigating features are that the prisoner has no prior conviction, meaning he is a first-time offender; he has expressed remorse after being found guilty, he made admissions in the ROI; he is a father of four young children, he is willing to participate in compensation and reconciliation, and the prisoner is a baptized and active member of his church.
20. Defence has attached the following documents for consideration: a Baptismal Certificate dated 15th of August 2020 which shows the offender’s decision to follow Christ; photographs showing the offender’s family and church members involved in the Yakla Singing Ministry of which he is the leader; other photographs showing the fellowship centre within the offender’s residence that he had built; and two character references by a community leader Mr. Steven Ambrose and the offender’ s local Church Pastor Titipune of Morata 2 SDA Church. The references confirm his good and changed character and say he is not a thereat to the community.
21. Defence submitted that based on these good character reports, the offender is a suitable candidate to be considered for a suspended sentence. Defence relied in the case of Public Prosecutor v Tardew [1986] PNGLR 91.
Case authorities
22. Defence also cited the following comparable cases:
The offender pleaded guilty to cutting his sister with a knife twice on the neck and on the left cheek. This was after she did not approve of him using the knife to assault a youth who was misbehaving at a community gathering. The assault caused the offender’s sister to lose blood and she suffered great distress. Local anaesthetic was applied to the wounds requiring three stitches to the neck and a butterfly dressing on the cheek, She was on a course of painkillers and antibiotics. Compensation of K1, 837.00 was paid to the victim and reconciliation was made. A sentence of four years was imposed with full suspension on Probation with conditions for further compensation and reconciliation.
The offender pleaded guilty to chopping the victim on his left forearm with a bush knife. The offender supports his local church as a carpenter and helping hand. He was unhappy about how the church project funding was used without his knowledge. He destroyed musical instruments in the church. The victim, who is also a church member, approached the offender to enquire on why he had damaged church properties. He cut the victim on the forearm where the victim sustained deep laceration on his left forearm with fracture of the two bones in that arm. K56 000 and five pigs was paid by the offender in compensation. The offender was sentenced to 3 years which was wholly suspended. The reported case showed no record of orders being made for probation or Good Behaviour Bond.
The court convicted the offenders after a trial. They were Road Safety Offices who were conducting a roadblock when the victim and his family came by. The victim tried to drive off and the offenders punched him in the face several times resulting in multiple facial plus dental soft tissues injuries; Partial subluxation (mobility) of teeth at 11, 21, 22, 24, 25 and 26, a total of six (6) teeth partially subluxation as of the trauma and associated head and back injuries. The offenders were senesced to three years wholly suspend with orders for Good Behaviour Bond with surety. No orders for compensation were made as the Court was of the view that the victim would pursue that civilly.
The prisoner was found guilty after trial for biting the victim’s second digit finger and severing it completely off with her teeth. She was under the under the influence of alcohol when she and her husband had a fight. The victim who is a good friend of the offender intervened to stop the fight when the offender bit her finger off. The victim suffered from loss of efficient use of right digit finger. The offender paid K200 compensation to the victim. She was sentence of three years which was wholly suspended with orders for Probation and further compensation.
23. In comparing the above cases to this and in considering the presence of the mitigations which outweigh the aggravations, and where there is good character reference, a sentence of three years is appropriate with full suspension and orders for Good Behaviour Bond and other orders the court deems fit to make be imposed.
Prosecutions Submission
24. State submitted that the following are the aggravating and mitigating factors present in the case. The aggravating factors are: the offence is prevalent, the injury is serious and permanent, there is now a loss of use of the tip of the victim’s left index finger, the offender was under the influence of alcohol, this is a domestic violence offence and the offence occurred in the comfort and safety of the victim’s home. The only mitigating factor is that the prisoner pleaded guilty and is a first-time offender. The aggravations far outweigh the mitigations.
25. State relied on two comparable cases of State v Grace John (supra) as cited by the defence and State v Kennedy [2017] PGNC 91; N6661 (13 April 2017). In Kenndy, on a guilty plea, where the offender fought with her husband and his hand got in her mouth where she bit part of it off, she was sentenced to three years in prison which was wholly suspended with orders for Good Behaviour Bond and K300 to be paid as compensation within two months.
26. State submitted that the PSR contained the victim’s view. He is seeking compensation. Three years is an appropriate sentence and the court will decide on whether to suspend wholly or partly the head sentence.
Application
27. The offence of grievous bodily harm carries a maximum penalty of a term not exceeding seven years. It is settled law in this jurisdiction that the maximum penalty for any offence is reserved for the worst kind of case. Principle in the 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
28. The Court is mindful of the purpose for sentencing which is to ensure that the offender is adequately punished for the offence, to prevent any 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] HCA 14; (1988) 164 CLR 465 is adopted and applied in the case of State v Paul Karuka N9281, (14th September 2021).
Relevant Considerations
29. Any punishment that a court imposes should be proportionate to the harm inflicted and the level of responsibility of the offender. 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. State v Kiaro [2020] PGNC 277; N8610 (30 October 2020), applied.
30. 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
31. I am grateful for the cases cited to me by counsels. I take note of the facts of the case and particularly the reasonings given by the courts for the imposition of the various head sentences and suspension orders thereof.
Relevantly Comparable
32. A summary of all cases cited by counsels above show that on a guilty plea with the use of the teeth to bite off a part of the finger, sentences of 3 years imposed with full suspension on conditions was appropriate. As in all cases, the sentence in this matter will be determined having regard to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.
Circumstances of the Offence
33. The victim and the offender are uncle and nephew. The victim had offered his residence for the Moka to take place. The traditional Moka is aimed at achieving and maintaining peace. The ceremony was staged to bring together and maintain peace between members of a waring tribe and as such, was a significant event. Settlers in settlements like Morata, comprise of among others, people who, like the offender have left their places of origin in their home provinces to settle in the city in search of a better life, or for better schooling and working opportunities for their children and themselves. The traditional Moka would pave ways forward for lasting peace between those members of the waring tribe who have left their homelands due to tribal warfare and from dispute over land. Maintaining peace in the city, during Moka ceremonies like this should be in the best interest not only for those concerned warring tribes but also for all settlers in Morata and in the city of Port Moresby. If there can be no lasting peace, violence may continue in the city or back in the home provinces disrupting and endangering lives of many innocent and vulnerable people.
34. In this present case, the offender and the victim are related. It is unclear but it may be that both had a direct interest in the peaceful outcome of the Moka ceremony. What the offender did was uncalled for in the circumstance. All that the victim was doing was to ensure there was no disturbance at the ceremony. The victim did what was right and expected of him as the owner of the venue, as an elder, as a relative of the offender and as an interested party to the peaceful outcome of the Moka. He was simply telling the offender how to behave. As it turned out he was attacked. The offender’s words, behaviours and gestures did provoke the peace and good order at that time. This kind of disrespectful behaviour must change especially during ceremonies like this. The attack on the victim was uncalled for.
35. It is noted that no weapons were used, and the injury was only to the tip pf index finger. In the John and Kennedy (supra) cases, where the index finger was completely bitten off and the thumb was partly bitten off, the court-imposed sentences of three years. The case of John was a trial as in this instant case.
36. Whilst the victim suffers from permanent loss of use only to the tip of his index finger, so that this case should attract a lesser sentence to those cited, I am mindful that he also suffered from injuries to his left inner thigh and that the offender was found guilty after a trial. A further consideration is the effect of the crime on the community and the public at large. A deterrent sentence must be imposed to deter the offender and other like minder persons who have disregard for the maintenance of peace and harmony in society by being disrespectful to traditional Melanesian ways of resolving disputes, such as the Moka in this instance. Where a man is supposed to feel safe in the comfort and security of his home, the victim was not safe at all in his own home and in the presence of his immediate family members when he was attacked there by the offender. This is an aggravating factor. A further consideration is that the victim was an elderly member of the family and the offence occurred in a domestic setting. A sentence at the starting point of three years is appropriate.
37. In consideration for suspension, I am mindful that where the PSR favors compensation, and more particularly where the victim and the offender, being relatives are willing to participate in reconciliation, the court can consider compensation payment of up to K5, 000 under section 5 (3) (b) of the Criminal Law Compensation Act. The principle in the case of State v Penge [2002] PGNC 90; N2244 (24 May 2002) is applied.
Head Sentence
38. Having taken into account all the considerations above, I arrive at an appropriate head sentence of three years imprisonment in hard labour as appropriate in the circumstance of this case.
Suspension
39. In consideration of a favourbale PSR, showing changed and good character and willingness of parties to participate in reconciliation and compensation; and where compensation is seen not only as a form of punishment for the offender, but a means of encouraging rehabilitation, I fully suspend the head sentence of three years imprisonment. The court orders that the offender enter into his own recognizance and be on good behaviour bond for a period of three years.
Conditions on the Good Behaviour Bond
40. I impose these conditions on the Good Behaviour Bond (GBB):
41. The offender’s bail sum of K500 is to be refunded forthwith.
Orders accordingly.
__________________________________________________________________
Public Prosecutors: Lawyers for the State
Public Solicitors: Lawyers for the Defendant
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