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State v Wake [2022] PGNC 425; N9795 (21 February 2022)

N9795

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 98 OF 2022

THE STATE

V

RUBEN WAKE

Vanimo: Thoke, AJ
2022: 5^th, 9^th, 15^th & 21^st February

CRIMINAL LAW- Practice and Procedure -Grievous Bodily Harm- Section 319 of Criminal Code Act- Use of Bush knife- - Guilty Plea - Custodial or Non- Custodial Sentence-What is the appropriate sentence?

Brief Facts:

On the 26^th of June, 2021, the Prisoner, Ruben Wake, who was then an employee of the victim’s company was alleged to have caused ‘Grievous Bodily Harm’ on his Boss, Mr. Elton Wong Chung Kong. Mr. Wong, was attacked by Mr. Wake when he was about to pay his employees of Guriaso Camp of Amanab Sawmill. At that time Prisoner who was unhappy with his payment, without hesitation went straight towards him, armed with a bush knife and swung it right on the victim- Mr. Wong. In defence, when he tried to wedge the force coming at him with his hands, the bush knife, unfortunately landed on his left forearm, whereby, he sustained a deep cut on his left-hand elbow. The injury was surprisingly serious that he went for further medical treatment at Pacific International Hospital in Port Moresby.

Cases Cited:

The Public Prosecutor v Don Hale (1998) SC564
The State v Darius Taulo [2000] PGNC 1; N2034
The State v Dirona [2019] PGNC269; N7985
The State –v- Hilary Lemia [2012] PGNC 179; N4817
The State v Kariat [2017] PGNC246; N6904
The State –v- Paranis [2009] PGNC 145; N3761
The State v Timi [2012] PGNC 369; N4610
The State v Tokenaki [2015] PGNC 28; N5960
The State –v- Wanpis Bonny [2020] PGNC321; N8534

Legislations Cited:

Section 319 of the Criminal Code Act
Section 19 of the Criminal Code Act

Counsel:

Ms. Linda Maru, for the State
Mr. Paul Moses, for the Accused

DECISION ON SENTENCE

21^st February, 2022

1. THOKE AJ: The matter came for hearing on the 15^th February 2022 for decision on an appropriate sentence to be imposed on the prisoner.
   
2. The Accused was charged under section 319 of the Criminal Code Act.
   

INDICTMENT

3. The indictment dated 8^th of February 2022, reads as follows:
   

“RUBEN WAKE of MOLKENO VILLAGE, VANIMO GREEN, WEST SEPIK PROVINCE stands charged that he on the 26^th day of June at Guriaso Base Camp, Vanimo in Papua New Guinea, unlawfully did grievous bodily harm to WONG CHUNG KONG.”

4. He ‘Pleaded Guilty’ to one count of unlawfully doing grievous bodily harm to ELTON WONG CHUNG KONG, pursuant to Section 319 of the Criminal Code Act (CCA).
   

THE CHARGE

5. Section 319 of the CCA reads as follows:
   

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.

ALLOCATUS

6. The Prisoner was asked to give his statement in respect to the Charge and the sentence yet to be imposed on him.
   
7. The Prisoner provided an apologetic statement of the turn of events, and was remorseful that he had caused such level of harm, and that it was he’s first time to do so.
   
8. He promised to pay compensation in the sum of K500.00 as soon as he can, or should the court provide a deadline, he would do so, accordingly.
   
9. He said he has a family of 2 wives and 4 children, who entirely depend on him as he is the only breadwinner of the family.
   
10. Taking into account the above points and acknowledging that he was a first-time offender, he sought for a ‘Non- custodial Sentence’ to be imposed.
    

‘SUBMISSON ON SENTENCE’ BY DEFENCE

11. The following paragraph provides Counsel for Defence, Mr. Paul Moses’s submission to assist the Court to decide on an appropriate sentence for the Prisoner.
    
12. The Counsel for Defence, Mr. Moses submitted the mitigating factors for consideration as follows;
    
    • Early plea of guilty. Saves Courts and States time.
    • First time offender with no prior conviction
    • Shown Remorse in his allocutus.
    • Acted alone.
    • De facto Provocation- the offender and his co- workers were underpaid.
      
13. The two main Aggravating factors according to Mr. Moses are:
    
    • Victim suffered permanent injuries
    • Offensive weapon (bush knife) was used.
      
14. He further submitted a number of comparable case authorities that would shed light on what appropriate sentence can be given to the Prisoner in these circumstances;
    
15. The following table is extracted directly from Mr. Moses’s submission, for ease of reference;
    

16. He also submitted that this a case where the offence is committed within a co-existing employer and employee relationship. The offender was unhappy and frustrated for a long time, concerning the fortnightly pay he received, in which his Employer, the victim, was thought to have been underpaying him in contrast to the role he occupied as a chainsaw operator, which came with a lot of risks.
    
17. Furthermore, he submitted that even though the action of Employer is unlawful, the nature of approach he took as an Employee, to express his concern is wrong, but rather a clear expression of the intensity of animosity, anger and bitterness, harbored overtime.
    
18. Finally, Mr. Moses conclusively noted on his submission that, all the cases he gave reference to in the table, share a similar nature of anger expression through the use of bush knives or a knife. The range of sentencing imposed were between the interval of 2 to 4 years imprisonment, and then, taking into account the mitigating factors, the sentence imposed were wholly suspended with conditions, upon the judgment that the migrating factors had outweighed the aggravating factors.
    

‘SUBMISSION ON SENTENCE’ BY THE STATE

19. The Counsel for State, Ms. Linda Maru, made submission also setting out the aggravating factors and mitigating factors for the Court to consider, before deciding on an appropriate sentence for the Offender.
    
20. The Aggravating factors are as below:
    
    • The prisoner was armed with a bush knife
    • The nature of the injury was so serious, the Victim had to be flown to Port Moresby for further medical treatment.
    • The victim and his employer incurred additional expenses in relation to the Port Moresby trip.
    • GBH is an offence that is now prevalent in this country and stiffer penalties are required to deter the would-be offenders.
      
21. The Mitigating factors stated in the Prosecution’s submission are:
    
    • His early guilty plea
    • He is a first offender
    • He expressed remorse to the Court and to the Victims
    • He explained why he attacked the victim.”
      
22. She further submitted three cases, sharing similar comparable nature of offence which include a bush knife as a weapon of harm.
    
23. The 3 cases from the submission are extracted as below:
    

1. State –v- Wanpis Bonny (2020) PGNC321 N8534
   

The prisoner in this case pleaded guilty to one count of grievous bodily harm. It was alleged that he armed himself with a bush knife and swung it at the Victim who was his brother in law and cut the Victim on his 2^nd, 3^rd, 4^th and 5^th fingers of his right hand. He was sentence to; 2 years IHL-1-year, 2 months and 2 days period in pretrial custody.

2. State –v- Paranis (2009) PGNC 145 N3761
   

In this case, the Prisoner being enrages by the stories he heard from his two friends that the Victim had sworn at them, used a bush knife to cut off the small and adjacent tendons of the Victim’s hand. The prisoner pleaded guilty to one count of unlawfully doing grievous bodily harm and he was sentenced to 2 years which was wholly suspended with conditions.

100. State –v- Hilary Lemia (2012) PGNC 179 N4817
     

The prisoner in this case had marital problems with his wife. She then sought refuge at the house of the Victim. When the Prisoner heard that his wife had taken refuge at the Victim’s house, he armed himself with a bush knife and went in search of the victim. Upon seeing the Victim, he swung the bush knife at the Victim and the Victim sustained three deep cuts on the right side of the face and one deep cut on the left side of the face. He pleaded guilty to the one count of grievous bodily harm and the Court imposed a sentence of 4 years in hard labor which was wholly suspended with conditions.

24. Finally, she submitted that, whilst taking into account the aggravating factors in this case and the likely penalty considering the above cases, the appropriate sentence to be imposed is a term of 3 years in hard labor, minus the pre-trial custody period.
    
25. She conclusively requested for a custodial sentence to be imposed on the Prisoner.
    

PRE- SENTENCE REPORT

26. I have thoroughly perused the Pre- Sentence Report presented by the Senior Probation Officer (PSO), Mr. Ben Kasandra, of the Community Based Corrections & Rehabilitation Service, and note that it speaks favorable of the Prisoner as a suitable candidate for Probation, and that he is not seen as a threat to the community.
    
27. I also take note of the following;
    
    • The Prisoner has two wives and 4 children
    • He is willing to respect the Law by following the Orders by this Court
    • He has good reputation in his past employments
    • He is willing to claim outstanding wages and use it to look after his family.
    • He is a law-abiding citizen and a Leader among Mokeno people and helps others who are underpaid.
    • When asked by the PSO, Mr. David Ching, the General Manager of the Amanab Timber Company (the company the prisoner worked for), wants the Court to impose any form of punishment acceptable to the Court.
    • The Prisoner had expressed remorse over his action saying, it was done under frustration.
    • He is willing to compensate the victim with an amount of K500.00
    • He also states, he will not commit any similar offences again.
    • The prisoner is not a danger to any other person or people in the community and foreigners.
    • He has been a leader and chairman of Kabone Elementary School and Public Relations Officer of Block 2 Timber area, representing the Mokeno community.
    • He also asks for non- custodial sentence which will allow him to continue his work as a Public Relations Officer and continue as chair to Kabone School Board of Management
      

SENTENCE

28. By law, the nature of this offence carries a maximum penalty of 7 years imprisonment. This Court has the power to impose a term of 7 years. I will exercise my discretion, pursuant to section 19 of the Criminal Code Act to impose a term of sentence I find suitable.
    
29. In the case of The Public Prosecutor v Don Hale (1998) SC564, the Court is of the authority that, where the Accused is not threat or in danger to the community, he is a suitable candidate for a Probationary sentence.
    
30. The Accused’s concern of being underpaid by the Complainant or Employee is not solely a dilemma faced exclusively by Vanimo employees, let alone him as an individual, rather a National concern in the country and region as a whole. It is an issue to be addressed by the government. Many Papua New Guineans are being underpaid, yet they simply overlook and accept whatever that is given as compensation for their work.
    
31. I have also considered a range of sentences imposed in certain cases, including the cases cited by both Counsels, respectively. Some cases cited may be more serious than this.
    
32. In this case I agree with Counsel for Defence, that the mitigating factors outweigh the aggravating factors.
    
33. The harm was not pre-meditated or there was no real intention to cause such harm, rather a moment of poor anger management. Even so, the Prisoner showed remorse and is willing to pay compensation.
    
34. While the offence is coincidental, the nature and approach the Accused took to express his concern to his employee is unarguably unlawful and unwarranted, thus an appropriate penalty or sentence shall be determined by this Court.
    
35. In contrary, having considered the above reasons, the Pre-sentence Report, Submission by both Counsels, respectively, and the cases highlighted therein, I am of the view that this offence does not warrant a ‘Custodial Sentence, as submitted by the Counsel for State.
    
36. The reason for this is simple. The Prisoner was employed by the Complainant or Employee, in which he was an employee or a shareholder, as such the circumstances surrounding this offence happened within an existing employer- employee relationship, which is very much common.
    
37. Accordingly, the Orders of the Court are as follows:
    
    1. I sentence you to 3 years imprisonment, less the amount of time you spent in pre- trial custody.
       
    2. I suspend the entire balance of the term of 3 years, subject to the following terms and conditions;
       
       1. You shall pay the sum of K500.00 as compensation to the victim in the presence of Senior Village Councillors and Magistrates from your village within 3 months from the date of this order, and inform the Vanimo National Court that the Order had been complied within 3 months.
          
       2. You shall enter into your own recognizance without surety to keep the peace and be of good behaviour during the period of the suspended sentence;
          
       3. You shall not change your residential address at Aitape unless you have given the Vanimo National Court Sub-Registry reasonable notice of your intention to do so, and the reason for the proposed change.
          
       4. You shall not leave Vanimo without the leave of this Court during the period of suspensions.
          
       5. You must attend the Christian Brethren Church every Sunday for worship and perform at least 5 hours unpaid communal work under the supervision of a Senior Pastor approved by the Senior Probation Officer.
          
       6. You shall report to the Senior Probation Officer at Vanimo on Monday of each month between 9:00am and 4:00 pm;
          
       7. You shall not consume alcohol or drugs; and
          
       8. If you breach any of the conditions above, you shall be brought before the National Court to show cause as to why you should not be detained in custody to serve the rest of your sentence.

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defendant