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State v Felix [2022] PGNC 603; N10352 (2 December 2022)

N10352

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR NO. 1012 OF 2022


THE STATE


V


JEPTHA FELIX


Buimo/Bulolo: Polume-Kiele J
2022: 21st & 25th October, 1st, 7th & 8th November, 2nd December


CRIMINAL LAW – Sentence – Guilty plea - Grievous bodily harm, s 319 Criminal Code Act, Penalty, Imprisonment for a term not exceeding seven years, s 319 Criminal Code Act.

CRIMINAL LAW – Sentence – Early guilty plea – first time offender - Appropriate starting point and Head sentence – Suspension of sentence considered

CRIMINAL LAW –– Sentence – Head sentence of 2 years imprisonment, s 319 Criminal Code; Pre-trial period in custody of 4 months deducted; s 3 (2) Criminal Justice (Sentences) Act; Head sentence of 2 years wholly suspended on terms, s 19 Criminal Code Act.

Facts:

The prisoner is charged with two counts of grievous bodily harm under s 319 of the Criminal Code. He pleaded guilty to both counts on 25 October 2022.

The facts of the case are that on Sunday 8 May 2022, between the hours of 9 p.m. and 10 p.m., the prisoner and his friends were drinking alcohol at the Care Centre at Bulolo. At the relevant period, the prisoner saw the complainant, John Eddie and his wife on the road and he called out to him at the same time swearing at the complainant. The prisoner then walked over to where John Eddie was standing and started assaulting him all over his body. John then fell to the ground. This then caused Koniel Isaac to intervene to stop the fight. However, during this exchange, the prisoner pulled out a small knife which he had on him and struck Koniel on the face with it. Koniel then fell to the ground unconscious, and he was losing a lot of blood from the wound on his face.

The second charge relates to the assault occasioned on one, John Eddie who sustained bodily injuries to his body and when he was assaulted by the prisoner without reason.

The prisoner was arraigned on 1 November 2022 to the charge to the offence of causing grievous bodily harm under s 319 of the Criminal Code and was convicted accordingly upon his own guilty plea.


Cases Cited:
Aihi –v- The State (No.3) [1982] PNGLR 92
Golu –v The State [1979] PNGLR 653
Public Prosecutor –v- Tardrew [1986] PNGLR 91
State v Mono Sini, (CR.183 of 2013)
The Public Prosecutor –v- Done Hale (1998) SC564
The State –v- Mais (2014) N5838
The State –v- Sheekiot (2011) N4454
The State –v- Konos (2010) N4157
Ure Hane v the State [1984] PNGLR 105


Counsel:
Ms Joseph, for the State
Mr. Boku, for the Prisoner


SENTENCE


2nd December, 2022

  1. POLUME-KIELE, J: On 25 October 2022, the prisoner Jephta Felix by his own guilty plea admitted to two counts of unlawful grievous bodily harm caused to Koniel Isaac by striking him with a small bush knife on the night of Sunday, 8 May 2022, at the Bulolo Care Centre, Bulolo, Morobe Province and the second count of unlawful grievous bodily harm caused to John Eddie also on the night of Sunday, 8 May 2022, at the Bulolo Care Centre, Bulolo, Morobe Province.
  2. The charge under Section 319 of the Criminal Code Ch. 262 reads:

“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.

Committal Court Dispositions

  1. Ms. Joseph for the State tendered the Bulolo District Court Deposition into evidence by consent which comprised of the following:
  2. Upon the reading of the Committal Court dispositions and being satisfied that the evidence contained in the dispositions supported the charge, your guilty plea was accepted, and I convicted you on the charge of grievous bodily harm prescribed under s 319 of the Criminal Code.

Allocutus

  1. Prior to sentencing, you were administered your allocutus. In your allocutus you asked this Court to have mercy on you as you did not mean to cause harm to the victims. You also said that you are scared of making this kind of trouble again. The action was a mistake and that you are sorry to the court, the victims, and his family for causing this mistake. You are still attending school. He lives with his parents and his mother is the only one who supports the family. The prisoner asked to be placed on probation so that he can go home and continue with his education.
  2. Mr Boku on behalf of the prisoner requested that a Community Based Correction Report be provided by the Probation Officer to assist this court determine the issue of the severity of penalty. In response to this request, the Probation Officer (Bulolo) was directed to prepare a Pre-Sentence Report (PSR) by 7 November 2022 to assist the court with its deliberation on the severity of sentence. The Probation Officer, Mr Jacky Mikihae Micky has prepared such Reports which I have perused and is discussed below.
  3. In addition, I have had the benefit of both a written and oral submission on sentence from the Defence Counsel, Mr Boku for and on behalf of the prisoner and heard oral submission from the Counsel for the State, Ms Joseph on the 7th of November 2022 on sentence respectively.

Pre-Trial Detention

  1. The prisoner was remanded on 8 August 2022 and has been held in custody for a period of 4 months to the date of this decision on sentence.

Pre-Sentence Report

  1. Before I discuss the decided principles, which have been applied by the courts to determine the severity of sentence, I will firstly discuss the PSR prepared and submitted by the Probation Officer, Mr Micky on the prisoner. According to the PSR the prisoner is from Biwat Village, Angoram, East Sepik Province and is about 20 years old. The prisoner is educated up to grade 10 level and was doing grade 11 at FODE, Bulolo when he got into trouble. He comes from a family of 6 children. Both parents are alive. His mother earns a living working with the PNG Forest Products Limited. His father is unemployed. The prisoner lives with his parents at the Care Centre. The prisoner is not a first-time offender. He had been charged with and fine for a similar charge by the Bulolo District Court.
  2. The community leaders interviewed all speak highly of both the prisoner and the victim and are satisfied that peace must be maintained within the community at the Care Centre. The victims interviewed also confirmed that they have a good relationship with the prisoner’s parents but view that their friendship is at stake with such behaviour. The victim also expressed their wish for some form of compensation to be paid for their injuries. That is, payment of compensation must be endorsed by the Court so that the prisoner and his parents be compelled to pay. Overall, the Probation Officer in his overall assessment of the prisoner recommended that the prisoner is a suitable candidate to be placed on probation on terms and conditions to be set by the Court.

Submission on sentence

  1. In considering the type of sentence to be imposed, I have heard submission from both the Defence Counsel, Mr. Boku and Ms. Joseph for the State on the severity of sentence and will consider these submissions when deciding on an appropriate sentence to be imposed on you.
  2. However, before I come to this determination, I must point out to you that the offence of unlawfully causing grievous bodily harm under Section 319 of the Code carries a maximum penalty of 7 years imprisonment. It is, however, well established law in our jurisdiction that the maximum penalty for any offence is always reserved for the worst types of that offence. It is also well settled law that each case must be considered on its own merits, set of facts and circumstances as held in Golu –v The State [1979] PNGLR 653; Aihi –v- The State (No.3) [1982] PNGLR 92 and Ure Hane v the State [1984] PNGLR 105. To ascertain an appropriate sentence in this present case, regard to two factors is considered and these are firstly, whether this is a case that would warrant the imposition of a penalty of 7 years imprisonment, which is the maximum penalty for such an offence? and secondly whether the court can exercise its discretion to suspend a head sentence once fixed?
  3. To arrive at an appropriate bar upon which an appropriate sentence for the offence of grievous bodily harm under s 319 of the Code is imposed, I note that there are variations in the severity of penalties and thus will be guided by comparable case authorities (both reported and unreported) that have dealt with the offence of grievous bodily harm. Whilst acknowledging that although the offence of grievous bodily harm is prevalent, not all cases are the same, as each case is determined by its peculiar facts and circumstances. The factors held to be useful in these determinations include but are not limited to the following consideration:
  4. For your case, Mr Boku on your behalf submitted that it is settled law in this jurisdiction that the maximum penalty for an offence should ordinarily be reserved for the worst type of cases. In that, your case is not a worst type of offence involving grievous bodily harm and he relied on a number of case law in support of his submission however, not all the cases are discussed here but I make particular references to firstly, the case of The State v Ambai [2018] N7154. In that case, the prisoner had pleaded guilty to a charge of grievous bodily harm on arraignment of indictment and agreed facts presented to the court on 23rd February 2018. The charge on the indictment was that on 6th day of July 2017 at Warangoi Market, East New Britain Province the prisoner of Sein Village Nuku, Sandaun Province unlawfully did grievous bodily harm to William Togie. In that case, the prisoner was sentenced to 5 years imprisonment, less the pre-trial custody period. The balance of the prison term is suspended, and the prisoner is placed on a good behaviour bond of 4 years. In addition, an order for payment of K3,000.00 to be paid within 6 months, such ceremony to be witnessed by a Church Pastor and police personnel in Bulolo.
  5. In another case, The State v Timothy [2017] N6929, the prisoner pleaded guilty to 1 Count of Grievous Bodily Harm that on the 1st of January 2015 at Komunoboga Village, Gembogl District, Simbu, he unlawfully caused Grievous Bodily Harm to another person namely Thomas Laiko thereby contravening S.319 of the Criminal Code. He was sentenced to 3 years hard labour, less the pre-trial custody period and the balance was suspended on terms. That is with a condition to pay K3,000.00 in compensation or serve the balance in prison.
  6. In the case of The State v Bupei [2016] N6848, the accused pleaded guilty to one count of doing grievous bodily harm contravening s 319 of the Criminal Code which carries a maximum penalty of seven (7) years imprisonment. The victim, one Robert Utan and the accused are related as cousins. On the morning of 12 November 2014, the victim was sitting on the veranda of his house when the accused accompanied by a few of his relatives, in concert, approached him, argued with him, and attacked him. The attack was in retaliation for reporting the prisoner to the local councillor for stealing betel nut from the victim’s garden. The victim fell to the ground, was kicked and he vomited. The accused who held a bush knife cut the victim and as the victim lifted his right hand to protect himself, the bush knife fell on his left arm and completely severed it. The victim was rushed to hospital where he was admitted and treated for the injury. His right wrist was amputated and healed. In all the circumstances, given the maximum sentence of 7 years imprisonment, the Court consider that a sentence of 4 years imprisonment in this case is appropriate and impose the same. The pre-trial custody period of 1 year 4 months and four days were deducted. The prisoner to serve the remainder of 2 years 7 months 26 day in custody.
  7. Although, the Defence Counsel acknowledged that the offence is serious, he invited this Court to take account of and take into consideration that the medical expenses and transport costs were paid by your mother (Questions and Answers 13. 16, and 37). Further, I also take note of your versions of the events which triggered the fight in Questions and Answer 15 and 16 in the Record of Interview. In addition, you also have taken ownership of your actions and said sorry to the victims.
  8. Regarding penalty, Mr. Boku submits that this Court consider imposing an appropriate sentence of 2 years imprisonment to be served concurrently on both charges as both victims were injured during the same offending and are relatives. Mr. Boku invites this Court to exercise its discretion under s 3 (2) of the Criminal Justice (Sentence) Act to deduct the 4 months pre-trial custodial period and to suspend wholly the balance of the sentence on terms pursuant to s 19 of the Criminal Code for the reasons that the injuries sustained are not permanent in nature.
  9. Ms Joseph in her response to the Defence submission on sentence submitted that this type of incident is prevalent and must be dealt with accordingly. Whilst acknowledging that this Court has considerable discretion whether to impose the maximum penalty by virtue of s 19 of the Criminal Code, and that the maximum penalty in any given case is always reserved for the worse instance of the Offence: Goli Golu v The State [1979] PNGLR 653 and that no two cases are identical therefore each case is to be treated on its own merits and peculiar facts: Lawrence Simbe v The State [1994] PNGLR 38. She submits that in considering what appropriate sentence this Court should impose for a particular crime, the principle is that the starting point must be a consideration of the penalty prescribed by the relevant statutory provision.
  10. For this offending, the penalty prescribed by s 319 of the Criminal Code is imprisonment for a term not exceeding seven years, however, this Court has considerable discretion whether to impose the maximum penalty by virtue of s 19 of the Criminal Code.
  11. In determining severity of sentence, Ms Joseph invited this Court to note that a number of aggravating factors go against you and these factor are firstly, you have repeated offence of similar nature (as contained in your antecedent report), you used a knife to attack the victim on the face, the attack was alcohol related, there were two victims who both sustained bodily injuries and the offending occurred within a domestic setting where you resorted to violence using an offensive weapon, namely a knife and such behaviour is now becoming prevalent within our society. These are matters which she submits outweighs the mitigating factors of your early plea of guilty and expression of remorse.
  12. Ms Joseph also referred this court to a number of comparable case authorities to assist the Court determine sentence and I am grateful for this assistance. Such cases include The State –v- Sheekiot (2011) N4454. In that case, the prisoner pleaded guilty to unlawfully doing bodily harm to his sister by cutting her on the neck and cheek with a bush knife. He was sentenced to 4 years which was wholly suspended on strict terms and payment of compensation and reconciliation.
  13. In The State v Matao [2015] N6084, the prisoner pleaded guilty to unlawfully doing grievous bodily harm to a passenger on a vehicle. The prisoner swore at the complainant and a fight broke out, the prisoner then picked up a Tramontina bush knife and cut the victim on the head resulting in the victim sustaining lacerations. A head sentence of 4 years imprisonment was imposed, pre-trial custody period of 12 months 4 days was deducted, and 2 years suspended on terms and the balance to be served in custody.
  14. In another case, The State v Nemao [2015] N6131, the prisoner pleaded guilty to doing grievous bodily harm contrary to s 319 of the Criminal Code, the prisoner used a bush knife to cut the victim on his right hand. The victim sustained lacerations with some loss of blood but none of the injuries sustained were life threatening. A head sentence of 3 years was imposed less the pre-trial custody period. The balance was wholly suspended with strict conditions including orders for payment of compensation of K2,500.00.
  15. In The State v Kara [2012] N4663, (per Cannings J) a man pleaded guilty to unlawfully doing grievous bodily harm to his female neighbour in an urban setting, cutting her on the face with a bush knife, inflicting an eye injury and superficial facial injuries requiring seven stitches. He was sentenced to 4 years imprisonment, which was wholly suspended on strict terms and payment of compensation and reconciliation.
  16. In another case, The State v Jet Kundapen [2017] N6980, the prisoner pleaded guilty to unlawfully doing grievous bodily harm to the victim’s left eye. A head sentence of 4 years was imposed, which was partly suspended on conditions.

Determining Sentence

  1. In this present case, the prisoner pleaded guilty to the charge and has no prior convictions. In addition, the prisoner co-operated fully with the police and his family had paid some part compensation to the victims and their families. The prisoner is a young man and appears to be genuinely remorseful. Furthermore, the PSR is favourable to the accused. The PSR also indicated that the family of the prisoner are willing to pay some form of compensation if ordered to do so by the Court. Whilst this court agrees that some form of compensation and reconciliation is necessary, an order handed down by the court requiring the payment of compensation and reconciliation defeats the purpose of a prisoner being genuinely remorseful. This court’s approach (my view) is that ““payment of compensation is a means through which an accused or offender says ‘sorry’ to the victims and their relatives. Therefore, this act of goodwill must be done voluntarily (‘willingly’) by the offenders/accused. It should not necessarily be imposed or ordered by the court”. That is, if a prisoner is ordered to make some sort of compensation or reconciliation to the victim than these form of compensation or reconciliation may not be genuine. This however is dependent on the circumstances of each and every particular case and would not be adopted randomly as there can be situations where for some accused or offender; it can be very difficult where fears of reprisal are evident. Thus, in order to ensure that there is peace, orders for payment of compensation and reconciliation by the Courts are necessary.

PAYMENT OF COMPENSATION

  1. The Court’s power to order compensation is derived from Criminal (Compensation) Act 1991, s 2 which read:

“2. COMPENSATION AS PUNISHMENT.

(1) Notwithstanding that payment of compensation is not specified as a punishment for an offence, a court may, in addition to any other punishments imposed, order an offender to pay compensation in accordance with this Act.

(2) When a court is considering the punishment or punishments to be imposed for an offence, it shall also consider whether in the circumstances of the case, compensation should be ordered.”
  1. The maximum compensation allowable under the Act is K5, 000.00. [s.5 (3)]. Whether or not order for compensation is to be made is matter of discretion of the court depending on the circumstances of the case. In this particular case, one of the complainant has received injuries to the face and the other had suffered only bodily injury without any physical disfigurement. I note that there is willingness from the prisoner and his relatives to pay some form of compensation.
  2. With regard to this case, a number of aggravating factors go against the prisoner. These are firstly, he was in the company of others when he attacked the victim, he used a lethal weapon that is a bush knife to cut the victim on the face, the victim was unarmed and that this type of offence is very prevalent. Therefore, there has to be some form of deterrent to other offenders.
  3. In this circumstance, a term of imprisonment by way of penalty is necessary to discourage others from committing such offences. Most importantly, imposing a stern punishment on those who take the law into their own hand will send a strong message to the perpetrators who breach the laws that they will face the consequence of their actions and will be dealt with according to law. Too often, people for whatever reasons and however justified, tend to take the law into their own hands and cause harm on victims who suffer injuries of varying degrees to their persons and at worst lose lives. Thus, such unplanned uncontrollable fighting where weapons of all manner and form are used to attack and maim victims must be dealt with according to law.
  4. For the present case, it warrants the imposition of a sentence above the starting point of 3½ years imprisonment considering the guidelines held in State –v- Sheekiot (supra) and State –v- Konos (supra) irrespective of the fact that the accused, had pleaded guilty to the indictment early and cooperated with the police. There has to be respect for the law and laws must be adhered to.
  5. With regard to whether or not, this court can exercise its discretion pursuant to s 19 of the Criminal Code suspend a sentence, this exercise of discretion must be based on proper principles, and these are firstly based on favourable Pre-Sentence Report assessment provided in favour of the prisoner. A case on this point is that of the (Public Prosecutor –v- Done Hale (1998) SC564) where the court exercised its discretion to suspend a sentence based on favourable Pre-Sentence Report assessment which supported suspension of the sentence either wholly or in part and where the suspension of a sentence appropriately encourages parties to reconcile and restore any damaged relationships as held in (Public Prosecutor –v- Tardrew [1986] PNGLR 91).
  6. For this case, this court notes a favourable PSR assessment and recommendation for probation supervision including reconciliation with the victim and his family plus members of the community. This court also notes that members of the prisoner's family have already initiated some part payment of compensation which included medical and transport expenses which has already been accepted by the victims and their families. This is an indication of showing how sorry the accused is for causing harm to the victims and their families. This traditional form of compensation payment is important to maintaining peace and harmony within families, communities, and the public at large and such gesture must be encouraged, it is also a gesture done without court's order being made to compel you to do so. It is a show of your remorse for the harm occasioned on the victims.
  7. Given the foregoing, a head sentence of 4 years imprisonment is imposed. I deduct the pre-trial period of 3 months 3 weeks for the time that you have been held in custody pursuant to s 3(2), Criminal Justice (Sentences) Act which leaves a balance of 3 years 8 months 3 weeks of sentence to serve.
  8. By virtue of s.19 (a) (1) of the Criminal Code, the balance of the sentence term of 3 years 8 months is wholly suspended on the following conditions that:

Order of the Court

  1. Having been convicted you, Jeptha Felix of two counts of unlawful wounding you are now sentenced as follows:

Length of sentence imposed: 4 years

Pre-sentence period deducted: 3 months 3 weeks

Balance of term of sentence to be served: 3 years 8 months 1 week

Amount of sentence suspended: 3 years 8 months 1 week on the following conditions:

(i) The prisoner enters into his own recognizance to keep the peace and be of good behaviour for a period of 3 years; and

(ii) Pay compensation of K500.00 each to the victims (Koniel Isaac and Eddie John) payable in cash within three months from the date of this order, such ceremony to be witnessed by the CBC Officer and the OIC, Bulolo Police Station.

(iii) Failure to comply with the terms of the above shall result in the prisoner having to serve his sentence term of 3 years 8 months 1 week in custody, at CIS Buimo.

Orders accordingly
________________________________________________________________
The Public Prosecutor: Lawyers for State
The Public Solicitor: Lawyers for Prisoner


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