N10577

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 2116 OF 2023 & CR NO. 2117 OF 2023

THE STATE

V

SAMUEL JAMAL KIME

Vanimo: Miviri J
2023: 20th & 22nd November

CRIMINAL LAW – PRACTICE AND PROCEDURE – GBH S319 CCA – Plea – Iron Rod Used to Assault Victims One after the Other – Chased Victims with A Vehicle – Motive Unclear – Offence Committed with Vigour & Determination – Public Frequented Area Deterrence – First Offender – No residual injuries – Jail term suspended with conditions for compensation.

Facts
Accused chased and followed both victims in a vehicle. Got an iron rod assaulted both victims with it causing bodily Injuries to both. Victims taken to Hospital and treated. No residual injuries 

Held
Plea of guilty
First time offender
Relatives
No residual injuries
Suspended sentence conditions for compensation.

Cases Cited: 
Acting Public Prosecutor v Haha [1981] PNGLR 205
Kerua and Kerua, Public Prosecutor v [1985] PNGLR 8
Kalabus v The State [1988-89] PNGLR 193
Aubuku v The State [1987] PNGLR 267
Setep v The State [2001] PGSC 14; SC666
Maima v State [2016] PGSC 19; SC1504
Public Prosecutor v Hale [1998] PGSC 26; SC564
State v Marinduo [2017] PGNC 350; N7036
State v Nakamani [2022] PGNC 266; N9691
Acting Public Prosecutor v Mailai [1981] PNGLR 258
Tardrew, Public Prosecutor v [1986] PNGLR 91

Counsel:
F. Popeu, for the State
O. Himore, for the Defendant

SENTENCE

22nd November 2023

1.	MIVIRI J: This is the sentence of Samuel Jamal Kime who assaulted both victims with an iron rod on their bodies sustaining injuries to both.

2.	On the 24th February 2023 in Vanimo Town between 1pm to 2pm the accused was driving his vehicle a Toyota Landcruiser brown 10-seater registered No…232, when he saw his wife Yvonne Mai and his sister Ruth Kime crossing the road onto the field near Vanimo Primary School. Upon seeing the vehicle both started running away and crossed the field into the residences of one Honny Hassor. Accused gave chase driving his vehicle into that residence following both victims. There he got out of the vehicle with a piece of iron rod and followed both complainants. He caught up firstly with Ruth Kime and started assaulting her on her body with the iron rod whilst she was on the ground, causing injuries to her body.

3.	He then left her and caught his wife Yvonne Mai and started to assault her whilst she lay on the ground calling out for help. He left both lying on the ground got in his vehicle and drove away. Both complainants were assisted to the Hospital nearby where they both received medical assistance. Medical reports were filed in their respective cases. Both suffered abrasions and lacerations to their bodies including their heads. One suffered fracture to both her limbs. Accused did not have any lawful excuse to assault both complainants.

4.	The charge was laid pursuant to Section 340 of the Criminal Code that, “(1) A person who unlawfully assaults another and by doing so does him bodily harm is guilty of a misdemeanour.
Penalty: Imprisonment for a term not exceeding three years.

5.	The maximum sentence for the offence is 3 years imprisonment. It will befall the prisoner if it is the worst case of assault causing bodily harm that he has committed upon the complainants. In his favour at the outset in considering an appropriate sentence is the fact that he has admitted the charge against both complainants. And in his allocutus pleaded for the mercy of the Court. Particularly in view of the fact he contends that he is married to Yvonne Mai. And out of that marriage they have together five (5) children, ages ranging from the youngest 3 years to the oldest 13 years. That as father he will support the mother, complainant look after them. This is an important consideration in my view because the children are innocent of the crime that has been committed by the father prisoner. They must and cannot be made to suffer out of that fact. Their welfare is paramount. But at the same time the prisoner is not excused that he has assaulted their mother in this way causing the injuries that he has caused her. He must not show them as a shield to avoid the full force of the law.

6.	Particularly in view of the fact that he paid no heed that he was in a public frequented area, and he set about the assault, determined not hindered that he was in full view of the public, in a public frequented area. It is an affront to all law-abiding citizens to be treated in this way. The public frequented areas must be free from such criminal behaviour. And he was armed with an iron that he used indiscriminately on two women who were unarmed, who did not pose any danger to his life or limb. He persisted in the attack and left no stones unturned until he had accomplished what he had set out to do. Leaving Ruth Kime with fractures to various parts of her hand and feet, bleeding in pain to be treated to come out after 5 to 6 weeks in the recovery. And similarly, his wife Yvonne Mai.

7.	He has pleaded they are both family and they will settle in their own way. That is to be encouraged, but it must not submerge the full impact of the law against law breakers within the family who see fit to take out violence in this way upon the frail weak members within that family and society. The family as a basic unit of society must be protected from those within it who see fit to act in this manner. The law is both for themselves and all others in its application and will not be bended so that a violent criminal behaviour is let loose from its chains and shackles. 

8.	But a guilty plea in the face of no admission to police initially is a step that the offender has now realized and wants to amend for the better his past against the complainants. Here his wife and sister. Both of whom are immediate family. They would have died if the iron landed on organs such as the spleen, or other internal organs which do not sustain heavy blows. It was by grace that both are alive with the injuries that they sustained. Here the medical report by HEO Tanya Simbel dated the 27th February 2023, evidence that Yvonne Mai received an open wound to the head which was a laceration. It was underlined under that report that the injury could cause permanent disability but was not life threatening. It was also underlined that she could recover with mild permanent functional impairment to the injured parts. This in summary did not entail a serious life-threatening situation.

9.	In the case of Ruth Kime, she had fractures to her left ulna and her left fibula fracture with left shoulder dislocated. And She had laceration to the right leg. She would recover within 5 to 6 weeks. The medical examination was made by HEO Noah Tanabo on the 24th February 2023. Her condition it appeared was like that of the other victim but made serious by the fact that she had fractures to her bones. 

10.	Prisoner entered a guilty plea to the charge but applied for presentence report as the matter was immediately between husband and brother, against Sister and wife. And this was clear by the defendants own allocutus where he recounted that he had five children ranging from 3 to 13 years with victim Yvonne Mai. These have now been filed as ordered and are generally in his favour for a non-custodial term with conditions to fulfill. The family unit must be preserved but the dictate and rule of law must not be defeated, but its rein tightened to ensure life goes on without anymore resort to violence at the hands of the prisoner.

11.	Prisoner is on bail of K600.00 and appears pursuant to the conditions imposed. He is 50 years old. He is originally from Dasi in Vanimo and resides at CIS point Vanimo at the time of the offence. He is a graduate of the University of Technology in Lae with a degree in Forestry. Married to the victim Yvonne Mai both have five (5) children from that union. He has no prior conviction; this is his first offence. He has employment history as having worked with the Sandaun Provincial Administration as project officer, FFCD Field Officer, also with non-governmental organization Green Peace International, Field Officer, WWF-Project Coordinator, NOP Save-Director, and Owner. This is a demonstration of his wide knowledge professionalism and skills in Forestry and its management. What he has done is out of character to that fact.

12.	It is a one of situation reason for which has not been illuminated so as to put into perspective his behaviour of that day against both victims. The presentence report have been filed now in the consideration of this sentence upon the prisoner. And I take due consideration of all relevant matters within both for and against in the determination of this sentence upon the prisoner.

13.	He is liable to be imprisoned for a maximum period of 3 years which will be adjusted up or down considering all the mitigating as well as the aggravating features of his case. I have set out some of these above. In my view he must spend time in jail to realize that it is not a light matter to pick up a piece of iron and to beat out injuring the life of another human being. Here it is especially grave when it is against one’s own family. A wife and mother of his children, and his own blood sister. Should that fact discount what is due in law upon him for his actions? In my view I think not given his level of education of having graduated at university level. But this is a first offender with a guilty plea to his account against both victims for which he takes responsibility for and is prepared to meet the consequences of his action.

14.	 At the outset this offence poses the element of bodily harm, as opposed to grievous. All are associated and may easily unfold into a homicide offence usually associated with manslaughter or murder charge, and in that regard is a very serious offence. The facts set out here do not depict the imposition of the maximum sentence. And relevant in this regard are the fact that he pleaded guilty and has expressed remorse and willingness to compensate his small sister for the injury caused her. Here given the facts set out above a cumulative sentence will be imposed. The offences are time apart from each other a short distance apart from each other on two separate persons. Each is subject to the protection of the law against persons like the prisoner. Each must be granted justice against the actions of the prisoner. He must bear responsibility for his criminal actions. He will draw respective sentences for each offence cumulative one to the other. But the conditions will be meted down by totality. And I am firm in this regard conscious of Acting Public Prosecutor v Haha [1981] PNGLR 205 where it is clear that, “Where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent. Where the offences are different in character, or in relation to different victims, the sentences should normally be cumulative. When a court has arrived at appropriate sentences and decided whether they should be concurrent or cumulative, it must then look at the total sentence to see if it is just and appropriate. If it is not, it must vary one or more sentences to get a just total,” Kerua and Kerua, Public Prosecutor v [1985] PGSC 8; [1985] PNGLR 85 (1 April 1985). 

15.	Persisted attack undeterred to continue to exert with vigour on the second complainant his wife. Repeat offenders do not draw mercy: Kalabus v The State [1988-89] PNGLR 193 and where the offence is compounded by serious aggravating features as is the case here the sentence will reflect that fact upon the offender: Aubuku v The State [1987] PNGLR 267. Each is a different offence committed upon a different victim and therefore the sentence will be accorded in that order. One is not depended on the other for its survival and operation. He will be accorded what section 340 calls upon his actions no more no less by the facts set out here. Even totality must not be abused to deny protection due all by the Constitution: Setep v The State [2001] PGSC 14; SC666 (18 May 2001). It must be just and proportionate to the circumstances and facts called by the offence Maima v State [2016] PGSC 19; SC1504 (27 April 2016). The sentence imposed must stop violence within the family as is the case here. It must protect those who are within the dwelling house as in the case of an armed robbery on a dwelling house with strong deterrent and punitive sentences to reflect the sanctity of the dwelling house. It makes perfect sense to protect the weak and the frail within the family.

16.	In this respect it is my view that the views of the Supreme Court in ensuing protection of the dwelling house from violence must be emphasised, “We first of all find that the trial judge erred in considering the appropriate tariff to start with in considering the appropriate sentence.  Gimble’s case suggests starting with 7 years but the trial judge started even lower than that.  We find that with the prevalence of violent crime involving the use of guns the ranges of sentences recommended in Gimble’ case are having no effect and are no longer relevant.  Gimble’s case was decided in 1989 and crimes of violence have increased with the use of guns being more prevalent and the community is calling for heavier punishments as a deterrence.  We feel that the starting point to an appropriate sentence involving the robbery of homeowners at night with the use of firearms to threaten victims should be 10 years,” Public Prosecutor v Hale [1998] PGSC 26; SC564 (27 August 1998). This is not armed robbery but assault occasioning bodily harm on two female immediate relatives by the supposed head of the family, the father, brother, who would be the first person to protect the family. Likened to a house where all dwell in, protection of the law will be within to all regardless. Crimes of violence within must be stopped in its tracks, just as crimes from outside into the house.

17.	I imposed 2 years 3 months 18 days IHL concurrently the prisoners for assault occasioning bodily harm committed upon two inmates in prison by the prisoners who were also prisoners within the jail. They both pleaded guilty and had literally served time waiting for the trial of the matter in State v Marinduo [2017] PGNC 350; N7036 (14 December 2017). This is a group attack but here the attack is against women both not armed or threatening the life limb of the prisoner. In the State v Nakamani [2022] PGNC 266; N9691 (15 June 2022), I imposed 18 months IHL in jail despite payment of a large compensation, K 25, 000.00, because that is only one factor to be considered. Because there were three persons against the victim who suffered as a result of the assault with serious bodily injuries. It does not take away the inscription of the legislature bestowed upon the Court, Acting Public Prosecutor v Mailai [1981] PNGLR 258. That in my view is the way to accord offenders who as here are highly educated but go about taking the law into their own hands without regard that the offence is committed in full view of the public in a public frequented area undeterred. It is time to imprint in bold that the rule of law is supreme and must be adhered to for all regardless.

18.	In the present case there has been demonstrated by the presentence and means assessment reports and the facts and circumstances of the case which I set out above. And it would be disproportionate to consider otherwise then to follow suit because like cases should be treated alike. Due regard must also be paid to the fact that what is just and proportionate is depended on each case by its facts and circumstances and the sentence is swayed accordingly. He is assessed as suitable candidate for probation. The reports are very comprehensive and would fall in well with Tardrew, Public Prosecutor v [1986] PNGLR 91. But it is a repeat offence on two victims on that day making it not light to suspend without any jail term.

19.	Here I determine that the just and proportionate sentence given all set out above is 2-year IHL for the assault upon Ruth Kime. It is an offence of its own against an individual who must be granted Justice against the actions of the prisoner. He is her brother and life will continue after the service of the prison term. But she has endured broken bones because of his criminal behaviour upon her. Iron used on a body of a human being will give the result here upon the victim. At the same time after this assault, he committed the second upon his wife causing her the injuries that she has endured. Both are separate offences of their own, committed separately after the first within minutes after the first. It too, in my view draws its own penalty for the actions that the prisoner has committed. For that crime I sentence the prisoner to 1 year imprisonment in hard labour. I order that both will be served cumulatively. He will serve 3 years IHL. I order his bail money of K 600.00 to be refunded forthwith.

20.	He is a first offender and has pleaded guilty and in accordance with the totality principle set out in Kerua and Kerua (supra), I will deduct from that sentence one (1) year to accord with the principles of totality. That leave two years to be served in Hard Labour in jail. In the exercise discretion under section 19 considering all set out above and the comprehensive presentence report filed today 22nd November 2023, the sentence will be suspended. Primarily because there are children who are innocent of this who must be looked after both by the prisoner and the complainant mother. The reaction to what the prisoner did is out of emotion in that relationship. But should have been controlled to see out a process in the law. The marriage has come to its end per the presentence report account of Yvonne Mai. There is blame shifted but that will be not the solution because serious turn against the law has eventuated for which it must be laid out clean to all.

21.	In the case of Ruth Aileen Kime she is at home is sister of the prisoner and opts to have compensation to be paid to maintain their relationship. That is looking to life after this offence. It is healthy and will be accommodated in the sentence due the prisoner. This is therefore a situation warranting suspension and not immediate incarceration. And therefore, the sentence of the Court is 2 years IHL wholly suspended on Conditions on a two (2) Probation Order that he abides by and comply with the following conditions:

(i)	You shall enter into a probation order for 2 years on conditions;

(ii)	You shall within 48 hours report to the Probation Officer;

(iii)	You shall be always resident at CIS Point Vanimo in the course of your probation period.

(iv)	You shall not leave this place CIS Point Vanimo without leave of this court during the course of your probation period;

(v)	You shall perform 600 hours of community work at a worksite to be approved by the by the Probation Office;

(vi)	You shall keep the peace and be of good behaviour at all times;

(vii)	You shall not take liquor or any form of intoxicating substance or drugs during the period of your probation;

(viii)	You shall attend your local Baptist church every Sunday for service and worship whilst on probation; 
(ix)	You shall undergo counselling from your local pastor of the Baptist Church for number of times as may be determined by the counsellor;

(x)	You shall within 5 months as of the date of this order make restitution to Yvonne Mai and Ruth Kime in the sum of K 1000.00. cash and garden food to the value of K 300.00 and a live pig valued at K400.

(xi)	The restitution shall be witnessed by your probation officer, the police of informant, Your local Church Pastor and Village court magistrate of that area.

(xii)	The Probation Officer shall file a report on the responses and progress of the probationer every six months and at any other time or interval as the National Court may order upon application.

(xiii)	In a breach of any of these Probation Orders your Probation shall lapse and you shall be arrested to serve the whole term of your sentence.

22.	      His bail Money of K 600.00 is refunded forthwith.

Ordered Accordingly.

__________________________________________________________________
Public Prosecutor:  Lawyers for the State	
Public Solicitor: Lawyers for the Defendant