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State v DA (A Juvenile) [2024] PGNC 84; N10730 (16 April 2024)

N10730

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (JJ) NO 73 OF 2023

BETWEEN
THE STATE

AND
DA
Offender

Wewak: Makail, J
2024: 04^th, 12^th & 16^th April

SENTENCE – Plea – Guilty – Grievous bodily harm – 2 counts of – Aggravating and mitigating factors considered – Juvenile offender – Seriousness of offences – Mob attack – Use of weapons – Bush knife – First time offender – Guilty plea – Remorsefulness – Concurrent sentences – Wholly suspended sentences Compensation ordered – Criminal Code – Sections 19 & 319 – Juvenile Justice Act, 2014 – Sections 79, 80 & 81 – Criminal Law (Compensation) Act, 1991 – Section 5(3)(b)

Cases Cited:
The State v. ST (A Juvenile) (2021) N8924
The State v. GO (A Juvenile) (2023) N10477

Counsel:
Ms D Ambuk, for State
Mr A Kana with Mr A Koraino, for Offender

SENTENCE

16^th April 2024

1. MAKAIL, J: The offender is a juvenile. He pleaded guilty to, and was accordingly convicted of two counts of unlawfully causing grievous bodily harm to one Simon Hoik and Gabriel Hoik contrary to Section 319 of the Criminal Code.

Brief Facts

2. On arraignment, the offender pleaded guilty to the following facts, he was part of a group of about ten young men who had been drinking homemade brew as early as 7:00 am on 3^rd May 2023 along the main highway near Hawain Junction in Wewak, East Sepik Province.

3. At about 8:00 pm this group of young men whilst armed with dangerous and offensive weapons being homemade guns, a factory-made gun, wire catapults, bush knives, and iron rod bars approached the Hoik family residence in Karumba, Rainumbo village.

4. Whilst the rest of the men were outside, the offender armed with a bush knife walked into the Hoik family residence. He was accompanied by one Striko Yase who was also armed with an iron rod bar and a bush knife. When Rex Hoik saw them, he alerted Michael of their presence. But the offender and Striko Yase left the premises.

5. Soon after, the offender and Striko Yase returned with the group of men. They rushed into the premises and a fight ensured between the male members of the Hoik family and the group of men. During the fight, one Garbiel Hoik grabbed and wrestled a homemade gun from one Michel Kasavi and Michael Kasavi struck Gabriel Hoik on his right arm and right leg with a bush knife.

6. Around the same time, Bobby Kasavi swung his bush knife and struck Simon Hoik on his head and inflicted an injury. Then the offender approached and struck Simon Hoik on his left jaw with a bush knife causing an injury.

7. The State invoked Section 7(1)(a), (b) & (c) of the Criminal Code against the offender in that his participation enabled Michael Kasavi to inflict the wound on Gabriel Hoik, and further, aided and caused the injuries to Simon Hoik without any lawful justification or excuse, thus contravening Section 319 of the Criminal Code.

Prescribed Penalty

8. According to Section 319 of the Criminal Code, the offence of unlawful grievous bodily harm carries a maximum penalty of seven years term of imprisonment. However, Section 19 of the Criminal Code confers discretion on the Court to impose a penalty less than the prescribed penalty.

Allocutus

9. The offender expressed remorse for his actions to the Court, his counsel, the complainants, and his family. He completed Grade 7 at Hawain Primary School and pleaded for a non-custodial sentence.

Antecedent Report

10. The State tendered an antecedent report. There are no prior convictions relating to the offender in the antecedent report.

Pre-Sentence Report

11. On the offender’s application, the Probation Services has provided a pre-sentence report. It favoured a non-custodial sentence. It confirmed that the offender is 17 years old and is a juvenile. He is educated up to Grade 7 at Hawain Primary School in East Sepik Province. He intends to further his education in future. According to his class teacher, he is quiet and attentive student. He is not a troublesome student. He attends the Roman Catholic Church for Sunday Service. During his leisure time, he pays soccer with the village boys.

Sentencing Range

12. Based on past comparable sentences in The State v. ST (A Juvenile) (2021) N8924 and The State v. GO (A Juvenile) (2023) N10477 the sentencing trend for a guilty plea for this offence where the offender is a juvenile is between 2 and 4 years, term of imprisonment and wholly suspended on condition.

13. A suspended sentence is a recognition by the Court of its discretionary power conferred by Sections 79, 80 and 81 of the Juvenile Justice Act 2014 where unless the offence is one of the worst offences, a suspended sentence is appropriate. One of the conditions of a suspended sentence is payment or offer of compensation to the injured party.

14. It is common ground that a head sentence be fixed at 3 years and 6 months term of imprisonment. The State submitted that except for 11 months for time spent in pre-trial custody, there should not be further deduction to the balance of the sentence. This will leave a balance of 2 years and 7 months. The State is open to a suspended sentence or otherwise.

15. The offenders counsel submitted for a wholly suspended sentence placing reliance on the past comparable sentences in the above cited cases and Sections 79, 80 and 81 of the Juvenile Justice Act 2014 because the offender is a juvenile but with a condition that the offender pays compensation to the complainants.

Serious Crimes of Violence

16. The facts of this case depict another case of serious crimes of violence committed by a group of youths and adds to the growing number of these types of crimes in the country. Consumption of alcohol and drugs are common causes of such serious crimes of violence. Youths, when in a group and perpetrating such serious crimes of violence feel indispensable. They fear no one and endanger the safety of the general public.

17. This is what happened here. The offender was part of a group of youths who had been drinking home-made brewed alcohol all day, and in the night armed himself with a bush knife and went to the complainants’ house with his group of friends. He entered the complainants’ premises and with his help, one of his friends attacked one of the complainant Simon Hoik with a bush knife. One of his other friends struck the other complainant Gabriel Hoik on his head with a bush knife. The offender joined in and struck Gabriel Hoik on his left jaw with a bush knife. Both complainants suffered life threatening injuries and were hospitalised.

18. This serious crime of violence call for a sentence of 3 years and 6 months term of imprisonment. Given that the offender has been indicted with 2 counts of this offence, each offence will carry a sentence of 3 years and 6 months term of imprisonment. Further, as the offences arose from the same set of events, both sentences will be served concurrently.

Suspension of Sentence

19. It is also a case of a guilty plea by an offender who is a juvenile and first-time offender supported by an expression of remorse. The views of those interviewed and recorded in the pre-sentence report speak well of the offender and support a suspended sentence. What would otherwise be a custodial sentence given the presence of the aggravating factors is reduced to a non-custodial sentence because of a juvenile offender under Sections 79, 80 and 81 of the Juvenile Justice Act 2014.

Compensation

20. It is common ground that no compensation was paid to the complainants Simon Hoik and Gabriel Hoik. It is common knowledge that in Papua New Guinea societies, payment of compensation to the injured party by the offending party is widely practiced. The form of compensation varies from one society to another, but it is fair to say in modern times, cash money is widely accepted as the form of compensation. It has also been recognised that the purpose of giving or offering compensation is to restore peace and harmony between the conflicting parties. Anecdotal evidence suggests that the higher the sum of monetary compensation, the less likely of further conflicts between the conflicting parties.

21. It is arguable that the offender did not live up to this expectation and the potential of the conflict between him and the complainants reoccurring cannot be ruled out. However, there is still room for the offender to make amends.

22. It is also a useful reminder that in criminal proceedings, the purpose is to punish the offender. Where compensation is to be ordered by the Court, the prescribed sum is K5,000.00 under Section 5(3)(b) of the Criminal Law (Compensation) Act, 1991. However, there have been cases where the offending party had paid monetary compensation more than the statutory limit of K5,000.00 at the discretion of the Court under Section 5(3) of the Act.

23. It is also common ground between the parties that based on the pre-sentence report recommending payment of compensation to the complainants and one of the complainants has accepted the offer, the Court will order the offender to pay a sum of K5,000.00 to the complainants, to be divided in equal shares between them.

Conclusion

24. The offender is sentenced to a term of imprisonment of 3 years and 6 months for count 1. He is also sentenced to a term of imprisonment of 3 years and 6 months for count 2. Time spent in pre-trial custody of 11 months is deducted from each sentence, leaving a balance of 2 years and 7 months to serve for each count. Secondly, both sentences are to be served concurrently. Thirdly, each sentence is wholly suspended on the following conditions set out in the order hereunder.

Order

25. The orders of the Court are:

1. The offender is sentenced to a term of imprisonment of 3 years and 6 months in light labour for count 1.
2. The offender is sentenced to a term of imprisonment of 3 years and 6 months in light labour for count 2.
3. A term of 11 months is deducted from the sentence for count 1 and sentence for count 2 leaving a balance of 2 years and 7 months to be served for count 1 and 2 years and 7 months to be served for count 2.
4. The sentences for count 1 and count 2 are wholly suspended on the following conditions:

(a) The offender shall pay a sum of K5,000.00 to the complaints within 6 months of this order which shall be by Tuesday 15^th October 2024, such sum to be divided in equal shares between the complainants.

(b) The offender shall file proof of payment with the Assistant Registrar of the Wewak National Court and Probation Officer forthwith.

(c) The offender shall be placed on good behaviour bond for the duration of the suspended sentence.

(d) The offender shall report to the Probation Officer on the first Monday of each new month.

(e) The Probation Officer shall prepare a report to submit to the Court at the end of each six-month period on the progress of compliance with the above conditions and rehabilitation of the offender.

(f) If the offender fails to comply with or breaches any of these conditions of suspension, he shall be arrested and returned to prison to serve the whole sentence of 2 years and 7 months in light labour at Wewak Boram Corrective Institution forthwith.
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Acting Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Offender