N3390

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR N0. 1475 OF 2006

THE STATE

-V-

ISO BAMARU

Tabubil: 	Kandakasi, J.
2006: 8th and 13th November

DECISION ON SENTENCE

CRIMINAL LAW - Sentence – Particular offence – Grievous bodily harm - Drunken brawl – Prisoner cutting victim with kitchen knife – Good recovery with no long term disability - Victim a police officer and brother in-law of prisoner – Victim punching prisoner first aggravating pre-existing medical condition – Prisoner requiring surgical intervention not yet performed – No charges against the victim – Selective prosecution – No complaint against the victim by prisoner not reasonable explanation – Guilty plea – First time offender – Six months part suspended sentence on conditions imposed as appropriate in the circumstances – Sections 319 and 19 of the Criminal Code 

Cases cited:
The State v. Isaac Wapuri [1994] PNGLR 271
The State v. Philip Susuve Raepa [1994] PNGLR 459
The State v. Nickson Pari (No.2) (10/01/00) N2033
The State v. Darius Taulo (15/12/00) N2034
The State v. Rueben Irowen (24/05/02) N2239
The State v. Eddie John Naopa (24/04/03) N2411
The State v Patrick Kimat (24/11/05) N2947.

Counsel:
D. Mark, for the State. 
P. Kapi, for the Prisoner.

13 November, 2006

1.	KANDAKASI J: You pleaded guilty to a charge of grievous bodily harm contrary to s. 319 of the Criminal Code. After having administered your allocutus and receiving both yours and that of the State’s submissions, I reserved a decision to today. This is now the decision of the Court.

Relevant Facts

2.	The relevant facts are these. On 20th June 2006, you were apart of a group of people who were on a long drinking party at your brother in-law’s house here in Tabubil. You brother in-law was and is a police man based here in Tabibil. In the drinking party, the kind of nuisance most drunkards in Papua New Guinea create were present. You were one of those persons responsible for the nuisance, which included your damaging one of your nephew’s stereo set. That attracted an angry reaction from your brother in-law. He punched you in your abdomen area, where you had a medical operation and was recovering from. That caused you to get yourself armed with a kitchen knife and tried to attack your brother in-law. However, some of the people who were there successfully disarmed you. That did not stop you. You went and got yourself armed again with a kitchen knife and this time, you successfully attacked your brother in-law in his abdomen area as well. When you did that, you wanted to stop your brother in-law’s repeated acts of abuse of your sister, yourself and other members of your family, which was on going.

3.	Your brother in-law was taken to the Tabubil Hospital and he received appropriate medical treatment. He eventually recovered from his injuries without any residual disabilities with a prognosis of no long term disabilities. Meanwhile, you were taken into the police cells and eventually the Correction Services at Ningerum. Whilst you were in custody, complications arose from your brother in-law’s assaults of you. This included a swelling of your testicles to the size of a tennis ball. This requires surgical intervention. Due to the Tabubil Hospital not having the necessary supplies for the required surgery, it is yet to be carried out.

4.	Despite the clear discloser by the evidence of your brother in-law also causing you grievous bodily harm or if not serious assault, the police have not charged him. This gave me the clear impression that, there appears to be selective prosecution by the police here in Tabubil. Of the two of you, you are an ordinary citizen. Your brother in-law is in the front line of the law enforcement. He is the one that should have exercised to restrain and avoid breaking the law but he did not do that. Police did not charge him for assaulting you. I therefore asked the arresting officer to explain why that was the position. The arresting officer said since you did not lay any complaints with the police, they did not charge your brother in-law. This was clearly erroneous as police duties in relation to apprehending and charging offenders commences the moment the commission of an offence comes to their attention, however that comes. It can be through a formal complaint, or a police man witnessing the commission of an offence or hears about the commission of an offence.

Address on Sentence and Submissions

5.	In your address on sentence, you said sorry for what you have done. You also said sorry to the victim and said you are willing to sort the matter out with him in terms of paying him compensation. At the same time, you pointed out that, you are a married man with two children under your care. You also said the victim assaulted you first and you retaliated. Finally, you said, you are concerned about your life because of the medical complications, your brother in-law has brought upon you. 

6.	Your lawyer added that, you are about 32 years old, married with 3 very tender aged children. You come from the Lake Murray area of this Province. You are the first born in a family of 3 brothers and 4 sisters. Education wise, you have reached up to grade 6 primary education and that you are unemployed in the formal sector. 

7.	In his submissions, your lawyer urged the Court to take into account your guilty plea and being a first time offender. He also urged the Court to note your expression of remorse and the fact that, you acted in a drunken brawl situation and under provocation in the non legal sense by reason of what your brother in-law did against you on the day of the offence and his previous acts of abuse. Your lawyer then initially submitted that, you should be given a sentence of 3 years less the time you have already spent in custody. In support of his submissions, your lawyer drew my attention to two unreported decision of the National Court which imposed a sentence of 2 years suspended on conditions of compensation.

8.	However, after my obtaining of the police arresting officer’s explanation for his failure to also have your brother in-law charged for his assaulting of you, I expressed concerns over what appears to be a case of selective prosecution. I then asked the prosecuting counsel, Mr. Mark as to whether there was any impediment to imposing a sentence up to the period you have already spent in custody awaiting your trial and sentence, given the particular circumstances of your case and to avoid any feeling of been unfairly dealt with by the law. The State does not take any issue with this Court arriving at such a decision, which has been welcomed by your counsel. Indeed, your brother in-law and your sister have asked for a non custodial sentence against you on conditions of good behaviour. 

Offence and Sentencing Trend

9.	Turning now to the offence and its sentencing trend, s. 319 of the Criminal Code creates and prescribes the penalty for the offence of grievous bodily harm. This provision provides for a penalty not exceeding 7 years. A number of judgments have already dealt with the offence under this section before imposing a variety of sentences.

10.	The earlier cases such as The State v. Isaac Wapuri and The State v. Philip Susuve Raepa date back some eleven years. These cases imposed sentences from a few months to 1 or 2 years. Since then, the offence has not declined but has increased over the years. Sentences have therefore, started to increase to reflect the increase and prevalence of the offence. 

11.	In The State v. Nickson Pari (No.2), noting the prevalence of the offence and forming the view that past sentences appear not to be deterring other persons from committing this offence, I imposed a sentence of 4 years and suspended part of it on terms, inclusive of good behaviour bond. That was a case in which the prisoner shot at and injured the victim on his left arm in the course of and in furtherance of an armed robbery. He was also a first time young offender.

12.	Later in The State v. Darius Taulo, I imposed a wholly suspended 3 year sentence on strict terms as an alternative form of punishment outside the prison system. That was in the case of a guilty plea and genuine remorse being expressed with compensation already paid for by the prisoner himself, a preparedness to undergo his wife’s (the victim’s) traditional form of compensation and restoring a broken relationship and a willingness to truly change his ways under supervision. The persuasion there was the fact that the victim preferred compensation. Further, a pre-sentence report supported such a sentence. I also noted that, the prisoner was an adult, was not a danger to the society and that the society through a pre-sentence report was prepared to help him to rehabilitate. 

13.	A more serious case of grievous bodily harm was the case of The State v. Rueben Irowen. In that case, the prisoner forced his two wives (victims) to strip down naked and he caused serious bodily harm to them. That included the use of a bush knife to inflict serious cuts to their bodies resulting in the loss of a lot of blood rendering both of them unconscious. They had to run out of the house naked for help. If it were not for their running out and the help of third parties, they could have died. I imposed the maximum sentence of 7 years cumulative for the harm he had caused his victims.

14.	Subsequently, in The State v. Eddie John Naopa, I imposed a sentence of 5 years part suspended because of a guilty plea and an order for compensation. The victim in that case lost one of her eyes completely from a slingshot. 

15.	Last year, Justice Lay had before him a case similar to your case. That was the case of The State v Patrick Kimat. In that case, the prisoner was with his in-law consuming alcohol. The victim was drunk and would not listen to the prisoner so the prisoner cut the victim on his head with the use of a bush knife, causing him serious injuries. At the time of sentencing in that case, the prisoner was living with the victim in one house, they share meals together and there was no problem between them. His Honour imposed a sentence of 12 months wholly suspended on conditions after referring to some of the above cases and other cases, mostly my decisions.

16.	As already noted, the offence of grievous bodily harm is a very prevalent offence. Therefore sentences have gone up. The reasons behind the commission of this particular offence are really silly reasons. They have been committed in situations where they could have been easily avoided. In most cases the offence is being committed with a ready use of offensive and or dangerous weapons such as kitchen knives and bush knives, even against close relations as in your case. 

Sentence in Your Case

17.	For the purposes of determining an appropriate sentence for you, I note and take into account both your personal and family backgrounds as put to me by your lawyer and as I noted above. Then in your mitigation, I note that, you are a first time offender and that you have pleaded guilty to the charge against you. Further, you said sorry for what you have done and have offered to pay compensation. 

18.	Finally, I note that you acted under some provocation in the non legal sense, in that you reacted to what your brother in-law did against you. He punched you on your abdomen area, knowing fully well that, you were recovering from a surgical operation to that part of your body. I also accept that, your claim that, you did what you did because of your brother in-law’s previous abusive conducts against your sister, your parents and yourself. Your only problem was that, you used an offensive weapon a kitchen knife to cause serious injuries to your brother in-law. You did that after you were disarmed in an earlier attempt also using a kitchen knife. If you used your fists all things considered, the trouble between you and your brother in-law could have evened out. Now, your brother in-law and victim of your offence does not want you to be sent to prison. He asked the Court to impose upon you a non custodial sentence on conditions of good behaviour.

20.	Against the above mitigating factors, I note firstly, that you committed an offence that is prevalent, as highlighted by the various cases I have referred to in the foregoing. Secondly, I note that, you used an offensive weapon, a kitchen knife to injure your brother in-law. The ready use of such weapons has become more frequent to either cause deaths or serious injuries to other people. This alone calls for a sterner sentence to prevent you in particular and others from committing the offence. 

21.	Weighing the factors both for and against you, I note that those in your mitigation outweigh the factors against you. Then considering the particular circumstances in which you committed the offence and the fact that your brother in-law has not been charged for his part in the incident and you are yet to undergo a medical surgery, I consider a sentence of 8 months appropriate. Of that, I deduct the period of 4 months and 1 week you have already spent in custody. That will leave you with a balance of 3 months and 3 weeks. I order that that part of the sentence be suspended on the following conditions:

(1) 	You immediately enter into a recognizance to keep the peace and be of good behaviour for the whole of the suspended period; and

(2)	You refrain from consuming any form of alcohol during the currency of your suspended sentence; and
 
(3) 	Any breach of these terms will result in an immediate lifting of the suspension and you shall serve the full term of your suspended sentence;

(4)	Any member of the Police in Tabubil, Kiunga or in the country shall be at liberty and report to the Court and enforce any attempted or any actual breach of these terms.

___________________________
Public Prosecutor:	 Lawyers for the State 
Public Solicitor: Public Solicitor