N3541

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 252 0F 2008

THE STATE

V

EXLEY HALA HENI

Kimbe: Cannings J
2008: 10, 13 October, 11 December

SENTENCE

CRIMINAL LAW – grievous bodily harm – Criminal Code, Section 319 – sentence on plea of guilty – 4 years.

A man pleaded guilty to doing grievous bodily harm to another man by attacking him inside a stationary PMV and slashing his hand with a bushknife. The offender was angry with the victim who he claimed had attacked him on previous occasions.

Held:

(1)	The starting point for sentencing purposes is in the middle of the available range: 42 months imprisonment.

(2)	Mitigating factors are: provocation by the victim; sole attacker; injury caused by a single blow; cooperated with police; pleaded guilty; first-time offender; good family and community support.

(3)	Aggravating factors are: use of a dangerous weapon; the attack could easily have been fatal; the attack took place in a PMV, so other people could have been injured and it would have been traumatic for the bystanders to witness such violence; the offence was committed in the presence of the victim’s wife and daughter; no compensation paid to or reconciliation with the victim.

(4)	A sentence of four years was imposed, none of which was suspended.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
The State v Charles Kaona CR 459/2007, 24.08.07
The State v Bob Ananias CR 1413 + 1414/2003, 20.04.06
The State v Justin Ipa (2008) N3439
The State v Ludwina Waiguma CR 68/2007, 21.03.07
The State v Nicodemus Badui CR 683/2007, 17.08.07
The State v Ria Bernard CR 374/2005, 20.05.05
The State v Rodney Gela and Clarence Logi CR 1300 + 1301/2005, 27.10.05

Abbreviations

The following abbreviations appear in the judgment:

cm – centimetre
CR – Criminal
GBH – grievous bodily harm
J – Justice
K – kina
N – National Court judgment
No – number
PMV – Passenger Motor Vehicle
SCRA – Supreme Court Criminal Appeal
v – versus

SENTENCE

This was a judgment on sentence for grievous bodily harm.

Counsel

F Popeu, for the State
J Yapao, for the offender

1. 11 December, 20081. CANNINGS J: Exley Hala Heni, a 22-year-old man, has pleaded guilty to doing grievous bodily harm to a 30-year-old man, Joel Michael, his brother-in-law.

2. The incident happened at 7.00 am on Wednesday 7 November 2007 at Galai, near Kimbe. Exley was a passenger on a PMV that was heading into town. The PMV stopped to pick up more passengers and Joel, his wife and daughter climbed aboard. After a short distance, Exley signalled the driver to stop. He stood up, grabbed Joel by his collar and attempted to pull him off the vehicle, while at the same time swinging a bushknife at him. He swung it three times at various parts of Joel’s body before slicing him on the left hand. Other passengers came to Joel’s assistance. Joel was rushed to the nearby health centre. The wound was 8 cm long and 2 cm deep and required seven internal and eight external stitches. Joel also suffered a fractured wrist.

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. The offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:

There is a reason for this incident happening. Joel and I had problems in the past. We had been to mediation at the police station. It was found that both of us were guilty and we had to compensate each other. I was ordered to pay him K5,000.00 and he was ordered to pay me K2,000.00. I did not have enough money to pay him so I offered to pay him K2,000.00 but he still wanted K5,000.00. He attacked me twice but when I reported it to the police they said they were too busy with the 2007 elections. They said they had no fuel and they wouldn’t help me. That happened twice and then he attacked a third time with a knife the day before the incident over which I had been charged. I got onto the PMV that was coming into town. He was also on board. I grabbed his shirt then slapped him with the knife and then cut him and I told him not to do what he was doing to me again.

This is my first time to be in any court. I am married with one child. I have a block to look after. I say sorry for what I have done. I ask for mercy. Please put me on probation or order me to pay compensation so that this problem can be sorted out outside court.

Another thing I want to raise is that in my police interview the police did not get my side of the story about how Joel Michael had been threatening me. The police only relied on stories from other witnesses.

OTHER MATTERS OF FACT

5. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). In that regard, I will take into account that:

•	there was a motive behind what the offender did, due to ongoing conflict between him and the victim.

PRE-SENTENCE REPORT

6. A pre-sentence report prepared by the Kimbe branch of the Community Correction and Rehabilitation Service reveals that Exley Hala Heni is a 22-year-old Sepik man, married with one child. He was born and raised at Galai oil palm settlement close to where the incident occurred. His parents are alive and rely on Exley to harvest their oil palm. His father, Heni Homkoku, speaks highly of his son. The family has recently purchased a PMV and he regards Exley as the only person in the family capable of handling the family’s affairs. A member of the Galai peace and good order committee and the local village court magistrate speak highly of the offender.

7. The victim, Joel Michael, however, is still aggrieved by what happened. He wants compensation. To date he has not received any compensation from the offender and the offender has not apologised to him and there has been no reconciliation.

SUBMISSIONS BY DEFENCE COUNSEL

8. Mr Yapao submitted that the court should take into account numerous mitigating factors:

•	the offender has no prior convictions,

•	he has a good pre-sentence report,

•	he pleaded guilty,

•	it was a one-man attack and a single blow,

•	he has co-operated with the police,

•	he has expressed remorse,

•	the injuries suffered by the victim are not permanent,

•	there was provocation in the non-legal sense.

9. Mr Yapao submitted that a sentence of 2 years imprisonment should be imposed and that all of that should be suspended.

SUBMISSIONS BY THE STATE

10. Mr Popeu drew the court’s attention to recent sentencing trends for GBH offences, all of which have resulted in lengthy custodial terms. The use of the bush knife makes this a very serious case, warranting a sentence of four years imprisonment.

DECISION MAKING PROCESS

11. To determine the appropriate penalty I will adopt the following decision making process:

•	step 1: what is the maximum penalty?

•	step 2: what is a proper starting point?

•	step 3: what sentences have been imposed for equivalent offences?

•	step 4: what is the head sentence?

•	step 5: should the pre-sentence period in custody be deducted?

•	step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

12. The maximum penalty under Section 319 (grievous bodily harm) of the Criminal Code is seven years imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

13. I will use the mid-point of three years, six months (42 months) as the starting point.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

14. Before I fix a sentence, I will consider sentences I have imposed in recent times for GBH offences, as shown in the table below.

SENTENCES FOR GBH UNDER SECTION 319 OF THE CRIMINAL CODE, WEST NEW BRITAIN, CANNINGS J, 2005-2008

No	Case	Details	Sentence	
1	The State v Ria Bernard CR 374/2005, 20.05.05	Guilty plea – 29-year-old offender was under the influence of alcohol – cut his brother with a bushknife – then cut his father when he came to his brother’s aid – life threatening injuries.	4 years 
each count; total 8 years, cumulative sentence	
2	The State v Rodney Gela and Clarence Logi CR 1300 + 1301/2005, 27.10.05	Guilty plea – victim and both co-offenders had been drinking – argument between one of the offenders and victim – degree of participation or type of weapons used – bushknife and a tree branch – victim stabbed in abdomen, suffers permanent injury.	6 years,
4 years
	
3	The State v Bob Ananias CR 1413 + 1414/2003, 20.04.06	Guilty plea – offender believed that two people were sorcerers and made his mother sick – he held the victims captive then assaulted them – he injured one of them badly, slashing him with a bushknife, injuring his leg and cutting off one finger – victim stabbed in abdomen, suffers permanent injury.	3 years
	
4	The State v Ludwina Waiguma CR 68/2007, 21.03.07	Guilty plea – female offender stabbed another woman with a knife, after a history of bad feeling between them – offender claimed the victim had been saying bad things about her, due to suspicion that she was having an affair with the victim’s husband.	4 years
	
5	The State v Nicodemus Badui CR 683/2007, 17.08.07	Guilty plea – drunk offender went to a house, armed with a grassknife, angry with someone he suspected of having an affair with his wife – had altercation with occupants of the house – wounded one of them, severing two of his fingers.	4 years	
6	The State v Charles Kaona CR 459/2007, 24.08.07	Guilty plea – the victim was alleged to have committed adultery with another man’s wife – two clans had a confrontation and in the course of it the offender slashed the victim with a bushknife while he was on the ground; shortly afterwards the victim was shot dead by another member of the offender’s clan.	4 years	
7	The State v Justin Ipa (2008) N3439	Guilty plea –offender slashed victim’s face with a bushknife – victim provoked the incident by throwing a full beer bottle at the offender. 	3 years	

STEP 4: WHAT IS THE HEAD SENTENCE?

15. Mitigating factors are:

•	provocation by the victim;

•	sole attacker;

•	injury caused by a single blow;

•	cooperated with police;

•	pleaded guilty;

•	first-time offender;

•	good family and community support.

16. I reject Mr Yapao’s submission that the offender has shown genuine remorse.

17. Aggravating factors are:

•	use of a dangerous weapon;

•	the attack could easily have been fatal;

•	the attack took place in a PMV, so other people could have been injured and it would have been traumatic for the bystanders to witness such violence;

•	the offence was committed in the presence of the victim’s wife and daughter;

•	no compensation paid to or reconciliation with the victim.

18. In weighing all these factors I place great weight on the guilty plea. However, the aggravating factors are rather strong. I agree with Mr Popeu that the use of a bush knife makes this a serious case warranting a sentence of at least four years imprisonment. I have taken into account that there may have been some provocation by the victim. The pre-sentence report is favourable. Mr Yapao’s submission that the sentence should be only two years is unrealistic and is out of step with the sentencing trends in this province. A bush knife is a lethal weapon and once it is wielded indiscriminately as in this case, anything can happen. I impose a head sentence of four years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

19. Yes. I will deduct the period of one week.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

20. The favourable pre-sentence report may appear to warrant a partial suspension. However, I agree with Mr Popeu’s submission that the use of the bushknife and the seriousness of the victim’s injuries mean that the offender must spend a considerable time in custody. This will make life difficult for his wife and child and for his parents but that is the price that must be paid for what he has done. I will not suspend any part of the sentence.

SENTENCE

21. Exley Hala Heni, having been convicted of one count of unlawfully doing grievous bodily harm, is sentenced as follows:

Length of sentence imposed	4 years	
Pre-sentence period to be deducted	1 week	
Resultant length of sentence to be served	3 years, 11 months, 3 weeks	
Amount of sentence suspended	Nil 	
Time to be served in custody	3 years, 11 months, 3 weeks	
Place of custody	Lakiemata Correctional Institution	

Sentenced accordingly.

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the offender