N4537

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 778 OF 2008

THE STATE

V

JERRY ANDRIAS

Madang: Kawi, J
2010: 4th, 17th & 25th June

CRIMINAL LAW – Sentence- Assault occasioning grievous bodily harm- Criminal Code section340- Accused spent 15 months in custody awaiting trial – Case not categorized as worse type case or Worse category case- No Pre Sentence Report- Head Sentence of 10 months imprisonment imposed- Good mitigating factors-head sentence fully suspended- fifteen months spent in custody taken into account. Accused completely discharged.

Cases cited

Aloises Peter Iboro Kovei –v the State. [2001] SC676
The State –v- Albina Sinowi [2001] N2175 
Dorren Liprin –v- The State [2001] SC673
The State –v- Morgan Bae, Cr 990 of 2009 unnumbered judgment of Kawi J dated 25th March 2010
Richard Liri- v. The State (2007) SC883
The Acting Public Prosecutor -v- Don Hale (1998) SC564

Cases Referred to in Judgment

Avia Aihi –v- the State (N0.3) [1982] PNGLR 96
Goli Golu –v- the State [1979] PNGLR 653

Counsel:
Mr. A. Kupmain, for the State 
Mr. D. Joseph, for the Accused

RULING

25th June, 2010

1. KAWI, J:  Jerry Andrias of Urigen Village, Karkar Island Madang Province pleaded guilty to one count of unlawful assault occasioning grievous bodily harm upon the body of his blood brother one Andrew Andrias at Kulili Plantation on KarKar Island on the 3rd of March 2009 thereby contravening section 340 of the Criminal Code. After you pleaded guilty I convicted you of that offence, and ordered that you be remanded in custody for sentencing. This is now my decision on your sentence.

FACTS

2. The brief facts to which the prisoner pleaded guilty are that on the evening of the 3rd March 2009 the prisoner went home after work in the plantation where he is employed as a casual laborer, When he arrived home he saw that his father was having an argument with his wife. The prisoner naturally supported his wife and told his father to shut up. This angered his father and both father and son ended up trading punches at each other. While they were fighting the prisoner’s younger brother came and supported their father, and together they started fighting with the prisoner. The prisoner was beaten up badly. This angered him so he went and fetched a grass knife and using that grass knife he cut his younger brother on the shoulder which required immediate medical treatment and hospitalization.

The Issue:

3. The sole issue for determination by the court is this; what is the kind of sentence that the court will impose?

ALLOCUTUS

4. In allocutus you pleaded leniency and asked for a non custodial sentence. You asked me to take into account the following matters:

(a)	You are a young family man with a wife and two children. Through your employment as a casual laborer you provide a little income for your family. 

(b)	You asked the court to take into account the state of your young family which you have not seen for the fifteen months that you spent in custody.
(c)	While you were in custody your mum passed on and you said that you missed her dearly.

(d)	You expressed remorse in Court. First you said you were very sorry for what you did to your father. Then you also said you were very sorry for what you did to your younger brother. Finally you apologized to the court by saying sorry and you requested the court’s mercy in imposing what ever punishment it imposes.

(e)	You said you had reconciled with both your father and Andrew your younger brother. A traditional feast was held in which food items and betel nut were exchanged. In addition you paid K400.00 in cash to your father and younger brother.

(f)	Finally you said that this was your first time in court and as a first offender you asked this court to exercise mercy when sentencing you.

PRE- SENTENCE REPORT AND THE MEANS ASSESSMENT REPORT

5. No Pre-Sentence Report and Means Assessment Report was carried out on your behalf by the Probation Services of the Justice Department. Consequently I heard submissions from your counsel without the benefit of such a Report but this is not fatal to your case. 

THE LAW

6. By unlawfully assaulting and causing grievous bodily harm to the body of another person, you have contravened section 340 of the Criminal Code and I have accordingly convicted you of committing that crime.

7. Section 340 of the Criminal Code is stated in the following terms: -

444.  ASSAULTS OCCASIONING BODILY HARM.

(1) A person who unlawfully assaults another and by doing so does him bodily harm is guilty of misdemeanor. 

Penalty: Imprisonment for a term not exceeding three years.

8. Do I impose the three years upon you? This court is of the view that the prescribed maximum penalty of three years should only be reserved for the case categorized as the worst type or worst category cases. In deciding the appropriate penalty for you I will have to start at two years and then come down. When a court is sentencing a person found guilty of committing an offence it takes into account several legal principles of law to guide it to arrive at an appropriate sentence for the offender. This is to ensure that the objectives of punishing are met including the rehabilitation of the prisoner, deterrence, restitution and retribution.

9. One of the well established principles of law in our jurisdiction is that the maximum penalty prescribed by the legislation itself is always reserved for the worst type of offences under scrutiny. Many cases in our jurisdiction have acknowledged and applied this principle of law. One such case is the Supreme Court decision in the case of Aloises Peter Iboro Kovei –v- the State [2001] SC676. That was a case where the appellant appealed inter alia a life imprisonment sentence imposed by the National Court for the brutal killing of a young woman for her abduction and rape. Amet CJ, Gavara – Nanu and Kandakasi JJ made the following pertinent comments:

“It is a well accepted principle in our jurisdiction now, that the maximum penalty prescribed by the legislature should be reserved for the “worst type or “worst category” of the offence under consideration. This has been made abundantly clear in the context of wilful murder cases. For example, the Supreme Court in Avia Aihi –v- the State (N0.3) [1982] PNGLR 96 referred to its earlier decision in Goli Golu –v- the State [1979] PNGLR 653” where it was said: 

“In fact this court has said that the maximum sentence for any offence (including wilful murder) should be reserved for the most serious instance of a particular offence”.

10. This principle of law has its genesis in the sentencing discretion vested in the Court by section 19 of the Criminal Code. Section 19 actually gives the Court the discretion to impose a lesser penalty upon an offender if the factual circumstances of a case do not establish a “worst case” category. How I exercise that discretion depends upon the factual circumstances of a case under scrutiny. More importantly the Court will look at the factual circumstances of how you perpetrated this crime, the mitigating factors operating in your favour and the aggravating factors operating against you.

MITIGATING FACTORS

11. The factors operating in your favor are the following:

(a)	 You are a first offender;

(b)	 You are married with a young wife and two small children. You yourself are a young man. 

(c)	 You pleaded guilty to the charge thereby saving the court a lot of time and expenses which would have been incurred if a trial were to be conducted. After you pleaded guilty, you apologized to your father and your brother. You also apologized to this court and begged the court’s mercy in the kind of punishment it intends to impose upon you. 

(d)	 The Court finds that it was really your father and your younger brother who both combined and assaulted you which in turn prompted you to resort to the use of a dangerous weapon to inflict the bodily harm upon your brother.

(e)	 You were still in custody when your mother passed on and you did not have the opportunity to bid her your last tears.

AGGRAVATING FACTORS

12. Following on from these observations, I find that your case is aggravated by a number of factors. These include:

(a)	The assault that you inflicted was very serious.

(b)	The seriousness of it is indicated by the time he spent being hospitalized at the Gaubin Health Center on Karkar Island.

(c)	I did not have the pleasure to see the medical report of your brother’s condition to give me an idea of just how serious his condition may have been after his discharge from the hospital.

13. When I do a balancing act between factors operating in your favour and those operating against you, I find that those in your favour tip the scale. This becomes very relevant when I proceed on to consider what an appropriate sentence would be. In considering appropriate sentence, I am mindful of the sentencing discretion vested upon the court by virtue of section 19 of the Criminal Code. But before I consider an appropriate head sentence, I must first determine whether your actions can be classed as belonging to the worst type or worst case category. In your case the injury you caused to your younger brother landed him at the hospital and was hospitalised for a period of time. No other bodily injuries were caused to him. Accordingly I do not categorize your case as belonging to the worst type cases.

WHAT IS THE HEAD SENTENCE I SHOULD IMPOSE?

14. Judges often refer to a starting point when they are determining a sentence. By that they mean a reference point. Usually a good reference point is a sentence in a previous case, against which the case being dealt with can be assessed. For instance, in misappropriation cases a convenient starting point for judges has always been the case of Wellington Belawa – v- the State. Depending on the circumstances of the case, judges then adjust the sentence upwards or down wards. The judge assess whether the case being dealt with is more, or less serious than the starting point case. If it is to what extent is it more serious or less serious? In the present case your counsel cited me the case of The State –v- Albina Sinowi [2001] N2175 as an authority which will help me to compute an appropriate sentence for you. In that case the prisoner Albina was a co-wife to another woman the victim. The prisoner was angered by the victim who left their matrimonial home and leaving behind five (5) young children including a toddler. This was the third time she did that. When she eventually returned and argument which resulted in a fight broke out between the two. During the fight the prisoner hit the victim with an iron rod and fractured her arm. She paid K1,000.00 as compensation to the victim. 

On a guilty plea to a charge under section 340, Kandakasi J, imposed a sentence of six (6) months imprisonment but had it fully suspended on terms. 

15. In considering an appropriate sentence for you, I must remind myself that sentencing is not an exact science. It is a discretionary process, guided by factors which I have already mentioned. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be strongly mitigating, while others may be only mildly mitigating. The same goes for aggravating factors.

16. I will take as a suitable starting point, the maximum penalty fixed by legislation, which is two years. Then I will refer to a number of sentences imposed by the National Court in similar cases. 

YOUR SENTENCE

17. The sentencing trend reflected by cases such as Albina Sinowi which I have just referred to show that the custodial head sentences were all fully suspended. I must therefore look at such sentencing options first, before I take the drastic option of imposing a prison sentence. It is an important aspect in criminal law sentencing that, sentencing tariffs must be considered to determine sentences in future cases if subsequent sentences are to have any relevance to the interests of society to appropriately deal with offenders. 

18. The case of Dorren Liprin –v- The State [2001] SC673 (Amet CJ, Kapi DCJ, Los J is a leading case which examines the conflicting interests to be balanced whenever a person is punished for a crime of non physical violence. A judge should, for the purposes of imposing an effective punishment that will rehabilitate an offender, explore all options before taking what might be regarded as the drastic step of imposing a prison sentence. I regard the present case as a non violent case as after inflicting the injury you did not inflict other grievous bodily injuries. Also no other person was injured such as your father who was also involved in assaulting you. Apart from casing grievous bodily injuries upon your brother was no other person or even property was damaged. In categorizing your case in that way, I am giving you considerable benefit of doubt. Given that I have categorized your case as not the worst category case I have taken into account the sentencing trend exemplified by cases such as Doreen Liprin against sending offenders to jail for such offences. A prison sentence costs the State money and expenses and exposes the offender to what cannot be a conducive environment for rehabilitation. This is very true for a young offender like you. It does not involve the community very much in the sentencing process, compared with the direct community involvement that happens, when, for example an offender, is obliged to do community work as part of his or her punishment. I did this in case of the State –v- Morgan Bae Cr 990 of 2009 unnumbered judgment of Kawi J dated 25th March 2010. I made this comment in suspending the two years head sentence in Morgan Bae’s case: 

“More importantly sending you to prison is not the only way to rehabilitate a young offender like you. This court is of the view that the punishment it is about to impose can still achieve the purposes of retribution, restitution, deterrence and rehabilitation in a more effective way than imprisonment.

19. This was a case where the young offender had misappropriated a sum of K15, 624.14 for his own use. I imposed a head sentence of two years but then had it fully suspended with strict conditions of community work to be undertaken as well as restitution to be done by way of repaying the money stolen. I also made the following comments:

 You in fact may be a strain on the State’s limited financial resources in terms of looking after you and feeding you while you are in prison. The State will incur further losses, which may double or triple the amount you stole. Apart from not seeing you in your house and your community, the members of your community and your family will not be able to see you serve your punishment. This court is of the view that it is time that your family and community see how you serve your punishment. This in its view will have a more deterrent effect upon you than serving a term of imprisonment in jail” 

20. Guided by the above decisions, the court considers that a non-custodial sentence is appropriate to be imposed upon you, with conditions.

21. In the circumstances I impose a head sentence of ten (10) months imprisonment with hard labour upon you. You are to serve this at the Beon Corrective Institution.

22. Do I have the discretion to suspend this sentence wholly or in part? 
There are many judgments of both the Supreme and National Courts in which the courts have suspended either the whole or part of the sentence.
Thus the Supreme Court in the case of Richard Liri v. The State (2007) SC 883 made the following pertinent comments in relation to the suspension of sentence: -

"Further we find that, the learned trial Judge continued erroneously when he decided to suspend 3 years of the 8 years sentence he decided to impose against you. The learned trial Judge did not provide any reason for that decision. The law on suspension of either a part or the whole of any sentence is settled. Section 19(1)(d) of the Criminal Code confers that power, which can only be exercised on some proper basis. In Acting Public Prosecutor v. Don Hale, this Court elaborated on that, in this way:

"If a judge is to consider some leniency on sentence ... it is incumbent on him to obtain the relevant report such as a pre-sentence report, especially around the age of 17 to 19. ... Then for such a drastic suspension of sentence a further help to the court would be a community report from the community to which the offender belongs and whether the community, seeing that the incident happened within that community, has any views on an appropriate punishment or whether the community is prepared to assist with any community management of any bond period. The Courts are bound under the philosophy of the Constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment of criminals definitely has an effect on the ordinary people. So community involvement with the punishment of offenders should be considered especially if the court wishes to return an offender to the community instead of imposing imprisonment."

Subsequently, the Supreme Court endorsed these views in its judgment in Edmund Gima v. The State & Siune Arnold v. The State. That decision also emphasized the point that, there can be no suspension of sentence without imposing any condition. After all, a suspension of either the whole or part of any sentence is not an exercise of discretion in leniency but is a form of punishment. As such, conditions must be imposed to demonstrate that, it is an alternative to punishment within the prison system in appropriate cases.

In your case, there is no record of the learned trial Judge calling for and having before him a pre-sentence report supportive of his decision to suspend the 3 years. Likewise, there is no record of what factors His Honour took into account before arriving at his decision to suspend the three years. Further, if His Honour was entitled on some authority (which he has failed to disclose), to suspend, he did not impose any conditions for the suspension."

23. The Supreme Court in The Acting Public Prosecutor -v- Don Hale (1998) SC564 made these observations:

"The judge having set a sentence of imprisonment then proceeded to suspend the term. Whilst we agree that a judge has discretion in sentencing convicted persons such discretion must be exercised according to normal principles. We agree that there are many circumstances which should be applied in the consideration of an appropriate punishment for a particular offender and a judge should refer to these circumstances. There are first of all a number of circumstances of aggravations such as the amount of violence used in a robbery, and the amount of damage done and property taken and whether victims were further injured apart from the fear of the threats. Then there are matters that may be considered in mitigation of the punishment. Of course the first factor in mitigation is whether there have been any admissions of guilt however in this case before us to-day the appellant pleaded not guilty so the State and the Court was put to the time and expense of a trial with the calling of witnesses. So any mitigation for admissions and remorse have limited application.......

[F] or ......a..... suspension of sentence a further help to the court would be a community report from the community to which the offender belongs and whether the community, seeing that the incident happened within that community, has any views on an appropriate punishment or whether the community is prepared to assist with any community management of any bond period. The Courts are bound under the philosophy of the Constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment of criminals definitely has an effect on the ordinary people. So community involvement with the punishment of offenders should be considered especially if the court wishes to return an offender to the community instead of imposing imprisonment. And we note here the relevance of the Criminal Law (Compensation) Act 1991. A return to the community should mean an appropriate report of the attitude of the community and whether the community is prepared to take some responsibility for their own offending members and supervise any alternate punishment.

However in this case before us now the trial judge had no pre-sentence report nor any report from the community and sought no help from the community in the supervision of this suspended sentence. This is a clear error if he was to suspend a sentence for this kind of aggravated robbery."

24. Section 19 (1)(d) of the Criminal Code confers the power upon a trial judge to either wholly suspend the sentence or suspend only part of the sentence. Although no fault of your own, there was no Pre Sentence Report and the Means Assessment Report prepared by the Probation services. Notwithstanding that but taking into account the factors operating in your favour, and taking into account the 15 months you spent in custody I suspend the whole ten (10) months imposed upon you and discharge you completely. It is the judgement of this court that you have adequately served your entire prison sentence during the fifteen months that you spent in jail. The circumstances of this case are such that it does not warrant imposing any other conditions upon you. 

____________________________________________________
Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Prisoner