N5169

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 520 OF 2011

THE STATE

V

PAINO AUDUWA

Kimbe: Toliken, AJ
2012: 05th, 7th December

CRIMINAL LAW – Sentence – Causing grievous bodily harm – Plea of guilty – First time offender – Non-legal provocation - Expression of Remorse – No payment of Compensation – No Reconciliation – Offer for compensation and Reconciliation – Vicious attack – Use of bush knife – Fractured ankle – Permanent injury – Loss of almost 100% use of ankle – Victim unable to walk long distances - Adverse effect on victim's ability to care for himself and family – Near worst offence – Need for deterrent sentence – Head sentence of 5 years – Criminal Code Ch. 262, s 319.

CRIMINAL LAW – Whether to suspended sentence or part of it – Suspension appropriate where reconciliation and restoration of damaged relationships can be achieved - Court has a duty to ensure that its decisions on sentences contribute to the general peace and harmony in communities in which parties to criminal prosecutions live – Partial suspension of 3 years from sentence on conditions – Compensation of K5000 and customary reconciliation ordered – Good behaviour on own recognizance – Criminal Law (Compensation) Act 1991.

Cases cited in this judgement:

The Public Prosecutor v Bruce William Tardew (1986) PNGLR 91
(Allan Peter Utieng v The State (2000) SCR 15 of 2000 Un-numbered and Unreported Judgment (23 November 2000).
The State v Ria Bernard CR 374/2005, (20 May 2005)
The State v Rodney Gela and Clarence Logi CR 1300 & CR 1301 of 2005 (27.10.05)
The State v Bob Ananias CR 1413 of 2003, CR 1414 of 2003 (unreported and un-numbered) ( 20 April 2006)
The State v Steven Moni & Ors [2006] PGNC 109; CR 293-297 OF 2004 (19th December 2006)
The State v Lawrence Mattau (2008) N3865
The State vMann (2009) N4028 (23 April 2009)
The State v Robert (2009) N3629 (19 May 2009)
The State v Fedelis Kiatni (2011) N4331 (20 June 2011)
The State v Ereman Guauru CR. 458 of 2012 (Unreported and Un-numbered judgment)

Counsel:

F. Popeu, for the State
PM. Paraka, for the Prisoner

JUDGMENT ON SENTENCE

07th December, 2011

1.	TOLIKEN, AJ: Paino Auduwa, on the 5th of December 2012, you pleaded guilty to one count of causing grievous bodily harm to one Usake Mahite on the 13th of March 2011. You were charged under Section 319 of the Criminal Code Act Ch. 262 (the Code). 

2.	I confirmed your plea and convicted you after I had perused the evidence on the committal dispositions, satisfying myself that the evidence supported the charge and your plea.

BRIEF FACTS

3.	The brief facts which you admitted and on which I am about to sentence you are as follows:

4.	On the 13th of March 2011 at around 7.30pm you and your wife were at the Galai 1 Community Centre when the complainant walked past. The complainant and your wife exchanged a few words and this resulted in an argument between them. You got angry, took out your bush knife and you cut the complainant on his left leg. The complainant was taken to the hospital. This was the second incident involving you and the complainant, the first one being in the previous month, February 2011.

5.	For a fuller appreciation of the injuries suffered by the complainant and the effects of such injuries, it is instructive to reproduce the relevant parts of the Medical Report dated Friday 30th of April 2011 by Dr. Peter Yama. I do so below:

Friday 30th April 2011

TO WHOM IT MAY CONCERN

Dear Sir

REF:	MEDICAL REPORT: MEDICAL REPORT MR . SAKI MAHITE – M/A

Mr. Saki Enoch [Mahite] was assaulted by another person on the 13th March 2011.

He was chopped on the left ankle with a bush knife thereby resulting in a fractured lower leg and unable to walk.

He was admitted to the Kimbe General Hospital on 13/03/2011 and treated for his wound. An X-ray done revealed a fractured ankle and the knife wound through and through and the anterior skin tag holding on the distal segment.

He was taken to the operating theatre and the wound described and ankle immobilized until POP.

He was treated and discharged on the 24/04/2011.

Clinically the use of his left ankle is lost by almost 100%. Even though he recovers from his wounds he will never recover completely from his ankle injury. He has sustained a permanent injury therefore he will not be able to run or walk long distances for the rest of his life.

As a result of his injury, his performance to look after himself and his family in finding food and income will greatly be reduced.

I therefore recommend that he be compensated appropriately.

Yours faithfully

Dr. Peter Yama MBBS (UPNG), Cert. PTC MMED candidate 2011
(Surgeon)

6.	The brief facts put to you by the Prosecutor did not disclose why you assaulted the Complainant. However, my perusal of the committal depositions revealed that the complainant had obviously made some disparaging remarks against your Church - the PNG Revival Church - to your wife. This angered you. You lost your temper and did what you did.

7.	It is also clear from the depositions that you and your wife had a previous fight with the complainant on the 19th February 2011.

ANTECEDENTS

8.	You are 26 years old, married but have no children. You are the second born in a family of five (5) siblings. Your parents are dead and you are caring for your two younger siblings. You were educated up to Grad 9 only and are employed by Isan Construction Ltd as a carpenter. You are member of the PNG Revival Church. You have no previous conviction.

ALLOCUTUS

9.	In your address to the Court on sentence you apologised to the Court, to God and to the complainant. You also said that you will pay compensation to the complainant.

SUBMISSIONS BY COUNSELS

Your Lawyer

10.	Your lawyer Mr. Paraka, submitted that an appropriate sentence for you should be 3 years less the one (1) week you spent in custody and that the balance should be fully suspended. He drew the Court's attention to the fact that you pleaded guilty to the charge, you co-operated with the police and that you acted out of frustration. He seemed to suggest that there was some provocation involved. He said you are remorseful and are willing to pay compensation which he says you have the capacity to pay.

Lawyer for State

11.	Mr. Popeu for the State on the other hand submitted that the circumstances of your case are very serious, judging from the fact that the complainant has lost almost 100% of his left leg. Counsel said that this type of offences have attracted sentences ranging from 6 years and below here in West New Britain. He referred me to the case of The State – v- Steven Moni & Ors [2006] PGNC 109; CR 293-297 OF 2004 (19th December 2006) where Cannings J. surveyed the sentences of matters dealt with here in Kimbe at that time.

12.	Counsel submitted therefore since your case is very serious where the complainant had almost completely lost his left leg, a sentence between 
5-6 years would be appropriate. And he has no objection to your paying compensation to your victim.

THE LAW

13.	The offence of causing grievous bodily harm is provided by Section 319 of the Code in the following terms:

319. 	Grievous Bodily Harm 

A person who unlawfully does grievous bodily harm to another person is guilty of a crime.

Penalty:	Imprisonment for a term not exceeding seven years.

14.	"Grievous bodily harm'' is defined by Section 1 of the Code as ".... any bodily injury of such a nature as to endanger or be likely to endanger life or to cause or likely to cause permanent injury to health". It is clear from the above definition that the injuries sustained by the Complainant were likely to have endangered his life and have indeed caused permanent injury to his health.
 
SENTENCING TREND

15.	Let me now survey or consider the sentencing trend for this type of offence. I am grateful to both counsel for the couple of cases that they have brought to my attention.

16.	In The State v Ereman Guauru CR. 458 of 2012 (Unreported and Un-numbered) the prisoner had pleaded guilty to one count of GBH. Kawi J. found the victim to have provoked the attack on himself by attacking the prisoner and his father-in-law first. The prisoner was sentenced to 2 years imprisonment which was fully suspended on conditions one of which was the payment of K5000 compensation.

17.	In The State v Fedelis Kiatni (2011) N4331 (20 June 2011) the offender pleaded guilty to one count of GBH. He had completely chopped off the victim's right hand after intervening in an argument and scuffle between the victim and his wife (the offender's sister). The offender was youthful, plead guilty, a first time offender and expressed remorse. Against him however, was the fact that the victim suffered permanent injury (100% loss of right hand) and the use of a dangerous weapon. Ipang AJ sentenced the offender to 4 years imprisonment, 2 of which were suspended and the offender was placed on probation with an additional condition, amongst others, to pay K6000 compensation.

18.	In The State v Mann (2009) N4028 (23 April 2009) the offender pleaded guilty to one count of grievous bodily harm. He attacked the victim by slashing him twice on his right shoulder, inflicting a deep and extensive wound from which the victim lost a lot of blood. The medical report stated the victim "is expected to make a steady recovery, but the offender be held responsible for near murder". The mitigating factors were that he was a man of prior good character, pleaded guilty to the charge, was a first time offender, co-operated with the police and expressed genuine remorse. Furthermore there was provocation in the non-legal sense and there was no pre-planning.

19.	Against these were, however the following aggravating factors. The attack was vicious and repeated, carried out on an unsuspecting victim, the offender exhibited strong criminal behaviour and wound inflicted was life threatening.

20.	Injia CJ. imposed a sentence of 5 years and did not think there were any special circumstances warranting a suspension.

21.	In The State –v– Robert (2009) N3629 (19 May 2009) the offender was sentenced to 3 years and 6 months for cutting his brother with a bush knife on his face. The mitigating factors considered were guilty plea, first offence, some remorse, dysfunctional family, surrendered to police and early admissions. The aggravating factors, however, were a serious head injury, use of bush knife, taking law into own hands, no compensation and no reconciliation or forgiveness. 

22.	Other cases that were decided here in Kimbe by Cannings J. included the following matters.

23.	In The State v Ria Bernard CR 374/2005, (20 May 2005) the offender pleaded guilty. He was under the influence of alcohol when he cut his brother with a bush knife and then cut his father when he came to his (offender's brother) aid, both sustained life threatening injuries. The offender was sentenced to 4 years for each count.

24.	In The State v Rodney Gela and Clarence Logi CR 1300 & CR 1301 of 2005 (27.10.05) the co –offenders and the victim had been drinking together. An argument erupted between one of the offenders and the victim. The offenders attacked the victim with a bush knife and a tree branch inflicting a stab wound to the stomach from which the victim suffered permanent injuries. The offenders were sentenced to 6 & 4 years commensurate with their individual degrees of participation and the type of weapon they used.

25.	In The State v Bob Ananias CR 1413 of 2003, CR 1414 of 2003 (unreported and un-numbered) 20 April 2006, the offender pleaded guilty to two counts of grievous bodily harm. He believed two people were responsible for his mother's illness through sorcery. He held his victims captive and assaulted them. He slashed one of the victims with a bush knife on the leg and cut off one of his fingers. The other victim was slashed on the stomach and suffered permanent injuries. The other offender was sentenced to 1 year and 3 years for these offences respectively.

26.	The cases surveyed were carried sentences from a low 1 year to 6 years. And the sentences reflected very much the nature and degrees of the attacks and the gravity or seriousness of the injuries on the victims, the number of assailants and types of weapons used if any were used at all.

27.	Cannings J. in the matter of The State –v– Steven Moni & Ors (supra) formulated a series of questions along these considerations and more to assist him in arriving at an appropriate sentence. I find these to be very helpful. However, it is unnecessary to re-state them here except to take cognizance of them in sentencing you. So what would be an appropriate sentence for you?

APPROPRIATE SENTENCE

28.	Viewed objectively your offence would, without difficulty fall within the more serious, if not, border on the worst category.

29.	You viciously and almost without a second thought slashed the victim with a knife on his left leg. There is no doubt that you did that with great force because the medical report shows that the cut was a through and through one that completely fractured the ankle and the only thing that held the leg together was the skin. The whole leg had to be debrided and immobilized by the application of a Plaster of Paris (POP). The victim had to be hospitalized for over a month. And the doctor's prognosis for full recovery is not a good one for the victim. He has lost almost 100% use of his left ankle and even though he recovered from the wound he will never recover completely. He has suffered a permanent injury and will not be able to walk long distances. As a result of his injuries his ability to provide for himself and his family is greatly reduced.

30.	So that is the grim reality that confronts me when I go into the task of deciding what should be an appropriate sentence for you.

31.	Let me now consider that subjective circumstances of your offence.

32.	Firstly, the mitigating factors. I find the following factors in your favour.

•	You pleaded guilty to the charge thus saved time and money for the State
•	You are a first time offender
•	You co-operated with the Police
•	There's some remorse on your part and you offer to compensate the victim
•	You were provoked in the non-legal sense
•	You attacked the victim with a single knife blow.

33.	Against you, I find the following aggravating factors:

•	You attacked the victim with an offensive and dangerous weapon – a bush knife.
•	Your attack on the victim was calculated and vicious.
•	Because you had a previous altercation with the victim it can be reasonably inferred that you harboured ill-will against him, hence, you were pre-disposed to causing him harm.
•	The injuries you inflicted on him were life threatening as the victim would have died from loss of blood if he were not rushed to the hospital, which, fortunately was in close proximity to the scene of the attack.
•	The victim suffered a permanent injury which will affect not only his quality of life but also his ability to provide well for himself and his family.
•	You have not paid compensation to the victim nor have you reconciled with him so your expression of remorse is at the most meaningless without a personal apology to him and without your taking some tangible steps to making right your wrong. (Allan Peter Utieng –v–The State (2000) SCR 15 of 2000 Un-numbered and Unreported Judgment (23 November 2000).

•	Prevalence of this type of offence.

34.	Now I must say – and this is not an understatement – that violent crimes have risen to alarming proportions in the country over the years. West New Britain, particularly Kimbe, and its environs, have had and continue to have their share of these offences as evident from the number of cases that have passed through this Court. And I am more than certain that the same have come before the courts of Summary Jurisdiction – the District Court and the Grade 5 Courts.

35.	Some people like the victim in this matter fortunately survive these violent attacks. Unfortunately some have not and the number of homicide cases in our courts bear testimony to that.

36.	There is no doubt that the courts have been trying their best to discouraging these violent crimes by imposing appropriate sentences whilst tempering "justice with mercy" in others but this seem to have not discouraged perpetrators.

37.	Now it may be true that all of us are shaped by the societies that we are born into or in which we live and we may be therefore pre-disposed to violence, where the slightest of provocation can unleash very violent reactions. However, we live in a modern state where the rule of law should reign. We also live in supposedly very "christianized" communities. Some of us have almost fanatical loyalty to our churches or denominations. Unfortunately this has not helped in cultivating a more loving, tolerant and temperate attitude in some of us. And this unfortunately continues to result in violent crimes such as this.

38.	Turning back to your case, I do accept that the victim derided or insulted your church, the PNG Revival Church. I do accept that you reacted angrily at that because it would seem from the depositions that this was not the first time that the victim had offered those insults to you and your wife. You obviously love your Church and would do anything to defend its reputation. And you displayed that by your reactions on the morning of 13th March 2011. Unfortunately, when reacting to those insults you broke the law – i.e. both State law and God's law. You are before this Court to answer for your crime against the State only. You will answer to God's law on his own terms and that is not the business of this Court to delve into.

39.	Suffice it to say, however, that whilst the man whom you profess to be a follower of promoted love for neighbour, tolerance and forgiveness – turning the other check – not repaying wrong with wrong, you did totally the opposite thing altogether. You violently attacked the victim and would have killed him.

40.	Be that as it may, I accept that you were provoked in the non-legal sense and that would be appropriately reflected in your sentence. In the circumstances, I find that your mitigating factors are outweighed by the aggravating factors. I must therefore impose a sentence that will not only deter you personally but others who would be similarly inclined. 

41.	I think therefore that an appropriate sentence for you will be five years. I think that the circumstances of your case are similar to those in The State –v- Mann (supra) where the offender was sentenced to a similar term and to some extent The State –v- Rodney Gela and Clarence Logi (supra) where the prisoners there were sentenced to 6 years. The only difference here is that you were a lone attacker.

42.	I therefore sentence you to five years imprisonment less 10 days of pre-sentence custody. You will therefore serve 4 years, 11 months and 20 days at Lakiemata Corrective Institution. Now should any part of your sentence be suspended?

SUSPENSION

43.	The Court has an unfettered discretion under Section 19 of the Criminal Code to suspend sentence in appropriate cases where the justice of the case so requires. To that end the Supreme Court in The Public Prosecutor –v– Bruce William Tandew (1986) PNGLR 91 held that a sentence may be suspended in three broad categories. One of this will be where suspension will promote the personal deterrence, reformation or rehabilitation of the offender.

44.	To this I must add that preserving good relationships, peace and harmony between individuals, clans, family groups and the community is very important in our Melanesian cultures. Wrongs committed on individuals often do not affect them only. They also have a ripple effect on the immediate family and the clan to which the victims belong. And the reverse effect is also true of perpetrator's relatives or line.

45.	In our Melanesian culture when a wrong is committed by individuals, they invariably affect others related to the parties resulting in break-down of relationships. These relationships must be restored principally through reconciliation and payment of compensation so that the parties and their relatives can again live in harmony.

46.	So if reconciliation and restoration of damaged relationships can be achieved by suspension of a sentence, then the court must give serious thought to that. Reconciliation and restoration of damaged relationships between offenders and their victims should therefore be a ground for suspension of sentence whether partially or wholly depending on the seriousness of the offence.

47.	This is not to be equated to the courts being weakly indulgent because in as much as the court has the power to mete out custodial sentences where it is due and appropriate, it also has a duty to ensure that its decisions on sentences contribute to the general peace and harmony in communities in which parties to criminal prosecutions live.

48.	Kandakasi J. took a very bold step in the case of The State v Lawrence Mattau (2008) N3865 by wholly suspending the 10 years sentence he had imposed on the offender on a charge of manslaughter. The sentence had its basis on the specific provisions of the Constitution of the Autonomous Region of Bougainville which, specifically among other things, calls for the promotion of peace, harmony, reconciliation and mediation as the principal means of resolving disputes and also for the incorporation of customary practices and norms into the development and implementation of criminal law on Bougainville (Section.15 & 45 of the Constitution of the Autonomous Region of Bougainville).

49.	His Honour said:

Any term of imprisonment hardly promotes any peaceful co-existence between offenders and victims and their respective people. The reason for this is simple; imprisonment is undoubtedly a form of violence because it forcefully removes an offender from society and locks him or her away from his or her family and community or society. No offender or his or her people readily accept such an outcome while the victims might claim justice and victory. These are, however, divided views where as the customary reconciliatory process caters for the interest of both sides.

50.	I agree entirely with those sentiments. I am sure that other Judges of this court have expressed similar views but I have not the time during this short circuit to do the appropriate research.

51.	But while Bougainville may very well incorporate traditional forms of punishments into its criminal law as provided for by its Constitution, these do not form part of the forms of punishment allowed by our National criminal laws and may only be taken into account as mitigating factors (The Acting Public Prosecutor – v- Uname Auname [1980] PNGRL 510 ). So turning back to your case, should any part of your sentence be suspended? 

52.	I am mindful that you have offered to pay compensation to your victim. Fair enough but why wait until now to do that? You have been out on bail and had you paid compensation or reconcile with the victim that would have a bearing on any expression of remorse on your part.

53.	Be that as it may, I am of the firm view that you must pay for your crime appropriately. This means that you must serve your sentence or a good part of it. You ought to know that there are better and peaceful ways of resolving disputes. You profess to be a Christian but your actions on that morning were hardly those of one. You reacted violently in defence of your Church and in so doing you did more harm to your Church's reputation then any verbal slurs could have.

54.	But having said that I am also of the firm view that you must not only compensate the victim adequately but also reconcile with him and his people. The injuries you inflicted on the victim has affected his quality of life and his ability to take care of himself and his family and for that he must be recompensed.

55.	I have not had the benefit of a Means Assessment Report but I feel that whatever your means you must pay an appropriate amount of compensation. Considering the nature of the injury you inflicted on the victim and the residual effects it will have on him, I am disposed to ordering substantial compensation pursuant to the Criminal Code Law (Compensation) Act.

56.	So based on the above considerations, I shall suspend 3 years of your sentence so you will serve 1 year, 11 months and 20 days. The suspended sentenced is conditional on the following:

•	You will pay K5000-00 compensation to Usaki Mahite within 6 months from today i.e. to say on or before 7th of June 2013.

•	You will reconcile customarily will Usaki Mahite and his people under the supervision of the Senior Community Based Corrections Officer Mrs. Elizabeth Passingan in consultation with the Commander of the Lakiemata Corrective Institution, within the said 6 months.

•	Upon your release you shall enter into your own recognizance to be of good behaviour for a period of 3 years.

57.	My orders are as follows:

Head Sentence	5 years	
Deduction for pre-sentence custody period	10 days	
Resultant sentence	4 years, 11 months & 20 days	
Amount of sentence suspended	3 years	
Amount of sentence to be served	1 year, 11 months, 20 days	

Conditions for suspension	1)	You shall pay K5000 in cash to Usaki Mahite and you shall also reconcile customary until Usaki Mahite and his people within 6 months that is to say on or before 07th June 2013 under the supervision of Provincial Senior Community Base Correction Officer Mrs. Elizabeth Passingan or any of her officers in consultation with the Commander of the Lakiemata Corrective Institution.
2) Mrs. Passingan shall file an affidavit with the court immediately after 7th of June 2013 whether conditions I gave been complied with.
3) Upon your release from gaol, you shall enter into your own recognizance without surety to be of good behaviour for the whole period of your suspension sentence of 3 years.
4) In the event that you breach your recognizance, your recognizance will be forfeited and you will serve the full term of your suspended sentence.	
Other Orders	1)	Your bail of K5000.00 shall be refunded

Orders accordingly.
_________________________________________________________

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