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State v Pari [2015] PGNC 43; N5962 (5 March 2015)

N5962

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 882 of 2014

THE STATE

-V-

EDWIN PARI
Respondent

Popondetta: Toliken, J.
2015: 05th March

CRIMINAL LAW – Sentence – Assault occasioning bodily harm – Guilty plea – Mitigating and aggravating factors considered – Appropriate sentence – 18 months less time in custody – Criminal Code Ch. 262, s 340 (1).

Cases Cited:

Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State (No.3) [1982] PNGLR 92)

Counsel:

J. Done, for the State
E. Sasingian, for the Prisoner

SENTENCE

05th March, 2015

1. TOLIKEN, J. The prisoner pleaded guilty to one count of unlawful assault occasioning bodily harm which is an offence under section 340 (1) of the Criminal Code Ch. 262.

2. He admitted the following facts that were put to him during arraignment. On the 8th day of May 2012 at about 9:30pm he was at Niugini Compound here in Popondetta. He was consuming beer with another relative, when he became disorderly. The victim in this matter Mr. Brian Kerahu approached to stop him from causing further disturbance but the accused picked up a piece of pipe and swung at the victim. The victim tried to avoid the pipe but was late and the pipe landed on his left elbow, fracturing the elbow. The Medical Report confirmed the injury. I am going to sentence the prisoner on these facts.

3. The prisoner is 40 years of age. He is single and is a simple uneducated villager. In his allocutus, he asked the court to have mercy on him. He asked if he could be allowed to say sorry to the victim who is his first cousin.

4. Mr. Sasingian, on behalf of the prisoner, submitted that the offender is a first-time offender, that he pleaded guilty, he made early admissions in his Record of Interview and that he only hit the victim once. He said that this was a fight between the prisoner and his cousin brother and that both of them were under the influence of liquor. The prisoner had expressed remorse and that the victim suffered one injury only. Counsel, however, conceded that the prisoner used an offensive weapon, the victim sustained a fractured arm and that this offence is prevalent. Mr Sasingian submitted that an appropriate head sentence in this matter should be 2 years imprisonment because he says that the aggravating and mitigating factors balance out. The prisoner had spent 1 year and 4 months in custody whilst awaiting trial.

5. Mr. Done for the State agreed with the sentencing range suggested by the defence.

6. Now, going to the law, the maximum penalty prescribed for this offence is 3 years imprisonment. Maximum penalties are, however, reserved for the worst types or worst instances of a particular case. The law also says that each matter or each case should be treated on its own merits. These principles of law are well laid down in the cases of Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1982] PNGLR 92)

7. So my task then is to firstly, decide or determine whether this is a worst offence and then decide an appropriate sentence. Viewed objectively, this is not a worst offence hence will not attract the maximum penalty of 3 years.

8. Looking briefly at the factors that act for and against the prisoner, I accepted that he pleaded guilty to the charge, he is a first time offender and has no prior convictions. I also accept that he's a simple illiterate villager and that he made early admissions in his Record of Interview, and in fact co-operated with the police by surrendering to the police himself. I also take in his favour that his assault on the victim comprised of one hit only and that he used a blunt object as opposed to something sharp. And I do take into account here the fact that both the prisoner and the victim were drunk.

9. There is some suggestion in the depositions that they had drunk 5 cartons as opposed to 3 suggested by the victim. It appears therefore that they were pretty over the top or drunk at the time.

10. I find the following factors to aggravate the accused's offence; this is a very prevalent offence, whilst assault occasioning bodily harm has not featured very much in the cases that have come before the court, this is not to say that the offence is not serious because such offences would have been dealt with summarily in the District court. However, cognate offences like Grievous Bodily Harm (Section 319 of the Code), is a very prevalent offence so I find against the accused that this offence is a prevalent one. I also find against him the fact that he was intoxicated when he committed this offence, he used an offensive weapon, and I also find that, and this is a fact against him. The Medical Report showed that the victim sustained a partially-displaced fracture of the ulna, he was treated at the hospital, and a Plaster of Parish (POP) was applied for 4 weeks. A review revealed that the fracture had not healed properly so POP was applied for another 4 weeks. The medical opinion is that the victim will suffer some permanent problem with use of his elbow.

11. While this is not the worst instance of the offence I think it should attract a sentence that should serve not only to punish the prisoner but also to deter him personally. It also should serve as a general deterrence. The offence of causing grievous bodily harm is very prevalent here in Popondetta.

12. If we look at our crimes list for Popondetta, homicides and assaults against persons make up about 80% if not 90% of the list. There is therefore a very high level of violent crimes in Popondetta. And that is the reason why a sentence in this matter must serve to not only punish the offender but also to deter him personally and others as well.

13. I accept the defence's submission that a starting point in this matter should be two years imprisonment, and, taking into account the mitigating factors of the prisoner I fix a head sentence of 18 months.

14. I therefore sentence the prisoner to 1 year & 6 months (18months) imprisonment, and I deduct 1 year & 4 months from the sentence. That should leave a resultant sentence of 2 months. The prisoner is to serve 2 months at the Biru Corrective Institution. None of these will be suspended.

Ordered accordingly

______________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Prisoner