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State v Ota [2016] PGNC 205; N6400 (16 March 2016)

N6400


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR No. 304 OF 2016

BETWEEN


THE STATE
V


OTA


Kerema: Koeget, AJ
2016 : 08th and 16th March


CRIMINAL LAW: - Sentence – Guilty Plea to Grievous Bodily Harm under section 319 of the Criminal Code Act – first time offender – wholly suspension of 3 years imprisonment term appropriate – Enter into recognisance without surety and placed on Good Behaviour Bond with condition to keep peace –section 19 (1) (d) (i) Criminal Code Act chapter 262.


INTRODUCTION
The prisoner in this case pleaded guilty to one count of causing grievously bodily harm to his step son at Kerema on Saturday 9th May, 2015. The charge is brought pursuant to section 262 of the Criminal Code Act chapter 262.


FACTs
It is alleged that on Saturday 09th of May, 2015 between 8pm and 9pm, the accused and the victim were at their family house at Popoharo settlement in Kerema. The victim in this case is the step son of the accused. The victim argued with his mother, the wife of the accused, over food and the accused went outside of their family house armed with bush knives. The accused swung one of the bush knives and struck the victim at the back of his left shoulder, and the second time he swung the same bush knife, it struck the victim at the back of his head. The mother intervened but the accused pushed her down to the ground. Then he fled the family house at Popoharo settlement and sought refuge with some family members in Kerema town.


The victim was taken to the Kerema General Hospital the same night and later transferred to Port Moresby General Hospital due to the serious injuries the accused inflicted on him with the bush knife that night.


The medical report by Dr. Warren K. Paul dated 02nd June 2015, states there was laceration on the left shoulder measuring 10cmx8cmx6cm depth profusely bleeding. There were two lacerates on the head with fracture of skull profusely bleeding. The State alleged accused had no lawful excuse to inflect the injuries on the victim.


Held:


  1. The penalty for such offence under section 319 of the Criminal Code Act is imprisonment term not exceeding 7 years.
  2. The conduct of the victim prompted accused to retaliate and use bush knife to assault him.
  3. The maximum imprisonment sentence is inappropriate in the circumstance of the case and court invoke its sentencing discretionary powers under section 19 (1) (d) (i) of the Criminal Code Act.
  4. The pre-trial custodian period of 3 months is suspended from the sentence.
  5. In view of the mitigating factors submitted by Defence Counsel on behalf of the prisoner, and pursuant to section 19(1) (d)(i) of the CCA Chapter 262 the balance of the sentence of 2 years 9 months is wholly suspended upon the prisoner entering into recognisance without surety and is placed on Good Behaviour Bond with condition to keep peace for a period of 2 years and 9 months.

Cases cited:
The State-v- Neiwa Dua [2013] PNC 8; N4957.


Counsel:
D. Mark, for the State
B. Popue, for the Defence


EVIDENCE


The following documents were tendered by consent:

16th Match, 2016:


  1. KOEGET, AJ; In this case the victim is the step son of the prisoner and he resides with his mother and the prisoner in the same house built by the prisoner.
  2. I perused the above documents tendered into evidence by the State and note that the prisoner admitted commission of the offence in the record of interview with the police investigator. The witness’ statements confirm the prisoner’s admissions so I confirm the guilty plea accordingly.

ISSUE

  1. The issue for this court to determine is; what is the appropriate sentence to impose on the prisoner.

LAW


  1. Section 319 - Grievous Bodily Harm

“a person who unlawful does grievous bodily harm to another person is guilty of a crime.


Penalty : Imprisonment for a term not exceeding 7 years”.


  1. ALLOCATUS

‘’ I went in a company vehicle to Port Moresby to get materials for the company. The vehicle had defects in the radiator so water was leaking each time the vehicle stops along the road. We wait until the radiator is filled with water then travel to Port Moresby. It took us some days to get to Port Moresby.

As we returned to Kerema, the problem of radiator leaking and stopping along the road to refill it with water continued. We spend long hours travelling to Port Moresby return. I did not sleep for two days.

The company motor vehicle dropped me at Epo village along the Highway and I walked on foot to Kerema town so I was very tired when I arrived at home. I went and slept in the house and my son, the victim was present in the house. My wife was at the market and when she came home after she finished for the day, my son told the mother to give him all the food to eat as he had no food to eat whole day and he was very hungry. My wife told him, daddy too is hungry so I will cook the food and all of us will eat.

The mother and son argued and by then I woke up from sleep. My son had eaten his share of the food but was not satisfied and wanted more from the mother. I said,” son whatever amount of food mother cooked and gave you, please accepted it” and I repeated it three times.

I did not sleep well and did not want to hear such argument. The victim punched me as we argued. I used the knife I took outside the house and hit the victim with the flat side of it. He wanted to fight with me so I cut him with the knife.’’


PERSONAL PARTICULARS


  1. The prisoner is first born in the family of 4 children and he is now aged 42 years. He lived unblemished life in the past. The Committal Court record of 17th July 2015 states that the prisoner was remanded at the Kerema Police station cells without charge for two months. On 21st August, 2015 the prisoner was granted bail by the Committal Court in Kerema and was released on cash bail of K300.00. He appeared from that cash bail.
  2. The prisoner attended Ilakaraeta Primary School and completed grade 6, then proceeded to attend Don Bosco at Araimiri in Ihu District, of Gulf Province and completed grade 9.

MITIGATING FACTORS


  1. The antecedent report tendered by State alleges no prior convictions against the prisoner. So the prisoner in this case is a first time offender. The victim’s biological father died leaving him an infant with his mother, when the prisoner married the mother. The prisoner took custody of the victim and raised him, as if he was his biological child.
  2. Despite, the offence he committed upon the victim, the prisoner continues to reside with the victim in the same house with the mother and he continues to care for the victim daily.
  3. I assessed the prisoner to be a person who does not sit back and expect relatives to bring food and cash to feed him and his immediate family members including the victim. He is always looking for employment and engaging in unskilled employment to earn cash to feed himself and the immediate family members.
  4. The victim and the mother do not want the prisoner to be imprison because life will be very difficult for them without his support.

SENTENCE


  1. The penalty for such an offence under section 319 of the Criminal Code Act is an imprisonment term not exceeding 7 years.
  2. In this case, the imposition of maximum sentence is inappropriate. In view of the mitigating factors submitted by counsel for the prisoner, the court has discretion under section 19 of the Criminal Code Act to impose a lesser sentence where evidence warrant. In the exercise of the courts discretionary powers under section 19 (1) (d) (i) of the Criminal Code Act the prisoner is sentenced to be imprison for 3 years in hard labour.

ORDER

  1. The order of the court is that the prisoner is convicted and sentenced to be imprisoned for a period of three (3) years in hard labour. The pre-trial custodial period of three months is deducted and the balance of two years and nine months is wholly suspended upon the prisoner entering into recognisance without surety and is placed on Good Behaviour Bond with condition to keep peace for two years and nine months.
  2. Should the prisoner breach this condition, he will appear in court to be dealt with for the suspended portion of the sentence.
  3. The bail money of K300.00 is refunded to him.

Order Accordingly.

________________________________________________________________
Public Prosecutor : Lawyer for the State

Public Solicitor : Lawyer for the Accused


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