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State v Dos [2016] PGNC 209; N6416 (15 April 2016)

N6416

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 644 OF 2013

THE STATE

V

EMMANUEL DOS

Misima: Toliken, J
2016: 05^th, 08^th & 15^th April

CRIMINAL LAW – Sentence – Grievous bodily Harm – Plea – Serious injuries sustained requiring hospitalisation – Attack on victim unprovoked – Offence committed when offender was a juvenile – Offender suffers mental disturbance and under goes psychiatric treatment while in custody – Pre-sentence period in custody considered - Sentenced as juvenile – Sentenced to rising of the court – Criminal Code Ch. 262, s 319; Juvenile Courts Act 1991.

Cases Cited:

Paulus Mandatititip v The State [1978] PNGLR 128
State v Tokenaki (2015) N5960 (19 February 2015)
The State v Benny Makeu, CR No. 564 of 2012 (unreported and unnumbered dated 13^th August 2012)
The State v Lawasi (2015) N5964 (20^th February 2015)
The State v Philip Mackay; CR 371 of 2012 (Unreported judgment dated 28th August 2015)
The State v Sheekiot (2011) N4454; The State v Konos (2010) N4157

Counsel:

Mr.R. Roalakona, for the State
Mr.C.Kambua, for the prisoner

JUDGMENT ON SENTENCE

15th April, 2016

1. TOLIKEN, J: Emmanuel Dos, on the 05th of April 2016, you pleaded guilty to causing grievous bodily harm to one Dailele Meakoro on the 27th day of February 2011, at Lagua village, here on Misima Island.

2. The brief facts put to you on arraignment are that on Saturday 27th February 2011, you and the complainant were at a dance at Lagua village. The complainant had gone out of the dance area to relieve himself, and as he was returning to the dance area he met you. You asked him for some beer and when he reached into his bag to pull out something you turned on him and stabbed him on his right cheek, right lower jaw and the right side of his chest. After stabbing him you ran away. The complainant was rushed to the Misima Hospital for treatment. The State said that that you unlawfully caused grievous bodily harm to complainant and you were charged accordingly.

3. I entered a provisional plea of guilty. The District Court depositions supported the charge so I convicted you accordingly.

4. The offence of unlawfully causing grievous bodily harm carries a maximum penalty of 7 years imprisonment. This does not, however, mean that I will sentence you to 7 years because the maximum penalty is always set aside for the worst instances of a particular offence. Your sentence will depend on the circumstances of your case. These are well established principles of sentencing.

5. I must, therefore, decide firstly whether your case can be said to be such a worst case befitting of the maximum penalty. If it is, I can impose the maximum of 7 years. If it is not, I can within my discretion impose a lesser sentence that befits the circumstances of your case.

6. You are now 21 years old but at the time you committed the offence you were 16 years old. You come from Bwagaoia village on the outskirts of Bwagaoia Station. You are single. You are the 3^rd born in family of 4 siblings. Your parents are still alive and live in the village. You only completed Grade 5 at Bwagaoia Primary School. Yu are a member of the United Church. You have had some mental issues which have seen your committal to the Laloki Psychiatric Hospital since your initial arrest on 18 December 2011, and subsequent detention on remand at Giligili. In all, you have been in custody for a period of 3 years and 7 months. You have no prior convictions.

7. You did not say anything when asked to address the Court on sentence.

8. Your lawyer, Ms. Kambua, however, submitted on your behalf that you should be sentenced as a juvenile according to the provisions of the Juvenle Courts Act 1991 because you were only 16 years old when you committed this offence. Counsel acknowledged that your attack on the complainant was unprovoked but said that you assumed that the complainant was reaching into his bag to take out a weapon so you attacked him. You, however, acted too quickly, she said, but that should not excuse your action. She cited several mitigating factors such as your guilty plea and that you were a youthful offender with a mental condition. She suggested that an appropriate sentence for you should be 4 years, which can then be suspended.

8. Ms. Roalakona, for the State on the other hand submitted that your sentence should be higher than three years because of the following aggravating factors; you used an offensive weapon, the victim suffered injuries which required him to be hospitalized, the injuries were inflicted to vulnerable parts of the body and the offence is very prevalent.

9. A pre-sentence report was filed in your behalf. It shows that you are a persistent offender, but that you have freely admitted your offence. It also shows that your father finds it very hard to control you and peer pressure is a very big problem for you too. You are known for your criminal behaviour in the village. The victim’s relatives are demanding K3000 compensation. You have offered to pay compensation to Meakoro, but I do not know how you can do that. Given the negative perception that you command, it comes as no surprise that the report is not favourable to you.

10. Regarding this offence and its prevalence in this province, I repeat what I said in The State v Philip Mackay; CR 371 of 2012 (Unreported judgment dated 28th August 2015) -

The offence of causing grievous bodily harm is becoming increasingly prevalent in this province, which is a black mark for a province that is known for its peace loving people. What is more alarming is that there seems to be a direct correlation between this increase and the uncontrolled use of alcohol in communities, most of which is illicit or illegally brewed or distilled. This cancer must be mitigated and one way of doing that is for the Court to impose appropriately high sentences to deter offenders and the general public alike.

As we speak, people, most of whom are innocent, continue to fall victim to unbridled and uncontrolled violence. While some are lucky to survive such violence, others have unfortunately lost their lives.

Violence is a cancer to society, and violent people must be put away to protect innocent and peace loving members of our communities and society in general.

Granted, some offenders are not by nature violent, but often lose their restraint and power of self-control when they are under the influence of alcohol. But, it must stated quite clearly here that intoxication has never been regarded as an excuse or defence to an offence unless one is rendered insane by such intoxication.

11. What must be added here is that a good number of these cases involve juvenile and youthful offenders like you. While youthfulness is always a relevant mitigating factor, it no longer has the effect of swaying a sentencing judge towards exercising unrestrained leniency simply because of the very reason that juvenile and youthful delinquency seems to be the order of the day. (Paulus Mandatititip v The State [1978] PNGLR 128)

12. You were of course a juvenile when you committed this offence, but I must say that there was nothing juvenile about how you carried out the offence. Yes, I must treat you as a juvenile in accordance with the provisions of the Juvenile Courts Act 1991, but as I have said in another case that came before yesterday, I am not bound by the sentencing options available there, needless to say, that I must take cognizance of your need for correction and rehabilitation.

13. So, does your case fall into the worst category? Given the manner in which you attacked the complainant, and the injuries you inflicted on him, I have no hesitation in concluding that it is pretty close to the top. Your culpability is high because of harm that you caused to the victim in what was a totally unprovoked assault. I set a starting for you at 3 1/2 years.

14. Now, there are some mitigating factors in your favour. You pleaded guilty. Even though this comes almost 2 ½ years after your committal, I accept that you have had mental issues which had made it difficult for you to make an early plea. You are first time offender and were juvenile when you committed this offence.
15. Against you, though, I accept the aggravating factors pleaded against you by the State. These are that you used an offensive weapon, the victim suffered injuries which required him to be hospitalized, the injuries were inflicted to vulnerable parts of the body and the offence is very prevalent. I add two other factors to that list - your attack on the complainant was totally unprovoked and I can safely assume that you were under the influence of liquor when you committed the offence.

16. Counsels have cited some cases to me which can give us some idea of the types of sentences which have been imposed for this offence. In fact judges have been quite stringent on their treatment of offenders for this offence. It has been held that the starting point should be 3½ years and I agree entirely with that for the foregoing reasons. (The State v Sheekiot (2011) N4454; The State v Konos (2010) N4157 per Cannings, J). But, of course, where the circumstances warrant or justify, a sentence can be either wholly or partially suspended. I will cite a few of my own cases that were committed here in Milne Bay.

17. In The State v Tokenaki (2015) N5960 (19 February 2015), I sentenced the prisoner to 4 years imprisonment for causing grievous bodily harm to his victim. The prisoner was part of a group of village boys on Trobriand Island who laid in wait of the victim on the road. They attacked the victim with bush knives and inflicted 3 major lacerations and 3 minor lacerations on the victim. The victim was hospitalized but recovered without any permanent injury or disability. The prisoner had spent 1 year and 11 months in pre-trial custody – which I deducted from his sentence. I felt that this was an appropriate case for suspension which was also recommended by his Pre-sentence Report so, I suspended the balance of his sentence and placed him on probation with conditions.

18. In The State v Lawasi (2015) N5964 (20^th February 2015), the prisoner and his cousin brother and the victim, all drunk were returning from a dance when the victim and the prisoner’s cousin brother got into an argument. Fearing for the safety of his cousin who was smaller than the victim, the prisoner picked up a dry stick and hit the victim on the head rendering him unconscious. The prisoner stopped a vehicle and took the victim to the hospital and later turned himself in to the police. I sentenced the prisoner to 2½ years below the starting point of 3½ years because of his significant mitigating factors. I than wholly suspended the sentence and placed the officer on probation for two years with conditions, including payment of K4,000.00 compensation, performance of 120 hours of community service and non consumption of alcohol.

19. In The State v Benny Makeu, CR No. 564 of 2012 (unreported and unnumbered dated 13-08-15), the prisoner pleaded guilty to one count of grievous bodily harm. He had slashed the victim on the head with a bush knife. The victim had come looking for the prisoner’s daughter in the early hours of the morning. A scuffled ensued which resulted in the prisoner cutting the victim. I sentenced the prisoner to 3 years less time in custody and suspended the balance and placed the prisoner on probation with conditions.

20. In The State v Mackey Philip (supra), the offender and the victim were drinking home-brewed liquor (JJ) when an argument erupted between them that eventually led to a fight in which the victim slapped the offender. The offender retaliated by stabbing the victim 4 times on his hand and chest. The offender fled the scene while the victim was taken to the hospital for treatment. I sentenced the offender to 3 years but suspended the sentence and placed him on probation for 3 years because of a good pre-sentence report.

21. The circumstances of your case are similar to Mackey Philip’s, though, the significant difference is that you were a juvenile. However, given the circumstances of your case, and taking full account of the fact that you are a juvenile who needs to corrected, the only way someone can truly be corrected is to impose an appropriate custodial sentence. In your case I would like to think that an appropriate sentence for you should be 3 years imprisonment. You have spent 3 1/2 years in pre-trial custody. So, effectively you have served your time for this offence. I pause here to say that you have two other cases unrelated to this, to which you will be sentenced at a later date.

22. My orders then are that you are sentenced to the rising of the Court. But, you will be remanded in custody to appear at Alotau at the next sitting of the Court for your sentence on your two outstanding matters.

Ordered accordingly.

_______________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the prisoner