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State v Tiso [2016] PGNC 353; N6572 (14 October 2016)

N6572

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO. 143 OF 2016

THE STATE

V

JOE THOMAS TISO

Mendi: Ipang, J

2016: October 10 & 14

CRIMINAL LAW- Sentence- Criminal Code Act, Chapter 262-Section 319 causing grievous bodily harm-the victim was playing card games near a trade store-offender grabbed a bush knife and cut the victim on his left hand - the victim sustained a deep wound to the left forearm and compound fracture of the left arm- Plea of Guilty.

CRIMINAL LAW-Sentence-Criminal Law (Compensation) Act, 1991-Offender paid compensation to the victim- Mitigating and Aggravating factors considered-First time offender-expressed remorse- No permanent injury sustained.

Cases cited:

State –v- Veronica Mandili Kulia (2010)

Counsel:
Ms. S. Luben, for the State

Ms. C. Koek, for the Offender

DECISION ON SENTENCE

14^th October, 2016

1. IPANG J: This is the decision on sentence for the offender who pleaded guilty to one count of causing grievous bodily harm to one Ungia Thomas contrary to section 319 of the Criminal Code Act, Chapter 262.
   
2. The brief facts on which the offender pleaded guilty on are as follows; on the 2^nd December, 2015 at around 11 am, the offender was at Tente Village. He walked over to where a group of people were gambling or playing cards. The victim was also with this group of people. The offender grabbed a bush knife from one Niso Binowi and cut the victim on his left hand. The victim sustained a deep wound to his left forearm and compounded fracture of the left arm. He was taken to Mendi General Hospital and was admitted for two weeks.
   
3. The offender has been found guilty of causing grievous bodily under section 319 of the Criminal Code Act which carries a penalty of not exceeding seven years. In deciding the offender’s penalty, I will decide whether the maximum penalty should be imposed or a lesser penalty subject to section 19 of the Code be imposed. I am bearing in my mind that it is the sentencing practice that maximum penalty is always reserved for worst types of cases. The consideration I will make is, “whether this instant case is one that falls under worst category of grievous bodily harm cases therefore, warrant a maximum penalty or it falls under less categority therefore will attract a lesser term of penalty, subject to section 19 of the Code.

4. In order to address the above issues, there are several factors that come into play and that I have to take them into account. The offender’s antecedent report tendered in court recorded no prior convictions against the offender. The offender has expressed remorse for what he has done to the victim and has gone ahead and paid compensation to the victim.
5. The offender’s personal particulars are as follow; he is 23 years old and comes from Tende village, Mendi Southern Highlands Province. He is the first born from seven children from his parents. His parents are still alive but they are of very old age. He is a member of the United Church. He has been a good law abiding citizen until the commission of this offence. He was educated up to grade 9 level. He is a single young man.
   
6. In mitigation, he pleaded guilty to committing this offence, he is a first time offender in that this is his first time to appear in court, he co-operated with the police, he acted alone, he has expressed genuine remorse, there was no permanent injury sustained by the victim and he has paid compensation of K5000 in cash and four pigs valued at K4000 in total. All together, a total of K9000 worth of compensation was paid to the victim. On the contrary, the offence committed and the injury sustained are serious in that the victim sustained deep cuts, broken bone and that there was use of offensive and dangerous weapon in that a bush knife was used. The victim was admitted at the hospital for two weeks and undergone surgical operation.
   
7. Ms. Koek of counsel for the offender submitted that this court takes into account the mitigating factors, the compensation has been paid and that the offender has been in custody for 11 months, offender’s early plea of guilty and genuine expression of remorse and imposed one (1) year custodial sentence then wholly suspended the sentence with conditions. Ms. Luben for the State submitted that this court considers the aggravating factors of this case in that there was use of offensive weapon, a bush knife to commit this offence and that though there was no permanent injury sustained, the injuries were serious in that the victim sustained deep cuts and a broken bone. Ms. Luben therefore submitted that a deterrent sentence needs to be imposed to make the offender realised his mistake. The State submitted for a 3 years custodial sentence be imposed minus the pre-sentence period served in custody and the balance of the sentence be wholly suspended and the offender be placed on two (2) years good behaviour bond with conditions.
   
8. Ms. Koek relied on one case authority when making her submission. This is the case of State-v- Veronica Mandili Kulia (2010) Unreported. In this case the offender pleaded guilty to the charge of causing grievous bodily harm. A trial was conducted. The offence was committed within a domestic setting. The offender who is the wife of the victim, wife complained that the victim was having extra marital affairs with other women. Both the victim and the offender armed themselves with bush knives threatened each other. During their struggled, the victim sustained injuries to his right hand which included fractures to his metacarpal bones to his 3^rd and 4^th digits and there was disfigurement to the middle fingers thus permanent injury. The court took into consideration that the offender was a first time offender, a good citizen up until the offence was committed, she was a good Christian and that she has paid compensation to the victim, imposed a sentence of one year custodial sentence. The court deduced the pre-trial period spent in custody and wholly suspended the balance of sentence with conditions.
   
9. The similarity between Kulia case and this instant case is that there is the use of the offensive weapon, the bush knives to commit the offence, there are serious injuries sustained by the respective offenders in the two cases including broken bones and that the both victims in these two cases paid compensations. The differences in these two cases are that in the Kulia case it was a not guilty plea so a trial was conducted and the offender was found guilty at the end of the trial. In the instant case, offence was not committed in domestic setting unlike the Kulia case. In the instant case the offender was admitted to the hospital for two weeks and required surgical operation. So, in Kulia case it was a not guilty plea and a trial was conducted. Offender was found guilty at the end of trial and was given a one year custodial sentence and the balance of the sentence was suspended the logical application of the sentence in Kulia case to the instant case would mean a starting custodial sentence lower than one year given that in this instant case it is a plea case. I am inclined to follow the sentencing part of the Kulia case. In that the starting head sentence is taken too low and for the plea matters if we apply Kulia case will take us right below the head sentence in Kulia case. So I would differ in this aspect.
   

10. I take in consideration the factors in favour of the offender; like he pleaded guilty, express remorse, first time offender, paid compensation to the victim, he has been in custody for 11 months, though no permanent injury was sustained the injury were serious which required the victim to be hospitalised for two weeks plus the fact that the offensive weapon a bush knife was used and the offence of grievous bodily harm committed is serious and most prevalent, I have arrived at this sentence which I consider appropriate and befitting to the circumstances of this instant case. I sentenced the offender to three (3) years custodial sentence. I deduct 11 months for the time spent in custody during pre sentence period. This will live the balance of 2 years, 1 month to serve. Taking in to account the factors that I have stated in favour of the offender, I wholly suspended 2 years, 1 month and placed the offender on two (2) years good behaviour bond with the following conditions;

1. He shall keep peace and be of good behaviour towards the victim.
2. He shall not be in possession of any bush knives.
3. He shall not commit any like or similar offence.
4. He shall not consume any form of alcoholic drinks including homebrews.
5. He shall not take any illicit substances like marijuana...
6. He should receive regular counselling from church and village elders.
   

___________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Offender