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State v Kariat [2017] PGNC 246; N6904 (20 September 2017)

N6904

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR No. 88 OF 2016


THE STATE

V

CHRISTOPHER SILISIM KARIAT
Kimbe : Miviri AJ
2017 : 7th 8th August
20th September


CRIMINAL LAW - Practise & Procedure Plea-offence of GBH section 319-Prisoner cut victim with bush knife-no residual injuries-blood brother and sister-reconciliation of family-presentence report favourable-mitigation outweighed aggravation-non custodial sentence.

Facts

Prisoner cut his elder sister with a bush knife twice on the body.

Held
Pleaded guilty
3 years IHL wholly suspended on 3 years GBB on condition enter into Probation order for 3 years.


Cases cited:

Public Prosecutor v Done Hale (1998) SC 564

The State v Irowen [2002] N2239
The State v Kagai [1987] PNGLR 320
The State v Lialu [1990] PNGLR 487
The State v Susure [1999] N1880


Counsel:
D.Kuvi, for the State
B. Popeu, for the Defendant

SENTENCE

20th September, 2017

  1. MIVIRI AJ: This is the sentence of a brother who cut his sister with a bush knife twice on her body.

Short facts

  1. Prisoner argued with his elder sister culminating with him chasing her with stones on the 14th June 2015 at Buvussi. She fell and dropped the bush knife she had. He got it cut her on her left shoulder and left ankle.

Law

  1. Under section 319 of the Criminal Code Act, Grievous bodily harm was the charge preferred and reads as:

“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.”


Maximum penalty


  1. The maximum penalty is seven years imprisonment. Defined under section 1 as,” grievous bodily harm” means any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health;” as opposed to, “bodily harm” means any bodily injury that interferes with health or comfort;”.
  2. The evidence establishes the offence against the Prisoner. Medical report dated the 17th June 2015 from the Buvussi Health Centre read, Laceration to the left shoulder-5cm x 3 cm, bleeding tender; Laceration to the left ankle-2cm x 2cm,tender, bleeding; bruises on left thigh. She was treated with Chromic internal and 6 black silk on skin; left ankle 4 black silk sutures.” There were no residual injuries. Report was under hand of Richard Bulo HEO/OIC.

Aggravation


  1. The Prisoner took the law into his own hands to cause the injuries which were life threatening but contained as quickly sought and attended medically at the Buvussi health centre. What was asserted and the basis upon which the assault was perpetrated did not warrant the actions of the prisoner. In any case it was a Sunday and he was off to Church but abandoned resorting to the crime. Resorting to self- serve or help to address problems of law and order is not the way to go and should never be the way to go. As serious consequences flow as here where injuries so grievous as here is meted out. The escalating spiral of law and order problems stem from incidents such as the present, where self- help has led to tribal confrontation and ethnic clashes. It is therefore not a light matter of a simple punch or two cuts of a bush knife all are serious with the ripples they cause. Lialu v The State [1990] PNGLR 487 (30 November 1990) illustrates that a one punch landed the deceased with his head to the pavement from which internal bleeding ensued leading to his demise.
  2. Even though this is grievous bodily harm under section 319 it could just as easily turn into a homicide and the court has a duty to prevent in the sentence that it passes. Effectively and practically it means educating the prisoner and others similar not to take the law into their own hands. His elder sister the victim had not attacked him, she was mouthing off but that was all it was. It did not need him to do what he did upon her. She was the eldest in the family and in any case there were avenues to address the matter as blood relatives’ siblings of the same family. He was dressed to go to church and ought to have proceeded to church and not turn around as he did to involve in an offence with the use of the bush knife, whether or not it was in her hands or his originally. It did not matter when she was taking a fight at that time from him. He could have ended it there and then by turning around and not continuing to the offence. He did not display credentials of a very strong Christian by allowing himself to fall as he did as he was on his way to church.
  3. The offence of grievous bodily harm is very prevalent in Kimbe West New Britain. There are very high incidences of this offence coming before this court month in month out. For every 3 cases of grievous bodily harm disposed of minimum of 7 take their place on the criminal list committed monthly. The disposal rate is outweighed triple the rate disposed of. It is therefore a very serious offence and very prevalent. Any sentence imposed must seriously consider this fact. It is also the key element in murder and therefore cannot be a light matter of just being cut on the shoulder and ankle without any residual injuries. It may have led to homicide as that is not a remote destination in the usual turn of events demonstrated before his court. What is consolation in your case is that she has recovered from the treatment administered physically. Mentally it is not evidenced.

Mitigation

  1. Prisoner is a 42 year old man educated to grade 5 married with 6 children ranging from the eldest in grade 7 to the youngest 3 years old at home. Two other children are in grade 4 and 3 in school. He earns K800 from the sale of his oil palm. He indicated willingness to pay at least K1000 to the victim reconciliation which is encouraged in view of the fact that both are brother third born and sister elder of the same parents originally from Kairut West Yangoru East Sepik Province. He does not have any prior breaches recorded and known to the law.
  2. I consider it important that you and your elder sister reconcile amongst yourselves and that there be peace and stability between you both. I make this fundamental as the family is the basic unit of society and its stability has far reaching implication. The presentence report with the means assessment report indicates positively for you. The purpose of sentencing and alternatives must be considered in any case and it must be settled by the facts and circumstances of a given case as to one that best fits given. The purposes include retribution, rehabilitation, reformation and the application of each would be depended on the facts of each case. Kagai, The State v [1987] PNGLR 320 (12 October 1987). To over emphasize one or the other may lead to disproportionality of the sentence. It is therefore a delicate balance and must be towed by the facts and the circumstances.
  3. It is for that reason in the Public Prosecutor v Done Hale (1998) SC 564 at 5 said:

“If a judge is to consider some leniency on sentence because of age it is incumbent on him to obtain the relevant report such as a pre-sentencing report especially around the age of 17 to 19. Age considerations may of course be more obvious to a judge if an offender is under the age of 16 years. Then for such a drastic suspension of sentence a further help to the court would be a community report from the community to which the offender belongs and whether the community seeing that the incident happened within that community, has any views on an appropriate punishment or whether the community is prepared to assist with any community management of any bond period. The courts are bound under the philosophy of the constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment for criminals definitely as an effect on the ordinary people. So community involvement with the punishment of offenders should be considered as firstly if the court wishes to return an offender to the community instead of imposing imprisonment. And we note here that the relevance of Criminal Law (Compensation) Act 1991. A return to the community should mean an appropriate report of the attitude of the community and whether the community is prepared to make some responsibility for their own offending members and supervise any alternate punishment.”


  1. You are a mature man with an established family. The victim is the eldest and you are the third born of that family. Like what is voiced by the Supreme Court in Public Prosecutor v Done Hale (supra) you have a favourable report through the probation office from your community. It means you must display that conviction by the community upon you by the successful fulfilling and discharge of those orders for peace reconciliation without failure. And leaders Pastor Thomas Kamale Yako of Buvussi Baptist Church, and Thomas Leo Village peace officer Bugal Ward 2 within the community will ensure that you maintain law and order in that community.

Comparative sentences

  1. In comparison with other like cases as for example State v Irowen [2002] PGNC 99; N2239 (23 May 2002) where in Wewak the court sentenced the defendant to 7 years IHL for the first count of Grievous bodily harm pursuant to section 319 of the first wife and imposed the same for the second wife both sentences to be served cumulatively hence a total sentence of 14 years IHL. He had stripped both his wives naked and then cut the first wife on the shoulder almost severing the hand, and then cut the second wife on both legs left ring and small finger. Both were admitted to hospital sustained life threatening injuries there and could have died had it not being for a pastor and his wife who saved them. The first wife suffered 25 percent permanent disability to the shoulder. The second wife could not be assessed as to her disability as at the time of judgement she was still being treated at the hospital.
  2. This was the extreme of this particular section. Section 315 is the more serious of the two comparably in State v Susure [1999] PGNC 58; N1880 (17 June 1999) the prisoner pleaded guilty to Section 315 with intent to do grievous bodily harm upon the victim who was a friend of the Prisoner. He had gone into the bedroom of the prisoner and wife trying to rape her where she was just putting the baby to sleep. A struggle ensued and the prisoner was drawn enquired with the wife who informed of what the victim did. Prisoner had an axe but did not use it he merely argued with the victim who had abused trust as a friend, in the course victim uttered something that hurt him. He retaliated, cutting victim on the head and nose. The court imposed 3 years IHL 1 year of which was to be served in Jail and the balance of 2 years suspended on Probation order with conditions.
  3. Given all that I have set out above I consider and determine that a fair just and proportionate sentence in your case would be 3 years IHL. I impose that upon you but in the exercise of my discretion under section 19 of the Code, considering the favourable probation report including the fact that the mitigation outweighs the aggravation, and that there are no other extenuating circumstances I suspend wholly the 3 years IHL on you entering into a recognizance to be of Good behaviour for 3 years, on conditions that you enter into a probation order for 3 years on conditions set out below.
  4. Your sentence is therefore ordered as follows, 3 years IHL wholly suspended on you entering into a recognizance to be of Good behaviour for 3 years on conditions:

Ordered Accordingly.
------------------__________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Defendant

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