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State v Nagi [2017] PGNC 316; N6965 (20 June 2017)

N6965

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 124 OF 2016

STATE

V

ISAAC NAGI

Bialla: Batari, J
2017: 20 April & 20 June

CRIMINAL LAW – sentence – grievous bodily harm – accused attacked victim with bush knife – injury to left armed resulting in subsequent amputation – determined attack - seriousness of – plea – mitigating factors - provocation - compensation – sentence of 4 years appropriate.

Cases Cited:

Mase v The State [1991] PNGLR 88

Counsel:

Mr A. Bray, for the State

Mr D Kari, the accused

SENTENCE

20 June, 2017

1. BATARI J: Isaac Nagi, you have been convicted of one count of unlawfully causing grievous bodily harm to another person, an offence under s.319 of the Criminal Code. Sentencing you is part of that process which I will now do on the following reasoning.
   
2. After recording your guilty plea and conviction last April, I reserved on your sentence to consider a Pre-Sentence Report (PSR) and Means Assessment Report (MAR) which I have ordered from the Community Based Corrections Office (CBC Office).
   
3. I preferred that course having formed the view, that further assistance might be had from the CBC Office to decide if any other sentencing options are open in all the circumstances of your case. An alternative to imprisonment is one of those options. So that there is no misapprehension, this course is not a guarantee for suspension of sentence on probation orders. You may be given the benefit of that option only if you meet the test of suitable person for probation. That assessment and recommendation is done by the probation officer.
   
4. The reports are now before the court and will be read into the records. Your sentence is supported by those added information.
   
5. In essence, you are a well-to-do ambitious young man who has been pushing boundaries in pursuit of good positive deeds. I will return to relevant details of your personal circumstances later. At this juncture, I will set the facts on basis of which the court will sentence you.
   
6. You committed the offence in this way. In the early hours of 8/7/2015 between 2.00 and 4.00am you were in the company of the victim Joshua Kasan and many others, consuming home brewed alcoholic drinks at section 7 Barema, Bialla LLG. A fight broke out between you and a Joe Junior Kanimunia. Others including the victim joined Junior to fight you. Then you left for your house. A while later, you returned to the drinking venue armed with a bush knife, in search of Junior Kanimunia. Other youths at the scene attempted to stop you but to no avail. They woke the victim Joshua Kasan up and he confronted you with a piece of timber. You swung the bush knife at him slashing him on his left forearm. There is some indication that the victim struck you on the head with the timber, causing you to fall unconsciousness.
   
7. The brief medical description of your injury by Dr James Apamumu stated, the mid forearm to hand was gangrened as a result of the knife injury and hence total amputation was done a week later.
   
8. The injury you inflicted on the victim had left him a permanent disability. That demonstrated a deliberate and determined attack under intoxication on your part. The viciousness of the attack is apparent from the use of a dangerous weapon. You did not hesitate to use the bush knife while pursing your intended victim. But then, it does matter that you chopped the wrong person, unlawfully.
   
9. Your conduct was sadly, the culmination of homebrewed substances and drug abuse so widespread amongst youths in our communities today. Such prevalent indulgence in homebrewed alcoholic drinks and associated illicit drugs amongst the youths reflects total disrespect for acceptable norms which invariably leads to breakdown of law and order. It is one social evil that has cajoled community abhorrence due to its common occurrence. The majority peace loving people are disgusted with law and order issues associated with alcohol drinking and drug. Crimes as in this case are clear manifestations of the evil side of alcohol and drug abuse. You conduct also demonstrated propensity towards violence as a result of intoxication.
   
10. Alcohol though not an excuse, may mitigate criminal conduct. To amount to an effective mitigation factor the onus is on the offender to show a diminished responsibility of the mind due to intoxication. The Supreme Court in Mase v The State [1991] 88 said at p. 91:
    

“If people drink liquor, get drunk and commit crime they must not expect leniency from the Courts unless, of course, the intoxication is shown to have the effect of diminishing responsibility."

11. Turning to your background, you were aged 24 years at the time of the offence. You were then single but now married with a child. You have pleaded guilty and this is your first offence. You come from a good supportive background with both your parents still alive. Your family moved down from Togoba in the Western Highlands Province and are now settled at LLS State lease Section 7 Block 1385 Barema, Bialla LLG.
    
12. At the time of the offence, you were enrolled at a pilot training college in Australia and had come home for a break. Consequently, your arrest, detention and subsequent court proceedings disrupted your training forcing you to withdraw. You ignored your parents for the time and effort they have sacrificed to assist you pursue your aspirations.
    
13. I am satisfied from the PSR and MAR that you have put all that behind you as you strive to earn a productive life by being useful to yourself, your family and your community. You have formed a construction business and now employ youths. There are community and church views about you being good role models for young people.
    
14. Your explanation for the attack is that Joe had instigated the fight by calling you names and others then joined him to attack you. You then left the drinking place. On your way home, you realised that you were bleeding on the head. You then return with a bush knife to confront Joe. After Joe evaded you, the victim appeared with a timber raised in his hands to strike you. It was then that you cut him with the bush knife.
    
15. There is some suggestion of self-defence from your version which you abandoned upon re-arraignment. I accept that there were elements of provocation with explained rather than excused your conduct. That is a mitigating factor in your favour.
    
16. The victim has demanded K5,000 in compensation. You have both agreed to payment of compensation and reconciliation. The amount of compensation claimed is within your means and ability to meet. I propose to order compensation as part of your penalty.
    
17. In summary, your case is aggravated by the flowing factors -
    
    1. Alcohol related
    2. Partial loss of limb (left amputated at elbow);
    100. use of dangerous weapons (bush-knife);
    4. prevalence of offence.
       
18. Factors in mitigating your criminal conduct are that –
    1. Cooperation with police
    2. Plea & remorse
    100. No prior conviction
    4. Good family and person background
    5. Change of attitude and good deeds since commission of offence
    6. Provocation
    7. Compensation offer
       
19. Your offence to fall into the serious category. The offence of causing grievous bodily harm carries the maximum of 7 years imprisonment. Against that are your personal circumstances, plea of guilty with other supporting factors.
    

16. A term of imprisonment is my view called for in all the circumstances of your case. Your case falls within the 4 to 7 year range. I am satisfied, on the whole of the facts surrounding your case supported by the presentence reports, suspension of the sentence that I am about to impose is warranted.

17. You are sentenced to four years imprisonment with hard labour. The whole sentence is to suspended to be served on probation for four years on the usual statutory terms as/and in addition to,
1) You Shall:

1. Within 48 hours report to the Probation Officer, Mrs Elizabeth Passingan or an officer for the time being occupying that office in Kimbe;
   
2. Within one month of today of by or about 20/7/2017 pay compensation of K5,000.00 plus one mature pig supplemented with garden food to the victim, Joshua Kasan;
   
3. The payment of compensation under preceding paragraph (ii) above shall take the form of reconciliation to be facilitated and witnessed by the Probation Officer;
   
4. In default of compensation payment, six months imprisonment;
   
5. Not leave the approved place of your abode namely Section 7, Block 1385, Barema, Bialla LLG or West New Britain Province without approval of the National Court;
   
6. Within two weeks on or by 4 July, 2017 join a Youth Fellowship or Ministry group of your local church and take active part in all activities of the youth group;
   
7. Attend Church every weekend for service and worship and submit to counselling and spiritual guidance;
   
8. Keep away from and not come near or associate with former accomplices, associations, youths and other persons with anti-social inclinations or any known criminal or rascal;
   
9. Not consume any form of liquor, alcohol, or drug;
   
10. Keep the peace and be of good behaviour at all times;
    
11. Have satisfactory probation report submitted to the National Court Registry as and whenever required;
    
12. Appear before the Court as and when required for assessment of your progress on probation;
    

2. The Probation Officer shall, in relation paragraph 17 (1) (ii) (vi) (vii) above, file with the National Court Registry, a report on the probationer’s compliances with orders for compensation payment, church youth involvement and church attendance.
   
3. Thereafter, the Probation Officer shall file three (3) monthly reports and whenever required by the National Court on your progressive responses to the probation orders until discharged.
   
4. In the event of any breach of these conditions, you shall be brought before the National Court to show cause why you should not be imprisoned for the remaining term of imprisonment.

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Public Prosecutor : Lawyers for the State
Public Solicitor : Lawyers for the Accused