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State v Kimai [2017] PGNC 63; N6689 (20 March 2017)

N6689

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1837 OF 2016

THE STATE

V

REX KIMAI

Wabag: Auka AJ
2017: 10^th & 20^th March

CRIMINAL LAW – Sentence – Particular offence – Plea of guilty – Unlawfully causing grievous bodily harm – Mitigating and Aggravating factors considered – Three (3) years imprisonment – reduced by time spent in custody awaiting trial and sentence – remaining term wholly suspended with conditions – Criminal Code S.319 and S.19

Case Cited:
Goli Golu v. The State [1979] PNGLR 635
Lawrence Simbe v. The State [1994] PNGLR 38
The State v. Ben Robert (2009) N3629
The State v. Bomai Heni ( ) N3232
The State v. Eddie John (2003) N2411
The State v. Iovita Man (2007) N4028
The State v. John Bola (2008) N3297
The State v. Kara (2012) N4663
The State v. Martin Konos (2020) N4157
The State v. Ruben Iroven (2002) N2239

Counsel:

Mr. Emmanuel Thomas, for the State
Mr .Jeffery Kolowe, for the Accused

DECISION ON SENTENCE

20^th March, 2017
1. AUKA AJ: The accused pleaded guilty to an Indictment containing one count of unlawfully causing grievous bodily harm to one Roselyn Joel under S.319 of the Criminal Code.

2. The brief facts of the case were that the victim Roselyn Joel was in a relationship with the accused Rex Kimai of which she had 2 children who were infants at the time of the offence. On 25^th June, 2015 the victim was at the accused house at Beat Street attending to her elder son who she heard was sick. While she was sitting down attending to him, the accused came from her back and kicked her on the right side of her head. When she fell down he continued to kick and punched her and used an iron bar and hit her all over her body. As a result of the beatings, the victim sustained a deep Lacerates wound to her head, to her jaw, to her lips, right ankle and swelling and bruises on both arms.

3. A Medical Report of Dr Peter Pondros dated 1^st July, 2015 confirms that the victim received a deep lacerated wound on her head 3cm depth x 6-7am length. She also had other two deep lacerated wounds on her head which bled heavily.

On her left upper jaw and hips there were lacerations with blood clots noted inside and swollen with deformities. Her right eye with hematoma. For her trunk, the victim had hematoma and bruises at the back swollen with reads length of 11-12cm giving some limitation of normal function of her spinal region. There was a deep laceration wound noted on the right knee 1/3 of the tibia bone and ankle joints of the right leg lacerated and swollen with many deformities. Her both forearm swollen with bruises.

The Medical report shows that her wounds on the lips were sutured with four (4) stiches and her head with seven (7) stiches.

She was also put on antibiotics and pain relieving medications with daily dressing of the wounds.

Dr Paulson in his report stated that the victim’s disability assessment was to be done after 1-2 months time at the surgical clinic. The assessment report was not made available to the court at the time of sentence.

4. In his address on sentence, the accused said that his family life was going alright until May, 2015 when the victim suspected him for having an affair with another woman. Argument started and went on for three (3) weeks and the victim left home and was living with her sister. One Friday afternoon the victim came and threw an umbrella and other things at him. Then she grabbed him by his shirt and he in the course of closing the door, pushed her out and accidently she fell on the step and sustained the injuries. I reject his version of how the victim sustained the injuries because the injuries found on the victim’s body by the doctor in my view don’t show that the injuries were caused by an accidental fall. He then said sorry to the victim and the family. He also said sorry to the court for dealing with this case. He asked the court to have mercy on him and asked the court to impose a non-custodial term so that he can go back to his community and serve his punishment at the community level.

5. In relation to accuseds personal particulars, Mr Kolowe submitted that he is 25 years old married with 2 children who are 5 and 2 years old. He comes from a family of seven (7) children. His parents are alive. He completed grade 12 at Kopen Secondary School in 2011. In 2016 he completed his Nursing Course at Sopas School of Nursing. He is yet to be employed. He is a member of the Lutheran Church.
   

I have read the Probation Report and it is not favourable to him. He and the victim have had problems from their marriage. The victim has gone through so much hardship. The parties have not seen each other since the incident. The victim does not want any form of compensation but if appropriate the accused should be given a custodial term because she has suffered injuries and lost her job. Some compensation in the form of K1, 000. 00 cash have been paid to the victim. The report recommends that the accused should be given a custodial sentence as wife beating is prevalent in the country.

6. On address on Sentence, Mr Kolowe submitted and urged the court to consider in accuseds favour the following mitigating factors;

1. He pleaded guilty and saved courts time
2. He has expressed remorse to the victim and her family;
3. He expressed remorse to the court as well;
4. He has no prior conviction
5. He had no intention to cause injuries to the victim;
   

However I reject that he did not have intention to injure the victim because the Medical Report shows that the injuries which the victim received in my view shows that there was intention on the part of the accused to cause injury to the victim.

7. Mr Kolowe submitted and urged the court to consider that this is not a worst type of case and as such asked the court to impose a term between 1 to 3 years and the sentence be wholly suspended. He brought to the court’s attention the National Court decisions in the following cases:

(i) The State v. John Bola (2008) N3297

In that case the Accused pleaded guilty to grievous bodily harm. Accused used bow and arrow and shot the victim on his right thigh and the bow broke inside his body. His Honour Kandakasi J imposed 3 years and the sentence was wholly suspended with conditions.

(ii) The State v. Eddie John Naopa (2003) N2411

In that case the accused pleaded guilty to grievous bodily harm. The accused shot the victim with a stone through a slingshot and hit her left eye. The victim sustained complete loss of her left eye. A term of 5 years was imposed, partly suspended with conditions.

(iii) The State v. Bomai Hesi (No. 2) (2007) N3232

In that case accused pleaded guilty to unlawfully causing grievous bodily harm to the victim. Accused used a knife and cut off the victim’s thumb. Victim also received deep wounds to her head and wrist. A term of 3 years was imposed reduced by pre-trial custodial term of 3 months. To serve the reduced term of 2 years and 9 months.

8. Mr Thomas of Counsel for the state submitted and urged the court to consider against the accused the following factors;

1. The victim sustained serious injuries;
2. The offence is a prevalent offence;
3. The Accused’s behaviour towards the victim was one of Violence and resulted in ongoing Domestic violence in the home;
4. That accuseds violent behaviour towards the victim in this case not only inflicted serious injuries on the victim but she also suffered by losing her job as a customer service officer at Bank of South Pacific, Wabag Branch, making her life miserable.
5. That accused is a irresponsible and a violent person and has created hatred and bitterness to the victim and the two (2) children.
   

Mr. Thomas strongly submitted that a custodial sentence is appropriate in the circumstances of the case.

9. The maximum penalty for unlawfully causing grievous bodily harm is an imprisonment term of 7 years. The court has considerable discretion whether to impose the maximum penalty by virtue of S.19 of the Criminal Code.

10. On authority of cases like Goli Golu v. The State [1979] PNGLR 653, the maximum penalty should be reserved for the worst type of case. In my view and I agree with Mr Thomas that this is a serious case.

11. It is an established principle that each case should be considered on its own facts and circumstances, Lawrence Simbe v. The State [1994] PNGLR 38.

12. The trend of Sentencing on Grievous Bodily Harm and Similar offences depends entirely on the facts of each case. On extreme side of sentence on this offence, let me cite two cases involving very serious aggravations. In State v. Ruben Iroven (2002) N2239, the maximum penalty of seven (7) years was imposed. That was a case where the prisoner forced his two (2) wives to strip naked before him and he inflicted certain permanent injuries on to their bodies by using a hot iron. That case involved family problem and the presiding judge imposed the maximum penalty.

13. In The State v. Tovita Mann (2007) N4028 where the offender pleaded guilty to unlawfully doing grievous bodily harm to the victim. The victim was holding a baby when accused cut him on the right shoulder and inflicted an extensive wound. Injia CJ sentenced him to five (5) years reduced by the pre-trial custodial term to serve the remaining balance of 2 years 11 months 12 days.

14. In the case of The State v. Martin Konos (2010) N4157 where the offender pleaded guilty to unlawfully doing grievous bodily harm to his nephew by attacking him with a piece of timber, fracturing his knee and inflicting many other injuries by multiple blows. Cannings J sentenced the prisoner to 3 years. The sentence was fully suspended with conditions.

15. In The State v. Ben Robert (2009) N3629, the prisoner pleaded guilty to unlawfully doing grievous bodily harm to the victim who was his younger brother. The prisoner used a bush knife causing serious wound to the right side of the victim’s face. He was sentenced to 3 years 5 months 1 week after his 3 weeks pre-sentence custodial term was deducted. There was no suspension on any part of his sentence.

16. In The State v. Kara (2012) N4663, the accused pleaded guilty to unlawfully doing grievous bodily harm to his female neighbour in urban setting, cutting her on her face with a bush knife, inflicting an eye injury and superficial facial injuries requiring seven (7) stiches. Canning J imposed a term of four (4) years, fully suspended in view of a favourable pre-sentence report and his preparedness to pay further compensation.

17. It is clear from the above cases that the courts have been exercising their discretion to impose sentences in terms as well as the prescribed maximum term of 7 years after taking into account the different circumstances of each case with respect to the factors of mitigating and aggravating as they may be.

18. I have considered the accuseds expression of remorse during allocatus. I also consider the following mitigating factors in favour of the accused:

1. He pleaded guilty and saved courts time;
2. He is a first time offender;
3. That he had paid some compensation.
4. That he is prepared to work on his problems and mistakes towards becoming a responsible person and father.
   

19. Against the factors in favour of the accused, the court considered the following aggravating factors;

1. That victim sustained serious injuries;
2. That the accuseds involvement in the crime not only inflicted serious injuries on the victim but resulted in losing her job as a customer service officer at Bank of South Pacific, Wabag Branch, making her life miserable;
3. That Accuseds behaviour towards the victim was one of violence and resulted in ongoing Domestic violence in the home;
4. The offence is a prevalent offence in the country;
5. That he had intention to injure the victim.
   

20. Going by the trend of Sentences in some of the cases referred to and the particular factors and circumstances of the present case, I consider that a sentence of 3 years is appropriate. Accordingly I impose a sentence of 3 years imprisonment. I order a deduction of 5 months already spent in custody whilst awaiting trial. That will leave the balance of 2 years 7 months yet to serve.

By virtue of section 19 (d) (1) of the Criminal Code, the term of 2 years 7 months is wholly suspended on the condition that:

1. The accused enter into his own recognizance to keep the peace and be of good behaviour for four (4) years and further subject to the following conditions;
   
   1. That he must pay further compensation in the sum of K1, 000. 00 cash to the victim payable within 2 months.
   2. He must reside at his current residential location and nowhere else except with the written approval of the National Court
   100. He must not leave Wabag, without the approval of the National Court;
   4. He must keep the peace and be good behaviour and must not cause trouble, or harass the victim and her family
   5. He must not consume alcohol or drugs;
   6. He must attend local church every week for service and worship and submit to counselling;
   7. If the accused breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the 1 year 7 months which have been suspended;
      

I order that the accused’s bail money of K1, 000. 00 shall be converted towards the payment of further compensation to the victim.
_______________________________________________________________
Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused