N7246

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 738 of 2015

THE STATE

-v-

STEVEN JIMMY
Defendant

Kavieng:  Kangwia, J.
2018:  11 & 14 May

CRIMINAL LAW – Sentence – Grievous Bodily Harm under s 319 CCA – Bush knife attack on unsuspecting victim – Serious bodily injury sustained to left upper arm area leading to amputation of the left arm – Prevalence of offence – No remorse – Custodial sentence warranted as a deterrence – Victim not an innocent bystander – Prisoner sentenced as a first time youthful offender.

Cases cited:

State v Yatime v Korogula, (2007) N3742
 State v Peter Erne (1999) N1939
State v Augustine Lopulopu – CR 45 of 2016 -Unreported Judgment) 
State v Fhryle Aliu – CR 1233 of 2014 – Unreported Judgment)
The State v Brian Wadada – CR 885 of 2013, (Unreported Judgment)
The State v Polin Pochalou Lopai [1988-1989] PNGLR 48.

Counsels:

R. Luman, for the State
M. Maraleu, for the Defence

14th May, 2018 

1.	KANGWIA, J.:	Steven Jimmy appears as a prisoner for sentencing.  He was convicted after a trial on one count of causing Grievous Bodily Harm (GBH) hereon.

2.	The facts not disputed were that there was a fight between the victim and his uncle on the one side and the prisoner and his brothers on the other.  The victim lifted his arm to swing a bamboo when the prisoner chopped him on his upper left arm.  The victim sustained a massive cut which eventually led to the arm being amputated.

3.	The prisoner is single and fourth born in a family of five.  He was educated to Grade 10.  He attained a certificate in accounting from ITI in Kavieng.  Has of late he was attending the Vuna Bosco Agro Technical College as a motor mechanic trainee.  He has been in custody for 7 months.

4.	On his allocutus, the prisoner said, “I have been found guilty.  I say sorry for consuming a lot of time in the case.  My family is willing to pay compensation.  I have a future in school.  I ask for leniency and Good behaviour Bond.”

5.	On his behalf, Mr. Maraleu submitted that the Court consider a non-custodial sentence with good behaviour bond and compensation orders pursuant to s. 19 of the Criminal Code and s. 2 of the Criminal Law Compensation Act respectively.

6.	In his written submission, Mr. Maraleu listed the following as the mitigating factors:

a)	He was a first time offender with no prior convictions
b)	He was 17 years old at the date of the offence
c)	His family attended the victim’s wound and sent word to his family
d)	He is a member of the Catholic church
e)	The nature and extent of the original wound was not serious or life threatening.

7.	It was also submitted that the only aggravating factor was that the prisoner pleaded not guilty.

8.	The court was further referred to the following cases as guides in sentencing.

9.	In the State v Yatime Korogula (No 2), (2007) N3742, where the prisoner cut the victim’s left thumb almost severing it, the prisoner was sentenced to a wholly suspended sentence of 2 years with Good Behaviour Bond.

10.	In the case of the State v Peter Erne (1999) N1939, where the victim received multiple knife wounds to his scalp and other injuries to the head the prisoner who was in a group that assaulted the victim was sentenced to 2 years with deductions and suspension of the balance with Good Behaviour Bond for two years.

11.	It was finally submitted in reply that his family’s willingness to pay compensation is a reflection of remorse hence the family should be left to restore peace among themselves as relatives.

12.	For the State, Mr. Luman sought a custodial sentence of 5 to 6 years accounting for the end result of the victim’s arm which sustained permanent disability.

13.	The following factors were submitted as aggravating factors;

a)	There was the use of an offensive weapon.
b)	The attack happened in the dark and from the back.
c)	The victim’s education was disrupted and had to switch courses due to the amputation.
d)	Injury was permanent and serious enough for amputation.
e)	Ability to use the arm was limited.
f)	No genuine remorse was shown except apologies in allocutus.  There was no apology to the victim and no admission made.

In light of the aggravating factors it was submitted that they attracted a sentence towards the higher end of the penalty prescribed by law.

14.	The Court was further referred to the following cases as relevant guides in consideration of a sentence.

(i)	The State v Augustine Lopulopu – CR 45 of 2016 – (Unreported Judgment) where the offender entered the victim’s house and chopped the victim on the jaw while the victim was asleep, was sentenced to the maximum prescribed penalty of 7 years imprisonment.

(ii)	The State v Fhryle Aliu – CR 1233 of 2014 – (Unreported Judgment) where the victim sustained a 100% loss of his left eye and facial injury after the offender attacked him with objects, was given a suspended sentence of 5 years only because the victim did not prefer a custodial sentence as they were married to two sisters and he also required assistance to pay for medical expenses.

15.	It was finally submitted that this case was a serious case close to the Fhryle Aliu case and a sentence between 5 and 6 years should be imposed.

16.	This was a serious case of GBH done to an unsuspecting person who became the victim.  The charge should have been laid under s. 315 of the Criminal Code Act as there was present an element of intention to cause GBH.  Its seriousness is reflected in the enormity of the injury and the eventual amputation of the left arm.

17.	The Medical Report described the extent of injury sustained as a deep knife wound to the inner aspect of his left upper arm measuring 10cm in length x 5cm in depth.  The report also stated that the victim underwent three separate surgical procedures with 8 units of blood transfusion to save his arm but the arm began to decompose and it necessitated amputation.

18.	The present case is not one of those rare cases that this Court has dealt with in the New Ireland Province.  In what is presumably a peaceful province attacks occasioned on others with bush knives and other lethal weapons is prevalent.

19.	In respect of the prevalence of GBH offences under s. 319 of the Criminal Code, I said in the case of The State v Brian Wadada (CR 885 of 2013, Unreported Judgment dated 21st May 2015) as follows;

“This is a case where the prisoner committed GBH on another, an offence that is prevalent.  The use of an offensive weapon to cause GBH is a common feature of GBH in this country.  It may not be long before this Country is inundated with maimed or disfigured persons from attacks with weapons without a second thought.”

20.	That observation was made in a case in Popondetta where the offender cut his maternal uncle on the face with a brush-cutter used in oil palm.  The offender was given a suspended sentence upon the insistence of the maternal uncle (presumably burdened by customary and family obligations) who preferred the two years already spent in custody awaiting trial and sentence as sufficient for his nephew.

21.	A lot of decisions involving suspended sentences arise out of preferences by the victims.  I have said in a number of decisions that the preference of the victim of an offence needs to be factored into any decision made by the Courts basically for the reasons that the victim is the most affected person.

22.	There are exceptions though where victims are minors or have disabilities that may not be in a suitable position to make informed presentations or decisions as to the preference of a suitable sentence through the Pre-Sentence Report.

23.	In the present case the factors operating in the prisoner’s favor is that he is a first time offender and a youthful offender.  However, those mitigating factors are rendered a nugatory given the nature and circumstances under which the offence was committed; the permanent injury caused to the victim coupled with the aggravating factors present.

24.	A custodial sentence is therefore warranted and appropriate.  A suspended sentence with compensation and Good Behaviour Bond orders are not in my view appropriate under the facts and circumstance of the present case.

25.	The prevalence of the offence demands deterrent sentences.  The message must be sent that wanton attacks with lethal weapons will be met with strong resistance by the Court under the law.

26.	Compensation has been suggested as part of the sentence.  Compensation seems to be anticipated of the Courts for offences such as the present case.  It is to be noted that effective deterrence cannot be achieved with compensation orders.

27.	The indication by the victim was that he rejected compensation.  No compensation can be ordered in favour of a reluctant victim who did not accept compensation.  In this case compensation cannot be ordered under those situations.

28.	The message must also be sent that offenders who display no restraint to attack others with lethal weapons must not expect leniency with compensation orders.

29.	A serious criminal offence must be met with stern penalties from the prescribed penalty as a demonstration and reflection of the abhorrence and disgust of the Court and the public for such attacks on fellow human beings.

30.	In the case of The State v Polin Pochalou Lopai [1988-1989] PNGLR 48 His Honour, Bredmeyer, J. while discussing sentencing principles in manslaughter cases said;

“Every form of punishment takes into account the intention behind the act or omission and the consequences, both the seriousness of the intention and the seriousness of the consequence. . . with consequence the more serious the consequence, the greater the punishment”

31.	I adopt that summation to the present case and hold that a higher custodial sentence than those referred to in the cases cited by the defence was appropriate.  The consequences of the offence in the present case were serious leading to amputation of the left arm.  The amputation in my view cannot be sorely blamed on the victim’s delayed medical attention.  The original cause was the wound inflicted by the accused.

32.	The prescribed penalty for the offence under s. 319 CCA is imprisonment for a term not exceeding 7 years.  I am of the view that the prescribed penalty should be increased to 10 years or more given the prevalence of the offence and to have some consistency with the prescribed penalty with its cousin provision under s. 315 of the CCA under which the prescribed maximum penalty is life imprisonment.

33.	I also take into account the principle of law that the maximum prescribed penalty should be reserved for the worst type of each offence.  The Court is not bared from imposing the prescribed maximum penalty where the circumstances warranted it and in its decision.

34.	The present case in my view falls into the most serious category of GBH.  It is also my view that the present case falls under the category of attempted murder.  It demands a high custodial sentence.

35.	I would not hesitate to sentence the prisoner to the maximum prescribed penalty.  However I give consideration that the prisoner committed the offence when he was 17 years old.  He would be deemed to be a juvenile offender under the Juvenile Justices Act.  A reduced sentence than what an adult would receive is fitting for the prisoner.

36.	As to his concern for his education I reject it as a valid reason for a low sentence.  He acted without thinking about the consequences of his education and his future in general.  The court cannot consider it on his behalf and overlook the seriousness of the offence.

37.	I also consider that the victim was not an innocent bystander who was attacked.  He and his uncle went to the prisoner’s yard and tried to solve an earlier problem when the fight erupted.  Whether the victim was actively involved in the fight is unclear.  What is not in dispute though is that he held up a bamboo to land it on someone when he was cut.  He cannot now lay full blame on the prisoner for sustaining the injury.  He must be attributed partial blame for the consequence he suffered.

38.	In light of what has been said above I sentence the prisoner to 4 years imprisonment.  From the 4 years sentence the time in custody awaiting trial and sentence shall be deducted and the prisoner shall serve the balance at CS Kavieng, now that he is no longer a juvenile.

FORMAL ORDERS

39.	The formal Orders of the Court are:

1.	The Prisoner is sentenced to four (4) years imprisonment.
2.	The period of time spent in custody awaiting trial and sentence shall be deducted.
3.	The prisoner shall serve the balance at CS Kavieng.
_______________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner