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State v Tokwavaya [2018] PGNC 487; N7611 (23 November 2018)

N7611

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 725 OF 2018

THE STATE

V

SIKWEDOGA TOKWAVAYA

Alotau: Toliken J.
2018: 05^th, 24^th September
23^rd November

CRIMINAL LAW – Sentence – Grievous bodily harm – Plea – Prisoners chops off three of victim’s toes with bush knife – Prisoner believed victim was having affair with is wife – Mitigating and aggravating factors considered – Appropriate sentence – 3 years less time in custody – Suspension – Inappropriate – Criminal Code Ch. 262, s 319.

Cases Cited:

Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State (No.3) [1983] PNGLR 92
The State v Konos (2010) N4157
The State v Tokenaki (2015) N5960
The State v Modoreta Anataula; CR 568 of 2012 (Unreported and unnumbered judgment dated 24th October 2012)
The State v Mark Ezekiel, CR No. 52 of 2012 (Unnumbered and unreported judgment dated 24th October 2013)
The State v Charlie Dinou; CR NO. 729 of 2014 (Unnumbered and unreported judgment dated 06^th May 2016)
The State v Lami Kursi; CR NO. 880 of 2015 (Unnumbered and unreported judgment dated 13^th May 2016)
The State v Ronald Joseph; CR NO. 1630 of 2016 (Unnumbered and unreported judgment dated 11^th August 2016)

Counsel:

H Roalakona, for the State
P Palek, for the Prisoner

SENTENCE

23^rd November, 2018

1. TOLIKEN J: Sikwedoga Tokwavaya, on the night of the 03^rd of November 2017, you were drunk as you walked though Gumilababa village, on Trobriand Island, shouting and cursing or swearing. Your fellow villager Ben Marona Simiya told you to stop as what you were doing was disrespectful, but you did not listen to him. You left but soon returned armed with a bush knife and confronted Ben Marona. He picked up a stick to defend himself as you proceeded to attack him with the bush knife. The stick broke and Marona lifted his hand to fend off the impending blows and you cut his arms in the process. He sustained injuries to both arms for which he was taken to the Losuia Health Centre for treatment.
   
2. On 05^th of September 2018 the State presented an indictment charging you with one count of unlawfully causing grievous bodily harm to Ben Marona Simiya based on the above facts. You admitted the charge and I convicted on those facts.
   
3. Your lawyer Mr. Palek requested for a pre-sentence report (PSR) so the matter was adjourned to 19^th September 2018. On 19^th September 2018, the PSR was not ready hence the matter was further adjourned to 24^th September 2014. I heard your address to the Court and counsel’s submissions on 24^th September 2018. I have not been able to pass sentence until now.
   
4. The offence of unlawfully causing grievous bodily harm carries a maximum penalty of 7 years imprisonment.
   
5. Your offence is not, in my view a worst case for which the maximum penalty can be imposed as the law says, so I must impose an appropriate sentence below 7 years that fits the circumstances and facts of your offending. The starting point for this offence is 3 ½ years:(The State v Konos (2010) N4157)
   
6. This offence is a very prevalent offence and there are numerous cases, both reported and unreported which have come before the National Court. To give you an idea of the types of sentences which have been imposed I need only to cite a few of the many cases that have come before me in Alotau. Three of these cases are from your own island.
7. The State v Tokenaki (2015) N5960: There the offender pleaded guilty to one count of grievous bodily harm. He and his friends, armed with bush knives and sticks, were on the road between Okeboma and Okuyoukopu Villages on Trobriand Island, waiting for the victim with whom they were angry over something that he had apparently done. When he arrived they attacked him with sticks and knives. The victim received three major lacerations and three minor ones to various parts of his body but none of these was life threatening. He was hospitalized at the local Health Centre and later discharged. No permanent injury or disability was diagnosed. I sentenced the offender to 4 years imprisonment less time in custody. The balance was fully suspended with conditions including compensation.
   
8. The State v Modoreta Anataula; CR 568 of 2012 (Unreported and unnumbered judgment dated 24th October 2012): There the offender had gone to Okaiboma village, Trobriand Island, armed with a bush knife and a torch. On arrival, he saw the victim sitting on the veranda of another person’s house. He approached him from the back and struck him on the thigh with the flat side of your bush knife. As he was caught by surprise, the victim turned around to see who had struck him when the offender suddenly swung his bush knife again, this time cutting the victim across his right shoulder and arm. The victim tried to move away and escape but the offender cut him again on his chin. The offender then left without telling the victim why he had attacked him.
   
9. The offender pleaded guilty, was a first time offender, had co-operated with the police and was provoked in the non-legal sense in that the victim was allegedly having an affair with the woman to whom the offender was betrothed. He also paid compensation and was an illiterate unsophisticated villager. His aggravating factors were that he attacked an unsuspecting victim from the back with a bush knife. I sentenced the offender to 2 years imprisonment less time in custody and wholly suspended the balance on condition.
   
10. The State v Mark Ezekiel, CR No. 52 of 2012 (Unnumbered and unreported judgment dated 24^th October 2013) There the offender had gone to his garden. When he arrived, he saw two men walking into his garden so he hid and watched them as they went in. He then saw the two men start harvesting his taro and threw an iron rod at them to scare them away. The two men ran away the offender chased after the victim armed with a bush knife. When he caught up with the victim, he swung his bush knife at him, completely chopping off his right arm. The offender swung the knife again several times at the victim cutting his left arm. He then left the victim on the ground bleeding heavily and in great pain. The victim struggled for survival, got up and walked slowly to his village. He was taken to the Omarakana Health Post and later to the Losuia health Centre and later flown to Alotau General Hospital.
    
11. The offender also pleaded guilty but despite some good mitigating factors, I viewed this case to be near worst offence. I fixed a starting point of 6 years and sentenced the offender to 5 years imprisonment less time in custody and ordered that he serves 2 years and 5 weeks while the balance was suspended.
    
12. The State v Charlie Dinou; CR NO. 729 of 2014 (06.05.16): There the offender pleaded guilty to causing GBH by cutting the victim on his hand with a bush knife. The victim had an argument with the offender over the offender’s relationship with his daughter. The argument led to a physical confrontation. The complainant ran to his house and returned with a busk knife and attacked the offender with it. The offender managed to knock the knife off with a stick. He then picked the knife up and used it against the complainant. I sentenced the offender to 3 ½ years less time in custody. The balance was wholly suspended on terms including community service.
    
13. The State v Lami Kursi; CR NO. 880 of 2015 (13.05.16). The offender pleaded guilty to causing GBH on the victim by stabbing him repeatedly on different parts of his body. In the early hours of the date in question the offender was walking along the main road at Bubuleta village with other youths. They were under the influence of alcohol when they met the victim. He flashed a torch on the victim’s face and then attacked him with a small kitchen knife, stabbing the victim repeatedly on several parts of his body inflicting serious injuries on the victim. The victim had to be hospitalized for his injuries. His treatment included grafting skin to a wound on his elbow. Even though the offender pleaded guilty and was a first time offender and a favourable Presentence Report, he was sentenced to 3 years less time in custody. None of this was suspended.
    
14. The State v Ronald Joseph; CR NO. 1630 of 2016 (11.08.16): The 52 year old offender there attacked the victim with a butter knife inflicting wounds to the head and left calf muscle. The parties’ respective family members had been having a long standing land dispute which was made worse by the killing of a pig belonging to the offender’s people by their adversaries. The offender had initially intended to attack another relative of the victim, but when he could not, he turned on the victim, a ship engineer, who had just disembarked from his ship and had gone to meet relatives. The victim was initially treated at the Alotau General Hospital, but later repatriated to Port Moresby by his employers. The doctors at Alotau General Hospital initially diagnosed the head wound to be superficial but a subsequent CT-Scan at Pacific International Hospital revealed that the victim did suffer fracture to the skull. The offender pleaded guilty, was a first time offender and had some other good mitigating factors. There were aggravating factors as well including the fact that he used an offensive weapon, attack on an innocent victim and prevalence of the offence. In this case, while I had to option to impose a custodial sentence in the first instance, I ordered the offender to pay a fine of K1000.00 in default 2 years imprisonment.
    
15. Now, coming back to your case, you are from Gumilababa village on Trobriand Island. You are 20 years old and single. You are the 4^th born in a family of 6 siblings. Your mother has passed away while your father is still alive. You are a member of the United Church, illiterate and are a first time offender.
    
16. Speaking through an interpreter when you were invited to address the Court, you apologised to the victim and apologised for tarnishing the reputation of your village. You said you are a first time offender and pleaded for mercy saying that you have learned from your mistake while in custody. You said that while in custody you learned that the victim’s relatives had destroyed your house and other properties.
    
17. Your lawyer Mr. Palek submitted that an appropriate sentence for you should be 2 – 4 years which ought to be wholly suspended on condition that you pay compensation in cash and kind to the victim to the value of K2100.00 as per the terms you proposed in your PSR.
    
18. Ms. Roalakona, for the State, submitted on the other hand that a significant aggravating factor against you is the fact that the victim is now unable to have full and effective use of his hands due to the injuries you inflicted on him. Counsel said that this offence is very prevalent especially among youthful offenders who are often intoxicated when they offend. Hence to deter you and other young people an appropriate sentence ought to be 3 – 5 years, which the court may suspend (wholly or partially) in the exercise of its discretion.
    
19. I take the following factors in mitigation into account –
    • You pleaded guilty very early to the charge
    • You co-operated early with the police by making early admissions
    • You are a first time offender
    • You are a youthful offender
    • You may have been provoked in a non-legal sense when as you said in your PSR that you reacted angry after the victim swore at you in vernacular saying “ikelakwavatamala” meaning “Fuck your mother.”
    • You did not pre-plan to attack the victim
    • You have expressed some remorse and are willing to compensate the victim customarily.
      
20. Against you, however, are the following –
    
    • You used an offensive weapon on the victim
    • The victim was defenceless
    • The victim will suffer some disability with the use of his arms
    • This offence is a very prevalent one
    • You were intoxicated.
      
21. What then should be an appropriate sentence for you? As we have seen the starting point for this offence is 3 ½ years. Yours is not necessarily a worst case but it is important to impose a sentence that not only must punish you but most importantly deter you personally and others as well. The offence is too prevalent in this province and your own island and your case adds to the increasing statistics we have.
    
22. This was yet another case where someone was unnecessarily subjected to physical which could have resulted in an unnecessary death. Even though the victim escaped certain death under your hands he will no doubt suffer some residual effects of the injuries you inflicted on him. This is yet another case in which the perpetrator was intoxicated adding to the litany of cases where alcohol fuelled uncontrollable passion and anger in the offender. This is yet another case in which a youthful offender had decided to attack his victim with a dangerous weapon resulting not only in injury on the victim but also in the loss of liberty by the perpetrator.
    
23. The fact that you are a youthful offender and barely out of your adolescence is no bar to your being imprisoned for a long time. Your youthfulness is no longer a special consideration for leniency. This is because the great majority of serious (and petty) crimes are committed by youthful offenders.

The three cases from the Trobriands which came before me which I have cited above, the offenders were mature adults and not juveniles like you. The sentences were 2, 4, and 5 years. The most serious of those cases was The State v Mark Ezekiel (supra) who as we have seen completely chopped off his victim’s right arm and also cut his left and inflicted other injuries on the victim. I sentenced him to 5 years imprisonment.

24. Your case is not as serious as Mark Ezekiel’s so you must get a much lower sentence. And so, I think that an appropriate sentence for you should be 3 years. I therefore sentence you to 3 years taking into account your early plea and other mitigating factors. From that I deduct the period you have spent in pre-sentence detention which is 1 year and 19 days. That should leave with a resultant sentence of 1 year 11 months and 11 days.
    
25. Should any of part of the sentence be suspended? Your PSR recommends probation supervision for you which essentially means that a part of your sentence will be suspended. You have also offered to reconcile with the victim and pay him compensation. The PSR, however, did not incorporate the views of the victim which is important in a case where reconciliation is suggested because you cannot force reconciliation if the other party is unwilling, or his views are not known as is the case here. For that reason I will not exercise my discretion to suspend any part of your sentence. You will have to serve the balance of your sentence at Giligili Correction. And if you still desire to reconcile with your victim nothing stops you from doing that after you are discharged.
    
26. I ordered accordingly. You have the right to appeal to the Supreme Court within 40 days from today.

_______________________________________________________________
P Kaluwin, Public Prosecutor: Lawyer for the State
L B Mamu, Public Solicitor: Lawyer for the Prisoner