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State v Sylvester [2019] PGNC 15; N7690 (14 February 2019)

N7690

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 44 OF 2017

THE STATE

V

MANASEH SYLVESTER

Kimbe: Miviri J
2018: 04^th December,
2019: 13^th February

CRIMINAL LAW – PRACTICE AND PROCEDURE – GBH S319 CCA – Plea – cut mother with bush knife – right side of neck – unwarranted attack – no residual injuries – PSR & MAR favourable to Prisoner – victim compensation – restoration of family ties – serious violent offence – disputes follow process of law – punitive and deterrent sentence.

Facts
Prisoner was drunk with another. Mother (victim) complained about his condition. He cut her with a bush knife on her neck. She was rushed to the hospital treated and survived.

Held
Plea of guilty
First offender
Good PSR and MAR
Mother & Son
Deterrent and punitive sentence.

Cases Cited
State v Tupulit N6185" title="View LawCiteRecord" class="autolink_findcases">[2015] PGNC N6185
State v Simo [2018] PGNC 221; N7312
State v Naiwa [2004] PGNC 58; N2710
State v Philip Piapia [2017] N6763
State v Steven Tumu [2017] N6768
Tardrew, Public Prosecutor v [1986] PNGLR 91

Counsel:

J Apo, for the State
D Kari, for the Defendant

SENTENCE

14^th February, 2019

1. MIVIRI J: This is the Sentence of Manaseh Sylvester of Nimbunge village, Maprik, East Sepik Province for the crime of Grievous Bodily Harm pursuant to Section 319 of the Code.
   

Short facts

2. On 13^th August, 2016 in the early hours of the morning prisoner under liquor went to the family house where his mother Janet Sylvester was. She argued with him and his friend over his drunkenness. He pulled out a bush knife struck her on the right side of the neck. She sustained a deep cut there. It was a life threatening injury. She was taken to the Kimbe General Hospital, admitted and treated. She has since recovered with a scar remnant of it.
   

Charge Grievous Bodily Harm

3. He was charged with grievous bodily harm pursuant to Section 319 of the Code. It read: “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.”

He could be sentenced for the offence to a maximum of seven years in jail. His facts did not warrant but a proportionate and determinate sentence was in order equating all aggravating, mitigating and the extenuating circumstances.

Mitigation

4. Paramount in his favour was the fact that he had pleaded guilty to the charge. He explained that he reacted to what the victim said against him that he was enticing his sister to befriend his drinking mate who was with him that night. In that view it was de facto provocation. He was also effected by alcohol and reacted as he did. She was unarmed sustaining a cut measuring1cm deep and 9-10cm wide on the right side of the neck. It required 16 stitches. When reviewed on 15^th August 2016 she showed good wound healing and she was stable. This was the medical report of Doctor James Apamumu dated the 16^th August 2016 from the surgical ward of the Kimbe General Hospital. Photographs obtained by Police showed a down ward cut just under the hair line from the side of the neck down from the ear. It was wide open and would have been within the measurement set out by Doctor. It could have easily led to her death from it. The neck being a very vulnerable part of the body.
   
5. Family disputes that ended in this manner were serious concern for the courts and law enforcement as the family were the basic unit of any community, society, province and the country. The offence itself was one of the most prevalent before this court and anywhere else in the country. Any sentence imposed was deterrence to the prisoner and any others with similar inclinations. Bearing in mind that the prisoner was a youthful offender he was aged 19 years old first time offender who admitted the matter to police initially and in court. He was educated to grade 8 with little formal employment experience. He was the eldest in that family of four siblings. The father indicated willingness to assist the son right the wrong. Of the Catholic faith there was no evidence of any serious commitment to this.
   
6. The victim mother described him as a quiet and helpful person and reasoned that the alcohol may have been the cause for his attack upon her as he never displayed previously. She was prepared to accept compensation and amend their relationship as mother and son back. Prisoner was sorry for what he did to his mother. He was sad and ashamed of his conduct that alcohol was the bottom cause of his uncontrolled behaviour. These were all covered extensively in the presentence report together with the accompanying means assessment report. It was recommended that he was suitable for probation supervision for an extended term with conditions to compensate victim and to refrain from alcohol and perform community work supervised by the Kimbe Urban Local Level Government supervised by one Alois Kukisal and peace officers with the ward office.
   

Allocutus

7. Prisoner did not have anything to say when accorded.
   

Issue

8. What then is the appropriate sentence for the prisoner here?
   
9. The State submitted that the facts and circumstances are compatible with a non custodial term with strict conditions for compliance. The sentence must reflect that a bush knife was used with serious consequences upon the victim mother of the prisoner. The rule of law needed to be cemented in family circles but it did not warrant an immediate custodial term. Which views were also supported by the presentence and means assessment reports. Defence counsel urged similar in view of the above facts set out.
   
10. Attacks with bush knives as here are frequent and prevalent. In many instances drawn stern and punitive sentences by the courts. Because in many instances serious life threatening injuries are rampant. The present is no different. Including resultant serious homicide offences which have emanated. Therefore sentences imposed have reflected this grave aspect of this offence. For instance in State v Tupulit N6185" title="View LawCiteRecord" class="autolink_findcases">[2015] PGNC N6185 (28 July 2015) 5 years was imposed, K2500 was paid as compensation time in custody was deducted and the balance was suspended on a probation order. In State v Simo [2018] PGNC 221; N7312 (20 June 2018) 8 years was imposed on a guilty plea to Arson and Grievous bodily harm pursuant to section 319, 4 years was ordered to be served in jail and the remainder was suspended on a probation order for the same period. In another case State v Naiwa [2004] PGNC 58; N2710 (22 June 2004) this court in Wewak imposed a custodial term of 5 years IHL where the defendant was charged with grievous bodily harm of his sister in law where he cut off her hand with a bush knife rendering her left hand useless. He had pleaded guilty and was a first offender. No compensation was paid and the defendant did not have the means to pay compensation if ordered.
    
11. Not only have the courts gone as set out above but in appropriate cases warranted by the facts and circumstances imposed other than custodial sentences as in State v Philip Piapia [2017] N6763 (17 May 2017); State v Steven Tumu [2017] N6768 (23 May 2017). These have been mid-range of 3 to 4 years part custodial and part suspension in each case. Warranted by proper material to promote personal deterrence, reformation, rehabilitation entailed with restitution of the victim: Tardrew, Public Prosecutor v [1986] PNGLR 91 (2 April 1986). In the present the facts and circumstances warrant suspension immediate as mitigation outweighs aggravation it is proportionate that suspension will be accorded to give the prisoner an opportunity to amend for the better. It is important to strengthen the family union and opportunity given to both the prisoner and mother to be able to amend for the better. That the process of law must be followed and adhered to where there are disputes no one takes the law into their own hands to become enforcer, adjudicator and executioner. In my view it would not be disproportionate to impose 4 years given all the above. All of which is suspended by discretion conveyed by section 19 of the Code bearing that prisoner has pleaded guilty with express intent to compensate and reconcile with the victim his mother who has reciprocated supported by the presentence and the means assessment reports. He will compensate the mother and remain out of jail or breach and go to jail. He is given an opportunity by this sentence to change for the better.
    
12. The formal orders of the court are:
    
    1. Prisoner is sentenced to 4 years IHL for Grievous Bodily Harm pursuant to Section 319 of the Code.
       
    2. That 4 years is wholly suspended upon you entering into a probation order for 4 years on conditions;
       
    3. You shall within 48 hours report to the Probation Officer;
       
    4. You shall be resident at Section 11 Squatter Settlement Ward 5 Kimbe at all times in the course of the probation period.
       
    5. You shall not leave this place of resident or Kimbe without leave of this court during the course of the probation period;
       
    6. You shall perform 600 hours of community work at a worksite to be approved by the Probation Office;
       
    7. You shall keep the peace and be of good behaviour at all times during the course of your probation period;
       
    8. You shall not take liquor or any form of intoxicating substance or drugs during the period of your probation;
       
    9. You shall attend the Kimbe Catholic church for mass every Sunday whilst on probation;
       
    10. You shall undergo counselling from the Parish priest of the Kimbe Catholic Church for number of times as may be determined by the counsellor;
        
    11. You shall within 5 months which is by or before Monday 15^th July 2019 make restitution to your mother Janet Sylvester in the sum of K2000 in cash and a live pig valued at K1000 with garden food in the value of K300.
        
    12. The restitution shall be witnessed by your probation officer, the police informant Minove Gosuve, Alois Kukisal Kimbe Urban Court area 2.
        
    13. The occasion for the reconciliation and compensation payment is to be recorded and a report filed at the National Court registry by the probation officer within 14 days after discharge which is 1^st August 2019;
        
    14. The Probation officer shall file a report on the responses and progress of the probationer every four months, and at any other time or interval as the National Court may order upon application;
        
    15. In a breach of any of these Probation Orders your Probation shall lapse and you shall be arrested to serve the whole term of your sentence now suspended.
        
    16. Bail Money is ordered to be refunded forthwith
        

Ordered Accordingly
__________________________________________________________________Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant