N7854
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR. N0. 977, 1003 & 1004 of 2018

THE STATE

V

HILLARY JOE

Kokopo:  Susame, AJ.
2019:  17, 24 April
10, 13 May

CRIMINAL LAW – sentence on plea – offences grievous bodily harm with intent s.315 (a)(d)& unlawful damage to property s444(1)(2) criminal code- aggravating factors outweigh mitigating factors – 8 years for s 315 offence 2 years for s444(1)(2) offence- 10 years cumulative sentence - totality principle considered-10 years sentence excessive – sentence reduced by 1 year for each charge – balance 8 years -2 years deducted for his plea and de facto provocation  for s 315 offence – resultant sentence of 6 years to serve with 12 months & 29 days period in custody to be deducted - effective sentence of 4 months & 01 day to serve. 
Cases Cited:
Prosecutor v Terence Kaveku [1977] PNGLR 110
The State v Kialo [2008] PGNC 290; N5467 
The State v Martin Evere [2016] PGNC 408, N6720
The State v Kapaka Roga & 3 ors [2012] PGNC 223

Counsel:
Mr. G Tugah, for the State
Ms. J M Ainui, for the Prisoner 

DECISION ON SENTENCE
13th May, 2019
1.	SUSAME, AJ: Prisoner is in court to receive his sentence. He pleaded guilty to one count of grievous bodily harm with intent and one count of unlawful damage to property under ss. 315(a)(d) and 444(1)(2) of the Criminal Code. 
Facts
2.	The prisoner was drinking alcohol with 5 other persons at Rieit Block at Warangoi from 11.45pm to 100am from 6 to 7 April 2018. The complainant Albert Pukakia was driving back home on a Toyota Dyna truck white in color bearing the registration number P. 2058K named Caring. He was with Robin Ian. At Rieit Local Church they saw the prisoner and other boys were standing on the road side. The complainant stopped the truck. He got out of the truck and join them drinking alcohol. An argument erupted between the complainant and the prisoner and his friends. Complainant went and got a bush knife from the truck and tried to cut the prisoner. The prisoner avoided the knife and the knife cut another boy named Peter Jacob Jnr.  Complainant walked off and returned to the truck. The prisoner went after him with a bush knife and cut him on his right arm. Second time he cut him on his head and right cheek. Complainant managed to run away leaving his vehicle behind. Prisoner and his friends went on to wilfully damage the vehicle. The damage was assessed at K111 000.00 . The complainant sought help and he was rushed to Warangoi Health Center where he received medical treatment. 
Issue
3.	What is the appropriate punishment that the Court should impose upon the prisoner?
Offences
4.	Offence of grievous bodily harm with intent under s, 315 carries a maximum penalty of life imprisonment subject to s 19. While offence of wilful damage to property carries penalty of a term not exceeding 2 years, if the unlawful act committed during the day. If the act was committed during the night, the penalty is imprisonment not exceeding 3 years. 

Allocutus	
5.	Prisoner had this to say in regard to his sentence. I want to say sorry to Albert Pukakia of what I did. I am a first time offender. It was not my liking to do what I did. The victim started it, He caused it. I am a married man. I have two children. I have a block and I plant cocoa. I have a chain saw and I cut timber I will sell to find money to look after my family. My wife is unemployed. She stays home. My father and mother are at home. I am the first born in the family I have two brothers and two sisters.  We met at Ralum Head Quarters and I paid K2000.00 compensation to the victim. I am still to look at the damages but I am in custody. I say sorry to this court and I ask for its mercy. Can the court put me on probation? That’s all. 
Submissions
6.	I have considered the submissions. Mr. Tugah of the State submitted aggravating factors outweigh the mitigating factors. Mr. Tugah submitted for a starting point of 7 years for offence of grievous bodily harm with intent under s315 and starting point of 2 years for offence of wilful damage under s 444. Mr. Tugah relies on the judgment of Cannings J in The State v Kialo [2008] PGNC 290; N5467 (11 December 2008).

7.	Mr. Tugah urged the court to consider the totality principle and give a fair and punitive custodial sentence for personal and general deterrence. He submitted it is within the court’s discretion to suspend the sentence if circumstances warrants.
  
8.	Ms. Ainui relied on two cases authorities of The State v Martin Evere [2016] PGNC 408, N6720 and The State v Kapaka Roga & 3 ors [2012] PGNC 223. She submitted for a 3 years sentence for the charge of grievous bodily harm with intent and 2 years sentence for the charge of wilful damage.  Ms.  Ainui submitted mitigating factors outweighed the aggravating factors. She asked for the sentences to be served concurrently based on the totality principle and the authority of Public Prosecutor v Terence Kaveku [1977] PNGLR 110. Court to note s 20 of the Criminal Code.

9.	Ms. Ainui further submitted. This case is not the worst type to warrant the maximum penalty. Other members of the group involved have not been arrested. Court should be lenient on the prisoner and submitted for a suspended sentence as the prisoner has been in custody for 11 months and 3 weeks which is sufficient punishment. 

Court’s View

10.	First the court accepts that the facts and circumstances of this case do not place the case into the worst category. Hence, maximum penalty is not being considered. 

11.	Secondly, I set out the factors in mitigation and aggravation.  
Mitigating Factors 
•	Prisoner pleaded guilty
•	First time offender
•	Prisoner acted out of Defacto Provocation
Aggravating Factors
•	Lethal Weapon (bush Knife) used.
•	Prisoner was in a group
•	Offences were committed at night
•	Vicious attack of the complainant
•	Prevalence of the offences
•	Abuse of alcohol 
•	Substantial amount of damage done valued at K111, 000.00 with complainant not adequately compensated.
 
12.	The above shows that aggravating factors are more against the prisoner than those in his favour. 
Pre-Sentence and Means Assessment Reports
13.	Upon prisoner’s request for court to consider placing him on probation at the allocutus, pre-sentence report and means assessment reports were compiled by the Probation Officer. The reports provide prisoners personal particulars, his family background, prisoner’s views, his father and spouse, Probation Officer’s views and assessment of the prisoner. No views were obtained from the complainant because of his failure to report to the Probation Office. 

14.	Prisoner hails from Pukendo village Yangoru, East Sepik Province. He is a resident of Rieit block, Warangoi.  Prisoner is 31 years of age. He is married and has 2 children.  He is unemployed and relies on subsistent farming and self-help activities to generate income. 

15.	I have considered the views expressed by the prisoner, his father and prisoner’s spouse. They requested for a probation sentence with condition of payment of compensation. The amount prisoner proposed paying was K3, 000.00.
 
16.	Payment of compensation is a matter of judicial discretion. The maximum award court may order is K5000.00 under the Criminal Law (Compensation) Act 2001. Payment of compensation cannot be a substitute for punishment. The Court is entitled to impose for the particular offence. It cannot operate as a means for the prisoner to get a total expulsion from going to jail.  Prisoner may still go to jail even if compensation is paid. The prisoner told the court he had already paid K2000.00. That has not been verified for me to accept. 

17.	I reiterate what I said about the use of bush knives in the recent case of The State v Morris Kramar CR NO. 1375 OF 2018 (10 May 2019): 
Grass knives and bush knives are working tools. Nowadays they are becoming lethal weapons to injure and kill. They cause a lot of havoc and are menace to lives. Use of such lethal weapons in brawls is becoming so prevalent in Papua New Guinea (PNG). The victim went through a life threatening experience receiving multiple wounds to his hand, head and cheek.  I consider a strong punitive deterrent sentence is appropriate in this case. 
18.	I am guided by the sentencing tariffs in the cases that have been referred to the court and others recorded in the Sentencing Data Base for the offence of grievous bodily harm and wilful damage. 

19.	I noted the sentencing tariffs in some of the cases used as a guide in The State v Kialo (supra) for offence under s 315. Sentences were from 3 years to 6 years. In the two judgments referred to by Ms. Ainui prisoners received a 3 years sentence and 8 years sentence respectively which were wholly suspended with conditions. 

20.	Starting sentences for offence under s 319 in many decided cases fell within 3 and 4 years from the maximum penalty of 7 years. For offence under s 315 sentences were fell within the same range in some cases with few cases receiving sentences up to 8 years. 

21.	Offence under s 315 is more serious than offence in s 319 as reflected in the penalties provided for the two offences. I share the views expressed by Kandakasi J (as he then was) in The State v Taroh [2004]PGNC 104 which view was share by Gauli AJ in The State  v Kapa Roga & 03 others [2012]PGNC 223 N4804. That sentencing tariffs for s 315 offence should be higher than s 319 offence.  Cannings J had considered a head sentence of 7 years for s 315 offence in The State v Kialo (supra).

22.	The case of The State v Kialo (supra) is almost similar to the facts of this case. I consider the base sentence of 7 years is appropriate for this case.  In view of the factors that weigh more against the prisoner actual sentence should go up by a year to 8 years imprisonment.  

23.	For the offence under s 444 (2) sentences imposed fell from 2 years at the top end of the range and downwards.  Using the guide in The State v Kialo, I consider head sentence to be two years to be appropriate. 

24.	The next question, should the sentences be made concurrent or commutative? I consider that though the two offences were committed during the single occasion the acts constituted two separate offences. For that reason, sentence should be serve cumulatively; that is 8 years plus 2 years which is 10 years. 

Totality Principle

25.	Is that sentence that excessive having regard to the totality of the criminal behaviour of the prisoner?  I think 10 years is quite excessive. So I reduce that sentence by 2 years that is, 1 year for s 315 offence and 1 year for s 444 offence. That will leave a cumulative sentence of 8 years.

26.	The value of the damage to the vehicle had been assessed at K111 000.00. Complainant had also received sever injuries. I consider any compensation I should order would be quite substantial. I doubt prisoner will have the adequate means to pay even if time is allowed.  For that reason, no portion or whole of the sentence will be suspended. 

27.	Further I will allow a concession for his plea. And secondly prisoner’s culpability is diminished by him acting out of de facto provocation. Complainant should accept some blame.  For those two reasons I will allow a discount of 2 years for s 315 offence. That will leave a balance of 5 years for s 315 offence.
  
28.	The final cumulative sentence prisoner will serve is 6 years. Custody period of 12 months 29 days to be deducted from 6 years. Effective sentence to serve is 4 years & 01 day. 
Summary of Sentence
1.	Head sentence of 7 years for s 315 offence
2.	Sentence increased to 8 years considering aggravating factors that weigh against the prisoner.
3.	Head sentence of 2 years for s 444(1) (2) offence.
4.	10 years cumulative sentence.
5.	1 year deducted for s 315 offence and 1 year deducted for s 444(1)(2) offence
6.	Balance of 8 years cumulative sentence
7.	Further discount of 2 years is allowed for s 315 offence leaving a balance of 5 years
8.	Resultant sentence to serve is 5 years for s 315 offence and 1 year for s444(1)(2) offence, that is a total 6 years to serve with period in custody of 12 months 01 day to be deducted. 
9.	Effective sentence to serve is 4 years & 01 day.
_________________________________________________________________
Public Prosecutor:	 Lawyer for the State				
Public Solicitor:	Lawyer for the Prisoner