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State v SY (A Juvenile) [2021] PGNC 242; N8924 (22 July 2021)

N8924

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (JJ) 26 OF 2020

THE STATE

V

SY
(A Juvenile)

Waigani: Berrigan J
2021: 9^th, 22^nd June and 15^th July

CRIMINAL LAW – Practice and procedure – Sentence – Guilty Plea – Grievous Bodily Harm - S. 319 of the Criminal Code – Stabbing of victim to the back under the right shoulder, penetrating to the chest – De facto provocation in the form of assault immediately prior to offence – History of bullying at hands of the victim – Sentence of 4 years’ imprisonment, wholly suspended on conditions including community service.

Cases Cited:

Goli Golu v The State [1975] PNGLR 653
The State v Tiso (2016) N6572
The State v Jimmy (2016) N7246
The State v Tokwavaya (2018) N7611
The State v Eddie (2016) N6427
The State v Philip, (2012), CR 37 of 2012
The State v Peter Erne [1998]
Lawrence Simbe v The State [1994] PNGLR 38

References Cited

Section 319 of the Criminal Code (Ch. 262) (the Criminal Code)
Sections 6, 20, 28, 62, 63, 64, 66, 75, 76, 77, 79, 80, 81, 112 of the Juvenile Justice Act, 2014

Counsel

Mr Galama and Mr Pare, for the State
Ms Bibilo, for the Juvenile

DECISION ON SENTENCE

22^nd July, 2021

1. BERRIGAN J: The offender, SY, is a juvenile who pleaded guilty to one count of causing grievous bodily harm to RK on 9 September 2019, contrary to s. 319 of the Criminal Code (Ch. 262) (the Criminal Code), for which the maximum penalty is 7 years of imprisonment.
   
2. The juvenile was 14 years of age at the time of the offence and 17 on sentence. The matter came before the National Court pursuant to s 20(1) of the Juvenile Justice Act when he was committed for attempted murder.
   
3. When exercising jurisdiction under s. 20, the Court shall, so far as is practicable, sit and conduct proceedings in accordance with the Juvenile Justice Act: s. 20(3). To this end proceedings were conducted in closed court pursuant to s. 69, and having regard to the principles outlined in ss. 6 and 66 of the Act. Having regard to procedural and other requirements, proceedings were conducted in an informal manner pursuant to s. 66(1). The juvenile was seated with his counsel at the bar table, with his mother and the juvenile justice officer seated immediately behind. Wigs and robes were dispensed with counsel were asked to remain seated when addressing the Court. Steps were taken to ensure that both the juvenile and his parents understood the nature of the alleged offence and court procedures pursuant to s. 66(2). Maximum participation by both the juvenile and his parents was encouraged throughout the proceedings in compliance with s. 66(3) of the Juvenile Justice Act.
   

Facts

4. The following facts were established on the taking of the juvenile’s plea in accordance with ss. 63 and 64 of the Juvenile Justice Act, and are supported by the depositions.
   
5. On 9 September 2019 between 10 am and 11 am at a school in a suburb of Port Moresby the victim, RK, a 17 year old student, went to SY and asked him why he stole his K5 on the weekend. SY smiled at him and RK became angry and punched SY. SY’s mother, who was selling food at the school, saw that and followed RK to the classroom, calling for him to come out. When RK came out of the classroom, SY pulled out a kitchen knife and stabbed the victim in the back below his right shoulder penetrating to his right chest. The victim was rushed to hospital where he was treated for extensive soft tissue injuries and tension pneumothorax, a life-threatening chest injury. SY surrendered himself to police and admitted the offence.
   
6. Having regard to the nature and seriousness of the offence, the background and circumstances of the juvenile, the view of the complainant (though not binding and discussed further below), the need to ensure public safety and the principles set out in s. 6 of the Juvenile Justice Act, including the best interests of the juvenile, the need to hold him accountable, and emphasise rehabilitation and reintegration, I determined that it was not in the interests of justice that the matter be resolved informally through diversion, despite the juvenile’s guilty plea: see ss. 28 and 62 of the Juvenile Justice Act, 2014.
   
7. The matter now comes for sentence, which is governed by Part VII of the Juvenile Justice Act, 2014 pursuant to s. 75.
   

Submissions and Comparative Cases

8. It is well established that the maximum penalty is normally reserved for the most serious instances of the offence: Goli Golu v The State [1975] PNGLR 653. This case does not fall within that category.
   
9. Defence counsel submitted that the offence was a result of the ongoing bullying of SY by the victim and effectively, that his response was reasonable. I do not agree and will return to this submission below.
   
10. Defence counsel submitted that a sentence of 2 years would be appropriate, wholly suspended. I am grateful to her for the provision of cases below:
    
    • (a) The State v Tiso (2016) N6572, Ipang AJ: The offender, 23 years old, pleaded guilty to causing grievous bodily harm. He walked over to where a group of people were gambling or playing cards. The victim was also with this group of people. The offender grabbed a bush knife from another person and cut the victim on his left hand. The victim sustained a deep wound to his left forearm and compound fracture of the left arm. He was sentenced to 3 years imprisonment, less time spent in custody, the balance of 2 years, 1 month was wholly suspended on conditions;
      
    • (b) The State v Jimmy (2016) N7246, Kangwia J: the offender, 17 years old at the time of the offence, was convicted following trial and sentenced to 4 years, less time spent in custody. There was a fight between the victim and his uncle on 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;
      
    • (c) The State v Tokwavaya (2018) N7611, Toliken J: The offender, 20 years old, pleaded guilty. He was drunk as he walked about the village, shouting and cursing or swearing. The victim told him to stop as he was being disrespectful. The offender left but soon returned armed with a bush knife and confronted the victim, who picked up a stick to defend himself as the offender proceeded to attack him with the bush knife. The stick broke and the victim’s arms were cut as he lifted his hand to fend off the impending blows. He was sentenced to 3 years less time spent in custody;
      
    • (d) The State v Eddie (2016) N6427, Toliken J: The offender, 16 years at the time of the offence, pleaded guilty. The complainant met him at the informal market and gave him K20.00 for smoke, but a bystander grabbed the money from the offender’s hand and ran away. Seeing this, the complainant got angry and swore at the offender and a fight ensued. The offender ran up to the compound to escape further assault and the complainant followed him but could not find him. The offender then ran back down to the road, followed the complainant and cut him with a bush knife, before running away leaving him bleeding heavily. He was sentenced to 3 years less time spent in custody. Bearing in mind that he was not a first time offender, having been convicted of assault previously, and that there was no recommendation for probation, the offender’s parents being deceased, he was sentenced to serve the balance at the Juvenile Section of Giligili Prison;
      
    • (e) The State v Philip, (2012), CR 37 of 2012, unreported, Toliken J: the offender and the victim were drinking home-brewed liquor (JJ) when an argument erupted between them that eventually led to a fight in which the victim slapped the offender. The offender retaliated by stabbing the victim 4 times on his hand and chest. The offender fled the scene while the victim was taken to the hospital for treatment. He pleaded guilty and was sentenced to 3 years, wholly suspended;
      
    • (f) The State v Peter Erne [1998] Sakora J: The offender, of 22 years, pleaded guilty that, whilst in a drunken state, with his friends, got into a fight with the victim and his friends, during which the victim sustained multiple knife wounds to his scalp, and also other injuries to the head. He was sentenced to 2 years, less time spent in custody, the balance of which was wholly suspended.
      
11. The State submitted that the case was particularly aggravating given that the victim was also a juvenile, and that the attack took place at a school. It too relied on the cases of Eddie and makes no objection to suspension.
    
12. As in all cases, the sentence in this matter will be determined having regard to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38. Pursuant to s. 77(2) of the Act, the Court is not strictly bound by precedent in determining sentence, which is, amongst other things, to promote an individual response appropriate to the juvenile’s circumstances and proportionate to the circumstances surrounding the offence: ss. 76(1)(b) of the Act.
    

Sentencing Principles

13. The purposes of sentencing a juvenile are to: encourage the juvenile to understand the consequences of and be accountable for the harm caused by his or her actions; promote an individual response which is appropriate to the juvenile’s circumstances and proportionate to the circumstances surrounding the offence; promote the rehabilitation and reintegration of the juvenile into the family and community; and ensure protection of the public: s. 76(1)(a)(b)(c) and (d) of the Juvenile Justice Act.
    
14. The primary consideration on sentence, as for all actions concerning a juvenile, are the best interests of the juvenile: s. 6(b) of the Juvenile Justice Act. The sentence shall be determined in accordance with the principles set out in ss. 6 and 76(2) of the Juvenile Justice Act.
    
15. Any sentence imposed shall be proportionate to the seriousness of the offence and the degree of responsibility of the juvenile for that offence. The sentence shall be the least restrictive sentence that is capable of achieving the purposes set out in s. 76(1), and be the one that is most likely to rehabilitate the juvenile and reintegrate him into society whilst also promoting a sense of responsibility in the juvenile, and an acknowledgement of the harm done to the complainant and the community.
    
16. The sentence shall have regard to the juvenile’s age and limited capacity to appreciate the consequences of his actions, and shall not result in a punishment that is greater than the punishment that would have been appropriate for an adult who has been convicted of the same offence in similar circumstances. If appropriate juveniles shall be permitted to remain in the community: s. 76(2)(a) to (f) of the Act.
    
17. Pursuant to s. 85(1)(b) of the Juvenile Justice Act, the National Court may, subject to s. 81, order that the juvenile serve a term of imprisonment in the juvenile section of a correctional institution for any period as is prescribed for an adult who committed the same offence in similar circumstances: s.80(1)(n)(p), or order that the juvenile be committed to the care of the Director of Juvenile Justice, with a directive that the juvenile be committed to custody in a juvenile institution selected by the Director for a period not exceeding five years: s. 80(1)(m).
    
18. A Court shall not impose a sentence of custody or imprisonment under s.80(1)(m) or (n) on a juvenile unless the Court has considered all alternatives under the Act and has determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purposes and principles of the Act: S. 81(1) of the Act. Deprivation of liberty shall be used only as a measure of last resort, and for the shortest period necessary to achieve the purposes in 76(1): 76(2)(f). This must be read in the context of the other principles relevant to any particular case, including the purposes of sentencing outlined above.
    

Consideration

19. I have taken into account the following matters having regard to s. 77 of the Act. I have also considered the pre-sentence report which was prepared by a juvenile justice officer pursuant to s. 79 of the Act.
    
20. The offender is now 16 years old, and currently lives with his parents and extended family. He is currently studying Grade 6 at a new school, after being expelled following the incident.
    
21. In mitigation this is the juvenile’s first offence. He surrendered himself to police and admitted the offence. He pleaded guilty at the first opportunity before the National Court. I take his plea into account on the basis that he has saved the State the cost of running a trial and spared the complainant, and his family, the trauma of reliving the offence.
    
22. His plea is also indicative of his remorse, which I accept as genuine, and which he has expressed several times now, including at the time of his record of interview, and again in court.
    
23. It is also highly relevant to my decision in mitigation that both parties agree that SY has apologised to the victim, and that they have reconciled.
    
24. As a matter of special mitigation, I take into account the juvenile’s very young age at the time of the offending. I also accept that having regard to his age and the material before me, the juvenile lacked maturity and lashed out in anger without fully appreciating the consequences of his actions.
    
25. In this regard, I take into consideration that he was punched by the victim immediately before the offence. It is also relevant that SY suffered bullying at the hands of the older victim over a period of time prior to the offence.
    
26. Furthermore, the offence has had and will continue to have a grave impact on the offender himself. The offender was expelled from school. I am sure that whilst these proceedings are not being reported, his friends and family, and students at the school will know what he did and he will have to live with that for the rest of his life.
    
27. This case is a tragic example of the terrible dangers of and pain caused by violence amongst children. Bullying and physical assault by the victim, and then this offence by the juvenile. Let me be clear, however, I reject the defence submissions that SY’s response was reasonable. It was not. It was unlawful and unreasonable. Violence is only ever justified in a limited number of cases under the law. This case is not one of them. Violence is never the answer.
    
28. This was a very serious offence. The offender stabbed the victim in the back, penetrating his chest and causing life threatening injuries. He used a dangerous weapon to do so and he attacked the victim on a vulnerable part of his body. Given the location of the injury and the nature and the weapon used both were lucky it did not prove immediately fatal. As the medical report makes clear, the victim could quite easily have died but for the quick medical intervention.
    
29. Unfortunately, Juvenile Justice Services were not able to speak to the victim or his family in the last two weeks but there is no doubt that the victim suffered, and will continue to suffer, both physically and psychologically as a consequence of the offence.
    
30. It is further aggravating that he suffered such injury and trauma so young in life.
    
31. In addition, I agree with the State that it is aggravating that this offence took place at a school, where other children and young people were present.
    
32. Such offences across society are far too prevalent. They are becoming increasingly prevalent amongst young people. Such an offence by a 14 year old is deeply concerning.
    

Sentence

33. The Act provides the Court with broad discretion on sentence.
    
34. Having regard to s. 81(1), and having considered all of the above matters and the alternatives under the Act, I have determined that there is no reasonable alternative or combination of reasonable alternatives, that is in accordance with the purposes and principles of the Act, other than to impose a head sentence of four years of imprisonment pursuant to s. 80(1)(n).
    
35. The sentence shall be served in light labour in the Juvenile Section of the Bomana Juvenile Detention Centre up until the juvenile attains the age of 18, noting that imprisonment in a correctional institution under s. 80(1)(n) shall not include hard labour: s. 81(3). I am satisfied that the Bomana Juvenile Detention Centre has appropriate facilities for the imprisonment of the juvenile pursuant to s. 81(2)(b).
    
36. I make it clear that if a dedicated juvenile detention was available I would have directed that time be served there. As I have previously observed, I hope that at some point in the near future dedicated facilities might become available.
    
37. In my view no head sentence other than a period of detention is appropriate having regard to the seriousness of the offence. It is necessary having regard to the best interests of the juvenile and to encourage him to understand the consequences of and be accountable for the harm caused by his actions. The prevalence of violent offences, involving offensive weapons, by young people, and the need to protect the community from these types of offences also calls for both general and specific deterrence and no head sentence other than a period of detention is appropriate in the circumstances. The period of 4 years of imprisonment represents the shortest period of time necessary to achieve the purposes set out in s. 76(1). It is proportionate to the seriousness of the offence having regard to comparative cases and the particular circumstances of this case. It takes account of the aggravating factors: the age of and impact on the victim; the use of an offensive weapon; the nature and location of the injury; the fact that the offence took place at a school and in the presence of other children; and the prevalence of the offence. It reflects the juvenile’s culpability and the matters in mitigation: including his age and lack of maturity, lack of criminal history, cooperation with authorities, early plea, acceptance of responsibility and genuine remorse; reconciliation with the victim; and the presence of de facto provocation and longstanding bullying at the hands of the victim.
    
38. The offender has spent 14 days in custody, which will be deducted from time to be served.
    
39. The question remains whether the sentence or any part of it should be suspended.
    
40. His willingness to plead guilty, together with the pre-sentence report and the statements made by the juvenile during the proceedings establish that there are good prospects for the juvenile’s rehabilitation outside of detention.
    
41. Juvenile Justice regards him as suitable for probation. The support of his parents, the presence of them both today, and his mother throughout the proceedings show me that he has a suitable place for living and further satisfy me of his prospects for rehabilitation and reintegration into family and community, with their support. Here I make it clear that whilst his mother was present at the time of the offence, it is clear from the depositions that she was in no way involved. Furthermore, it was she who accompanied her son to the station, and in fact gave a statement to police herself.
    
42. His suitability is further supported by a teacher from his old school who confirmed that until he was a good and obedient student. Despite being expelled, he still plays rugby for the school on weekends.
    
43. In the circumstances, I am satisfied that suspension of the balance of the head sentence in accordance with the following conditions would also meet the principles and purpose of sentencing under the Act. Whilst recognising the seriousness of the offence, this effective sentence is the one most likely to promote his rehabilitation and reintegration into society. This is clearly in the juvenile’s best interests. I am satisfied that he appreciates the seriousness of the offence.
    
44. The proposed sentence is the least restrictive one capable of achieving the purposes of sentencing, is most likely to rehabilitate and reintegrate the offender into society, whilst also promoting a sense of responsibility in the juvenile and an acknowledgement of the harm done to the complainant and the community: applying s.76(2)(b). The conditions imposed also reflect the need to ensure protection of the community at large. Compliance with these orders will be regularly monitored by the Juvenile Justice Service.
    
45. Prior to imposing the sentence the juvenile and his parents confirmed that they understand the purpose and effect of the sentence and its suspension, together with the consequences that may follow if SY fails to comply with the order: see s. 80(5) of the Act.
    
46. I make the following orders:
    
    • (1) The offender is sentenced to 4 years imprisonment.
      
    • (2) Time spent in custody, 14 days, is deducted.
      
    • (3) The balance of 3 years, 11 months, 14 days, is wholly suspended pursuant to s 80(2) of the Juvenile Justice Act on condition that the juvenile:
      
      • (a) is placed under the care and supervision of his parents to monitor and guide his behaviour, with whom he shall reside until he turns 18;
      • (b) perform unpaid community service work under the supervision of the Juvenile Justice Service, which may be conducted at his church, on Sundays, every week, for 6 months as permitted under s 82;
      • (c) must keep peace and be of good behaviour during the period of his probation.
        
47. Pursuant to s.80(3) of the Act, failure to comply with the conditions of probation will see the term of imprisonment imposed automatically take effect.
    
48. This decision will be published: s. 112(1) of the Act. Details which may identify the juvenile have been omitted pursuant to s. 112(2) of the Act. Any details which may identify the complainant child have also been omitted.
    

Sentence accordingly.

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Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Juvenile