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State v Peka [2021] PGNC 257; N8964 (20 May 2021)

N8964

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 14 OF 2021

BETWEEN:
THE STATE

AND:
JOSHUA PEKA

Vanimo: Rei, AJ
2021: 18^th& 20^th May

PRACTICE AND PROCEDURE – Criminal Law – What is the appropriate Law – S.319 of the Criminal Code Act - Prisoner charged with grievous bodily harm - prisoner sentenced to 4 years – K3,500 to be paid in compensation – Plea.

Cases Cited:
The State -v- Dirona [2019] N7985
The State -v- Egi [2016] PGNC 420; N6912
The State -v- Irima [2018] PGNC 473; N7578
The State -v- Jimmy [2018] PGNC 161; N7246
The State -v- Konos [2010] N4157
The State -v- Sheekiot [2011] N4454
The State -v- Timi [2012] N4610
The State -v- Tokenaki [2015] N5960

Counsel
Ms. L. Jack, for The State
Mr. P. Moses, for the Defendant

JUDGEMENT ON SENTENCE

20^th May, 2021

1. REI. AJ: The prisoner Joshua Peka was arrested and charged on the 20^thJune 2020 that he did unlawfully cause grievous bodily harm to another person a Steven Talem, a national male, thereby contravening Section 319 of the Criminal Code Act.
   

2. He was arraigned on the 18^th of May 2021 upon the State presenting an indictment.

3. The charge as laid under Section 319 of the Criminal Code Act was read to the prisoner together with the brief facts of the case.

4. On the 18^th of May 2021, the State presented an indictment against the prisoner on the above facts thereby charging him with the offence of unlawfully causing grievous bodily harm to Steven Talem. It is an offence under Section 319 of the Criminal Code Act.

5. The prisoner having been read the charge as indicted and facts thereto explained, pleaded guilty to the charge and facts.

6. A provisional guilty plea was entered and upon my perusal of the depositions of the District Court, I was satisfied that the evidence supported the plea of guilty. The plea of guilty was confirmed.

ANTECEDENT REPORT

7. The prisoner was 27 years of age at the time he committed the crime. By now he would be 28 years of age. He is married with one child who is 4 years and comes from Damuda Settlement in Vanimo. He does not have any record of prior convictions. He is not married and is a single man.

ALLOCATUS

8. When asked to address the Court in mitigation the prisoner related to the facts surrounding the commission of the crime and did say he was sorry for what he did and that he will not do it again. He also said he is prepared to pay compensation to the victim/complainant should the Court be lenient on him on sentence.

SUBMISSIONS ON SENTENCE

9. Mr. P. Moses for the prisoner submitted that the Court considers the following factors in mitigation:

• you pleaded guilty to the charge
• you have no prior record as first-time offender
• you expressed remorse for what you did
• injuries were not life threatening
• you acted alone and
• there is an element of de facto provocation
  

10. He then cited several cases and submitted that a non-custodial sentence is appropriate.

11. Counsel for the State Ms. L. Jack submitted on the contrary that he should be imprisoned for a term of 3 years 6 months given the aggravating factors that:

• Prisoner did not express genuine remorse or apologize to the victim except apologized to the Court
• Lethal and dangerous weapon was used – bush knife
• Severe Injury on the arm – loss of function of the arm
• Prevalence of such offences
• Alcohol related incident
  

12. The State submitted that I should impose a non-custodial sentence which is both personal and general deterrence considering the prevalence of the crime. It was also submitted that there has been an escalation in alcohol related incidents involving youths today and that a strong message ought to be sent out to the public.

PRE-SENTENCE REPORT (“PSR”)

13. The prisoner’s PSR speaks favorably for him in that he is normally a good citizen. But he does not control his emotions when he is under the influence of liquor. The report says that he was upset with his uncle for having extra-marital affairs which has caused matrimonial problems in his family.

14. The prisoner’s parents support this conclusion.

15. The PSR states further that the victim Steven Talem does not recommend custodial sentence. He wants to be compensated for the loss of efficient use of the left hand.

16. I note from the pre-sentence report at p.4 that the complainant does not indicate whether he wants the prisoner to be imprisoned.

17. The mother says that “his right arm is damaged for life, it is not functioning as it is supposed to be and he wants the prisoner to compensate him for the damages caused to his arm ...”

18. Under the pre-sentence report at p.6 paragraph 13 titled Suitability for Probation Supervision, it is reported that the prisoner is not a trouble maker and is not a real threat to the community and that his family is willing to assist him to pay compensation.

THE LAW

19. Section 319 of the Criminal Code Act provides inter alia:

“A person who unlawfully does grievous bodily harm to another person is guilty of a crime”.

“Penalty: imprisonment for a term not exceeding 7 years”.

SENTENCE TO BE IMPOSED

20. The following cases are of direct relevance.

21. The State -v- Sheekiot [2011] N4454 & State -v- Konos [2010] N4157 – Cannings J

It was held in the above-mentioned case that the starting point for GBH sentences is 3 years and 6 months. It should either increase or decrease depending on the presence of aggravating and mitigating factors.

22. The State -v- Egi [2016] PGNC 420; N6912 – Polume-Kiele, J

The prisoner pleaded guilty to one count of GBH pursuant to section 319 of the Criminal Code. The prisoner was in company of others who were all drunk and went into a block and burnt down one Solomon Wesley’s house. Then the victim in this case, Abraham Koiya tried to stop the prisoner and his brothers from further burning the house but they refused and swore at him. And in the process swung the bush knife at him and cut him on the left side of his head and eye. The victim was rushed to the hospital where he received medical treatment and was later discharged.

The prisoner was sentenced to 3 years imprisonment and none of the sentence was suspended.

23. The State -v- Jimmy [2018] PGNC 161; N7246 – Kangwia J
    

The prisoner in this case was convicted after a trial of one count of causing grievous bodily harm. There was a fight between the prisoner and the victim’s family and the victim was cut by the prisoner on his upper left arm. The injury sustained was a deep knife wound. The prisoner was sentenced to 4 years imprisonment less time spent in custody.

The State submits that this case is applicable to the present case.

24. The State -v- Irima [2018] PGNC 473; N7578 – Miviri AJ (as he then was)

The prisoner pleaded guilty to one count of grievous bodily harm when he cut the victim using a bush knife. He had caused some disturbance outside the victim’s house in the night and so the victim came out to find out what was happening. Then an argument erupted leading to a fight between the accused and the victim. The prisoner swung his bush knife and cut the victim on his nose causing massive bleeding. He was hospitalized and treated with sixty percent disfigurement of his fact.

25. In this case the facts are that there was de facto provocation which emanated from the adulterous relationship of a relative of the prisoner.

26. The prisoner was aggrieved of this resulting in him committing the crime.

27. Given the circumstances of aggravation the prisoner should be sentenced to imprisonment with hard labour for 4 years. This sentence is within the range provided for under Section 319 of the Criminal Code Act of 7 years imprisonment.

28. However, considering the PSR which recommends a non-custodial sentence because of the willingness of the prisoner to pay compensation and that he is generally of good behaviour in the community, the following sentence is imposed:

(i) the prisoner is to be imprisoned for a term of four (4) years
(ii) the time spent in prison be deducted
(iii) the balance of the sentence is suspended
(iv) the prisoner is to pay K3,500 to the complainant for the loss of the use of left arm
(v) all such monies be paid into the Trust A/C of the National Court of Justice Vanimo within 12 months from the date hereof.

_______________________________________________________________
Public Prosecutor: Lawyer for The State
Public Solicitor: Lawyer for the Defendant