N9117

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 2 OF 2019

BETWEEN:
INDEPENDENT STATE OF PAPUA NEW GUINEA

AND:
DESMOND DUSAVA

Waigani: Wawun-Kuvi, AJ
2021: 16th, 30th, August & 2nd September

CRIMINAL LAW-SENTENCE-Guilty Plea-Assault occasioning bodily harm, 340(1) Criminal Code

Cases Cited

The State v Henry Tovana (2021) Cr No 1313 of 2020, Unnumbered and Unreported
State v Anton (2021) Cr No 88 of 2021 Unnumbered (published in PNGSD)
State v Malko [2018] PGNC 486; N7606 
State v Andrew [2017] PGNC 314; N6987 
State v Rangit [2017] PGNC 142; N6767 
State v Kutumano [2017] PGNC 50; N6673
State v Kogen [2016] PGNC 39; N6211 
State v Embere [2016] PGNC 118; N6302 
State v Pari [2015] PGNC 43; N5962 
State v Wamingi [2013] PGNC 329; N5723
State v FSD [2011] PGNC 164; N4456 
State v Kuru [2011] PGNC 77; N4352 
State v Peter [2011] PGNC 345; N4320 
State v Aiwa [2008] PGNC 321; N3330 
State v Piries [2007] PGNC 186; N4982 
State v Sabuin [2006] PGNC 76; N4475 
Dambui v The State [2003] PGSC 20; SC724 
Gima v The State [ 2003] SC 730
State v Winston [2003] PGNC 146; N2347
Public Prosecutor v Hale [1998] SC 564
The State v. Aruve Waiba [1994] CR1/94(Unreported and Unnumbered)
Goli Golu v The State [1979] PNGLR 653
State v Kagai [1987] PNGLR 320	
State v Tardrew [1986] PNGLR 91
Public Prosecutor v Thomas Vola [1981] PNGLR 412
The State -v- Tendi Kalio Ulio [1980] PNGLR 350
Public Prosecutor v Sima Kone [1979] PNGLR 294

References

Criminal Code Ch 262
Criminal Justice (Sentences) Act 1986

Counsel
Ms Mercy Tamate and Mr Dale Digori, for the State
Mr Edward Sasingian, for the Offender

SENTENCE

3rd September, 2021

1.	WAWUN-KUVI, AJ: On 19 May 2018, Desmond Dusava (the offender) was enjoying the afternoon with his friends. They were consuming alcohol at a home located at Section 48, Allotment 42, Koisese Street, North Waigani, National Capital District.  It would have been an otherwise unseeming afternoon, had it not been for the arrival of Dr Dean Wahembari at the neighbor’s drive in. The offender appeared to be holding on to some misplaced grievance over his father’s death against Dr Wahembari. Fueled by alcohol, the offender approached Dr Wahembari and punched him. His friends in toe, joined in the assault. Dr Wahembari was punched and kicked by the offender and his friends. At some point, someone broke a beer bottle on Dr Wahembari’s head. Attempts by the Doctor’s wife to stop the assault was futile. The assault eventually stopped, and the Doctor was eventually taken to the hospital. He sustained injures to his eyes, nose, left ear, jaw and head.

2.	The offender pleaded guilty to the Assault.  I am now to decide the appropriate penalty.

Purpose of Sentencing

3.	In considering the offender’s sentence, I remind myself of the purpose of sentencing which includes but is not limited to, considerations such as punishment of the offender, rehabilitation, specific and general deterrence, communicating clearly that the community and society does not condone the offender’s conduct and in cases of violent and serious offences for the protection of the community.

The Charge

4.	The offender pleaded guilty to the charge of Assault Occasioning Bodily Harm pursuant to section 340(1) of the Criminal Code.

Penalty

5.	The maximum penalty is 3 years.

6.	The maximum penalty is reserved for the most serious case: Goli Golu v The State [1979] PNGLR 653.

Submissions

7.	Mr Sasingian submits for a sentence of 7 months or in the alternative a wholly suspended sentence should the Court consider a higher sentence. He relies on the case of the State v Kutumano [2017], also cited by Mr Digori.

8.	Mr Digori for the State submits for a term of imprisonment between 2 and 3 years. He refers the Court to the following comparable cases:
State v Andrew [2017], Auka, AJ: This is a case that involves two victims. The offender was indicted under section 340 of the Code. The offender pleaded guilty to assaulting two of his wife’s friends by punching and kicking them. He had heard stories by the community that his wife was having an affair and so he took it out on her friends when they failed to assist him in uncovering the truth of the information. He was sentenced to a concurrent sentence of 2 years. The sentence was wholly suspended, and the offender was placed on a good behavior bond.
State v Rangit [2017], Miviri, AJ: The defendant was a police officer that was responding to an allegation of attempted rape. He was drunk at the time and shot the victim in the leg. The victim was a bystander who was attempting to explain what had happened. He had no involvement in the alleged rape. He was indicted on a charge of causing grievous bodily harm under section 319 of the Code. He pleaded guilty and was sentenced to 4 years imprisonment. He was ordered to serve 2 years. The balance of 2 years was suspended, and the prisoner was placed on probation.
State v Kutumano [2017], Ipang J: The offender pleaded guilty to assaulting the victim over allegations of sorcery. There were two charges. One of deprivation of liberty and the other for assault occasioning bodily harm under section 340 of the Code. The victim was kicked and punched and taken to another location where he was rescued by police. The Court sentenced him to 18 months imprisonment. The sentence was wholly suspended.

9.	The cases referred by Mr Digori for the State where either cited incorrectly or contained significantly incorrect information. Whilst he says that State v Rangit is like the present case because both involve serious injuries, he is incorrect. State v Rangit is far more serious because it involved a police officer responding to an alleged crime and that officer shooting an innocent member of the public in the leg after that victim was punched to the ground. 

10.	In Andrew, the offender assaulted two other women and not his wife and in Kutumano, there were two charges. The sentences were cumulative. Otherwise, the individual charge of Assault Occasioning Bodily Harm was 18 months.

11.	In my view, the circumstances in State v Andrew and State v Kutumano are more similar, in that no weapons were used.

Comparative cases
12.	Additionally, I have found the following comparable cases. The sentences are either 18 months or 2 years. Where there has been a pre-sentence report and the victims are amendable to reintegration, the sentences were suspended. 

13.	In State v Anton, (2021), Liosi, J, the victim was drunk and insulted the offender. The offender punched the victim until he lost consciousness. He pleaded guilty and was a first-time offender. The victim suffered a lacerated lip and lost three of his lower front teeth. He was sentenced to 2 years imprisonment which was wholly suspended on him entering into his own recognizance. He was ordered to compensate the victim.

14.	In State v Kogen [2016] Cannings J, the offender hit the victim with a piece of wood resulting in the victim suffering from a fracture. She was angry over the victim holding her child. She endangered the child. There was no lawful justification. The victim did not want compensation. The Court said that the victim’s views must be considered. The offender was a first-time offender. The offender was sentenced to 2 years imprisonment. Time spent in custody was deducted and the balance was not suspended.

15.	In State v Pari [2015]Toliken, J, the offender and the victim were consuming alcohol. The offender became disorderly, and the victim attempted to calm him. The victim’s elbow was fractured when he blocked a pipe that the offender swung at him. He was a first-time offender. He was sentenced to 18 months imprisonment. The pre-sentence custody was deducted, and no part of the balance was suspended.

16.	In State v Wamingi [2013],Cannings, J, the offender bit off part of her sister-in-law’s ear during a fight. The injury caused permanent disfigurement. There was de facto provocation as the victim bit the offender also. She was a first-time offender. The offender offered to pay compensation however the victim refused. The Court found that in violent offences, the Court must consider the views of the victims. The offender was sentenced to 18 months imprisonment. No part of the sentence was suspended.

17.	In State v Peter [2011], Cannings, J: the offender was found guilty after a trial for assaulting a female neighbor with whom there was a series of neighborhood disputes. the mitigating factors were that she was the sole attacker, the victim's injuries were not that serious, she was a first time offender and then and there was going to be adverse effects on her children. The aggravating features were that there was a dangerous implement, facial injuries, lack of remorse and no evidence of reconciliation with the victim. The court held that the aggravating factors outweighed the mitigating and imposed a sentence of two years. The pre-sentence period of one month was deducted with half of the sentence was suspended and the balance was to be served. Upon release the prisoner was to pay compensation and comply with other conditions.
 
18.	In State v Aiwa [2008] David, J: the offender pleaded guilty to using a short metal rod to hit the victim on her right pointer finger. The victim suffered a fracture. The offender and victim were known to each other. The offender was aggrieved over the refusal of the victim to assist her recover debts or what is termed as ‘dinau mani’. The victim was a middle woman who had introduced the borrowers to the offender. The injury was sustained when the victim raised her hand to defend herself. This was the offenders first offence. The prisoner was sentenced to 14 months imprisonment. Time spent in custody was deducted and the balance of the sentence was wholly suspended with conditions including compensation. 

19.	In State v Piries [2007]Cannings J: the offender went to his in-law’s house in search of a friend. He was informed that the friend was not there. He was drunk at the time. He was aggrieved by the response from his in-laws and uttered some words at them. His brother-in-law confronted him. He hit his brother-in-law with a guava stick. His sister-in-law went to her brother’s aid and was also hit with the same guava branch. His mother-in-law went to the aid of her children and was also hit with the same guava stick. The offender pleaded guilty to all three counts of assault causing bodily harm. This was a first offence. He was sentenced to 8 months for each count. The sentence was cumulative, and the resultant sentence was 2 years. Time spent in custody was deducted and the balance was suspended with conditions including compensation. 

20.	In State v Sabuin [2006],Cannings, J: the offenders pleaded guilty to assaulting the victim. The first offender kicked the victim twice in the head and walked off, whilst the second and third offenders were responsible for the rest of the serious injuries to the victim. They were all drunk. The victim accused the first offender of stealing his outboard motor. He punched the 1st offender twice which caused the offender to assault him.  The victim had pre-existing conditions but suffered serious injuries that required hospitalization. The first offender was sentenced to 18 months whilst the 2nd and 3rd offender were sentenced to 2 years each. Time spent in custody was deducted and the balance of the sentences were wholly suspended on conditions including compensation. They were all first-time offenders. 

21.	The present case is distinguishable in that no weapon was used by the offender. A beer bottle was used to hit the victim on the head, but the State says that it was one of the offender’s friends. The only case that bears some similarity is that of The State v Sabuin. However, in Sabuin, the victim required hospitalization. The 2nd and 3rd offenders were responsible for the bulk of the injuries. The first offender’s conduct in Sabuin is closer to the present case.
Sentencing Factors
22.	Before proceeding on to determine sentence, I again remind myself that sentencing is not an exact science, it is an exercise of discretion which involves the balancing of various factors against the peculiar circumstance of an offender’s case.

23.	Some important factors include the offender’s character, age, education, intellectual capacity, nature and seriousness of the offence, the criminal intent, degree and extent of an offender’s involvement, extent of the injury or harm, the complainant or victim’s views, the existence of aggravating or mitigating factors, prevalence of offence, assistance given to police, pleas of guilty and time spent in custody.

Personal Antecedents

24.	The offender is 35 years old. Whilst the indictment pleads that the offender is from Boram in Wewak, East Sepik, this is incorrect, as the committal depositions, Antecedent Report and Pre-Sentence Report confirms that he was born at Boram but is in fact from Nindipari Village, Yangoru Sausia, East Sepik Province.

25.	He completed is grade 1 and 8 at the Philip Aravure Primary School at Gerehu, National Capital District. He later attended the Don Bosco Technical College where he completed Grade 11 and 12. 

26.	He joined the Papua New Guinea Defence Force in 2011 and was dishonorably discharged.
Allocutus
27.	The offender states in Allocutus:
I'm sorry for taking the courts time for coming this far. The incident happened because of a misunderstanding between the victim and I regarding some of the medical drugs that I bought when my late father was in the hospital. The drugs were sold by the Doctor and the money was never returned to me. He got to sell to other patients after my father’s death which never returned to me. I assaulted him with no intent to drag on or cause any danger it was had a heat of the moment when I saw him, and I was under the influence of liquor. I surrendered myself to any police station and was charged with assault.  I'm willing to pay compensation to the Doctor in the sum of K2000 and a pig valued at K2000 to say sorry in the Melanesian way.
28.	Whilst Mr. Sasingian says that his client expressed remorse, this is weighed in line with the statements by Kidu CJ in Kalabus v The State [1988] which reigns quite true in the present case. His Honour as he was then said:

“Remorse and contrition are factors weighed in the matter of sentence in favor of accused persons, particularly if they are manifested in a plea of guilty. Whether remorse or contrition are shown by a plea of guilty depends upon the time and circumstances in which the plea is advanced. The earlier the expression of remorse or contrition after the commission of the offence the more favorable it will be for the accused”.

29.	Considering that the offender was on the run for 1 year 6 months which cause a delay in the case and that he was only apprehended on Warrant of Arrest, I find that his expression is not genuine. 

Nature and Seriousness of the Offence

30.	This is a serious offence. It was an unjustified assault by a group of drunk men on a medical doctor who was picking up his son.  The doctor’s wife was threatened, and everyone was prevented from leaving until a police officer known to the doctor arrived and arrested the offender. One can only assume how terrified everyone was when even the first group of police officers who arrived on the scene joined the drunkards. 

31.	Whilst the doctor did not receive injuries that required hospitalization, the Court cannot ignore that at the time of the offence, the offender was a serving member of the Papua New Guinea Defence Force. He swore an oath to protect the citizens. It was conduct unbecoming and not befitting a member of the Defence Force.

Complainant’s views

32.	The Complainant feels that the prisoner is a threat to him and does not wish to accept any form of compensation. He has asked the Court to impose a custodial sentence. He stated that the case has dragged on for three years and the offender has not taken responsibility for his actions and was only in Court because of the Warrant of Arrest. He has suffered physically, emotionally, psychologically and insecurity with his family. His reputation has been tarnished by the false accusation of the prisoner and he has lost time off work due to being hospitalized and following up with the case all these years.
Aggravating Factors

33.	The aggravating features are that it was a vicious attack on the victim, offender under the influence of alcohol and a group attack, the victim had to be taken to the hospital, sustained injuries and prevalence.

34.	However, factors in aggravation not considered by both counsels are:
•	Not only was it a group attack on a defenseless person but it was unprovoked and not justified. 
•	Whilst Mr Sasingian says that his client was provoked in the non-legal sense, it must be established that there were preceding events that would have otherwise caused a reasonable person placed in the same situation, to act the way he did. There is nothing in the depositions that support that there was any de facto provocation. I doubt any reasonable person would have acted the way the prisoner did. To accept and take into mitigation that it is de facto provocation, to assault a doctor whom one is aggrieved with, is almost a license to assault all frontline service providers.
•	Doctors and nurses are crucial to any person’s wellbeing. Therefore, in the present epidemic, they are referred to as front line workers. Their health is paramount. Because in the event there are no doctors then there is no body to attend to the sick and dying. Dr Wahembari is a specialist doctor in the ENT or Ear, Nose and Throat Section of the Port Moresby General Hospital. He is the Registrar. The Registrar is usually the Doctor in charge of the ward. The reasonable conclusion to be drawn is that when the doctor was injured, several patients were not treated or did not receive specialist attention.
•	The victim’s family members were endangered. They were trapped in their home until a lone police officer arrived to assist them. 
•	The offence happened at night.
•	The offender was a solider at the time of offence. This is aggravating because persons in the military are trained to a high level then any ordinary citizen. 

Mitigating Factors

35.	The offended pleaded guilty and has no prior convictions.

36.	Mr Sasingian further submits that the offender has lost his job because of this case and lost his marriage because of lack of job security and loss of accommodation. That the case dragged on for two years. That he was not repatriated to his place of origin after his discharge from the Army. He left Port Moresby and breached his bail condition.

37.	The offence was committed in 2018. The offender says that his marriage ended in 2017. Obviously, this offence had nothing to do with his marriage falling apart. Loss of employment, accommodation and job security are not factors in mitigation. They are the consequences of his actions.

38.	Finally, Mr Sasingian’s submits that he was absconding because he did not have accommodation as a result of loss of employment. I find this submission illogical and quite frankly bothers on making a farce of the criminal justice process. Firstly, he would not have been released on bail without considerations as to his place of residence which is a prerequisite. Secondly, the Pre-Sentence report says that he lives in his parents 4 bedroom high covenant house in Koki and thirdly, he was committed on 13 December 2018. The delay in the case was by the fact that he absconded. This is an aggravating factor.
Deterrence
39.	A further message must be sent to the community that one cannot go around assaulting others simply because one is not happy. There are systems and legal avenues available for people who are aggrieved and feel as in this case that a doctor has been negligent. 

40.	Furthermore, medical professionals save lives and cater from the needs of the sick. No one is immune to illness. A message must be sent that it is not alright to assault doctors and nurses.

Head Sentence

41.	In considering all the above factors and the relevant case laws, I find the appropriate sentence to be 18 months imprisonment.

Suspension
42.	The principles regarding suspension are as follows:
•	Suspension is not an act of leniency but is in the interest of the community and to promote rehabilitation and prevent recidivism: The State v Kagai [1987].
•	Sentencing is a community response and so the views must be obtained in a pre-sentence report. Without the report, the Court cannot suspend sentence: Gima v Independent State of Papua New Guinea [2003], State v Winston [2003] and Public Prosecutor v Hale [1998].
•	The community’s view must be obtained, if is intended that the offender be placed back into the community: Gima v Independent State of Papua New Guinea [2003], State v Winston [2003]and Public Prosecutor v Hale [1998]
•	Suspension pursuant to section 19 (6) of the Code should only be exercised in three broad categories, (1) promotes personal deterrence, reformation or rehabilitation of the offender, (2) encourages the repayment or restitution of stolen money or goods and (3) imprisonment would cause excessive degree of suffering, for example, because of bad physical and mental health: Public Prosecutor v Tardrew [1986].
•	The factors that were considered to lower the sentence should not be the same used to suspend sentence. It amounts to double discount in the prisoner’s favor: Public Prosecutor v Thomas Vola [1981].
•	In cases where the offence is prevalent, only in exceptional cases can the circumstance of the case override imprisonment: Public Prosecutor v Sima Kone [1979].
•	What is exceptional in each case is infinite. Each sentencing court in the exercise of discretion makes that determination: State v Malko [2018].
•	Evidence of good character supports suspension. There must be actual evidence and not based on submissions that the offender has good character: State v Kagai [1987] PNGLR 320.
•	In violent offences, the views of the victim are important when considering suspending sentence: State v Kogen [2016], State v Wamingi [2013] and State v FSD [2011]
•	Partial suspension pursuant to section 19 (f) of the Code should be exercised on proper basis: Public Prosecutor v Thomas Vola [1981] PNGLR 412.
•	The procedure under section 19(f) of the Code is for the prisoner to enter into recognizance first prior to commencing the portion that the prisoner was ordered to serve: Public Prosecutor v Thomas Vola [1981].
•	For offences with minimum penalty provisions, it is open to the Court to consider suspension after imposing the minimum penalty. This is dependent on the peculiar circumstance of each case: The State v. Aruve Waiba [1994] and Dambui v The State [2003].

43.	With the above principles in mind, I find that suspension is not appropriate for the following reasons: 
•	The community’s views were not obtained. The source that was said to be the community view was one Allan Nangumo. From the pre-sentence report he appears to be a person quite familiar to the prisoner especially so when he is prepared to assist to make peace with the victim himself. The probation officer must obtain independent and credible sources. The prisoner was living in North Waigani where the offence occurred. The views of the neighbor’s should have been obtained. He was said to be living at Koki. The community at Koki’s views should have been obtained. He was said to have been dishonorably discharged. The legal division of the military should have been contained to determine the basis for the discharge.
•	Whilst the probation officer says that the offender is suitable for Probation this is balanced with the fact that the offender absconded for 1 year 6 months and that the only reason, he is in Court is because of an executed warrant of arrest. His bail in the Committal Court was revoked because he was on bail for another similar offence when he committed the present offence. Further whilst he has no convictions, the depositions indicate that he has been a person of interest under the radar of police. All these demonstrate that the offender is not suitable for probation or to be trusted on a good behavior bond. That is the depositions coupled with his absconding and appearance only as a result of apprehension by police, portrays a pattern of behavior reflective of an attitude resistant to compliance of Court Orders.
•	Defence counsel submits that his client is willing to pay compensation. As to the Pre-Sentence Report and the Victim Impact Statement stating that the victim is not interested in compensation, Mr. Sasingian submits that it is the offer that counts as well as the ability of the offender to meet compensation.  I can find no better way to address this submission, other than in the words of Davani, J in State v Embere [2016] “I am also aware of the fact that since his arrest in early 2015, the Offender and his family have not taken any steps to reconcile with the Victim and her family, to appease the wrong done by the Offender. Clearly, the request to pay compensation is made very late in time and in my view, is not genuine.” [Emphasis mine]
•	Even, if I were to consider compensation, not that it would be appropriate given the victim’s views, Mr Sasingian’s contentions as to the prisoner’s capacity is a conundrum of perplexities. He ignores the findings in the Means Assessment Report that the prisoner has no savings and is heavily dependent on his extended family. And his submissions that the offence has resulted in the loss of employment and the breakdown of the offender’s marriage due to his inability to financially support his wife.  And that the loss of employment had the cascading effect of loss of accommodation, leading to the prisoner absconding. But somehow, submits that the prisoner presently has the means to pay compensation whilst incarcerated. 
44.	As said, the above factors demonstrate that suspension is not appropriate. I should add here that whilst it is the Melanesian way to pay compensation, an individual cannot appreciate the consequences of his or her actions when the community and the family continue to meet the burden of paying for the wrong. The term Melanesian way is so easily thrown around these days without any concept of what it truly entails. It appears to be associated more with compensation for criminal wrongdoing rather than the embodiment of Melanesian patriotism.

45.	Makail J in State v Kuru [2011]made this statement when referring to payments of compensation: 

“The compensation culture is so entrenched in our society, both the traditional and modern that it poses a serious threat to the maintenance of the rule of law. It is still being practiced in present day Papua New Guinea despite Papua New Guineans moving away from a traditional way of life to the western and modern way of life. In the highlands region, it is an everyday thing.
18. It has its advantages and disadvantages. It is a bad cultural practice if it is a means by which offenders and lawbreakers escape criminal culpability when they have broken the laws that Parliament has enacted to govern us. In killings in domestic settings where substantial customary compensation is given to the family and relatives of the deceased and the murderer is allowed to walk free, this is where I think it is a bad cultural practice. It is repugnant to the general principles of humanity and must be outlawed: see schedule 2.1 of the Constitution and contrasted with The State -v- Tendi Kalio Ulio [1980] PNGLR 350 per Narakobi, AJ.”

46.	In my view, as Makail J stated, the case of Tendi Kalio Ulio is contrasted. It is evident that His then Acting Justice Narokobi, saw the Melanesian way as an innate consciousness of concepts of right and wrong. As opposed to the penal law where there are degrees of culpability, moral responsibility is straight forward, if one is responsible for an act that harms another, one must accept the consequences and atone for it. The concept of blood feuds plays an integral part in the community’s response to atoning wrongs. Literally the biblical concept of an eye for an eye. As such compensation was necessitated to restore a sense of order and normalcy in closely knitted communities as that in the case of Tendi Kalio Ulio.

47.	The question, I ask myself is, in a melting pot of cultures influenced by modernization, is Papua New Guinea today, still the same as Narokobi’s Papua New Guinea in the 1980’s. Do we the next generation of Papua New Guinea truly grasp the concept of what the Melanesian way is.  I would say that it depends on the location of the offence and relationships of the parties to each other. Where the offence is in the village or where the parties are family members or neighbors, compensation may be appropriate. That is why the Supreme Court in the decisions I have cited pertaining to suspension saw it in their wisdom to say that sentencing is a community response to crime and the views of the community must be attained.  
48.	The true Melanesia way as Narokobi, AJ portrayed was encapsulated in my recent decision in The State v Henry Tovana (2021). In that case the prisoner pleaded guilty to the charge of intention to cause grievous bodily harm. The prisoner and the victim are from the same village. When the Probation Officer went to obtain the communities views, the whole village gathered. Present was the local church Pastor, the Village Court Magistrates, Peace Officer, the prisoner’s father and the victim.  The leaders spoke of the offender’s prior good character and that his actions were fueled by alcohol. There was consensus that the prisoner be reintegrated coupled with some form of public compensation as a sign of remorse. The Village Court Magistrate volunteered to supervise the prisoner in the village. There was an initial payment of money and a pig by the offenders’ father to the victim.

49.	In the present case, the offender and his family have made no attempts to resolve the matter in a Melanesia way. It has been 2 years since the date of the offence, and the offender wishes to only offer to pay compensation after he has been on the run for 1 year 6 months. Had the offender had some fathomable concept of the true Melanesia way, he would have not found himself in his present predicament. He would have either approached the Doctor like a man and resolved the issue or if there was any truth to his grievance, raised it with the medical board. 

50.	Considering the Supreme Court decision that in cases of prevalence only exceptional circumstance can imprisonment be overridden and that the factors in mitigation that reduce sentence are different in factors that suspend sentence, I find that no factors exist in the present matter. No part of the sentence shall be suspended.

Conclusion

51.	In considering all the above factors the offender is sentenced to 2 years imprisonment.

52.	The pre-sentence custody shall be deducted pursuant to Section 3(2) of the Criminal Justice (Sentences) Act 1986 from the date of arrest to date of sentence. The pre-sentence custody is calculated to be 5 months, 2 weeks and 4 days.

53.	This is because it is unclear whether the defendant spent some time in custody prior to his capture pursuant to the Warrant of Arrest. He was on bail and appearing at the Committal Court until the Court revoked his bail on 27 November 2018. He was in custody when he was committed on 13 December 2018. When the matter was called on 11 February 2019, the offender appeared from bail. The Warrant of Arrest was issued on 10 October 2019 and was executed on 11 June 2021 by Senior Sergeant Lawrence Wellen of Criminal Investigation Division, Boroko Police Station. 

54.	His pre-trial custody has been calculated as follows: 
•	27 November- 13 December 2018: 26 days
•	13 December 2018- 11 February 2019: 1 month, 29 days
•	10 or 11 June 2021- 3 September 2021:2 months 23 days

55.	No part of the sentence shall be suspended as the prisoner has not demonstrated any peculiar circumstances separate of his mitigating factors and further the prevalence of the offence dictates that the prisoner must be imprisoned to serve as a personal and general deterrent.

Orders
56.	The Orders of the Court are as follows:

1.	The Defendant is sentenced to 18 months imprisonment.
2.	Pre-sentence custody period of 5 months, 2 weeks and 4 days is deducted
3.	Prisoner shall serve 12 months, 2 weeks and 26 days in hard labour.
________________________________________________________________
Office of The Public Prosecutor: Lawyers for the State
Office of The Public Solicitor: Lawyers for the Prisoner