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State v Frank [2021] PGNC 323; N8981 (19 July 2021)

N8981

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 308 OF 2021

THE STATE

-v-

JOHNSON FRANK

Lae: Kangwia J.

2021: 18^th May & 19^th July

CRIMINAL LAW – Grievous bodily harm with intent – Un warranted attack with axe causing serious injury - Guilty plea by first time rendered insignificant owing to unwarranted attack with serious injuries – Sentenced to 07 years with deductions.

Cases Cited:

The Acting Public Prosecutor v Aumane & Ors [1980] PNGLR 501
State v Pokai Kangi (2016) N6357
State v So’on Toro (2004) N2675;
State v Tamumei Lawrence (2007) N3117
State v Peter Pepa (2010) N4146
State v Peter Pendin (2012) N4541
Goli Golu v State (1979) SC172
Ure Hane v the State [1984] PNGLR 105

Counsel:
P. Matana, for the State
G. Peu, for the Accused

19^th July, 2021

1. KANGWIA J: Johnson Frank appears as a prisoner for sentence after he was convicted on his guilty plea to one count of grievous bodily harm with intent pursuant to s 315 of the Criminal Code Act (CCA).

2. The brief facts are that on 31 July 2020 the prisoner caught a bus and travelled to Bumayong. When the crew asked the prisoner for his bus fare the accused did not give any. An argument erupted and the prisoner jumped out.

3. On one of the latter trips the crew went out of the bus to call for passengers. He saw the prisoner with an axe.

4. He tried to jump on the bus when four men surrounded and assaulted him. The prisoner approached the crew and struck him with the axe.

5. He was taken to the hospital. The hospital examination revealed that the injury was life threatening and the pain impaired breathing.

6. On his allocutus the prisoner said; I say sorry to the heavenly father, the Court, the lawyers, and the victim. I ask for mercy.

What happened was over a one Kina bus fare I did not have. I ask for good behaviour bond and probation. I was working at PSS Security and want to go back”.

7. On his behalf Ms Peu submitted that a sentence of 4 years with deductions for time in pre-trial custody in line with the principles in The Acting Public Prosecutor v Aumane & Ors [1980] PNGLR 501 was appropriate. The prisoner pleaded guilty as a first-time offender. He was a sole offender, and it was a single incident.

8. The court was also referred to the case of the State v Kangi (2016) N6357 where the prisoner who shot the victim on the left side of the eye with a homemade shotgun was sentenced to 5 years.

9. On behalf of the State Ms Patana submitted that a sentence between 6 and 8 years should be imposed. A dangerous weapon was used to cause injuries with lifelong breathing impairment as confirmed in the medical report.

10. She also referred to the following cases as comparable sentences.

11. In the case of the State v So’on Toro (2004) N2675 the offender who cut the victim three times with a bush knife was sentenced to 8 years with deductions for time in custody.

12. In the State v Tamumei Lawrence (2007) N3117 the prisoner who cut the victim with a knife and attacked with sticks and stones was sentenced to 06 years imprisonment.

13. In the State v Peter Pepa (2010) N4146 the offender who swung his bush knife several times was on a guilty plea sentenced to 06 years imprisonment.

14. In the case of State v Peter Pendin (2012) N4541 the offender who attacked the victim with a bush knife was sentenced to 16 years with three of it suspended.

15. The pre-sentence report suggested that the Court exercise its discretion to sentence the prisoner. It was further suggested that a partly suspended sentence was appropriate.

16. The law on grievous bodily harm with intent under s 315 is in the following terms;

315. Acts intended to cause Grievous Bodily harm...

A person who, with intent—

(a) to maim, disfigure, or disable any person; or

(b) to do some grievous bodily harm to any person; or

( c) ...

Penalty: Subject to Section 19, imprisonment for life.

17. The Prescribed penalty under this provision identifies the offence as very serious. An offender is liable to be sentenced to a maximum penalty of life imprisonment for this offence.

18. However, the practice in sentencing is that the maximum prescribed penalty is reserved for the worst category of each offence. (See Goli Golu v State (1979) SC 172 and The State and Ure Hane v the State (1984) PNGLR 105).

19. Pursuant to s 19 of the CCA a sentence other than the maximum prescribed penalty can also be imposed in the exercise of discretion. The present case does not fall into the worst category of grievous bodily harm even though it was serious.

20. This is a case involving the use of an offensive weapon to cause grievous bodily harm.

21. The litany of high sentences the Courts have imposed in similar cases have had no deterrent effect to the public. The offence involving grievous bodily harm is prevalent in this country.

22. It seems not a week passes by without an offence of grievous bodily harm or even death is committed. It is also the view of the Court that a lot of those offences stem from trivial and insignificant matters.

23. The Courts are imposing varying sentences for offences relative to all grievous bodily harm. The cases referred to by Counsels are accepted as relevant for consideration.

24. The strong aggravating factor present is that the incident started from a lack of one kina bus fare. The offence was committed after the prisoner secured free travel on a bus. The prisoner as a passenger on a bus had an obligation to pay a fare for a ride. No one provides free bus service for the public. It is a common human understanding that if one does not have a bus fare there is no travel regardless of how urgent or necessary his reasons may be. There is no evidence that the prisoner had a right to a free bus ride.

25. The injury caused on the crew was unnecessary. The injury sustained could have cost his life. The prisoner through his wayward thinking that he could live a life free from obligations, inflicted injury on a person who owed him nothing. He must learn that the world is not at his disposal.

26. I am mindful of the maximum prescribed penalty being life imprisonment. His guilty plea as a first - time offender is rendered insignificant in view of the unwarranted attack and serious injury sustained by the victim over a lack of one kina bus fare.
27. The prisoner is sentence to 07 years imprisonment. The time spent in pretrial custody shall be deducted and the balance shall be served at CIS Buimo.
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Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Defence