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State v Maiasa [2021] PGNC 508; N9318 (13 October 2021)

N9318


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR NO. 569 0F 2018


THE STATE


V


TAU MAIASA
Prisoner


Popondetta: Sambua, A J
2021: 5th, 8th & 13th October

CRIMINAL LAW– sentence – grievous bodily harm - accused persons in company of each other –victim assaulted with bush knife – injuries to victim’s right hand – use of weapon - alcohol related – seriousness of – mitigating factors – plea – no compensation paid – remorse – CBC pre-sentence reports – custodial sentence of years imprisonment is appropriate – suspension considered but not appropriate in the circumstances.

Cases Cited:
Goli Golu v The State [1979] PNGLR 653
John Elipa Kalabus v The State [1988] PNGLR 193
State v Polin Pochalon Lopai [1988-89] PNGLR 48
State v Steven Jimmy [2018] N7246
State v Dirona [2019] N7985

State v Hudson Irima & 1 other [2014] N6535


Counsel
Ms. T. Kametan, for the State
Mr Yavisa, for the Prisoner


JUDGMENT ON SENTENCE


11th October, 2021


1. SAMBUA, AJ: On Tuesday 5th October 2021, the State presented an Indictment against the prisoner charging him with one (1) count of grievous bodily harm contrary to section 319 of the Criminal Code. He pleaded guilty to the charge on arraignment and submissions on sentence was heard on Friday 08th October 2021 and I reserved my ruling to Monday 11th October 2021 and I do so now.


Brief facts


  1. The brief facts of the case were that on Wednesday 30th December 2020, between 4:00pm and 4:30pm, the victim namely Erick Ihania was at Eabi Compound when the prisoner namely Tau Maiasa and his three accomplices attacked him. Zedock Iko saw the victim being attacked and he went over and stopped the fight and took the victim to his house. However, when Zedock returned to the volleyball court the prisoner grabbed a bush knife from one of his accomplices and ran towards the victim. Zedock saw the accused running towards the victim and he also ran after him. When the prisoner reached the victim, he swung his bush knife at the victim and slashed the victim’s fingers when he put his hand out to defend himself.
  2. The State alleged that the actions of the prisoner in cutting the victim’s fingers with a bush knife contravened section 319 of the Criminal Code.

The law


  1. The crime of grievous bodily harm is created by section 319 of the Criminal Code. Section 319 reads:

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


Penalty: Imprisonment for a term not exceeding seven years.


  1. The crime of grievous bodily harm under section 319 carries a maximum of 7 years. However, section 19 of the Criminal Code gives the Court an unfettered discretion on imposing other sentences instead of the maximum depending on the circumstances of each case.
  2. It is a settle principle of law on sentence that the maximum sentence is reserved for the worst or the most serious instances of case. This principle was stated in the case of Goli Golu v The State [1979] PNGLR 653 and in the case of John Elipa Kalabus v The State [1988] PNGLR 193.

Factors on Sentence


  1. Mitigating factors
  2. Aggravating factors

The Pre-Sentence Report

  1. The prisoner is 25 years old male from Bakadu village, Kira, Sohe Oro Province. He is a second born out of four siblings, however the first-born sister has passed-on leaving only the three of them. He resides with his father near Kakandetta village. The mother has deserted them and have remarried to another man. He is unemployed after leaving school at Grade 8 in 2018.
  2. The Pre-Sentence report also says that because of the seriousness of the offence, and the lifelong injuries caused to the victim, it is within the Court’s prerogative to impose an appropriate sentence it deems fit.
  3. Alcohol consumption is a common occurrence these days where there are public gatherings, be it a sporting activity or any other public gatherings which usually leads to confrontations resulting in serious consequences like bodily injuries and even death. Fortunately for the victim Eric Ihania, that he lost his four (4) fingers otherwise it could have been fatal.
  4. The prisoner in allocutus was sorry for what he had done to Eric Ihania and wanted this matter to be sorted out outside of court. However, since the crime was committed attempts have been made to compensate the victim for the injuries he had sustained.
  5. The victim in his Victim Impact Statement tendered by Miss Kametan on behalf of the State, stated that he is a right-handed person and that his life is not normal anymore. He has lost 100% use of his right hand which will affect him for the rest of his life and therefore wanted to be paid K20,000.00 as compensation “Bel Kol” money and one pig that was promised.
  6. Any form of compensation payment has to be done in accordance with the Criminal Law (Compensation) Act which sets the limit at K5,000.00. Hence, the demand by the victim in his Victim Impact Statement is rejected.
  7. However, the amount of K2,000.00 was supposed to be paid as a “Bel Kol” money, which is yet to be done. I do not think the Prisoner has the means to pay the K2,000.00 compensation if the Court so orders. Even if I make an order for compensation, in my view compensation will not restore the physical injury that has been inflicted on the victim. The damage to the victim has been done which he will live with for the rest of his life.
  8. In the case of State v Polin Pochalon Lopai [1988-89] PNGLR 48, His Honour Bredmeyer, J (as he then was) while discussing sentencing principles in manslaughter cases said;

“Every form of punishment takes into account the intention behind the act or omission and the consequences, both the seriousness of the intention and the seriousness of the consequences. Thus, wounding with intent to do grievous bodily harm is more serious than wounding without that intent. Similarly with consequences: the more serious the consequences, the greater the punishment”

  1. I adopt this summation to the present case. The injury suffered by the victim is serious and lifelong which calls for a punitive custodial penalty.
  2. The prisoner, and his family through the Pre-Sentence Report are concerned about his education, and had asked for leniency, however, before venturing into consumption of alcohol and inflicting serious and lifelong injury to the victim, he should have thought about his education.
  3. In State v Steven Jimmy [2018] N7246, His Honour Kangwia,J said:

“As to his concern for his education I reject it as a valid reason for a low sentence. He acted without thinking about the consequences of his education and his future in general. The court cannot consider it on his behalf and overlook the seriousness of the offence”.


  1. The prisoner cannot now come to court and beg for leniency and for imposition of a lower and/or a suspended sentence so he can continue on with his education. When he consumed the alcohol and cut the victim’s hand, he did not think about his education.
  2. As alluded to above, consumption of alcohol leads to social evils and young people do not stop to think of the consequences their actions will bring.

Sentences for Grievous Bodily Harm

  1. The National Court recently has imposed the following sentences for grievous bodily harm cases. In the case of State v Steven Jimmy [2018] N7246 a decision by Kangwia, J, there was use of bush knife, serious injury was inflicted which led to amputation of left arm, Prisoner was a first-time offender, a 4 year sentence was imposed (less pre-trial custody pedriod).
  2. In State v Dirona [2019] N7985, a decision by Toliken, J, whereby he imposed a three (3) years sentence on the prisoner but wholly suspended it. It was alcohol related. A deep wound was inflicted on the victim’s left arm.
  3. Whilst His Honour Batari, J imposed a 4-year sentence in State v Hudson Irima & 1 other [2014] N6535 (17 June 2014), a case in Bialla/Kimbe, where there was use of bush knife, injuries were caused to the arm and knee of the victim and was alcohol related. The four (4) year sentence was wholly suspended after compensation was offered and accepted.
  4. After taking into account the mitigating and aggravating factors and sentences in the three cases I had referred to above, I consider that the appropriate sentence for prisoner Tau Maiasa is three (3) years IHL, less the pre-trial custody period.
  5. I have also taken into consideration whether part of the sentence should be suspended and have given serious thought about it, but I am not convinced that in this case, part of the sentence should be suspended. The reason is simple. Why would the prisoner be given a partly suspended sentence when he had caused a serious and lifelong injury to the victim whose life will be a living misery for the rest of his life. Such actions by the prisoner and the would-be offenders should not be condoned by the courts by easily acceding to request by prisoner for a lighter penalty. After all, after serving their sentences, they will come out of prison and enjoy life to the fullest as though they have not caused sufferings to the victims of their crimes for the rest of their lives. Therefore, I will not exercise my discretion under section 19 of the Criminal Code Act to suspend part of the sentence.

Order

(a) Prisoner is sentenced to three (3) years
(b) Pre- trial custody if any to be deducted
(c) Prisoner to serve the balance

Sentenced accordingly
________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner

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