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State v Madu [2021] PGNC 661; N9954 (28 July 2021)

N9954

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 402 OF 2018

THE STATE

V

PAUL MADU

Kerevat/Kokopo: Suelip AJ
2021: 8^th April, 20^th May & 28^th July

CRIMINAL LAW – sentence – plea – two counts grievous bodily harm s.319 Criminal Code – two separate victims – victims are relatives – aggravating factors outweigh mitigating factors – some compensation already paid to each victim – surviving victim demands more compensation – sentence of 3 years each to be served cumulatively – placed on probation for 2 years with conditions.

Cases Cited

Goli Golu v. State [1979] PNGLR 653
State v. Ray Sheekiot (2011) N4454
State v. Martin Konos (2010) N4157
State v. Albert Kavena [2015] N6085
State v. Gordon Robert & Anor [2019] N8060
State v. David Carol [2009] N3762
Public Prosecutor v. Sidney Kerua [1985] PNGLR 85

Counsel

G Tugah, for the State
S Pitep, for the Prisoner

SENTENCE

27^th July, 2021

1. SUELIP AJ: On 8 April 2021, the prisoner pleaded guilty to two (2) counts of unlawfully causing grievous bodily harm to one Hosea Wulia, and one Benson Pakana, thereby contravening section 319 of the Criminal Code.

2. This is my decision on sentence.

3. The facts are these. On 27^th of October 2017 between 2:30pm and 3:00pm, the prisoner was at Vunakabi village, Gazelle District, in East New Britain Province. At that time, he was drinking homebrew with his mates. He then entered the residence of one Wulia Hosea who is related to him as a grandfather and started swearing saying ‘kaikai kan’ (eat vagina) in front of his sisters. The first complainant Wulia Hosea then asked the prisoner to leave his premises however he did not. The prisoner then folded his fist and punched him on his face just above his left eye. He also punched him on his chest and on his mouth resulting in three of his front teeth becoming wobbly and his mouth bleeding. The prisoner then went to the road and met the second complainant who asked him politely what was going on. The prisoner instead punched him several times on the face and mouth resulting in two of lower right canines and one of his left canines falling off, and the victim sustained a swollen lower lip. The second complainant fell unconscious on the ground and was attended to by bystanders. A report was lodged with the Police, and the prisoner was apprehended, arrested, and charged with causing grievous bodily harm under s.319 of the Code. His actions contravened Section 319 of the Criminal Code and he is charged with two (2) counts of causing grievous bodily harm.

4. Section 319 of the Criminal Code states: -

319. GRIEVOUS BODILY HARM.

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.

5. The penalty the prisoner can face is not more than 7 years in prison. However, it is trite law that the maximum penalty is reserved only for the worse type offence. See Goli Golu v. State [1979] PNGLR 653.

6. For purposes of sentencing, the prisoner’s personal particulars are these. From the pre-sentence report, it says he is now 21 years old and originate from Vunakabi village, Toma/Vunadidir LLG in the Gazelle District. It states that he is not married and has no children. The report also says that he is the second born child and has 4 siblings. It says he was educated up to grade 8 in 2016 and could not continue due to poor results. It also states that in 2017, he undertook a welding course at Vunamami Farmers Training Centre. He is of the Seventh Day Adventist faith and occasionally attends church at Sunny Bird.

7. The pre-sentence report is not comprehensive. Apart from the prisoner, only 2 other individuals were interviewed. Those are his mother and his local ward member. The report says the victim’s family did not come forward to engage their views on the kind of person the prisoner is and the penalty to be imposed on him. His mother says he is her favorite son, and he is a great person who assists her in all activities. She says although he is a quiet person, his friends have influenced him to drinking. She says the victims are relatives because the first victim is the prisoner’s grandfather whilst the second victim is his uncle. To restore peace, she says she has since paid K500 to each of the victims. She says she wants the Court to be lenient on the prisoner and that he be placed on probation so he can also pay another part of compensation. She says she is willing to assist him with K400 cash and 100 fathoms of shell money each to further compensate the victims. She says the other family members are ready to contribute to assist him.

8. The local ward member shares the same sentiments with the prisoner’s mother about him. He says he is a good helper to his mother and grandmother, but he is easily influenced by his peers to go drinking and play loud music on boom boxes. He says he strongly believes that the prisoner is a victim of sorcery where he is used as a shield, and he is the one to take all the blame. He says this is a family issue that can easily be sorted out at home, and he wants the prisoner to return home where the matter can be dealt with customarily with payment of cash and shell money.

9. As it is, the prisoner does not have any prior convictions, and during allocutus, he said he is sorry for what he did. He also apologized for wasting the Court’s time. He said nothing good was achieved during the time he spent in custody. He said further that he has paid some compensation and he wants to help his mother because his father has passed away. He begged for the Court’s mercy and pleaded to be placed on probation.

10. In his favor are these mitigating factors. He is young and a first-time offender. He also acted alone and pleaded guilty. Against him, the aggravating factors are these. He was drunk and used force to punch both victims, causing injuries to their teeth. One of the victims lost one of his teeth. Both victims are his relatives, and this offence is prevalent in society.

11. As a guide, reference is made to the case of State v. Ray Sheekiot (2011) N4454 and State v. Martin Konos (2010) N4157 where the Court held the starting point for grievous bodily harm under section 319 of the Criminal Code is 3½ years. Further in State v. Albert Kavena [2015] N6085, Polume-Kiele J said that the starting point of 3½ years is subjected to adjustments upwards or downwards depending on the relevant facts and circumstances such as: -

(i) the use of a lethal weapon
(ii) the offender inflicts injury on a vulnerable part of the body
(iii) offender part of a group
(iv) offender inflicts multiple injuries on the victim

(v) offender attacks victim with a lethal or non-lethal and the victim suffers permanent disability or life-threatening injuries

(vi) victim is unarmed or innocent

(vii) there is pre-planning

12. The State counsel referred to two case authorities but the most relevant one is the local case of State v. Gordon Robert & Anor [2019] N8060 where the two prisoners were drunk and assaulted the victim while he was walking on the road. They had punched him on his face, and he fell on the ground. He received injuries to his face and mouth. He was sentenced to 2 years less pre-sentence custody term. His sentence was wholly suspended, and he was placed on probation. He was also ordered to pay compensation for K1000 cash and 100 fathoms of shell money which is equivalent to K500.

13. Counsel for the prisoner also cited two case authorities but only one case is relevant. This is the local case of State v. David Carol [2009] N3762 where the prisoner pleaded guilty to punching his wife on the mouth. He was charged for grievous bodily harm and was sentenced to 12 months imprisonment, which was wholly suspended but he was ordered to pay compensation of 100 fathoms of shell money, the equivalent of K500.

14. Whilst the State counsel asked that the prisoner be sentenced between 3 to 4 years, his counsel wants him to be sentenced to 2 years each for each count. However, both counsels agree that he should be ordered to pay compensation and any suspension of sentence is within the discretion of this Court.

15. Since the general rule is that if one or more offences are committed in the course of a single transaction or incident, the sentences in respect of the offences should be concurrent unless there are different victims. See Public Prosecutor v. Sidney Kerua [1985] PNGLR 85. As there are two victims, the sentence for each count will be served cumulatively.

16. In considering an appropriate sentence, I see that the aggravating factors outweighs the mitigating factors. I also take into account that the prisoner is remorseful, and his mother has paid K500 each to each victim to restore peace for what he did. I also note that his grandfather, Wulia Hosea has since passed away for other reasons other than the injuries the prisoner caused him. Most importantly, I am of the view that the time already spent in custody has rehabilitated him as he has shown genuine remorse in Court.

17. As it is, this is not a worse type case and so in considering all the above, I am satisfied that a sentence of 3 years for each count is warranted in this case. Time spent in custody will be deducted from the sentence. The balance of the sentence is wholly suspended, and the prisoner is placed on probation for 2 years on the following conditions: -

(i) he will pay the sum of K1000 cash and 100 fathoms of shell money which is equivalent to K500 to each of the victim and their family members as compensation within 3 months from today.

(ii) he will enter into his own recognizance and promise to keep the peace and be of good behavior.

(iii) he will reside at Vunakabi village, Toma/Vunadidir LLG, Gazelle District, East New Britain Province and nowhere else during his probation period.

(iv) he will assist with your family chores during his probation period.

(v) he will attend his local Seventh Day Adventist every Saturdays.

(vi) he will not commit another or similar offence.

(vii) he will not consume alcohol or drugs.

(viii) if he breaches any of these conditions, he will be brought before this Court to show cause as to why he should not serve the remainder of his sentence in prison.

18. The Orders of the Court are:

(i) On the first count, he is sentenced to 3 years imprisonment.

(ii) On the second count, he is also sentenced to 3 years imprisonment.
(iii) His pre-trial custody term of 3 years and 9 months is deducted.

(iv) He is placed on probation for 2 years with strict compliance to conditions imposed.

(v) Balance of his sentence is wholly suspended.

Orders accordingly.
________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner