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State v Parau [2021] PGNC 669; N9963 (26 November 2021)

N9963

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 489 OF 2021

THE STATE

V

MICHAEL PARAU

Kerevat/Kokopo: Suelip AJ
2021: 19^th & 26^th November

CRIMINAL LAW – sentence – plea – grievous bodily harm s.319 Criminal Code – prisoner whilst under influence of alcohol, assaulted and broke complainant’s left arm – aggravating factors outweigh mitigating factors – sentence of 2 years – presentence custody time deducted – 6 months imprisonment – next 6 months on probation with conditions – balance wholly suspended.

Cases Cited

State v. Ray Sheekiot (2011) N4454
State v. Martin Konos (2010) N4157
State v. Albert Kavena [2015] N6085
State v. Gordon Robert [2019] N8060
State v. Mathew Komit & 2 ors [2019] N8059
State v. Jacklyn Maino [2021] N9095
State v. Michael Chris [2020] N8535

Counsel

J Noma, for the State
S Pitep, for the Prisoner

SENTENCE

26^th November, 2021

1. SUELIP AJ: On 19 November 2021 at Kerevat, the prisoner, pleaded guilty to one count of grievous bodily harm to Simeon Ambutopa, thereby contravening section 319 of the Criminal Code Act.

2. This is my decision on sentence.

3. The facts on which he pleaded guilty to and was convicted upon are these. On 30 November 2020 at around 8pm at Wesan, Takubar, Kokopo, whilst under liquor, the prisoner confronted the complainant, Simeon Ambutopa on the road and questioned him about one Blaise Wirit. He told him to mind his own business and walked away. The complainant was at his house when he heard the prisoner smashing a chair on the road. He returned to see what was going on and the prisoner attacked him without good reason. He punched him with folded fist on his face about 5 times. When the complainant raised his hands to block the prisoner’s punches, he hit him on his wrist and broke his left ulna bone. He suffered from a fractured bone on his left arm with face and head injuries as well as from psychological trauma. The prisoner’s actions contravened section 319 of the Criminal Code.

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 for the crime the prisoner committed is imprisonment for a term not exceeding seven years.

6. For purposes of sentencing, the prisoner’s personal particulars are these. He is 20 years old and comes from Livuan village in the Kokopo District of the East New Britain Province. He is residing with his parents at Wetsan settlement within the Takubar area. He has 3 sisters and 3 brothers. He is the first child in the family. Both his parents are still alive and depend on subsistence farming. He was attending Port Moresby Technical College when he committed this offence and because his parents were unhappy about him, they withdrew him from school. He is of the Catholic faith.

7. The prisoner has no prior convictions and during allocutus, all he said was he wanted to shake the complainant’s hand and give him compensation.

8. Against him, the aggravating factors are these. He used force when he punched the complainant and fractured his left ulna bone on his arm. Further, this incident happened when he was under the influence of alcohol and at nighttime. The complainant also incurred medical costs and his broken bone has not healed completely. He therefore cannot do heavy work. Finally, this offence is prevalent in the society and no compensation was paid.

9. In his favor, the mitigating factors are these. The prisoner is a first-time offender and pleaded guilty early to the charge. He is also willing to pay compensation to the victim. Further, he acted spontaneously with no prior plan to commit the offence. He also said he wants to shake hands with the complainant although he did not say he was sorry for what he did to the complainant.

10. The Court in State v. Ray Sheekiot (2011) N4454 and State v. Martin Konos (2010) N4157 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, the Court said that the starting point of 3½ years is subjected to adjustments upwards or downwards depending on the relevant facts and circumstances.

11. The prisoner’s counsel referred to the local case of State v. Gordon Robert [2019] N8060, where 2 prisoners pleaded guilty to a similar charge of grievous bodily harm under section 319 of the Criminal Code. Both prisoners were drunk and assaulted the victim while he was walking on the road. They punched his face and he fell unconscious to the ground. The victim received injuries to his face and mouth. The prisoners were sentenced to 2 years in prison, less pre-trial custody time and the balance of their sentence was wholly suspended, and they were placed on probation for 2 years. The Court also ordered them to pay compensation in the sum of K1000 cash and 100 fathoms of shell money which is equivalent to K500 in equal percentage. Reconciliation was also ordered.

12. His counsel also referred to another local case of State v. Mathew Komit & 2 ors [2019] N8059, where the 3 offenders repeatedly assaulted the complainant by punching him. One of them got a piece of timber with a nail on it and attempted to hit the complainant’s head. The complainant tried to block the timber and the timber landed on his arm and fractured his ulna bone. The Court sentenced 2 of the offenders to 3 years and the other to 4 years depending on the degree of participating in committing the offence. All the sentences were suspended with compensation orders of K2,000 and 100 fathoms of shell money.

13. His counsel submits the starting point should be 3½ years and the proper head sentence should be 3 years after weighing the mitigating factors against the aggravating factors. She also submits that any suspension is at the discretion of the Court pursuant to section 19 of the Criminal Code.

14. The State, on the other hand, referred to the cases of State v. Jacklyn Maino [2021] N9095 and State v. Michael Chris [2020] N8535. In the former case, the prisoner did unlawfully cause grievous bodily harm by hitting the victim with a spade handle on her left arm and breaking that arm. She recovered from mild permanent function impairment. After pleading guilty, the prisoner was sentenced to 3 years wholly suspended with conditions. The latter case is where the prisoner assaulted the victim by punching him twice on the jaw before lifting him and throwing him face down onto the ground. The complainant suffered from injuries and fracture to his right jawbone and loss of a tooth. I had sentenced the prisoner to 3 years wholly suspended with strict conditions.

15. The State’s counsel agrees with the prisoner’s counsel that the starting point for him is 3½ and his head sentence should be 3 years as the aggravating factors outweighs the mitigating factors. Counsel also agrees with the prisoner’s counsel that any suspension is at the discretion of the Court.

16. In the pre-sentence report from the Probation Office, it engages the views of the prisoner’s mother and the complainant only. His mother says he does not not take alcohol regularly and stay at home most times. She says this is his offence and he never create problems in the community. This is against the complainant views that he has been doing this similar behavior to others without being reported to the police. His mother further says that he relies on them to support him and she is willing to pay compensation for K1000 so she can reconciliate with the victim. She is also willing to pay for a pig worth K500 with food. She says she wants the bail monies to be converted to compensation payment.

17. On the other hand, the complainant says he is unable to do heavy work because of his broken bone which has not healed after he got medical attention. He says he was surprised he attacked him that time as he is well acquainted with his family. He demands a compensation payment of K2000 before he is released on probation, and this, he says will be a lesson for the prisoner. He feels sorry for the prisoner and does not want him to be sent to prison but rather a lenient sentence be given for payment of compensation.

Consideration

18. As it is, this is not a worse type case and so the maximum penalty will not be imposed on him. Instead, a lesser sentence will be imposed. In considering the appropriate sentence, I find that the mitigating factors outweighs the aggravating factors. Further, the prisoner did not show genuine remorse during allocutus but he is willing to pay compensation and shake hands with the complainant, who is known to you and your family and vice versa.

19. Another factor that I have considered is this. I have observed the prisoner to be a young man with an attitude problem where he does not pay attention or remain still. In Court, he kept on twitching around and he also avoided eye contact. This reflects on his attitude in the family and community. I am of the view that his mother’s assertion that the prisoner is good person with no bad record in the community is not entirely the truth and from the presentence report, I am inclined to take the view that the prisoner, like his peers, cause regular disturbances in the community with their loud noise and music. His type of group is commonly referred to as “the boombox generation”. This kind of behavior must be stopped and not be tolerated any longer as it is fast becoming prevalent in society. The only way to achieve this is for the prisoner to spend time in incarceration. There is another reason why I am of the view that the best sentence for the prisoner is incarceration time. He has been on bail granted by the District Court on 9 March 2021. His bail has not been reviewed by this Court and so he is still on bail without proper authority.

20. Therefore, in the circumstances of his case and a favorable presentence report, I consider that it warrants a sentence of 2 years, less the 2 weeks he has spent in custody. That leaves a balance of 1 year and 10 months.

21. I also order a custodial sentence of 6 months in prison in hard labour. This is to rehabilitate the prisoner and also to deter him and other wannabe offenders from committing similar offence.

22. After serving 6 months in prison, he will be placed on probation for another 6 months on the following conditions:

(i) he shall pay compensation of K2000 within the 6 months’ probation period to the complainant in a reconciliation ceremony to be witnessed by his families, the community, and its leaders.

(ii) he shall report to the Probation Office in Kokopo on the first Monday of each month for the duration of his probation.

(iii) he shall not commit another or similar offence for the duration of his probation.

(iv) he shall not consume alcohol or drugs for the duration of his probation period.

(v) he shall not associate with his peers and cause disturbances in the community for the duration of his probation.

(vi) he shall attend church at Vunapope every Sunday for the duration of your probation.

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

23. The Orders of the Court are therefore:

(i) He is sentenced to 2 years imprisonment in hard labour.

(ii) His pretrial custody period of 2 weeks is deducted.

(iii) He will serve 6 months in prison at Kerevat Correctional Institution.

(iv) Thereafter, he will be placed on probation for 6 months with strict compliance on conditions imposed.

(v) His District Court bail monies of K500 will be refunded to him and will go towards payment of compensation.

(vi) The balance of his sentence after probation is wholly suspended.

_______________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner