N10952
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 942 OF 2024

THE STATE

V

CHAIN KALUNI

Minj: Miviri J
2024: 11th & 24th July

CRIMINAL LAW – PRACTICE AND PROCEDURE – GBH S319 CCA – Plea – Left Hand of Uncle Cut – Family Dispute – Compensation K 5000 and Pig valued at K700 – First Offender – Remorseful – Mending of Family Relationship – Law into Own Hands – Prevalent Offence – Unlawful Use of Dangerous Weapon – Bush knife – Protection of the Law – Deterrent & Punitive Sentence.

Facts
Accused is son of the brother victim of the crime. Family dispute that was resorted to using bush knife in the hands of Accused. Attacked victim who tried to stop the blow to him by raising his left-hand cut.

Held
Plea 
First offender
No residual and permanent injuries
Deterrent Sentences

Cases Cited: 
Aihi v The State (No 3) [1982] PNGLR 92
Tardrew, Public Prosecutor v [1986] PNGLR 91
Public Prosecutor v Hale [1998] PGSC 26; SC564 (27 August 1998)
The State v Irowen [2002] PGNC 99; N2239 (23 May 2002) 
The State v Ogi Songe [2017] N6759 (27th May 2017)
The State v Philip Piapia [2017] N6763 (17 May 2017
The State v Steven Tumu [2017] N6768 (23 May 2017)
State v Kapen [2013] PGNC 300; N5133 (5 April 2013)
State v Kara [2012] PGNC 19; N4663 (10 May 2012)
State v Lisio [2017] PGNC 323; N6961 (19 May 2017)
The State v Jeptha Felix [2022] CR 1012 of 2022; N10352 (2 December 2022)

Counsel:
F. Popeu, for the State	
D. Pepson, for the Defendant

SENTENCE

24th July 2024

1.	MIVIRI J:  This is the sentence of Chain Kaluni who pleaded guilty to cutting the left hand of Alois Kaluni with a bush knife

2.	On the 27th July 2023 Chain Kaluni armed himself with a bush knife that he had hidden in his trousers and went to the Molka Lodge at about 11.00am. There he found the victim Alois Kaluni and other family members. He become very rowdy screaming and arguing with his family members and demanding one of the aunties with her family to leave the Molka Lodge. Alois Kaluni tried to cool him down, but he pulled the bush knife out of the trousers and swung at Alois Kaluni a number of times. And when Alois Kaluni put up his hand to block the knife, he was cut badly on his left-hand causing heavy bleeding. He was rushed to the Kudjip Hospital for medical treatment whilst the accused was apprehended and handed over to the Police. He was charged with the offence and now appears. He had no lawful excuse to cut the hand of Alois Kaluni. And the injury was life threatening. 

3.	He pleaded guilty to Grievous bodily harm pursuant to section 319 of the Code which is in the following terms, “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.”

4.	He could be sentenced to a maximum sentence of seven years imprisonment. That would be the case if his case is considered the worst case of Grievous Bodily harm: Aihi v The State (No 3) [1982] PNGLR 92.  His case will draw a determinate term of years because his facts and circumstances do not depict that it is indeed the worst case of grievous bodily harm. Particularly given that he has pleaded guilty here in Court. That is not the first time because he admitted outright to the police upon interview on the 16th January 2024. He states that he had paid compensation in the sum of K 5000 and a pig valued at K 700. To ascertain it was necessary to gauge the community and family views in a presentence report that has now being filed by the Probation services. The discretion is ultimately in the court considering all matters for and against. He is a first offender aged 32 years old from Yarick village, Porgera, Enga Province. He was resident at the Molka Ples Banz, Jiwaka Province. A married man he has three children from that union and usually doing marketing to sustain himself. He has education to high school level from Porgera.

5.	This is an offence that was committed within the family. His uncle is the victim who is the brother of his father. It is therefore of importance that the family is set straight in the matter. It must not reignite into further violence. And it is a very serious offence when a family member is attacked in this way without regard for that relationship. Such must draw a stern and punitive sanction by the law upon He who seeks to violate as here. Violence in the family as here will not be tolerated because out of the family unit comes the village, the Community, the Province and the Country. Sentence imposed must always protect this basic unit of society. In this regard also it must also be voiced in very serious terms that payment of compensation will not downplay serious criminal offences as is the present. To encourage in this regard will mean a different law for those who have, from those who do not have. All are equal in the eyes of the law. Any penalty that is prescribed by the legislature should not be defeated. It is for obvious reasons that the penalty has been prescribed in that manner.

6.	On the other hand, when prisoners take it upon themselves in this way to make good a wrong without the hand of the law, but by the same way they have committed the wrong on others, to take the initiative without court supervision to do as is the case here, it must find favour in the sentence that is passed upon them. It is in my view a strong mitigating factor, because these are overt of the intentions to make good a right and start a new in their lives. And when it is amongst family as here it is a very good start to mend the relationship and bring back normalcy. In this regard the prisoner must be commended. And it should be accommodated with some leniency in the sentence that is meted out. And in the same way if there is acceptance of their gesture from the side wronged, it must be strong basis to sentence aligning with that course. Sentencing is not about punishment only, but reformation of the prisoner including deterrence of the offence not only from the prisoner himself, but the Community at large. It is a restoration of the relationship soured by the crime. To go one way or combined is really determination of the facts and circumstances peculiar to a case: Tardrew, Public Prosecutor v [1986] PNGLR 91 and that will drive whether a suspended sentence is meted out or not. But it must be guided by a presentence report from the Community to see out: Public Prosecutor v Hale [1998] PGSC 26; SC564 (27 August 1998). And that is clear by the presentence report that has now being filed.

7.	Grievous bodily harm is one of the primary elements of murder. It is by that fact a very serious offence. Given that a dangerous and offensive weapon, a bush knife is used in the manner here. But stemming from what I have set out above it does not depict the imposition of the maximum sentence. It is in the prisoner’s favour that he has pleaded guilty expressing remorse and compensated the victim for the injury caused them. Without a formal order of this Court compensation, has been paid in the sum of K 5000 with a pig valued at K 700. That is clear intent to mend relationship because the crime must not be held up to jeopardize the family. I am mindful of the Criminal Law (Compensation) Act Section 5 Compensation Orders: 

“(1) Upon receipt of the means assessment report or the Chief Probation Officer’s advice under Section 4(2), the court may, after taking into account the factors specified in Section 3–
(a) order the offender to pay, within such period and in such manner as the court determines, compensation to a person or group of persons specified in the order; and
(b) direct the Chief Probation Officer to supervise compliance with the compensation order.
(2) Subject to Subsection (3), compensation may be ordered in the form of cash, goods, services or any other kind or method of compensation which the court considers appropriate.
(3) No compensation ordered under this Act–
(a) shall include the use or payment of alcohol; and
(b) whether in the form of cash, goods, services or any other kind or method of compensation shall exceed in value K5,000.00,
and the value of any form of compensation other than cash shall be as determined by the court.”

8.	So, for all intent and purposes compensation cannot be revisited by the read of this law set out above as it has exceeded the maximum called there. There are no residual injuries that pertain evidenced by a medical report after the attack. The maximum sentence is seven (7) years imprisonment. That was imposed in the case of State v Irowen [2002] PGNC 99; N2239 (23 May 2002) where both wives were cut with a bush knife almost killing them, but they survived because they were taken quickly to the hospital but came out with serious residual injuries. That is the extreme which isn’t the case here. It was made cumulative so that it was 14 years upon the prisoner there. That is not our facts here. But the law must protect all victims and all in the Community from violence. No man should take the law into their own hands as was the case here in a public frequented area. 

9.	The range of sentence in this offence primarily has been at mid-range of 3 to 4 years part custodial and part suspension in each case illustrated for instance State v Ogi Songe [2017] N6759 (27th May 2017): State v Philip Piapia [2017] N6763 (17 May 2017); and State v Steven Tumu [2017] N6768 (23 May 2017). Use of the bush knife came out with a 4-year imprisonment part of which was suspended in State v Kara [2012] PGNC 19; N4663 (10 May 2012). And similarly in State v Lisio [2017] PGNC 323; N6961 (19 May 2017) and The State v Jeptha Felix [2022] CR 1012 of 2022; N10352 (2 December 2022).

10.	Here I determine that the just and proportionate sentence given all set out above is 3 years IHL and I so impose that upon the prisoner 

11.	In the light of all facts circumstances set out above reinforced by the presentence report filed warrants the basis for the exercise of my discretion pursuant to section 19 (6) for suspension of the 3 years imprisonment in Hard Labour. I order that the 3 years IHL will be suspended on the following conditions:

(i)	You Chain Kaluni of Yarick, Porgera, Enga Province shall enter into 3 years’ Probation Order on the following conditions: -

(ii)	 You shall within 48 hours report to the Probation Officer.

(iii)	You shall be resident at Molka Village, Banz, Jiwaka Province at all times in the course of your probation period.

(iv)	You shall be resident at Molka Village, Banz, Jiwaka Province and shall not without leave of this court during the course of your probation period leave at Molka Village, Banz, Jiwaka Province or your residence.

(v)	You shall perform 600 hours of community work at a worksite to be approved by the Probation Office.

(vi)	You shall keep the peace and be of good behaviour at all times.

(vii)	You shall not take liquor or any form of intoxicating substance or drugs during the period of your probation.

(viii)	You shall attend your local Church every Sunday for service and worship whilst on probation. 

(ix)	The Probation Officer shall file a report on the responses and progress of the probationer every four months and at any other time or interval as the National Court may order upon application.

(x)	In a breach of any of these Probation Orders your Probation shall lapse and you shall be arrested to serve the whole term of your suspended sentence.

Ordered Accordingly.

__________________________________________________________________
Public Prosecutor:  Lawyer for the State	
Public Solicitor   : Lawyer for the Defendant