N11352

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO 428 OF 2025

BETWEEN:
THE STATE

AND:
HEARSON MICHAEL

GOROKA: WAWUN-KUVI J
3, 16 JUNE, 2 JULY 2025

CRIMINAL LAW-SENTENCE-Guilty Plea- Causing grievous bodily harm, 319 Criminal Code- Victim struck with rock and stabbed twice with knife-Required surgery and hospitalized for 20 days- De facto provocation- victim had continuously destroyed offender’s cash crops and garden despite being accosted on prior occasions- No recent medical report on whether there is disability- No victim views-Sentence of 3 years.

Cases cited
Gima v Independent State of Papua New Guinea [2003] PGSC 3; SC730 
State v Winston [2003] PNGLR 5
Public Prosecutor v Hale [1998] SC564
Public Prosecutor v Tardrew [1986] PNGLR 91
Public Prosecutor v Thomas Vola [1981] PNGLR 412
Lialu v The State [1990] PGSC 16; [1990] PNGLR 487
Goli Golu v The State [1979] PNGLR 653
State v Akwila [2024] PGNC 258; N10923
 State v Yawing [2022] PGNC 608; N10340
State v Agobe [2021] PGNC 496; N930 
State v Agaru [2021] PGNC 379; N9119
State v Kaia [2018] PGNC 232; N7341
State v Malko [2018]. PGNC 486; N7606
State v Kura [2019] PGNC 76; N773
State v Kogen [2016] PGNC 39; N6211
State v Wamingi [2013] PGNC 329; N5723
State v Kara [2012] PGNC 19; N4663 
State v Sheekiot [2011] PGNC 165; N4454
State v Toluana [2011] PGNC 138; N4417 
State v Konos [2010] PGNC 179; N4157
State v Pepa [2010] PGNC 148; N4146 
State v Taroh [2004] PGNC 104; N2675 
State v Irowen [2002] PGNC 99; N2239 
State v Idab [2001] PGNC 39; N2172
State v Kuman [2000] PGNC 123; N2047 
State v Wapuri [1994] PGNC 150; N1212; [1994] PNGLR 271
State v Kagai [1987] PNGLR 320

Counsel
Ms E Nema-Kale for the State
Ms V Move and Ms C Bomai, for the offender

DECISION SENTENCE

1.	WAWUN-KUVI, J: Hearson Michael was frustrated with the continuous destruction of his coffee trees and food crops, particularly because the victim and his family ignored his grievances over the issue; compounding his frustrations was that the victim was his wife's nephew. 

2.	On 8 July 2024, after seeing the victim with his wife, his frustrations boiled over; he hurled stones at the victim, hitting him in the head, which caused the victim to fall. After the victim fell, he stabbed him twice. 

3.	The victim was taken to the hospital and underwent surgery. A report was made to the police, and the offender was arrested and charged.

4.	He has now pleaded guilty to the charge of grievous bodily harm under section 319 of the Criminal Code. I must decide the appropriate penalty.

Purpose of Sentencing

5.	The purpose of sentencing goes beyond just punishment of the offender; it is a community-focused process. In deciding the sentence, I must also consider rehabilitation, reparation to victims, deterrence, and community safety, as well as communicating that the offender's behaviour is unacceptable. Sentencing is not an exact science; it requires careful consideration of each case's peculiar circumstances together with relevant principles:  Lialu v The State [1990] PGSC 16; [1990] PNGLR 487.

Penalty

6.	The maximum penalty is 7 years.

7.	The maximum penalty is reserved for the most serious case: Goli Golu v The State [1979] PNGLR 653.

Sentencing range

8.	The State submits a sentence of 3 years imprisonment. Counsel for the offender, submits for a range between 1 and 2 years. 

9.	Counsels have submitted the following cases: 

10.	State v Kura [2019] PGNC 76; N7735, Miviri J: The offender called the victim over to him and mocked him about a previous incident where he was allegedly cut the victim. The victim punched him. He pulled out a bush knife and cut the victim on the right forearm. The victim ran away and was chased by the offender and others who caught up and cut him on the head when he fell. The offender was sentenced to 4 years imprisonment. Two years was suspended.

11.	State v Kara [2012] PGNC 19; N4663, Cannings J: The offender pleaded guilty to causing grievous bodily harm to his neighbour after a dispute between their families escalated. Armed with a bush knife, he confronted the victim, threatening her and cutting her face when she turned around. She sustained superficial injuries requiring seven stitches and an eye injury that impaired her vision. He had paid compensation. He was sentenced to 4 years imprisonment which was wholly suspended. 

12.	State v Sheekiot [2011] PGNC 165; N4454, Cannings J: The prisoner pleaded guilty to cutting his cousin on the neck and cheek with a bush knife. The mitigating factors were the plea of guilty, early admissions, payment of compensation and reconciliation with the victim. The prisoner was sentenced to 4 years. The sentence was wholly suspended based on a favorable pre-sentence report more so that compensation was paid and there was reconciliation.

13.	State v Toluana [2011] PGNC 138; N4417, Cannings J: The offenders pleaded guilty to one count of intention to cause grievous bodily harm under s 315 of the Criminal Code. The offenders were sentenced to 10 and 9 years respectively. The charge is distinct and has a different maximum penalty. 
14.	State v Konos (2010) PGNC 179; N4157 Cannings, J: The offender pleaded guilty to striking his nephew with a piece of timber, fracturing his knee and causing other superficial injuries. Factors in mitigation were a plea of guilty, first-time offender, the victim was a known troublemaker, de facto provocation for the attack, a blunt object was used on the leg, lessening the risk of a fatal injury, the offender made early admissions. The prisoner was sentenced to 3 years. The sentence was wholly suspended based on the favorable Pre-Sentence Report more so the fact that the victim’s family requested customary reconciliation.

15.	State v Pepa [2010] PGNC 148; N4146, David J: The offender pleaded guilty to one count of intention to cause grievous bodily harm under s 315 of the Criminal Code. The offenders were sentenced to 10 and 9 years respectively. The charge is distinct and has a different maximum penalty. 

16.	State v Taroh [2004] PGNC 104; N2675, Kandakasi J (as he then was): The offender was convicted following a trial on a charge of intention to cause grievous bodily harm under s 315 of the Criminal Code. The offender was sentenced to 8 years imprisonment. The charge is distinct and has a different maximum penalty. 

17.	State v Irowen [2002] PGNC 99; N2239, Kandakasi, J (as he then was): The offender pleaded guilty to two counts of grievous bodily harm. Armed with a bush knife he attacked his two wives. His attack was over suspicions that they were not faithful to him. He was sentenced to 7 years for each count and the sentences were made cumulative. 

18.	State v Idab [2001] PGNC 39; N2172, Kandakasi J (as he then was): The offender pleaded guilty.  After a group of men verbally abused his mother, he and his brothers in retaliation, sought out those responsible. When they reached the river, they found the victim and others, who they attacked with bush knives and stones. The victim was not involved in the initial incident. He sustained serious multiple knife injuries and was taken to the hospital. He was sentenced to 5 years imprisonment. 2 years of the sentence was suspended with conditions.

19.	State v Kuman [2000] PGNC 123; N2047, Kirriwom J: The charges were grievous bodily harm with intent under s 315 and rape. I do not accept that this is a comparable case. Other than the charges being distinct, the offender in this case was a juvenile. 

20.	State v Wapuri [1994] PGNC 150; N1212; [1994] PNGLR 271, Kapi DCJ: The offender pleaded guilty. He was living with his cousin. His cousin’s wife had made sexual advances towards him on a prior occasion. The offender had refused her advances. On the day of the offence, he had returned from work to discover his clothes and been thrown around. He believed that it was his cousin’s wife. Using a hand brake cable, he struck her across the face. She suffered 90% loss of vision in her left eye. He was sentenced to 18 months imprisonment. Time spent in custody was deducted and the balance was suspended with conditions including compensation.

21.	I have found more recent comparable cases:

22.	State v Akwila [2024] PGNC 258; N10923, Polume-Kiele, J: The offender pleaded guilty. He was intoxicated and confronted the victim who was walking with three others, demanding the return of his money. He then pulled out a grass knife and slashed the victim's knees. As the victim sought refuge in a nearby house, the offender and accomplices chased him, continuing to attack him by punching him and slashing him with the grass knife. Community members intervened and the victim was later taken to the hospital. The offender was sentenced to 3 years imprisonment. Time spent in custody was deducted. 1 year was suspended. He was ordered to serve the balance of 1 year and 27 days.

23.	 State v Yawing [2022] PGNC 608; N10340, Polume-Kiele, J: The offender pleaded guilty. He and the victim reside in the same house. The victim was a primary school student. The home was his family home. The offender’s personal properties were taken from his room without permission. He suspected the victim. On the day of the offence, the offender saw the victim using a knife file which he recognised as being his. He did not raise the issue then. Sometime later that evening, still angry he angrily complained about his lost items. As the victim was approaching him, he swung a grass knife at him. The victim raised his hand which was cut by the knife. He was sentenced to 2 years imprisonment. Time spent in custody was deducted and the balance was suspended. 

24.	State v Agobe [2021] PGNC 496; N930, Wawun-Kuvi, AJ (as I then was): The offender plead guilty to one count of grievous bodily harm and one count of intent to cause grievous bodily harm. He has attacked his estranged wife on two separate occasions. On the first occasion, he had struck her with an iron rod causing a fracture to her hand. On the second occasion he stabbed her with a knife. He was sentenced to 3 years for grievous bodily harm and 8 years for intent to cause grievous bodily harm. The sentences were made concurrent. 

25.	State v Agaru [2021] PGNC 379; N9119, Wawun-Kuvi AJ (as I then was): The offender stabbed her husband after a domestic dispute. She was sentenced to 3 years imprisonment which was wholly suspended.

26.	State v Kaia [2018] PGNC 232; N7341, Numapo AJ (as he then was): The offender, a police officer off duty and under the influence of alcohol, pleaded guilty to two counts of causing grievous bodily harm. While in a supermarket, he spat on the floor, which prompted a customer, to confront him. After an argument, the officer reported the customer and a shop assistant, to the responding police officer, who apprehended both men and placed them in a police van. During the transport, the officer assaulted them by punching and kicking them. At the Police Station, he struck the customer with an iron bar and hit the shop assistant in the nose with a spade handle. Both victims suffered serious injuries: The customer had a fractured arm, and shop assistant had a broken nose, requiring medical treatment. The offender was sentenced to a concurrent sentence of 3 years. The sentence was partially suspended on orders for compensation.

27.	The cases demonstrate that in guilty pleas where a weapon was used with aggravating features such as abuse of position of authority, sentences ranged between 2 and 4 years. 

Antecedent

28.	 The offender is 25 years old and hails from Akameku Village, Goroka, Eastern Highlands Province. His mother is from Milne Bay Province. His parents were divorced when he was young. His mother left her home village and is deceased. 

29.	He has a sister from his parents’ marriage. He is not on good terms with his father. His sister is married, and he is on good terms with her.  He was living with his grandfather at the time of the offence. He has always lived in that location.

30.	He was educated up to year 10 at the Hogemiua FODE Centre.

31.	He is married and has a 10-month-old daughter from his marriage. His family is presently residing with his in-laws.

Allocutus

32.	The offender stated words to the effect:

“The crime I committed is because of something that has happened already over my property. He had done the same thing about five times already and some years ago he had been doing it up until last year. So, I told him we are family what you want to get from my house, you must ask. He did not listen and continued so when I saw him at the village, I threw a stone at him and a stabbed him on his shoulder.” 

Culpability

33.	The offender did not intentionally seek out the victim. He has previously accosted the victim over the damage to his coffee trees and gardens. When he saw the victim, he was frustrated and angry. There was no intervening period between the stone throwing and the subsequent stabbing. While I accept that there was an intent to cause serious bodily harm, it was not preplanned or premediated but was driven by his emotional state. I accept that there was de facto provocation in the non-legal sense, which reduces his culpability.

Harm 

34.	 The victim underwent an operation and was hospitalized for 20 days. The Probation Officer could not locate him for a progressive medical report. The State did not provide a victim impact statement. It is unknown whether he has any permanent injuries. Since there is no material before the Court, I will give the benefit to the offender that the victim did not sustain any long-term disabilities: Saperus Yalibakut v The State (2006) SC890.

Aggravating Factors

35.	 I have considered the submissions by counsel and find the following to be aggravating: 

•	The offender used rocks and a knife to attack the victim.
•	The victim was stabbed twice.
•	The victim was defenseless.
•	Assaults causing grievous bodily harm are a common occurrence in all areas of Papua New Guinea. 

Mitigating Factors

36.	In mitigation:

•	The offender has no prior convictions. 
•	She cooperated with police and made early admissions. He maintained his guilt at all stages until sentencing him. 
•	He is unemployed, and the only source of his livelihood is from his coffee garden and food crops. He was frustrated by the continued destruction of it by the victim. As I found, there was de facto provocation.
Consideration

37.	Family disputes and disputes over the destruction of food crops and cash crops have been a longstanding issue in many communities in Papua New Guinea. For many individuals who rely on these crops for their income and livelihood, the destruction of their crops is no small or insignificant matter.

38.	While violence cannot be justified as a means of conflict resolution, a solution to a problem cannot be condoned; the impact on the offender emotionally cannot be ignored, especially in the current financial climate. 

39.	I must balance these competing factors, which is no easy task to arrive at a decision that is just.

40.	Having considered the offender's background, his allocutus, the circumstances peculiar to his case, the comparable cases which provide the sentencing trend, the aggravating and mitigating factors, I find that a sentence of 3 years imprisonment is appropriate.

41.	The offender was arrested and detained on 17 July 2024. He has been in custody for 11 months, 2 weeks and 1 day. Under the powers granted to me pursuant to s 3(2) of the Criminal Justice (Sentences) Act 1986, I deduct the period spent in custody. The offender shall serve 2 years, 1 week and 6 days.

42.	The next question is whether any part of the sentence should be suspended. 

43.	The principles regarding suspension are as follows:

•	Suspension is not an act of leniency but is in the interest of the community and to promote rehabilitation and prevent recidivism: The State v Kagai [1987] PNGLR 320.
•	Sentencing is a community response and so the views must be obtained in a pre-sentence report. Without the report, the Court cannot suspend sentence: Gima v Independent State of Papua New Guinea [2003] PGSC 3; SC730, State v Winston [2003] PNGLR 5 and Public Prosecutor v Hale [1998] SC 564.
•	Suspension pursuant to section 19 (6) of the Code should only be exercised in three broad categories, (1) promotes personal deterrence, reformation or rehabilitation of the offender, (2) encourages the repayment or restitution of stolen money or goods and (3) imprisonment would cause excessive degree of suffering, for example, because of bad physical and mental health: Public Prosecutor v Tardrew [1986] PNGLR 91.
•	The factors that were considered to lower the sentence should not be the same used to suspend sentence. It amounts to double discount in the prisoner’s favor: Public Prosecutor v Thomas Vola [1981] PNGLR 412.
•	In cases where the offence is prevalent, only in exceptional cases can the circumstance of the case override imprisonment: Public Prosecutor v Sima Kone [1979] PNGLR 294. 
•	What is exceptional in each case is infinite. Each sentencing court in the exercise of discretion makes that determination: State v Malko [2018]. PGNC 486; N7606.
•	Evidence of good character supports suspension. There must be actual evidence and not based on submissions that the offender has good character: State v Kagai [1987] PNGLR 320.
•	In violent offences, the views of the victim are important when considering suspending sentence: State v Kogen [2016] PGNC 39; N6211 and State v Wamingi [2013] PGNC 329; N5723.
•	Partial suspension pursuant to section 19 (f) of the Code should be exercised on a proper basis: Public Prosecutor v Thomas Vola [1981] PNGLR 412.
•	The procedure under section 19(f) of the Code is for the prisoner to enter into recognizance first prior to commencing the portion that the prisoner was ordered to serve: Public Prosecutor v Thomas Vola [1981] PNGLR 412.

44.	Here, the Probation Officer made attempts to obtain the victim’s view but was unsuccessful. The State did not produce a victim impact statement to assist the Court.

45.	The views of the community were obtained from Mr Vincent Gasoware. Since the State did not object to his views, I take the State's position as acquiescence to the views given by Vincent Gasoware.

46.	Mr Vincent Gasoware, a community leader from Akameku Village. He has known the offender since birth and has described him as an obedient and humble young man. He is a young leader in his community and takes part in community activities. He prioritises the welfare of his family and took the law into his own hands when he was provoked. He was sad to hear of the offender’s plight and is willing to assist the offender. He says that the offender has no prior convictions. He stated that the incident happened within the family and that they should restore relations with compensation.

47.	The views, to my mind, demonstrate that the offender is a young man who committed the offence out of character. He was otherwise a lawful and contributing member of his community and committed the offence out of character.
48.	His wife states that he is a responsible and caring father. She misses her husband. She is threatened when she goes over to his village to collect crops from the garden and needs his support.

49.	The principles of sentencing require me to consider reintegration and rehabilitation. The offender has already spent some time in custody. This, to my mind, serves the purpose of deterrence both personally to him and generally to other like-minded offenders that violence is never the solution to conflict resolution. The question now is whether he should continue to serve out his sentence. Having applied my mind to the principles on suspension and the peculiar circumstances of the offender and considering the favourable pre-sentence report, I consider suspension to be appropriate.

50.	The balance of the sentence of 2 years, 1 week and 6 days is suspended, and the offender is placed on Probation for 2 years to comply with the conditions of his probation, which include compensating the victim and being of good behaviour for the duration of the probation.

Orders

51.	The Orders of the Court are as follows:

1.	The offender is sentenced to 3 years imprisonment.
2.	Pursuant to s 3(2) of the Criminal Justice (Sentences) Act 1986 the pre-sentence custody period 11 months, 2 weeks and 1 day is deducted.
3.	The offender shall serve the balance of 2 years, 1 week and 6 days in light labour.
4.	Pursuant to s 19 of the Criminal Code and s 16 of the Probation Act, the sentence of 2 years, 1 week and 6 days is wholly suspended, and the offender is placed on Probation to comply with conditions contained in his Probation Order dated 2 July 2025.
5.	The CR file and the BA file are closed.

Lawyer the State: The Public Prosecutor
Lawyer for the offender: The Public Solicitor