N11608

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR 767 OF 2025

THE STATE

V

KERENGA WAIM

WAIGANI: MIVIRI J
15, 24 OCTOBER 2025

CRIMINAL LAW – PRACTICE AND PROCEDURE – GBH S319 CCA – Plea – Hit with Stick – Broken Left Ulna & Swollen Tender right Wrist – Serious Life-Threatening Injury – No Residual Injuries – PSR No Other Alternatives Apparent – Assaulted in Home – Protection of the Home – Prevalent Offence – Deterrent Punitive Sentence – 3 years IHL.

Facts
Prisoner entered the house of the complainant armed with a stick accompanied by two others over an earlier feud with complainant. Hit him on the hands with the stick breaking the left-hand bone and injuring right wrist.

Held
Left ulna bone broken.
Right wrist swollen & tender.
Expression of Remorse.
Serious life-threatening injury.
PSR No alternative to Imprisonment
No Substantive Means Restitution
3 years IHL.

Cases cited 
Gimble v The State [1988-89] PNGLR 271 
Public Prosecutor v Hale [1998] PGSC 26; SC564
Avia Aihi v The State (No 3) [1982] PNGLR 92
Simbe v The State [1994] PNGLR 38
Golu v The State [1979] PNGLR 653
State v Irowen [2002] PGNC 99; N2239
State v Suitawa [2021] PGNC 104; N8845
State v Chris [2020] PGNC 426; N8535
State v Joshua [2022] PGNC 477; N9979
Public Prosecutor v Hale [1998] PGSC 26; SC564
Tardrew, Public Prosecutor v [1986] PNGLR 91
State v Dua [2013] PGNC 8; N4957
State v Imbol [2024] PGNC 286; N10954
State v Tokenaki [2015] PGNC 28; N5960

Counsel
L. Jack & S. Wak for the State	
F. Bomal for the defendant

SENTENCE

1.	MIVIRI J: This is the sentence after accused entered a guilty plea and was convicted that he caused grievous bodily harm upon Jonny Boi pursuant to section 319 of the Criminal Code Act.

2.	It was arraigned that he resides together with Jonny Boii at Dogura, 6 mile here in Port Moresby. On the 01st January 2025 around 6.00pm accompanied by two others, namely Apa and Angra Accused armed with a stick entered the rented premises of the complainant Jonny Boii. The latter was busy preparing dinner in the kitchen with his wife one Varvie John. Accused swung the stick twice hitting the complainant on his left arm and his right arm respectively. After that he ran away leaving him to bleed. He was taken to the 6-mile clinic where he sought medical treatment.

3.	Upon examination Xray confirmed fracture of the left Ulna with displaced alignment. He also received swollen and tender forearm decline in its function and swollen tender right wrist.

4.	Accused was convicted of section 319 which is in the following, “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.	Accused entered a guilty plea confirmed by the perusal of the depositions that were tendered of entering the rented dwelling of the complainant as he prepared his meal for the day. The home is one’s abode, whether it be a shanty at Sabama, a castle at Touaguba, it is still someone’s home. That is a basic human need, shelter from the elements after a hard day out. The complainant was no different he was intent on cooking a decent meal with his wife to eat. He was not in a battle zone weary of that fact. He was in his home rented at Dogura, six-mile Port Moresby. It is clear this court has seen protection of the home in Gimble v The State [1988-89] PNGLR 271. Sentences for armed robbery of the home has been singled out starting from seven years imprisonment. And that is further confirmed by Public Prosecutor v Hale [1998] PGSC 26; SC564 (27 August 1998). So, the actions of the prisoner are no light matter of a guilty plea by a first offender who has expressed remorse for the actions. Criminals who venture with determination and vigour without fear of the rule of law, must be shown that it is bold to breach as here without second thoughts. He is accompanied into the house with two others. What defence does and unsuspecting complainant have against given. I think not, and it is incumbent on the courts to protect the home settled by the Supreme Court above. It will be meted out in the sentence due the prisoner.

6.	The process of law is long but the reward to good life and orderliness is guaranteed. If there is a matter in law wronged by the hands of the complainant against the prisoner, this is the capital city of Papua New Guinea, there are venues for the same. Self-invitation as here into the home is the way of animal’s intent on securing food, and no human should behave in this manner. Papua New Guinea is now 50 years old; citizens must live, talk, breath, within the law. And any behaviour as here demonstrated must feel the full force of the law developed since now 50 years. Yes, it is in favour of the prisoner that he has pleaded guilty saving all in the trial of the matter. He is a first offender aged 25 years old at time of the offence now 26 at sentence. Married now with a newborn child he is originally from Mogl, Yogomu, Simbu Province. He was residing at Six-mile Dogura Port Moresby when he committed the offence. He was educated to Bima High School in Simbu Province. And at the time of the offence was employed as a Bouncer at a Pokies Place.

7.	He could be sentenced to the maximum imprisonment term of seven (7) years for the crime convicted if indeed his case suffices as the worst offence of grievous bodily harm: Avia Aihi v The State (No 3) [1982] PNGLR 92. But primary and underlying are that his own facts and circumstances will sum the proportionate sentence due him for the crime, Simbe v The State [1994] PNGLR 38. It is not a mathematically formular, but his sentence must fit the crime that he has committed, Golu v The State [1979] PNGLR 653. I do not consider and determine that his facts are as serious as seen by this court in State v Irowen [2002] PGNC 99; N2239, that drew the maximum penalty of 7 years cumulative 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. Both were undressed naked accused of adultery by the prisoner cut by bush knife almost killing both. This is extreme in my view given comparably with his facts circumstances here. So, he will no doubt be accorded a determinate term for his crime. It certainly will be varied by his guilty plea proportionate.

8.	I have been referred to State v Suitawa [2021] PGNC 104; N8845 attack with a stone to the head by a drunken who the complainant had sought to help because he was asleep on the road. I do not find that relevant because that is on a public street. This is in the home of the complainant. So, the sentence for obvious reasons will differ. But in some respects, applicable would-be State v Chris [2020] PGNC 426; N8535 it is a determined attack in the home, fracture of the jawbone because of being upended landing on the ground. Compensation was paid of K5000.00. I do not have evidence of that upfront by the prisoner. He has asked to compensate him. It is my view that compensation must be genuine and real. It is not put up to avoid the consequences of the law due. It will have real footing to lasting peace orderliness in the life of the complainant and the prisoner. I do not have material in that regard to go down that path before me. I have a self-serving view portrayed in the record of interview by the prisoner in these terms at question 22, “The injury he sustained I told him that I will sort it out with the community leaders, but he disagreed the decision made by the leaders and stated that he will appeal again. I just waited for the appeal, but he then brought a police to lock me up.”  

9.	The prisoner did not pay the complainant, so the latter sought reinforcement by bringing the matter to the police and eventually here. It means the prisoner did not owe up for the wrong that he committed upon the complainant. And it has not changed because the presentence report filed 23rd October 2025 does not contain evidence that he has the means to pay compensation for his wrong. The means assessment report also filed 23rd October 2025 does not contain material that evidence that should this court suspend sentence, the conditions for payment of compensation will be met. It is not enough to say this is what the prisoner earns including his wife, mother and father. There must be money in liquid form that can be drawn to meet the conditions for suspension. Without which it is simply a word of mouth to avoid what is due in law to him for the offence. He does not demonstrate on the balance of probabilities that he has the means upon which the sentence can be suspended. There is no proper basis demonstrated to go that path: State v Joshua [2022] PGNC 477; N9979 sealing the Supreme Court in Public Prosecutor v Hale [1998] PGSC 26; SC564. It would be erroneous without foundation laid out in the presentence report or basis in law to go via a suspended sentence. In any case the complainant does not want compensation. He has specifically pleaded for the law to take its course.

10.	The sum is that compensation is a way to avoid incarceration due and outstanding against the prisoner. He was not prepared to settle and now because he faces a prison term puts that up. It is not genuine in my view. What the law says must be fulfilled in his case given. That is not enough to go down a path of alternatives to imprisonment. The exercise under section 19 (6) of the Criminal Code for purposes of consideration of alternatives to imprisonment is based on substantive and practical matters before the court. I do not have the luxury nor the practicalities to go that way in favour of the prisoner. The complainant has made no voice in like view. So, he is acting without acceptance by him in this regard. I do not have material to follow the law set out in Tardrew, Public Prosecutor v [1986] PNGLR 91. I will suspend sentence if there are alternatives real before me. I do not have that in any way or form before me. The sum is that it will not come out in the sentence due here.

11.	Because it is the same situation observed in State v Dua [2013] PGNC 8; N4957, She was having an extra marital affair, and he reacted with a bush knife to inflict that injury to her. He demonstrated the means to be able to pay further compensation because they had children of the marriage that he would have to support as the father. That is not the situation here. Nor is it the same in State v Imbol [2024] PGNC 286; N10954 because she did not wait for a court order to make the payment of a pig valued at K 500 and K300 in cash to the victim for the wrong committed. Here no payment has been made upfront. There is really no genuineness to pay any compensation State v Tokenaki [2015] PGNC 28; N5960. There were traditional means demonstrated in the presentence report for the Court to suspend sentence on that condition. The same is not so here. There is no basis demonstrated in law to suspend sentence.

12.	 In the aggregate the sentence proportionate to the gravity of the offence is three (3) years imprisonment in hard labour. And I so impose that upon the prisoner Kerenga Waim for the crime of grievous bodily harm pursuant to section 319 of the Criminal Code. He will be refunded his bail. He will serve his time in jail forthwith. Any time in remand will be deducted forthwith. He will serve the balance in jail forthwith.

Ordered Accordingly

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