The State v Balthazar Basan & Herman Sarea (2012) N4896

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 20 November 2012
• Court: National Court
• Citation: (2012) N4896
• Docket Number: CR NOS 452 & 453 of 2011
• Year: 2012
• Judgement Number: N4896

Full Title: CR NOS 452 & 453 of 2011; The State v Balthazar Basan & Herman Sarea (2012) N4896

National Court: Cannings J

Judgment Delivered: 20 November 2012

N4896

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 452 & 453 0F 2011

THE STATE

V

BALTHAZAR BASAN & HERMAN SAREA

Madang: Cannings J

2012: 23 October, 12, 20 November

CRIMINAL LAW – sentence – grievous bodily harm – Criminal Code, Section 319 – guilty pleas – offenders cut victim with bush knives – group attack – sentence of 4 years each.

CRIMINAL LAW – sentencing – request by victim for compensation – distinction between compensation order under Criminal Law (Compensation) Act and imposition of condition for payment of damages or compensation as part of probation order under Probation Act Chapter No 381 – whether order for compensation can exceed K5,000.00.

Two young men pleaded guilty to unlawfully doing grievous bodily harm to another young man, a relative, in a village setting, inflicting multiple wounds with a bushknife. It was a group attack, the victim being outnumbered five to one. He was admitted to hospital for six weeks and two of his toes were amputated. His attitude was that he would prefer to receive compensation than see the offenders imprisoned. He requested K15,000.00. The defence counsel submitted that the Court lacked the power to order compensation of that amount as the Criminal Law (Compensation) Act 1991 imposed a limit of K5,000.00. This is the judgment on sentence.

Held:

(1) The maximum sentence under Section 319 of the Criminal Code is seven years imprisonment and an appropriate starting point is three and a half years.

(2) Mitigating factors: moderate amount of de facto provocation; spontaneous, one-off incident; pleaded guilty; expressed remorse; preparedness to reconcile with and compensate victim; victim’s positive attitude; no prior convictions; good pre-sentence reports.

(3) Aggravating factors: use of lethal weapons; group attack; multiple injuries to vulnerable parts of body; victim’s permanent disability.

(4) A sentence of four years was imposed, fully suspended in view of favourable pre-sentence reports and the victim’s attitude.

(5) In setting conditions of a probation order under the Probation Act, the Court is not constrained by the monetary limit of K5,000.00 imposed on compensation orders under the Criminal Law (Compensation) Act.

(6) Various conditions were attached to the probation order including an order that the offenders pay a total of K6,000.00 cash + two pigs + foodstuff to the victim within six months of sentence.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890

The State v Bill Kara (2012) N4663

The State v Justin Ipa (2008) N3439

The State v Ray Sheekiot (2011) N4454

SENTENCE

This was a judgment on sentence for grievous bodily harm.

Counsel

M Pil, for the State

B Meten, for the offenders

20 November, 2012

1. CANNINGS J: Balthazar Basan and Herman Sarea pleaded guilty to unlawfully doing grievous bodily harm to their relative, Mathew Sod, and have been convicted of that offence under Section 319 of the Criminal Code. The incident occurred at Dumusek near Kananam village where the offenders and the victim live in the North Ambenob area of Madang District, Madang Province, on Friday 10 December 2010. At 3.00 pm Mathew Sod was walking home after a graduation ceremony at the nearby Alexishafen School when he heard that his younger brother had for some reason been assaulted by a group of young men. He approached the men who were said to have assaulted his brother to find out the cause of the problem. They responded by threatening him with bushknives and sticks. Mathew Sod was outnumbered. There were five in the group, including Balthazar Basan and Herman Sarea, and Mathew Sod was by himself. Sod made a run for it but tripped and fell and then Basan and Sarea with the others set upon him while he was on the ground, injuring him seriously. Sod’s brother came to the rescue and assisted him to the beachfront and found a dinghy that rushed him across the bay to Alexishafen Health Centre. From there he was driven to Modilon General Hospital.

2. A report by Dr G Kune, Surgical Registrar, states that Mathew Sod presented with multiple knife wounds to the scalp, little index finger and foot. He was slightly pale due to blood loss. He had two deep lacerations, 4 cm and 6 cm in length, to the parietal area of the scalp. He had a compound fracture of the left index finger with the proximal phalange exposed. The fourth and fifth toes on the left foot were almost severed. The second and third toes were fractured. There were also metatarsal and proximal phalange fractures of the left foot. Three days after admission the fourth and fifth toes became infected and gangrenous and were amputated. He remained in hospital for six weeks undergoing treatment.

ANTECEDENTS

3. Neither offender has any prior conviction.

ALLOCUTUS

4. Each offender was given the opportunity to say what matters the court should take into account when deciding on punishment:

Balthazar Basan: I apologise to the victim and to the police and to the court. I would not have committed the offence without provocation. I ask for the mercy of the court so that I can solve this problem outside court.

Herman Sarea: I apologise for what happened. I ask for mercy and a non-custodial sentence so that I can go back to the village and solve the problem there.

OTHER MATTERS OF FACT

5. As the offenders have pleaded guilty they will be given the benefit of reasonable doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). Balthazar Basan in his statement on allocutus spoke generally of provocation. This is consistent with a claim made in his record of interview. It appears that the incident was fuelled by alcohol on both sides and that insulting and inciting words were used against the offenders before they became angered and attacked the victim. This does not excuse what they did but as they have pleaded guilty it will be taken into account as a moderate mitigating factor that there was an element of de facto provocation.

PRE-SENTENCE REPORTS

6. A report on each offender was prepared by the Community Correction and Rehabilitation Service to assess their suitability for probation. Both offenders are from Kananam and live in the village. Balthazar Basan is 28 years old and is a single parent of one child. Herman Sarea is 22 years old and is married with one child. Balthazar Basan has a grade 9 education and Herman Sarea has a grade 10 education. Their parents are alive and also live in the village. The offenders’ health is sound. Their financial positions are similar. Neither is employed and they earn moderate cash income from the sale of fish and produce at the local market. They are actively involved in local Catholic Church activities. They want to reconcile with the victim and the victim and his father (who were both interviewed) also want to reconcile. There is no persisting animosity between the parties and the prospects for long-term peace are good. The victim and his family would prefer to receive compensation instead of seeing the offenders go to jail. The amount sought is K15,000.00. Both offenders are suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

7. Mr Meten, while acknowledging that the use of bushknives made it a serious matter, highlighted the guilty plea, the lack of prior convictions and the fact that it was a one-off incident. Comparing this case with others in which the parties had reconciled or made progress towards reconciliation and compensation a sentence of no more than three years imprisonment, fully suspended, should be imposed. The conditions of the suspended sentence should include an order for compensation for a total amount of no more than K5,000.00 in view of the monetary limit imposed by the Criminal Law (Compensation) Act 1991.

SUBMISSIONS BY THE STATE

8. Mr Pil submitted that the case had many aggravating features: it was a group attack involving dangerous weapons and there were multiple wounds inflicted including head injuries. Had it not been for the intervention of the victim’s brother the injuries are likely to have been much worse. A deterrent sentence of no less than four years, part only of which should be considered for suspension, was sought by the State.

DECISION MAKING PROCESS

9. To determine the appropriate penalty the following decision making process will be used:

· step 1: what is the maximum penalty?

· step 2: what is a proper starting point?

· step 3: what sentences have been imposed for equivalent offences?

· step 4: what is the head sentence?

· step 5: should the pre-sentence period in custody be deducted?

· step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

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