The State v Lionel Gawi (2005) N2951

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 26 September 2005
• Citation: (2005) N2951
• Docket Number: CR No 1481 of 2005
• Court: National Court
• Year: 2005
• Judgement Number: N2951

Full Title: CR No 1481 of 2005; The State v Lionel Gawi (2005) N2951

National Court: Kandakasi J

Judgment Delivered: 26 September 2005

N2951

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1481 of 2005

THE STATE

-V-

LIONEL GAWI

WEWAK: KANDAKASI, J.

2005: 08th, 20th and 26th September

CRIMINAL LAW — Sentence – Grievous bodily harm with intent – Use of dangerous weapon – Group attack – Guilty plea – Prior conviction for dangerous driving causing death – Unlicensed to drive - Unsatisfactory pre-sentence report – Custodial sentence appropriate

Cases cited:

The State v. Irox Winston (13/03/03) N2347

The State v. Isaac Wapuri [1994] PNGLR 271

The State v. Philip Susuve Raepa [1994] PNGLR 459

The State v. Nickson Pari (No.2) (10/01/00) N2033

The State v. Darius Taulo (15/12/00) N2034

The State v. Rueben Irowen (24/05/02) N2239

The State v. Eddie John Naopa (24/04/03) N2411

Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000.

Counsels:

Mr. A. Kupmain for the State.

Mr. J. Mesa for the Prisoner.

DECISION ON SENTENCE

26th September 2005

KANDAKASI J: You pleaded guilty to a charge of grievous bodily harm with intent contrary to s. 315 of the Criminal Code.

The Facts

From the District Court depositions, admitted into evidence with your consent, the relevant facts are straightforward. On Friday 13th May 2005, around midday, a Noel J. Gumbat, the victim of your offence, was walking toward a Kanora’s house. At that point, you with a group of boys called him out and invited him to the Boram Beach, in front of Luke Club. The victim obliged and when he got there, you started to attack him so suddenly with a home made metal axe several times on his head.

Another young man amongst your group also attacked the victim with a piece of wood, which had nails on it. The others started to kick, punch and steal from the victim about K20.00 and other personal properties he had with him. He managed to successfully free himself from you and the rest of the members of your group and run away into the safety of his house. From there, the victim’s parents and relatives found him in blood from your beating him. They therefore, rushed him to the hospital, where he was appropriately treated and discharged. A medical report dated 17th May 2005, confirms the victim sustaining injuries to his scalp, described as a 10 – 20 cm laceration and a 1 x 1 cm cut on his hand. He appears to have recovered well with no disability.

There is a pre-sentence report form the Community Correction & Rehabilitation Services dated 8th September 2005. That report states that your mother paid K200.00 in “belkol” and your family paid a further K1,000.00 in compensation to the victims side. Documents evidencing these payments and input to the report from the victim’s side confirm the payments. They also confirm that the victim and your side are not strangers and that; relationships between the two sides, strained by your attack on the victim are now restored. In view of this, the pre-sentence report, recommends a non-custodial sentence for you so you can go back home and look after your sick father.

Allocutus and Submissions

In your address on sentence, you asked the Court to note and consider your guilty plea and being a first time offender. You also said sorry for what you have done. You then asked for probation so you could return home to look after your sick father, as you are the only male child in your family.

Your lawyer added by informing the Court that, you are a single young men aged about 19 years old. You completed grade 10 at St. Xaviers and were planning on doing grades 11 and 12 through extension work. You are in good health but with a problem with your right thumb and that you are a stutter.

In your family, there are 5 children 4 girls and one boy being yourself. Your parents are both from the Korogu Village in the Ambunti District of this Province but all of you, that is, your sisters, you and your parents live here in Wewak at the Makum Settlement. Your mother is a house wife while your father is a businessman. He buys gold, a shareholder of a gold company, and has a house in Port Moresby which is earning him K7,000.00 per month. He is otherwise sick. He had a stroke resulting in partial paralysis and is in the village.

Police arrested you on the same day of the offence and remanded you in custody. You appeared from custody when the court took your plea. You are still in custody up to this day. Hence the total period in custody for you is exactly 4 months and 12 days up to this date.

Information disclosed in the pre-sentence report reveals and you accept that, you have a prior conviction for dangerous driving causing death. You were unlicensed at the time of committing that offence. Therefore, this is not the first time you have broken the law.

Your lawyer urged the Court to take into account your guilty plea and your personal and family backgrounds as set out above and impose upon you a non-custodial sentence, without any condition. I drew your counsel’s attention to a recent decision of the Supreme Court out of its sitting in Kokopo, where the Court held that where a Court decides to suspend either the whole or part of a sentence, it must do so on conditions. That decision endorsed what I said in my judgment in The State v Irox Winston.

1 (13/03/03) N2347.

1

Having regard to these authorities, I allowed an adjournment up to 20th of this instant for additional input from the Community Correction & Rehabilitation Services. The Court required additional information in terms of what kind of things you could do for the community as a form of punishment outside the prison system, where would such work be carried out and who would supervise your performance of the work required of you and enforce any default. I also required a character reference of you to enable the Court to decide whether or not to suspend the whole or part of the sentence the Court eventually decides to impose against you.

When the matter returned before me on 20th September 2005, the Court had before it a character reference from a Pastor Francis Kuruf’her dated 10th September 2005, and some information on how previous suspended sentences were doing or serving their intended purposes. The later information is very sketchy. I am not satisfied with this information. The character reference is totally biased and highly favorable to you. It had no regard and did not reflect the fact that you got into trouble with the law before and the fact that this is not the first time you are in trouble with the law apart from the fact that you have committed the offence under consideration. I note also that, on previous such character reference, I granted bail to an offender and committed the offender under the Pastor’s care and that person appeared to have escaped. I therefore required his appearance in Court. When in Court, I tried to get him to explain your commission of the offence and the kind of character reference he provided. The pastor was not able to satisfactorily, do that.

The Offence and Sentencing Trend

Turning now to the offence and its sentencing trend, I note that s. 319 of the Criminal Code creates and prescribes the penalty for the offence of grievous bodily harm. This provision provides for a penalty not exceeding 7 years. A number of judgments have already dealt with the offence under this section before imposing a variety of sentences.

The earlier cases such as The State v. Isaac Wapuri

2 [1994] PNGLR 271.

2 and The State v. Philip Susuve Raepa

3 [1994] PNGLR 459.

3 date back some eleven years. These cases imposed sentences from a few months to 1 or 2 years. Since then the offence has not declined but has increased over the years. Sentences have therefore, started to increase to reflect the increase and prevalence of the offence.

Noting the prevalence of the offence and forming the view that past sentences appear not to be deterring other persons from committing this offence, I imposed in The State v. Nickson Pari (No.2),

4 (10/01/00) N2033.

4 a term of 4 years and suspended part of it on terms, inclusive of good behaviour bond. That was a case in which, the prisoner shot at and injured the victim on his left arm in...