The State v Nickson Pari (No 2) (2001) N2033

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 10 January 2000
• Citation: (2001) N2033
• Court: National Court
• Year: 2001
• Judgement Number: N2033

Full Title: The State v Nickson Pari (No 2) (2001) N2033

National Court: Kandakasi J

Judgment Delivered: 10 January 2000

N2033

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1376 of 2000

THE STATE

-V-

NICKSON PARI (No.2)

LAE: KANDAKASI, J.

2000: DECEMBER 5, 12, 20

2001: January 10

CRIMINAL LAW — Sentence — Unlawful grievous bodily harm — Offence committed in course of armed robbery — Guilty Plea — Pre-sentencing report considered — Code Act (Ch.262) s. 319, 18, 19.

CRIMINAL LAW — Compensation inapproprate to be ordered — Compensation relevant factor only in mitigation — Criminla Law (Compensation) Act 1991, ss. 2 — 7.

Cases cited

The State v. James Gurave Guba (unreported and unnumbered decision delivered on the 19th of December 2000 here in Lae) CR 340 and 341 of 2000

The State v. Isaac Wapuri [1994] PNGLR 27.

The State v. Ottom Masa (unreported and unnumbered judgement delivered in Lae on the 20th of December) CR 542 of 200

The State v. Margaret John (No.2) [1996] PNGLR 298

The Statev. Rex Lilu [1988-89] PNGLR 499

The State v. Abel Airi (unreported but numbered judgement delivered on 28th November 2000) N2007

Tau Jim Anis & Ors v. The State SC 642

Counsel

N. Miviri for the State

M. Mwawesi for the Defendants

DECISION ON SENTENCE

10 January, 2001

KANDAKASI, J: Following the decision in The State v. Nickson Pari (No.1), the State presented an indictment against the Defendant, this time charging him with one count of unlawfully doing grievous bodily harm contrary to s. 319 of the Criminal Code Act (Ch 262) (hereinafter the Code).

The indictment was presented on the 13th of December 2000. After taking the plea and administering the allocutus, all of, which were uneventful, I adjourned the proceedings to the 20th of December 2000 and requested a pre-sentencing report. That report was compiled and presented to the court on the 20th of December 2000. Both parties were asked to make any submissions they may wish to make if any on the report but they chose not to make any submissions on it. The Court then adjourned the proceedings to today for decision on sentence. The following is the Court's decision.

Facts

As I said in The State v. James Gurave Guba (unreported and unnumbered decision delivered on the 19th of December 2000 here in Lae) CR 340 and 341 of 2000, at pages 3 to 4 of the judgement, the Court is entitled to gather the relevant facts from the depositions. Accordingly, the facts of this case are taken out of the depositions. I will also take into account the facts presented in the pre-sentencing report.

The prisoner and his father came to Lae about three years ago while his mother is still in their home province and village Kiaru, in the Yangoru District of the East Sepik Province. They do not have a house or place of residence of their own in Lae. So they stay with their relative's from time to time. Most of the time, the prisoner stayed with his uncle at five-mile block. Neither the father nor the prisoner has any form of employment.

The prisoner is about 18 years old and dropped out of grade 6. Whilst at five-mile in Lae, he spent most of his time with drug dealers and troublemakers or criminals and has a very bad attitude. His uncle thus, became very concerned and at one time paid his ship fares to go back to his village where his mother was but the prisoner returned from Madang.

On the 7th of June 2000, at about 5:00pm, the prisoner left his uncle's house and meet up with two of his friends with intend to go and hold up and steal from a group of people who were playing cards at four mile. At that time the prisoner was armed with a home made gun and his accomplices were armed with knives. As the prisoner and his accomplices approached the group of people they intended to hold up and steal, a man saw them and notified the others. That destroyed the prisoner and his accomplices plan to hold up those who were playing cards and steal from them. The plan therefore failed. The prisoner and his accomplices thus went and waited for the person who spoiled their plan. Eventually when that man turned up where they were waiting, he was held up and K10.00 was stolen from him. Before fleeing, the prisoner shot the victim with the gun and injured him on the left arm. The victim was taken to the ANGAU Hospital where he was treated and eventually recovered.

The prisoner went to his uncle's house at five-mile straight after the incident and then fled to Bulolo, the next day. Through excellent police work, the prisoner was eventually arrested and charge for attempted murder. He was subsequently committed to stand trial before the National Court for that offence. On the 5th of December 2000 the State presented an indictment against him for attempted murder but was eventually dropped and charged under s. 319 of the Code following the decision in the judgement in The State v. Nickson Pari (No. 1).

The pre-sentencing report

The pre-sentencing report points out that the prisoner's uncle does not want to see the prisoner back at his residence and for that matter, Lae. The Community leaders at five mile also do not want to see him back there because they say he is a troublemaker. They prefer him to be sent back to his home village at his uncle's expense. It reports that K600.00 compensation has been paid to the victim by the prisoner's relatives without any contribution from the prisoner. That has facilitated good relations between the victim and the prisoner's relative, which could only be the uncle and the father in the absence of any evidence to the contrary.

The report recommends that the prisoner be given a suspended sentence of 12 months and be placed under a good behaviour bond and on terms to be supervised by the Probation Service's office at Wewak. That recommendation is made subject to the Court's sentencing powers.

I repeat what I said in The State v. Ottom Masa (unreported and unnumbered judgement I delivered in here in Lae on the 20th of December) CR 542 of 2000, that:

… a pre-sentencing report cannot substitute or dictate the kind of sentenced to be imposed in any one case. They only assist the courts in the process of assessing what kind of sentence to give in cases before them. The courts still have the power to decide on the appropriate sentence to give after having regard to all the factors that need to be taken into account, including any pre-sentencing report. If the situation were otherwise, than there would be no need for the courts to administer justice in criminal cases.

Thus, I am free to decide and impose whatever sentence I consider appropriate having regard to all the factors attending this case, including, the pre-sentencing report.

Address on sentence

The prisoner in his allocutus and again through his counsel asked for a lighter sentence to be served at Erap Boystown. Mr. Mwawesi, when asked to specify what kind of sentence he was asking the court to give his client, he submitted that anything between a few months to the maximum prescribed by s. 319 of the Code will do for his client, as long as that is not crushing on his client. He did not assist the court with any case authority on point.

In his client's mitigation, Mr. Mwawesi asked the court to take into account the fact that his client is a young first time offender. He pleaded guilty to the charge and has no prior convictions. He further submitted that, his client has expressed remorse. Furthermore, he submitted that customary compensation of K600.00 has already been paid and that the...