The State v Nicky Lawasi

• Jurisdiction: Papua New Guinea
• Judge: Toliken, J.
• Judgment Date: 20 February 2015
• Citation: (2015) N5964
• Court: National Court
• Year: 2015
• Judgement Number: N5964

Full : CR NO. 22 of 2014; The State v Nicky Lawasi (2015) N5964

National Court: Toliken, J.

Judgment Delivered: 20 February 2015

N5964

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 22 of 2014

THE STATE

-V-

NICKY LAWASI

Defendant

Alotau: Toliken, J.

2015: 03rd, 20th February

CRIMINAL LAW – Sentence – Grievous bodily harm – Guilty plea – Prisoner attacks victim with dry stick rendering him unconscious – Mitigating and Aggravating factors considered – Appropriate sentence – Whether to suspended – Criminal Code Ch. 262, s 319.

Facts:

The prisoner and his cousin brother and the victim who were all drunk, were returning from a dance when the prisoner’s cousin and the victim got into an argument. Fearing for his cousin brother’s safety who was smaller than the victim, the prisoner picked up a dry stick from the side of the road and hit the victim on the head rendering him unconscious. The prisoner stopped a motor vehicle and took the victim to the hospital and then surrendered to the police.

Held:

(1) The starting point for the offence of grievous bodily harm under Section 319 of the Criminal Code should be 3 ½ years. (The State –v- Sheekiot [2011] PGNC 165; N4454 (22 November 2011); The State –v- Konos (2010) N4157 (12 November 2010) per Cannings J. followed)

(2) Mitigating factors are; guilty plea, early surrender and cooperation with police, no prior convictions, previous good character and expression of genuine remorse, non-legal provocation and willingness to pay compensation to the victim.

(3) Aggravating factors are; under influence of liquor, use of offensive weapon and prevalence of offence.

(4) Mitigating factors slightly outweigh aggravating factors hence in the circumstances an appropriate head sentence shall be 2 ½ years. Prisoner is sentenced to 2 ½ years in hard labour less time in custody.

(5) Appropriate case for suspension of sentence. Sentence is wholly suspended with following conditions:

(i) Payment of K4000 compensation to victim within 8 months from today.

(ii) Customary reconciliation with victim and his family and relatives within 8 months. Such reconciliation shall be witnessed by the Provincial Probation Officer here in Alotau.

(iii) Prisoner to refrain from consuming, making or selling all forms of intoxicating liquor including illicit spirits or jungle juice.

(iv) Prisoner is restrained from attending any social dances whether at Ahioma village or anywhere else in the province.

(v) Prisoner to perform 100 hours of unpaid community work for the Ahioma Kwato Church and the local Primary School under the supervision of the Provincial Probation Officer in collaboration with local Pastor and Village Magistrate.

Cases Cited:

Golu Golu –v- The State [1979] PNGLR 653

Avia Aihi –v- The State (No.3) [1982] PNGLR 92

Public Prosecutor –v- Don Hale [1998] PGSC26; SC564 (27 August 1998)

The State –v- Konos (2010) N4157 (12 November 2010)

The State –v- Mann [2009] PGNC 217, N4028 (23 April 2009)

The State –v Kaminga [2011] PGNC 69; N4329 (21 June 2011)

The State –v- Sheekiot [2011] PGNC 165; N4454 (22 November 2011

The State –v- Rummits [2012] PGNC275, N4900 (21 November 2012)

The State –v- Modoreta Anataula, CR NO.568 of 2012 (unreported and numbered judgment 24th of October 2013)

The State –v- Augustine [2014] PGNC 175, N5787 (22 August 2014)

The State –v- Boala [2013] PGNC 180, N5369 (25th September 2013)

The State –v- Mais [2014] PGNC 196; N5838 (13 December 2014)

Counsel

H. Roalakona, for the State

C. Kambua, for the State

SENTENCE

20th February, 2015

1. TOLIKEN, J: Nicky Lawasi, on the 3rd of February 2015 you pleaded guilty to one count of causing grievous bodily harm (GBH) to one Bobby Iairo on the 19th day of May 2013 at Ahioma village, Alotau, Milne Bay Province. This is an offence under section 319 of the Criminal Code (the Code) which carries a penalty of a term of imprisonment not exceeding 7 years.

2. You admitted the following facts and these are the facts I am going to sentence you on. On the 19th of May 2013 at about 6.00am you and your cousin brother Reuben Wiki and the victim Bobby Iairo were returning from a dance at Kaloi village. You were all drunk. And as you were walking home an argument arose between your cousin and the victim. Because the victim was bigger than your cousin Rueben, you were afraid that he might hurt Reuben so you picked up a dry stick from the side of the road and hit the victim on his head causing him to fall down unconscious. Seeing this you assisted the victim by stopping a vehicle and you took him to the Alotau General Hospital. Later you then turned yourself into the police.

3. As I indicated, this offence carries a maximum penalty of 7 years imprisonment. However, the maximum penalty is always reserved for the worst instances of a particular offence. (Golu Golu –v- The State [1979] PNGLR 653) The actual sentence in a particular case will also depend on the particular circumstances of each case (Avia Aihi –v- The State (No.3) [1982] PNGLR 92).

4. My task then is to determine an appropriate sentence for you. And this means that I have to decide whether the circumstances of your case are such that they must attract the imposition of the maximum penalty or not.

5. When asked to address the Court on sentence you said that you knew that you had broken the law and that was why you voluntarily surrendered to the police almost immediately. You apologised to the victim for causing him grievous bodily harm. You also apologised for breaking the law and pleaded for mercy.

6. Your lawyer Ms. Kambua submitted that the circumstances of your offence should warrant a sentence of between 1-2 years only. And this is because of your early guilty plea, you are a first time offender, you co-operated with the police, your very low level of education, you were of previous good character and that there was some provocation in the non-legal sense. She, however, acknowledged that this offence is very prevalent.

7. Ms. Kambua submitted that the period you spent in custody prior to conviction – 1 year and 2 days – should be deducted from your head sentence and the balance should then be suspended and that you be placed on probation supervision because probation is supported by your Pre-Sentence Report (PSR).

8. For the State Ms. Roalakona acknowledged your mitigating factors and the fact that you have reconciled with the victim but submitted that there are aggravating factor against you. These are that you were drunk when you committed the offence, the victim had to be hospitalised, you attacked the victim with an offensive weapon and that this offence is a very prevalent one.

9. Ms. Roalakona called for a sentence that will deter you personally and others as well. She suggested therefore that an appropriate sentence for you should be 3 years relying on The State –v- Konos (2010) N4157 (12 November 2010) where it was held by Canning J. that the starting point for GBH should be 3½ years.

10. Both counsel referred me to previous sentences of this court in similar cases which they said could assist me in arriving at an appropriate sentence for you.

11. At your request a Pre-Sentence Report had also been filed. The Report is very much in your favour. It reveals that you and your family intend to reconcile with the victim and his family. Your have offered to pay him K2441.00 compensation in cash and kind. The victim’s family on the other hand wants cash compensation of K5000.00 saying that they spent well over K4000.00 during the victim’s period of hospitalization. There is community support for probation supervision. The Ahioma Kwato Church pastor, Pastor Lucas Gabia and Village Court Magistrate Mrs. Edna Gabia have offered to supervise you and give you counselling services.

12. The Report therefore recommends that you be placed on probation with additional conditions for compensation, community work, orders restraining you from consuming, buying and selling of all forms of alcohol and marijuana and that you be prevented from attending nightclubs and social dancing at Ahioma.

13. So is your case such a worst case that should attract the maximum penalty of 7 years imprisonment? I must say that it is not but it is serious enough to warrant a penalty some around the mid-range when the matter is objectively considered.

14. The offence of causing GBH is a very prevalent offence not only here in the Milne Bay Province but right across the country. Countless numbers of people continue to be injured and even maimed. Assailants continue to occasion harm grievous bodily harm on others with total disregard for the safety of their victims. While some have survived, many others have unfortunately succumbed to their injuries.

15. The courts therefore have a duty to impose sentences that will hopefully deter an individual offender from re-offending but others as well. The courts have also a duty to protect the society by ensuring that serious culpability is met with similarly stiff penalties because in a modern democratic society individuals should not be allowed to want only attack and...