The State v Shem Tokenaki

• Jurisdiction: Papua New Guinea
• Judge: Toliken, J.
• Judgment Date: 19 February 2015
• Citation: (2015) N5960
• Court: National Court
• Year: 2015
• Judgement Number: N5960

Full : CR NO. 997 of 2013; The State v Shem Tokenaki (2015) N5960

National Court: Toliken, J.

Judgment Delivered: 19 February 2015

N5960

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 997 of 2013

THE STATE

V

SHEM TOKENAKI

Alotau: Toliken, J

2014: 16th July, 09th September, 07th November

2015: 19th February

CRIMINAL LAW – Sentence – Grievous bodily harm – Plea – Guilty – Accused and friends attack victim with sticks and knives – Victim sustained major and minor lacerations – Injuries – Not life threatening - Victim treated at local Health Centre and discharged – Mitigating and aggravating factors considered – Appropriate starting point and Head sentence considered – Suspension considered – Criminal Code Ch. 262, s 319.

Facts:

The prisoner and his friends, armed with bush knives and sticks, were on the road between Okeboma and Okuyoukopu Villages on Trobriand Island, waiting for the victim with whom they were angry over something that he had apparently done. When he arrived they attacked him with sticks and knives. The victim received three major lacerations and three minor ones to various parts of his body but none of these was life threatening. He was hospitalized at the local Health Centre and later discharged. No permanent injury or disability was diagnosed. The prisoner pleaded guilty to one count of grievous bodily harm.

Held:

(1) The starting point for the offence of causing grievous bodily harm is 3 ½ years. (State –v- Sheekiot (2011) N4454 and State –v- Konos (2010) N4157 per Cannings J. followed)

(2) Where any or all of the following aggravating factors are present then a head sentence above the starting point should be imposed:

(i) there is use of a lethal weapon such as a bush knife or axe on an unarmed victim

(ii) the offender inflicts injury on a vulnerable part of the body

(iii) the offender is part of a group

(iv) the offender inflicts multiple injuries on the victim

(v) the offender attacks the victim with a non-lethal or lethal weapon and the victim suffers permanent disability or life threatening injuries

(vi) the victim is unarmed or innocent

(vii) where there is pre-planning

(3) The prisoner’s mitigating factors are; he pleaded guilty, a first time offender, cooperated with the police, a simple inadequately educated villager, a youthful offender, remorseful and compensation had been paid.

(4) The aggravating factors are; the prisoner was in the company of no others, they attacked the victim with sticks and knives, this offence is a very prevalent one in the Milne Bay Province and there was some pre-planning.

(5) Appropriate sentence is 4 years imprisonment. The prisoner is sentenced to 4 years imprisonment less the period spent in custody.

(6) Appropriate case for suspension. Sentence is wholly suspended and prisoner is placed on 2 years probation with additional conditions that he will not participate in any group or village fights of any sort whatsoever, he will not consume any form of intoxicating liquor and will within 6 months pay compensation to the victim. The compensation shall consist of 5 large clay pots valued at K100.00 each, 8 medium clay pots valued at K50.00 each and K500.00 cash.

Cases cited:

Golu –v The State [1979] PNGLR 653

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

The Public Prosecutor –v- Done Hale (1998) SC 564

Public Prosecutor –v- Tardrew [1986] PNGLR 91

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

Golu –v The State [1979] PNGLR 653

The State –v- Mais (2014) N5838

The State –v- Sheekiot (2011) N4454

The State –v- Konos (2010) N4157

Counsel:

R Auka and H Roalakona, for the State

C Kambua, for the Prisoner

SENTENCE

19th February, 2015

1. TOLIKEN, J: On the 16th of July 2014, Shem Tokenaki you pleaded guilty to one count of unlawfully causing grievous bodily harm to Tauduya Motetum on the 18th day of January 2013 between Okeboma and Okuyoukopu village, Losuia, Milne Bay Province. This is an offence under Section 319 of the Criminal Code Ch. 262.

2. The brief facts are that on the date in question you and your friends were on the road between Okeboma and Okuyoukopu on Trobriand Island, waiting for the victim Tauduya Motetum with whom you were angry over something that he had apparently done. When Tauduya approached you and your friends you all attacked him with sticks and knives which you were armed with. Tauduya called for help and villagers came in to help him but you and your friends ran away. The State alleged that when you hit the complainant you caused him grievous bodily harm and you had no lawful excuse when you did him harm.

3. I confirmed your plea after reading the committal depositions then convicted you. I wasn’t able to administer the allocutus then because you wanted a Pre-Sentence Report (PSR). I directed the Probation Service to prepare one but since it was not convenient and possible to compile a report without travelling to the Trobriand Islands, I adjourned the matter to the September sittings of the Court. When the matter came up again before the Court on 09th September 2014 the PSR wasn’t available as the Probation Service had difficulty securing funds to travel to the Island but I nonetheless administered the allocutus and heard submissions on sentence from counsels. Your lawyer advised the Court that you still wanted the PSR so I adjourned the matter to the November sittings. I advised counsels that they were at liberty to make supplementary submissions after the PSR was filed. The PSR was finally filed and I heard supplementary submissions on the 07th of November 2014. I was, however, unable to pass sentence then so I do now.

4. Let me now turn to your personal particulars. You come from Okeboma Village, Losuia, Milne Bay Province. You were 20 years old at the time of the offence so you would be just over 21 years old now. You are an adherent of the United Church and were educated up to the 8th Grade only. You’re a first time offender. You were apprehended on 13th of May 2013 so up to the time of your conviction you had been in custody for 1 year and 3 months.

5. On allocutus this is what you said:

“My confessional statement given during my Record of Interview is the truth and nothing but the truth. I admit that I was solely responsible for the victim’s injuries. I beg this Court for mercy and pardon. I am the 1st born of 4 children in our family, my mother is very old and so as my father. I am the only one who supports the family. I asked to be sent home because we had already settled (reconciled) with the victim’s family. Police Officers witnessed the compensation and reconciliation and also the village magistrate. That is my plea.”

6. Your Lawyer Ms. Kambua submitted that your case is not serious when compared with other cases. While conceding that the victim sustained three (3) major lacerations and three (3) minor ones, he was admitted and treated at the Losuia Health centre and then discharged. She said the victim’s injuries were not life threatening though he was attacked with sticks and knives. She conceded that this was a group attack but says that the victim did not sustain any fractured bones or permanent injuries or disability.

7. Counsel cited the following factors as mitigating your offence:

· you’re a first time offender

· you pleaded guilty early

· you co-operated with the police

· you’re a simple villager who is inadequately educated

· you expressed remorse

· you are a youthful offender

· compensation has been paid.

8. Counsel conceded though that your offence is aggravated by the fact that you were in the company of others, you used knives and sticks on the victim and that this is a very prevalent offence.

9. She submitted that you are not a threat to the society and since this is your first offence you are sorry for your action and would never repeat it again. She was of the view therefore that a sentence of 2 years would be appropriate which can then be suspended with conditions.

10. The State submitted that this was a matter that ought to have been amicably settled with the victim. However, you and your friends took the law into your own hands. Counsel, Mr. Auka cited the following aggravating factors against you-

· use of knives to attack the victim

· use of excessive force

· you were in the company of others

· the victim was not armed

· this offence is prevalent

11. Mr. Auka, however, conceded that the PSR was favourable to you but called for a deterrent sentence of 3 years which can then be suspended at the Court’s discretion.

12. The PSR is favourable to you. It indicates some form of compensation was paid to the victim though no details were given. Nonetheless the author is of the view that if further compensation was ordered then it should consist of 5 large clay pots valued at K100.00 each, 8 medium clay pots at K50.00 each and cash of K100.00. This I understand is the standard compensation in your society.

13. The offence of unlawfully causing grievous bodily harm under Section 319 of the Code carries a maximum penalty of 7 years imprisonment. It is however, well established that the maximum...