The State v David Saun (2003) N2409

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 02 May 2003
• Citation: [2003] PNGLR 198
• Court: National Court
• Year: 2003
• Judgement Number: N2409

Full Title: The State v David Saun (2003) N2409

National Court: Kandakasi J

Judgment Delivered: 2 May 2003

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 541 of 2001

THE STATE

-V-

DAVID SAUN

WEWAK: KANDAKASI, J.

2003: 23rd April

2nd May

CRIMINAL LAW – Compensation – Compensation only relevant for mitigation purposes and does not excuse criminal liability or penalty –Evidence of compensation already paid – Prepared to pay further compensation - Means assessment necessary before making any orders for compensation – Means assessment report disclosing prisoner not personally having any means to pay but has ability to borrow and meet any orders for additional compensation – Compensation ordered conditional upon prisoner repaying by provision of supervised free labour.

CRIMINAL LAW - Sentence – Grievous bodily harm out of a drunken brawl – Prisoner attacked in retaliation - Victim rendered 30% permanently disabled one of the victim’s eye - Guilty plea – No prior convictions – Customary compensation paid –Expression of remorse in Court –Probation report recommending compensation only - Sentence of 5 years part suspended imposed – Criminal Code ss. 19 and 319.

Cases cited:

The State v. Abel Airi (28/11/00) N2007.

The State v. Isaac Wapuri [1994] PNGLR 271.

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

The State v. Apa Kuman (20/12/00) N2047.

The State v. Nickson Pari (N0.2) (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 Henry Idab (17/12/01) N2172.

The State v. Eddie John Naopa CR 1593 of 2001 (Unreported and yet to be numbered) 24th April 2003.

Counsels:

Mr. M. Ruari for the State

Mr. G. Korei for the Prisoner

2nd of May 2003

KANDAKASI J: You pleaded guilty to one charge of causing grievous bodily harm to another person, Titus Wrahambu at Maprik High School on 13th of April 2000 contrary to s.319 of the Criminal Code. Upon being satisfied that there was sufficient evidence supporting your guilty plea, I accepted your guilty plea and had you convicted of the charge.

Relevant Facts

The relevant facts are not in dispute. You were at the house of the then Headmaster of the Maprik High School on 13th of April 2000 at about 9.00 pm. There were teachers of the High School and other people. That was on an occasion of fundraising. One of the activities undertaken was the playing of a game of dart at K1.00 per play for a bottle of beer for the highest scorer. The victim, Mr. Wrahambu turned up late and whilst at the fundraising, he consumed some alcoholic drinks at a faster rate. He then started some arguments with you and a Mr. Waffi and started a fight with him. This then developed into a fight between you, Mr. Waffi and a Momba on one side and the victim with a Mr. Dingu on the other side. In the fight, Mr. Dingu used a broken piece of exhaust pipe to attack and you sustained a deep wound injury to your left side. Mr. Dingu and the victim tried to attack you with the same object and you avoided it. At the same time Momba came to your help by going for Mr. Dingu. You therefore picked up a piece of swan timber and threw it at your attackers. That caused the victim to fall on his back hurting his head from the back.

The victim was rendered unconscious momentarily. You and the others poured water on him and regained his consciousness. The victim was eventually admitted to the hospital and was appropriately treated. He recovered but with an estimated 30% residual disability. You claimed to have paid about K5,000.00 in compensation to the victim.

A decision on sentence was therefore adjourned to allow for a pre-sentence report at your request. The report confirmed your claim of having paid K5,000.00 in compensation with the help of some of your friends and your wife. There was, however, no evidence of the amounts paid and received by the victim. The Court considered it necessary for you to produce evidence of the payment of compensation and that you take some real steps toward repayment of the assistance you received from your friends and your wife because you are personally responsible for your own criminal conduct. I therefore deferred a decision on your sentence and allowed you to remain outside on bail on some strict terms and directions for you to undertake some activities to address your drinking problem and to take steps toward repaying what you had borrowed from your friends and your wife.

I am now in receipt of further evidence confirming the payment of the compensation. The further evidence also confirms you taking some meaningful steps toward raising the funds required to reimburse the assistance you received from your friends and your wife to meet the compensation payments. Furthermore, there is no evidence before me of you having taken steps to get away from your drinking problem.

The Offence and Sentencing Trend

You have been charged under s. 319 of the Criminal Code. That section creates the offence of grievous bodily harm and directs that anyone who does such harm to another must be punished by imprisoned to a term not exceeding 7 years. A number of judgements have already dealt with offences under this section before imposing a variety of sentences. This, I believe has been the case because as I said in The State v. Abel Airi (28/11/00) N2007, the exercising of the sentencing discretion in a sentencing judge is not a matter of mathematics. Instead, it requires an exercise of judicial discretion in such a way to do justice in the circumstances of a particular case by reason of which there might well be differences of sentences.

In The State v. Isaac Wapuri [1994] PNGLR 271, a sentence of 18 months in hard labour with 5 months deducted on account of time spent in custody was given. The balance of the sentence was suspended on condition of good behaviour bond and compensation of K500 cash and pigs to the value of K800 in accordance with the victim and the offender’s custom.

That was a case in which the prisoner hit his sister-in-law with a vehicle hand brake cable on one of her eyes resulting in a 90% residual disability. This was supposedly after the victim failed to get the prisoner to have sexual intercourse with him and she scattered all of his clothes all over the place. The prisoner thought that was in retaliation for his refusal and so he reacted in the way he did.

In another case, The State v. Philip Susuve Raepa [1994] PNGLR 459, the victim was rendered brain damage out of a drunken brawl and after a skull operation to remove internal bleeding. The Court ordered K5,000 compensation and placed the prisoner on good behaviour bond on his own recognizance with a surety of K300.00 with judgement being deferred to future sittings of the Court and for the prisoner to abstain from alcoholic drinks for 12 months until further orders.

Later, in The State v. Apa Kuman (20/12/00) N2047, a sentence of 3 years imprisonment was imposed. The prisoner after having raped the victim, cut her across her stomach to prevent her from calling out for help. That caused substantial damage to her left and right lobes, which bled profusely into the abdomen. Quick admission to the hospital prevented further bleeding and saved her from death due to loss of blood. The prisoner was a young first time offender.

On my part, in The State v. Nickson Pari (N0.2) (10/01/00) N2033, I imposed 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 the course of and in furtherance of an armed robbery. He was also a first time young offender.

At about the same time in The State v. Darius Taulo (15/12/00) N2034, I imposed a wholly suspended 3 years sentence on strict terms as an alternative form of punishment outside the prison system. That was in the face of genuine remorse being expressed coupled with compensation already paid for by the prisoner himself, a preparedness to undergo his wife’s (the victim’s) traditional form of compensation and restoring the relationship and a willingness to truly change his ways under supervision. I was also persuaded to arrive at that sentence because the victim preferred...