The State v Isaiah Iona

• Jurisdiction: Papua New Guinea
• Judge: Anis J
• Judgment Date: 26 September 2018
• Citation: (2018) N7480
• Court: National Court
• Year: 2018
• Judgement Number: N7480

Full : CR No 463 of 2018; The State v Isaiah Iona (2018) N7480

National Court: Anis J

Judgment Delivered: 26 September 2018

N7480

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 463 OF 2018

THE STATE

V

ISAIAH IONA

Kokopo: Anis J

2018: 5 & 26 September

CRIMINAL LAW – Sentencing – guilty after trial on verdict – crime of grievous bodily harm – section 319 of the Criminal Code Act Chapter No. 262 – appropriate sentence

Facts

The prisoner resided in a village called Mioko Palpal in the Duke of York Islands of East New Britain. He was found guilty of the offence grievous bodily harm contrary to section 319 of the Criminal Code Act Chapter No 262. This was his hearing on sentence.

Held

1. The offence committed was serious and life threatening which warranted a higher sentence.

2. The prisoner was sentenced to 4 and half years in light labour less the time spent in custody prior to sentence.

3. A request for suspended sentence based on a prisoner’s willingness and ability to conduct reconciliation and pay compensation, may be permitted if there is evidence or information of willingness by the victim or his family to participate or accept.

[Case followed: State v. Joe Ngotngot & Eremas Matiul (2016) N6364]

4. There was no evidence or information which showed acceptance by the victim or his family regarding the intention of the prisoner to reconcile and make compensation payment, therefore no discretion was exercised to impose any suspended sentence or probation orders.

5. Conditions have been imposed to address the possible medical conditions of the prisoner which shall be observed by the Correctional Service.

Cases cited:

State v. Isaiah Iona (2018) N7391

State v. Kopiwan Pupuni (1998) N1709

State v. John Snake Stalus (2017) N6927

State v. Joe Ngotngot & Eremas Matiul (2016) N6364

Counsel:

Ms J. Batil, for the State

Ms J. Ainui, for the Prisoner

SENTENCE

26th September, 2018

1. ANIS J: The sentence hearing began at 9:30am on 4 September 2018. Allocatus was administered, followed by presentation of submissions. I reserved my ruling thereafter to a date to be advised.

2. I rule on it now.

BACKGROUND

3. For details of the relevant facts, I would refer to my earlier decision on verdict where I set out the indictment and the facts supporting the indictment. It was published on 25 July 2018 with the reference, State v. Isaiah Iona (2018) N7391.

4. But briefly, the prisoner was found guilty after a trial, for the offence grievous bodily harm, under section 319 of the Criminal Code Act Chapter No. 262 (CC Act). The Court found that he, on 31 December 2017 at Mioko Palpal village in the Duke of York Islands of East New Britain, assaulted his cousin Paul Ezekia (victim), that is, he threw a piece of brick on his forehead and injured him.

ISSUES

5. The issues are, (i) what would be the appropriate sentence for the prisoner, and (ii) should suspended sentence be permitted and should the prisoner be released on probation?

PRESCRIBED PENALTY

6. Section 319 of the CC Act states that a person found guilty of the offence grievous bodily harm shall be imprisoned for a term not exceeding seven (7) years. The prisoner in this case is liable to be sentenced to a maximum prison term of 7 years. That said, I note that section 19 of the CC Act gives the Court a wide discretion. I make particular reference to section 19(1)(a) and (b) which states, and I read in part,

(a) a person liable to imprisonment for life or for any other period, may be sentenced to imprisonment for any shorter term; and

(b) a person liable to imprisonment may be sentenced to pay a fine not exceeding K2,000.00 in addition to, or instead of, imprisonment; and

…..

VICTIM

7. There is no information put before me about the victim and his family. The probation officer who prepared the two (2) reports, namely, the pre-sentence report and the means assessment report, for the prisoner, did not interview the victim or any of his family members. It is however stated in the pre-sentence report that the victim was given an opportunity to appear for an interview with the probation officer, but he never came forward.

THE PRISONER

8. The prisoner is a first-time offender.

9. He is 30 years old. He comes from Mioko Palpal village in the Duke of York Islands of East New Britain. Both his parents are alive, and the prisoner, prior to committing the offence, resided with them at their village. The prisoner had been married but is presently single. He had two (2) children from his past marriage. The children left with their mother presumably since their separation.

10. The prisoner has no formal educational back-ground. He is illiterate and can only speak pidgin and his local dialect. He has never been engaged in any formal employment. He regards himself as a fisherman and a subsistence farmer.

11. The prisoner is reported to suffer some form of injury to his testicles (swollen testis). He is also reported to suffer injury to his abdomen and back. I note that there is no cogent evidence to prove these claims. That said, at the trial, the Court was presented with a referral letter dated 3 November 2017 from a health centre called Vatnabara Health Sub-Centre. The letter was tendered and was marked as Exhibit D1. In my view, although not absolute, the referral letter tends to support the prisoner’s medical condition claims as alleged, namely, alleged swollen testis and abdominal and back pains. I must add that there is no updated medical report other than the said exhibit.

ALLOCATUS

12. The prisoner said these at allocatus. He said sorry to the Court and asked that the Court should have mercy on him. He said that if the Court can release him, he would go back and pay compensation for what he has done.

MITIGATING/AGGRAVATING FACTORS

13. I note the submissions from both counsel on mitigating and aggravating factors which they said the Court should take into account, when sentencing.

14. I summarise them as follows. For mitigation, they are, (i), the prisoner is a first-time offender and (ii), the prisoner has shown remorse to the Court. As for the aggravating factors, they are, (i), use of dangerous weapon, that is, a piece of brick, (ii), the attack was aimed at the head which is a vulnerable part of the body, (iii), the victim suffered a life-threatening injury, that is, a fractured skull, and (iv), the victim has a permanent disfigurement on his face.

15. I note a purported aggravating factor submitted by the prosecution, that is, and I read, The prisoner denied assaulting the victim thus a trial was conducted, wasting the Court’s and the parties’ time and resources. In the case of State v. Misiru Inabin (2018) N7374, I stated at paragraph 15 of my judgment, and I read in part:

I think we should be reminded that the fundament rights of accused persons are protected under the Constitution. In my view, for a person to plead “not guilty” is his or her fundamental right, that is, the right be presumed innocent until proven guilty, and also the right to a fair trial (see section 37 generally and in particular sub-sections (1) & (4)(a) & (e) of the Constitution). So can the Court later be asked to hold an accused person accountable because the accused person had exercised his or her fundamental right and had pleaded not-guilty but that he or she was later found to be guilty? I do not think so. It would be most unfair and also I think that it would be against the spirit of the Constitution. Now, having said that, I note that it would be different, in my view, in a case where an accused person has pleaded guilty or in a plea case. Considerations such as avoiding wastage of resources or the Court’s time or saving the victim from having to relive or retell the ordeal at the trial, would be appropriately regarded as valid or relevant mitigating factors.

16. I adopt these views herein. With that, I disregard the factor, The prisoner denied assaulting the victim thus a trial was conducted, wasting the Court’s and the parties’ time and resources, as a relevant aggravating factor that I should take into account to assess an appropriate sentence for the prisoner.

17. The prosecution also puts down this factor, offence is prevalent in the society, as another aggravating factor. This claim, in my view, was not sufficiently explained by counsel in her submission. For example, no case authorities or examples were given to justify this. I find no materials at hand to assist me, so I will dismiss or refrain from regarding the claim the offence is prevalent in the society, as a relevant aggravating factor.

18. In summary, I note that the aggravating factors outweigh the mitigating factors.

PROSECUTION

19. The prosecution submits these. It says that the case does not fit into the category of worst type of cases for the offence grievous bodily harm under section 319 of the CC Act. It however says that, considering the aggravating factors, the Court should impose a strong punitive and deterrent sentence upon the prisoner.

20. The prosecution also submits that the appropriate sentence range for the case should be...