The State v Paino Auduwa

• Jurisdiction: Papua New Guinea
• Judge: Toliken, AJ
• Judgment Date: 07 December 2012
• Docket Number: CR 520 OF 2011
• Citation: (2012) N5169
• Court: National Court
• Year: 2012
• Judgement Number: N5169

Full Title: CR 520 OF 2011; The State v Paino Auduwa (2012) N5169

National Court: Toliken, AJ

Judgment Delivered: 7 December 2012

N5169

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 520 OF 2011

THE STATE

V

PAINO AUDUWA

Kimbe: Toliken, AJ

2012: 05th, 7th December

CRIMINAL LAW – Sentence – Causing grievous bodily harm – Plea of guilty – First time offender – Non-legal provocation - Expression of Remorse – No payment of Compensation – No Reconciliation – Offer for compensation and Reconciliation – Vicious attack – Use of bush knife – Fractured ankle – Permanent injury – Loss of almost 100% use of ankle – Victim unable to walk long distances - Adverse effect on victim’s ability to care for himself and family – Near worst offence – Need for deterrent sentence – Head sentence of 5 years – Criminal Code Ch. 262, s 319.

CRIMINAL LAW – Whether to suspended sentence or part of it – Suspension appropriate where reconciliation and restoration of damaged relationships can be achieved - Court has a duty to ensure that its decisions on sentences contribute to the general peace and harmony in communities in which parties to criminal prosecutions live – Partial suspension of 3 years from sentence on conditions – Compensation of K5000 and customary reconciliation ordered – Good behaviour on own recognizance – Criminal Law (Compensation) Act 1991.

Cases cited in this judgement:

The Public Prosecutor v Bruce William Tardew (1986) PNGLR 91

(Allan Peter Utieng v The State (2000) SCR 15 of 2000 Un-numbered and Unreported Judgment (23 November 2000).

The State v Ria Bernard CR 374/2005, (20 May 2005)

The State v Rodney Gela and Clarence Logi CR 1300 & CR 1301 of 2005 (27.10.05)

The State v Bob Ananias CR 1413 of 2003, CR 1414 of 2003 (unreported and un-numbered) ( 20 April 2006)

The State v Steven Moni & Ors [2006] PGNC 109; CR 293-297 OF 2004 (19th December 2006)

The State v Lawrence Mattau (2008) N3865

The State vMann (2009) N4028 (23 April 2009)

The State v Robert (2009) N3629 (19 May 2009)

The State v Fedelis Kiatni (2011) N4331 (20 June 2011)

The State v Ereman Guauru CR. 458 of 2012 (Unreported and Un-numbered judgment)

Counsel:

F. Popeu, for the State

PM. Paraka, for the Prisoner

JUDGMENT ON SENTENCE

07th December, 2011

1. TOLIKEN, AJ: Paino Auduwa, on the 5th of December 2012, you pleaded guilty to one count of causing grievous bodily harm to one Usake Mahite on the 13th of March 2011. You were charged under Section 319 of the Criminal Code Act Ch. 262 (the Code).

2. I confirmed your plea and convicted you after I had perused the evidence on the committal dispositions, satisfying myself that the evidence supported the charge and your plea.

BRIEF FACTS

3. The brief facts which you admitted and on which I am about to sentence you are as follows:

4. On the 13th of March 2011 at around 7.30pm you and your wife were at the Galai 1 Community Centre when the complainant walked past. The complainant and your wife exchanged a few words and this resulted in an argument between them. You got angry, took out your bush knife and you cut the complainant on his left leg. The complainant was taken to the hospital. This was the second incident involving you and the complainant, the first one being in the previous month, February 2011.

5. For a fuller appreciation of the injuries suffered by the complainant and the effects of such injuries, it is instructive to reproduce the relevant parts of the Medical Report dated Friday 30th of April 2011 by Dr. Peter Yama. I do so below:

Friday 30th April 2011

TO WHOM IT MAY CONCERN

Dear Sir

REF: MEDICAL REPORT: MEDICAL REPORT MR . SAKI MAHITE – M/A

Mr. Saki Enoch [Mahite] was assaulted by another person on the 13th March 2011.

He was chopped on the left ankle with a bush knife thereby resulting in a fractured lower leg and unable to walk.

He was admitted to the Kimbe General Hospital on 13/03/2011 and treated for his wound. An X-ray done revealed a fractured ankle and the knife wound through and through and the anterior skin tag holding on the distal segment.

He was taken to the operating theatre and the wound described and ankle immobilized until POP.

He was treated and discharged on the 24/04/2011.

Clinically the use of his left ankle is lost by almost 100%. Even though he recovers from his wounds he will never recover completely from his ankle injury. He has sustained a permanent injury therefore he will not be able to run or walk long distances for the rest of his life.

As a result of his injury, his performance to look after himself and his family in finding food and income will greatly be reduced.

I therefore recommend that he be compensated appropriately.

Yours faithfully

Dr. Peter Yama MBBS (UPNG), Cert. PTC MMED candidate 2011

(Surgeon)

6. The brief facts put to you by the Prosecutor did not disclose why you assaulted the Complainant. However, my perusal of the committal depositions revealed that the complainant had obviously made some disparaging remarks against your Church - the PNG Revival Church - to your wife. This angered you. You lost your temper and did what you did.

7. It is also clear from the depositions that you and your wife had a previous fight with the complainant on the 19th February 2011.

ANTECEDENTS

8. You are 26 years old, married but have no children. You are the second born in a family of five (5) siblings. Your parents are dead and you are caring for your two younger siblings. You were educated up to Grad 9 only and are employed by Isan Construction Ltd as a carpenter. You are member of the PNG Revival Church. You have no previous conviction.

ALLOCUTUS

9. In your address to the Court on sentence you apologised to the Court, to God and to the complainant. You also said that you will pay compensation to the complainant.

SUBMISSIONS BY COUNSELS

Your Lawyer

10. Your lawyer Mr. Paraka, submitted that an appropriate sentence for you should be 3 years less the one (1) week you spent in custody and that the balance should be fully suspended. He drew the Court’s attention to the fact that you pleaded guilty to the charge, you co-operated with the police and that you acted out of frustration. He seemed to suggest that there was some provocation involved. He said you are remorseful and are willing to pay compensation which he says you have the capacity to pay.

Lawyer for State

11. Mr. Popeu for the State on the other hand submitted that the circumstances of your case are very serious, judging from the fact that the complainant has lost almost 100% of his left leg. Counsel said that this type of offences have attracted sentences ranging from 6 years and below here in West New Britain. He referred me to the case of The State – v- Steven Moni & Ors [2006] PGNC 109; CR 293-297 OF 2004 (19th December 2006) where Cannings J. surveyed the sentences of matters dealt with here in Kimbe at that time.

12. Counsel submitted therefore since your case is very serious where the complainant had almost completely lost his left leg, a sentence between

5-6 years would be appropriate. And he has no objection to your paying compensation to your victim.

THE LAW

13. The offence of causing grievous bodily harm is provided by Section 319 of the Code in the following terms:

319. Grievous Bodily Harm

A person who unlawfully does grievous bodily harm to another person is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

14. “Grievous bodily harm’’ is defined by Section 1 of the Code as “.... any bodily injury of such a nature as to endanger or be likely to endanger life or to cause or likely to cause permanent injury to health”. It is clear from the above definition that the injuries sustained by the Complainant were likely to have endangered his life and have indeed caused permanent injury to his health.

SENTENCING TREND

15. Let me now survey or consider the sentencing trend for this type of offence. I am grateful to both counsel for the couple of cases that they have brought to my attention.

16. In The State v Ereman Guauru CR. 458 of 2012 (Unreported and Un-numbered) the prisoner had pleaded guilty to one count of GBH. Kawi J. found the victim to have provoked the attack on himself by attacking the prisoner and his father-in-law first. The prisoner was sentenced to 2 years imprisonment which was fully suspended on conditions one of which was the payment of K5000 compensation.

17. In The State v Fedelis Kiatni (2011) N4331 (20 June 2011) the offender pleaded guilty to one count of GBH. He had completely chopped off the victim’s right hand after intervening in an argument and scuffle between the victim and his wife (the offender’s sister). The offender was youthful, plead guilty, a first time offender and expressed remorse. Against him however, was the fact that the victim suffered permanent injury (100% loss of right hand) and the use of a dangerous weapon. Ipang AJ sentenced the offender to 4 years imprisonment, 2...