Kipandu v Lagid [2009] PGDC 73; DC1009 (9 January 2009)

DC1009

PAPUA NEW GUINEA
IN THE GRADE V COURT OF CRIMINAL JURISDICTION

Case Number GFC 17 of 2008

BETWEEN:

CONRAD KIPANDU
(Informant)

AND:

FOS LAGID
(Defendant)

MADANG: M SELEFKARIU, PM
2008: 19 May- 15 December
2009: 9 January

CRIMINAL: Offence of unlawful wounding- Sentence- Multiple wounds using a knife causing severe loss of blood could be fatal as aggravating factor- Guilty plea- First time offender- Expression of remorse- Cooperated with police-Provoked by family members but force used disproportionate to provocation- 18 months suspended sentence imposed on condition of recognition for 2 years good behaviour bond with terms- Criminal Code Act s. 322 & s. 19.

CASES CITED:

The State v Albina Sinowi (unreported judgment) (2001) N2175
The State v Marshall Western Pangih (unreported judgment) (2004) N2676
Goli Golu v The State [1997] PNGLR 653
The State v Joseph Pingu (unreported judgment) (2001) N2169

Counsel

Sergeant N Pitu for Police Prosecution
Mr. D Joseph for Defendant

JUDGEMENT ON SENTENCE

9 January 2009

SELEFKARIU, PM: You have pleaded guilty to your charge for unlawfully wounding Katmilus Lagid who is your own brother on 26 December 2007 at Malangai village.

You are 32 years old, married with four children, a subsistence farmer and come from Malangai village in the Rai Coast District of Madang Province.

In the police summary of facts you had an argument with your mother over the manner in which your family members went about to decorate and arrange candles over your late father’s grave.

To show your displeasure you removed the decorations which angered your family members that resulted in an argument with your mother.

Your eldest brother who is the victim came in and took side with your mother. You grabbed hold of a bush knife and used that to cut your brother with it twice on his left arm and when the victim turn around you cut him the third time on his hip.

Your other brother rushed in to save the victim and to confront you but you managed to escape from the scene. The wounds you caused to the victim were such that the victim bled profusely but was rushed to Biliau Health Centre in time and was treated and hospitalised and discharged later.

When questioned by police you freely admitted the offence and continued in the same vein before this court when you were formally arraigned.

I have received your submissions on sentence and today’s proceeding is for me to sentence you.

In your submissions that was prepared by your counsel you submitted a number of case laws. I am reminded that the offence you are charged with is less serious to the offence of unlawful wounding causing grievous bodily harm or permanent injuries and the sentence should be lesser in that regard.

I must say that I do appreciate the cases for which your counsel submitted on your behalf but they remain as guide for me to consider as the court has wide discretion.

But suffice to say that the discretion I have is subject to; the merits of your case, the prevalence of this type of offence, public perception, the trend of the offence and the principles of law it ought to be based on.

To paraphrase the principles in the cases you submitted; it is acceptable that the maximum prescribed penalty be reserved for the worst type of any offence, Goli Golu v The State (supra) and to determine whether a case falls into the worst case category depended on the facts or merits of the case, The State v Marshall Western Pangih (supra).

In cases of unlawful wounding the types of weapon and how it was used to inflict the number and types of wounds and their seriousness are matters of aggravation for the sentencing court to consider when forming its mind of the final verdict.

You submitted a plea of guilty and until today you are a first offender with no prior records of criminal conviction.

You said you are sorry for what you did and ask that the court must accept this as genuine because you cooperated with police by admitting the wrong.

You also submitted a defence of provocation in a non legal sense that the conduct of the members of your family caused you to act this way.

I have considered all these things what appear to be factors of your mitigation.

An early plea of guilty has always been regarded as an act of contrition and remorse and savings to the State in terms of time and cost.

Your admission and assistance to the police has been considered as mitigation and will accept as genuine remorse on your part since the prosecution have not raised any contrary views on them.

You acted under some form of provocation but not the type that could afford you the full defence of provocation under Section 267 of Criminal Code Act as the force you used against the victim is disproportionate to the provocation but I do acknowledge that and will give some consideration as mitigation of your sentence.

You submitted that you only swung the bush knife once to wound the victim and not three times as alleged in the police facts.

I must point this to you that if you disagree with the police facts you must tell the court at the time of your arraignment or at the pleading stage. Should police agree to your proposal for example you said you only cut the victim once then the court will accept that position as the agreed facts. Once you plead guilty to the charge and admit to the police facts as read to court within your hearing then they equate to evidence and so require no further proof.

I have decided to accept the police facts saying you wounded the victim three times as final evidence of your case and will consider your sentence on that premises.

In your submissions you said the incident was only a trigger to a long standing land issue amongst your family members and yourself which started when your father was alive then.

You said the land issue started when your brother, the victim brought in some persons outside your clan to live and use your clan’s land and that these people have been alleged to steal from your gardens and cause destructions to them which have caused a conflict amongst the members of your family.

You submitted that you have spent some considerable time in custody whilst awaiting your trial for which I do acknowledge.

In conclusion you submitted that the maximum prescribed penalty for this offence is 3 years imprisonment which should be reserved for the worst type of such offence and the court to impose a term of 14 months imprisonment as an appropriate sentence and the time spent in custody be deducted against it which you submitted to be sufficient punishment for the wrong you committed.

Having accepted the police facts your action in wounding the victim three times is viewed as having clear intent and premeditated given the multiple injuries you caused to the victim.

I say this because the way you went about in wounding the victim you paid no attention that he is your blood brother and unarmed. This I think is a display of you carrying some grudges against the victim and you saw this opportunity which you used to your advantage. Had the victim been a stranger I do not think you would have done what you did unless the provocation made towards you is such that you could not contain yourself but to lose your cool. I think you had your own motive which is presented in the form of the long standing land issue you have with the victim.

I view your conduct very aggravating and indeed serious because if you do not feel punished and change your attitude and where the land issue remains unsolved then it provides a recipe for further confrontation and violence.

According to the case laws the range of past sentences for this type of offence ranged from a few months wholly suspended to three years with two years suspended with terms as in the case of The State v Joseph Pingu (supra).

In your case you unceremoniously used the bush knife to wound the victim even after the first blow where the victim was unarmed.

Your behaviour is uncalled for and indeed very aggravating under the circumstance which is evident in the multiple injuries for which you admit to.

The facts also say that as a result of the injuries the victim bled heavily and except that he was rushed to the hospital in time, it could have been fatal as the victim could have died from loss of blood.

Your case therefore equates to be quite serious and attracts the maximum prescribed penalty of three years.

In your mitigation you pleaded guilty, a first offender, you said you are sorry, you cooperated well with police, spent time in custody and you were provoked in a non legal sense.

In the case of Marshall Western Pangih (supra) the wound was a single spear wound which the court viewed as serious and appeared to be premeditated as in your case.

In my view your case is serious and attracts almost the maximum prescribed penalty of three years imprisonment using Marshall Western Pangih’s case as a guide.

Even though you submitted that the case of The State v Albina Sinowi (supra) be considered as guide I think the factor of pre sentence compensation is missing from your case and you have not indicated your willingness to pay compensation as a sign of making peace as your case is one which requires a broker of peace in a situation where I think the tension could still be running high amongst the members of your family or could easily resurface upon an ignition of some sort.

I think this court is entitled to award compensation if it thinks such would be appropriate to the restoration of good and harmonious relationship amongst the parties including you.

But I think other factors such as guilty plea, being remorseful, cooperating with police and spending considerable time in custody are sufficient to mitigate your sentence and qualifies you to a suspended sentence with terms.

This court no doubt has the discretion to substitute sentence and not necessarily to impose the prescribed penalty, s. 19 of Criminal Code Act.

Your behaviour is uncalled for and inexcusable because what you did is unacceptable and deserved punishment in the strongest sense.

This type of offence is very prevalent and except for the merits of each case it deserves a deterrent punishment of custodial sentence.

Taking to account all of the above both the aggravating and the mitigating factors, to give you a custodial sentence would be most unfair to you as you have spent considerable time in custody and you are quite concerned about the welfare of your own family especially your young children’s education.

On that basis I convict and sentence you to 18 months imprisonment for which the whole of its execution is suspended on condition that you enter into recognition for two years good behaviour bond on the following conditions:

1. You undertake to keep peace at all times and be of good behaviour especially towards the victim for the period of two years as from today.
   
2. You shall pay compensation to the victim in order to make peace by giving cash or any goods except alcohol to the value of K500.00 within two months from today.
   

In the event that you do not comply with any one of the above conditions which result in having you being imprisoned the term of your suspended sentence, then the commitment warrant should deduct the time you have spent in custody so that you only serve the balance of your remaining sentence.

______________________________
Police Prosecution for State
Lawyers for Defendant: Paul Paraka Lawyers.