State v Pupuni [1998] PGNC 24; N1709 (20 April 1998)

Unreported National Court Decisions

N1709

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO 378 OF 1998
THE STATE
V
KOPIWAN P

Wabag

Lenalia AJ
16 April 1998
20 April 1998

CRIMINAL LAW - Grievous bodily harm - Plea - Sentence - Criminae S. 319 - (Ch. 262)

CRIMINAL LAW - Grievous bodily harm - Sentence - Matters for consideration - Taking other offences into account on sentence after being convicted - Criminal Code S. 603 - May lead to increased sentence but not to exceed maximum penalty prescribed by law; Acting Public Prosecutor v Andrew Amona Yongga [1981] PNGLR 314, adopted and applied, see also The State v Aiton Ipai (1977) N1629

CRIMINAL LAW - Practice - Taking into account other offences - State Prosecutor’s consent - Accused must also consent - Admission of guilt in other outstanding charges - Certification on document filed under S. 603(40 of the Code.

The accused was convicted upon her plea on a charge of causing grievous bodily harm to another person who was her co-wife. The State prosecutor consented to another charge of similar nature or closely allied cases be taken into account on sentence to which the accused also consented. The following judgement was delivered on sentence.

Cases Cited

The Acting Public Prosecutor v Andrew Amona Yongga [1981] PNGLR 314

The State v Aiton Ipai (1977) N1629

Counsels

P. Kumo, for the State

B. Aipe, for the Accused

SENTENCE

20 April 1998

LENALIA AJ: Kopiwan Pupuni, you pleaded guilty to one count of unlawfully causing grievous bodily harm to another female Alome Pupuni on 26 September, 1997 at Sakales village in the Tsap Valley area, Wapenamanda, Enga Province. The State says that this is an offence contrary to S. 319 of the Criminal Code.

The agreed facts are contained in the affidavit evidence of witnesses who gave statements to the investigating officer in the instant case. The State alleges that between 8 and 9 am on the relevant date, the victims Marry Pupuni and her daughter Julie Misakali were around in their house together with a son of the first victim and some of their in laws. Someone called to the first victim to come over to where the community was gathering for the purposes of Village Courts hearing or something of that nature and where the problem of the victim burning the accused’s house was to be resolved. The victim left together with her little daughter to the house of a person by name Eyakali who is a member of the “Sindaon Gut Committee”. Whilst there the victim asked Eyakali to come with them to where the members of the community were waiting. However due to Eyakali being very sick he explained to the victim that he could not go with them because he was sick.

The victim and her daughter were asked to eat together with the family of their Committee member so they sat down to eat. While the victims and Eyakali’s family were eating the accused approached the two victims lifted up her bush knife and struck at the victim’s daughter on her left leg. Upon seeing this all occupants of the house were all shocked and while the victim tried to stand up the accused struck her with the knife on the neck. This blow was followed by two other blows over the victim’s head and another two on her hands. The victims were admitted to the Sopas Adventist Hospital. The medical report prepared by Dr. Munoz at the aforesaid hospital indicate that victim Mary suffered from the following multiple wounds:--

* ـʔ a big laceratceration on the left “parietae”

* ټ < there was aturk e sp>0; ټ there was laceratioration aion and frnd fracturacture of e of left ‘chevicle”

*&ـ҈ ; lacon toleft elbow

*

*&#160 ـ #la0; laceratioratioration tion to n to the right hand

Victim Mary hade put to the operating theatre where her wounds were sutured. She was admitted on the date date on which she was injured and was discharged on 10 October, 1997.

In your allocutus, you told the Court that you did not intend to commit this offence but the reason why you committed this offence was because the victim had earlier burnt your house down supposedly used by some eight (8) persons. You also told the Court that the victim was supposed to have provoked you by saying to you “You are suffering because I burnt your house down”. You further said this had made you angry so as the result you committed the offence for which you are now charged. You also requested leniency from the Court.

On your background, your antecedents show you are a villager. Your lawyer submitted that you had seven (7) brothers in the family without any sisters. You and the victim are married to the same husband. In mitigation the defence counsel submitted that you were angered by the co-wife burning your house down so you committed this offence. It was also submitted on your behalf that, in the course of the struggle you were also cut twice and that this was a case of “an eye for an eye” and “a tooth for a tooth”. Mr Aipe further submitted that the victim suffered physically, the accused lost worldly possession. It was further submitted that you have already paid compensation of K1,800.00 in cash and thirty-eight (38) life pigs. It is my view that customarily it is an obligation to pay some form of compensation because this Court cannot see any other means whereby you could be reconciled to the co-wife seeing you both share the same husband. Certainly by authority of the case of Acting Public Prosecutor v Aumane [1980] PNGLR 410 and The State v Emp Mek [1993] PNGLR 330 compensation should be taken into consideration when determining penalty.

Mr Kumo for the State addressed the Court on extenuating circumstances more particularly the use of an offensive weapon. Further he brought to the attention of the Court that there was a pending charge closely allied and of the similar nature as the one contained in the indictment namely causing grievous bodily harm to Julie Misakali and which he had consented to proceed by definition of S. 603 of the Criminal Code. That section provides---

“603. Taoutstg chargeharges into into account.

(1) & Where the court before whre which a person is convicted on indictment of an offence nnishaith death or imprisonment for life is satisfied tied that--hat---

(a) &ـ there here has bees been filed in court document in or to the effect of the prescribed form, signed by a member of the Police Force and by the person so convicted, showing on the back a li other indictabletable offe offences not punishable with death or imprisonment for life with which he has been charged (whether or not he has been committed for trial in respect of those other offences); and

(b) ـ a copy copy of that document has been furnished to the person so convicted; and

(c) in all the circumstanceshe ca is p to do so, the court may, with the cons consent of the State Prosecutor and beforbefore pase passing sentence on the person for the cmay, the ct of tate cutor and before pare passingssing sent sentence ence on thon the person for the offence of which he has been convicted, ask the person whether he admits his guilt in respect of all or any of the offences specified in the list and wishes them to be taken into account in passing sentence on him.

(2) &&#160the onviconvicted peed person admits his guilt in respect of all or any of the offences specified in the list filed under Subsection (1) and wishes them to be taken into account by the cin pa sentfor ther the offe offence once of which he has been convicted, the court may, if it thinks fit, take all or any of the offences in respect of which he has so admitted guilt into account.

(3) ia a co e tch hibsecuion (ion (20 applies, the sentence passed on the convicted person shall not exceed the maximum sentence that may be passed in respect of thence och hebeen cted.

(4) &160; #160; t Th0; The court shall certicertify on the document filed under Subsection (1) the offences ـ < specifiethe list on the bahe back of it that have, in respect of the conviction of trson concerned, been taken into account in passing sentence on that conviction, and afterwaterwards proceedings or further proceedings on those offences shall not be taken against the person unless the conviction is quashed or set aside-----”.

The principles in relation to taking into consideration other outstanding charges as defined by the section quoted above were discussed in Acting Public Prosecutor v Andrew Amona Yongga [1981] PNGLR 314 where the Supreme Court there said that whether or not the trial judge takes into account other outstanding charges is purely discretionary and it must be done with the consent of the State Prosecutor and the accused himself but not his counsel asked by the trial judge whether he admits his guilt on outstanding charges and desires that they should be taken into account.

Noting from the wording of S.603 (1) (c) that the appropriate time for the prosecution to make such application is just prior to sentence and which procedure was quite properly adopted by Mr Kumo. Where the State is to resort to this procedural requirement it is as well noted that a prisoner must have been first convicted upon indictment of an offence not punishable with death or life imprisonment. Where the prisoner is asked about other outstanding charges and where he admits his guilt and where he wishes those offences to be taken into account, the Court will then determine a penalty appropriate and commensurate to the circumstances of the case for which he has been convicted so as those other outstanding charges. The sentence imposed must not exceed the maximum prescribed penalty.

As in the instant case, the penalty prescribed by S. 319 of the Code is seven (7) years imprisonment. The facts of the case before me show that when the accused chopped at victim Mary, the knife then struck the left leg of victim Julie Misakali. There was allegation by the defence that the knife blow to Julie a small girl would have been an accident but after reviewing the facts of the case I found that, blows to Mary were quite separate blows than the first one which was struck at the direction where Julie Misakali was sitting alone by herself. I accept the State’s version that, Julie Misakali was first cut followed by subsequent blows upon Mary Pupuni.

When the Court finally asked the accused if she wanted the Court to take into account the outstanding charge of the same nature in regard to causing grievous bodily harm to Julie Misakali, the accused quite orderly admitted her guilt. In the accused favour the Court takes the following mitigating circumstances---

* that you pleaued g>

* ټ that you have had no previprevious convictions

* 0;&#that ave bnocusfor seve seven (7) months, and

*  ҈ ; y60 you you have have pave paid paid compecompensatinsation

Extenuating circumstances at thesed aat you took the law into own hands. This was a clear case where by my perusal of the fthe facts acts and fand from wrom what was submitted to Court from the bar table the matter was already being placed in the hands of your local dispute resolution committee. Despite that, you took the law into your own hands executing wild justice upon the victim and her daughter. The weapon you used is quite dangerous and offensive. You used your knife upon two harmless victims. This Court cannot accept your plea for leniency and the allegation that you did not intend to commit these two offences. You intended to do grievous bodily harm to Mary and her daughter. Had you used your bare hands to assault the victims that would have been less serious but even the use of such offensive weapons as stones or pieces of wood would still in my view quite offensive and dangerous to use in trying to achieve justice. In sentencing you I take into account the fact that you have paid compensation and the fact that you have pleaded guilty.

I have a duty to tell you that violence of the nature of the one you committed is increasing and had you had the unfortunate occasion of killing the two victims, you could have been charged for much more serious charges than the one charged in the indictment. You have mentioned and asked the Court to consider the fact that the victim burnt your house. At least you have the right to prosecute her. You caused fracture to the victim’s skull as shown by the medical report. The instant case was a near death but you are lucky the State has charged you with causing grievous bodily harm. On sentencing you for the charge for which you have been convicted, the Court also takes into account the outstanding charge that is contained in an information prepared by the police investigator. But in doing so, the law does not require me to impose an imprisonment term exceeding the maximum prescribed by S. 319 of the Code and as per the principles set down in Acting Public Prosecutor v Andrew Amona Yongga (supra): see also my judgement on The State v Aiton Ipai (1997) N1629. You are warned that you could be jailed to seven (7) years imprisonment. But taking all those factors that have been mentioned in your favour and those that have been said against you, the sce appropriate for this offence is a term of two years. You. You are sentenced to a term of two (2) years imprisonment with light labour. The pre-trial period of seven (7) months is deducted and you shall effectively serve the balance of one (1) year five (5) months.

Sentenced accordingly.

Lawyer for the State: The Public Prosecutor

Lawyer for the Accused: The Public Solicitor