State v Jopping [2004] PGNC 108; N2678 (24 September 2004)

N2678

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 871 of 2004

THE STATE

-V-

GUISE JOPPING

LORENGAU: KANDAKASI, J.
2004: 14th and 24th September

CRIMINAL LAW - Sentence – Grievous bodily harm – Bush knife used – Serious cut to left arm – 70 % residual disability to firefighter and champion kick boxer - Guilty plea – First time offender – Provocation in the none legal sense – Remorse expressed with preparedness to pay compensation – Means assessment and pre-sentence report supporting non-custodial sentence – Compensation ordered - 6 years substantially suspended sentence imposed – Criminal Code ss. 19 and 319.

Cases cited:
The State v. Isaac Wapuri [1994] PNGLR 271.
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.
John Aubuku v. The State [1987] PNGLR 267.
Rudy Yekat v. The State (22/11/00) SC665.
Anna Max Marangi v. The State (08/11/02) SC702.
The State v. Micky John Lausi (27/03/01) N2073.
The State v. Dobi Ao (N0.2) (01/05/02) N2247.

Counsels:
A. Kupmain for the State
A. Raymond for the Prisoner

23rd September 2004

KANDAKASI J: You pleaded guilty to a charge of causing grievous bodily harm to one Latin Ndrihin contrary to s. 319 of the Criminal Code. Upon reading the District Court depositions and satisfying myself independently that there was sufficient basis for the charge and your guilty plea, I accepted your guilty plea and convicted you on the charge presented.

I then administered your allocutus and you said to the Court, you were sorry for committing the offence. You also said you committed the offence because you and the victim were family and that it was not right for him to have a boyfriend/girlfriend relationship with your sister. You also said you committed the offence after giving the victim three warnings against his relationship with your sister.

Relevant Facts

The facts giving rise to the charge, your guilty plea and eventually your conviction are straightforward. In June 2001, the victim of your offence, Latin Ndrihin commenced a boyfriend/girlfriend relationship with you sister, Eluh Joping. You did not approve that and fought with the victim in July and again on 5th August 2001, which has now landed you in Court. Prior to that, your attack on him, the victim and your sister planned to meet at a river for him to get his bag off from your sister.

In line with their plan, the victim went and waited at a river for your sister. Your sister went there as planned but she went with some clothes for laundry and not the victim’s bag. So she went back to the house for the victim’s bag, while the victim waited for her. Soon she returned without the bag. She explained that you were in the house and that made it difficult for her to get the bag out.

As the victim and your sister were talking at the river, your wife noticed them there. She therefore, called out for you and you came running to where the victim and your sister were. On seeing you running toward them, the victim and your sister started to run away. You pursed them crossing two rivers along the way. Your sister was eventually tired and gave up further running away and so she went into hiding, while the victim continued to run and crossed a third river when you caught up with him. The victim surrendered to you with both of his hands up and begged you not to harm him. You told him however, that it was time for him to die and claimed that you were a member of the 45 youth.

Immediately after saying those words, you charged at the victim by swinging a bush knife, you carried with you at the victim, aiming for his stomach area. However, the victim turned and held on to his stomach and you cut him on his left hand, along his elbow. Soon thereafter, the victim felt numbness on his cut hand and dizziness with the loss of blood but he continued to run to the village for help despite falling down many times along the way, found help from some villagers who assisted him to a boat and had him transported to the hospital in Lorengau town.

The hospital admitted him for one week. Thereafter, the hospital transferred him to the Port Moresby General Hospital for further treatment. That hospital admitted him for a month and treated him appropriately. Eventually, the hospital discharged him. A medical report by Dr. Leonard Kaleh reports that the victim recovered from the injuries you caused him but with an estimated 70 % permanent residual disability. This effectively means that the victim could not use that part of his hand. That saw a forced resignation from his employment and occupation as a firefighter. He also lost his champion kick boxing sports career after reaching a bronze medal in the South Pacific games. He is now back in the village without a job, sport and a good as useless left hand and thus not being able to fend for himself.

The Offence and Sentencing Trend

Section 319 of the Criminal Code creates the offence of grievous bodily harm and prescribes the penalty of imprisonment of a term not exceeding seven (7) years. There are a large number of judgments on this particular offence. This demonstrates a prevalence of the offence and the imposition of varying sentences.

Cases like that of The State v. Isaac Wapuri [1994] PNGLR 271 represent earlier cases of grievous bodily harm offences and their penalties. In that case, the prisoner hit his sister-in-law with a motor 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 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. He received 18 months in hard labour with 5 months deducted because of time spent in custody with the balance 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.

Later, in The State v. Apa Kuman (20/12/00) N2047, the Court imposed a sentence of three (3) years. There, 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 there was a young first time offender.

Having regard to those earlier cases and the relevant sentencing trend, I imposed in The State v. Nickson Pari (No.2) (10/01/01) N2033, a sentence of 4 years and suspended part of it on terms, inclusive of good behaviour bond. There, 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.

A month earlier in The State v. Darius Taulo (15/12/00) N2034, I imposed a wholly suspended sentence of three (3) years on strict terms as an alternative form of punishment outside the prison system. This was because there was genuine remorse coupled with compensation already paid and a preparedness to undergo the victim’s traditional form of compensation and restoring the relationship between a husband and wife and willingness on the part of the victim to really change his ways under supervision. Further, the victim’s preference to compensation and the interest of the children of the marriage persuaded me to arrive at that sentence. Additionally, there was a pre-sentence report supporting that sentence. I also noted that, the prisoner was a grown up man and not a danger to the society and that the society through a pre-sentence report was prepared to help him to rehabilitate.

As I observed in a number of other judgments already, in all of the above cases, the prisoners pleaded guilty and that they were first time offenders. I also noted that, there was an explanation for the commission of the offences although not all permitted by law. In the first case, it was a case of a sister-in-law provoking the prisoner after failing to secure a sexual intercourse from him. In the second and third cases, the offences were committed in the furtherance and in concealment of another offence. Given that, the cases were more serious, inexcusable warranting severe penalties. Finally, in the last case, it was a case of a drunkard acting out of his mind. In my view therefore, the sentences were lenient in the first three cases.

A more serious case of grievous bodily harm I dealt with was in the case of The State v. Rueben Irowen (24/05/02) N2239. In that case, the prisoner caused his two wives (victims) to strip down naked and caused serious bodily harm to them. That included the use of a bush knife to inflict serious cuts to their bodies resulting in the loss of a lot of blood rendering both of them unconscious. They had to run out of the house naked for help. If it were not for their running out and the help of third parties, they could have died. I imposed a cumulative sentence of seven (7) years each for the harm he had occasioned to the victims.

In a case earlier than the above, The State v Henry Idab (17/12/01) N2172, a group of men attacked another group mistakenly taking them to be the ones responsible for verbally assaulting one of the attacking group member’s mother. The victims included a village court magistrate. He was the victim of the attack. He suffered serious bush knife wound injuries to both of his hands, resulting in an estimated 85% loss of efficient use of his hands and restricted to only light work. There, I imposed a sentence of 5 years, part suspended, on strict terms including community work. Additionally, at the discretion of the village court magistrate, I left room in the judgment for the prisoner to render services free of charge to his victim.

Your Case

In order to determine upon an appropriate sentence for you, it is necessary take into account both the factors for and against you. I start that process with a consideration of the factors going in your favour. Firstly, I note your guilty plea. That saved the state a lot of time and money it could have expanded in arranging witness and securing their appearance in Court in order to prove the charge against you. It also saved the Court the time it could have taken to hear your case and come to a decision on your guilt or innocence.

Secondly, I note that, this is your first ever offence. This means you have not been in trouble with the law before, confirmed by the lack of any prior conviction against your name. The pre-sentence report also confirms that, in that, it says the commission of this offence was a step out of character.

Finally, I note your claim that, you committed the offence because the victim did not adhere to your warnings against the victim, for having his boyfriend/girlfriend relationship with your sister, Eluh. You opposed that relationship because you are family, which I take to mean that you are of the same family. As such, your sister and the victim could not have their relationship. Given that, you argue that, you acted under provocation in the non-legal sense. I accept that you might have, but that does not give you any excuse to act in the way you acted. You lived here in Lorengau, with the ready availability of both the formal and informal systems of resolving disputes peacefully. Instead of using those means, you chose to act in a more violent manner. I will therefore, have little regard to this factor when considering an appropriate sentence for you.

Against these factors in your favour, there are a number of factors against you. Firstly, you used a dangerous weapon to severely cut and injure the victim. The Supreme Court in John Aubuku v. The State [1987] PNGLR 267, said the use of bush knives or other dangerous weapons is a factor in aggravation of an offender. Subsequent decision of both the National and Supreme Courts such as that of Rudy Yekat v. The State (22/11/00) SC665 have reiterated this.

Another factor in aggravation against you follows on from the above, and that is the fact that, the ready use of dangerous weapons such as knives and bush knives to resolve disputes and or differences is very prevalent. The Supreme Court in Anna Max Marangi v. The State (08/11/02) SC702 noted this in the context of the ready use of kitchen knives to commit serious crimes such as murder or manslaughter in these terms:

"To our knowledge, there are increasing instances of manslaughter and murder killings coming before the Courts in which a knife is used to settle domestic differences, with fatal consequences. The use of readily available kitchen knife to settle one’s domestic grievances is prevalent in this country."

The Courts have been therefore increasing penalties with a view to deterring others from readily using such weapons to injure or beyond that even kill others over disputes or disagreements that can be easily resolved peacefully. Our society is becoming unsafe because of people like you who take the law into their own hands. Your kind of people are becoming accusers, police, judge, jury and executioners all at the same time in a summary manner without a proper trial and establishing of any guilt against your victims. This is resulting in a lot of violence and lawlessness with people like you continuing to readily, resolve to violence using dangerous weapons such as a bush knife to injure others.

There is absolutely no excuse for you to have done that. You are from within Lorengau town and as such the lawful means to resolve disputes are readily available but you chose not to use them. Further, if it is true that the victim was a family member, I cannot understand why you resolved to violence rather than resolving the issue of your sister befriending the victim peacefully. Furthermore, the victim ran away from you but you pursued him for quite a distance and eventually cut him even when he surrendered. Your actions clearly contradict what you said to the Court in your allocutus.

A further factor against you is the fact that, the injuries you have inflicted upon the victim were very serious. The victim had to undergo medical treatment here in Lorengau and Port Moresby as well. Even though he recovered from those injuries, he is left with a 70% residual disability, which means he is as good as useless on his affected hand. You caused him to lose his good job or work as a firefighter and took away from him his proven sporting career. These losses are permanent and will be with the victim for the rest of his life. As long as he lives, he will have no choice but to learn to live with them. That will affect him both mentally and physically. There is nothing that you can say or do that can remove such a serious burden on him for the rest of his life.

Given that, the victim claims through the pre-sentence and means assessment reports K30,000.00 in compensation, which is about right in my view, having regard to awards in personal injuries cases for the kind of injuries and the residual disabilities the victim is left with. Unfortunately, s. 5 (3) (b) of the Criminal Law (Compensation) Act 1991 limits the total of any compensation to K5,000.00. That means, this Court can order compensation only up to a total of K5, 000.00. However, this does not prevent the victim from taking civil proceedings against you for additional compensation. That is a matter for the victim. If he wants to take that course, he is free to do so.

The pre-sentence report recommends compensation, which the victim prefers to you receiving a term of imprisonment. The reason for this is obvious; if you go to prison, he will not get any compensation from you. The fact that the victim prefers compensation and that you have some means to pay compensation if the Court orders you to, is a factor I will take into account in your mitigation.

A careful weighing of both the factors for and against you, reveals that the factors in aggravation far outweigh those in your mitigation. Then viewing your case in the context of the sentencing tariffs as noted above, I consider a sentence of 6 years is appropriate. Of that, I deduct 2 years on the condition that, you pay K5,000.00 compensation. That would leave you with a balance of 4 years and I need to consider whether to suspend the whole or part of it.

In that regard, I continue to maintain the view that, imposing a suspended sentence is not an exercise of discretion in leniency. Instead, it is a form of punishment aimed at achieving one of the purposes of criminal sentencing, which is rehabilitation. I also maintain the view that, a community-based sentence is far more effective in appropriate cases, not only in terms of rehabilitation but also in terms of serving both as a personal and general deterrence against other would be offenders.

Persuaded by these considerations, I imposed wholly suspended sentences in The State v. Micky John Lausi (27/03/01) N2073; The State v. Dobi Ao (N0.2) (01/05/02) N2247 and many others. I have done that only in cases where there were well-balanced pre-sentence reports representative and reflective of the community’s view on the kind of penalty that an offender should receive and where the victims were receptive to restitution or compensation and a non-custodial sentence. These factors exist in your case, making it an appropriate case to suspend either the whole or part of your sentence. Having regard to all of the foregoing considerations, I consider a suspension of a substantial part of the remaining part of your sentence appropriate. Accordingly, I suspend 3 years and 8 months, leaving you to serve 4 months in hard labour less the 12 days you have already spent in custody awaiting your trial and decision on sentence.

The suspension of the sentence is on the following conditions during the whole of the suspended sentence:

1. you immediately enter into your own recognition to keep peace for the currency of your suspended sentence;
   
2. you pay K5,000.00 compensation in cash to the victim within 5 months of your release from prison;
   
3. you render eight hours of free community service to all churches and other public institutions such as schools, health centers, roads and so on in Lomoei and the nearby villages each Mondays, Wednesdays and Fridays;
   
4. the probation service here in Lorengau shall in consultation with all of the churches, heads of public institutions and other community leaders in Lomoei and other nearby villages furnish to this Court for its endorsement a work schedule for the full suspended sentence within 30 days from today;
   

5. you shall be home bound between the hours of 6:00pm and 6:00am;

6. you do not leave Lomoei village and the township of Lorengau except with the leave of this Court;
   
7. you will allow for and permit the Probation Services to visit your home on a regular basis to monitor your compliance of these terms and to report with such recommendations as that service might consider appropriate either for a variation or an implementation of these terms;
   
8. the Probation Service shall furnish a quarterly report to this Court with the first due on the 23rd of the first three months from the date when your suspended sentence commences;
   
9. if for whatever reason you breach any of these terms, you will serve the balance of the term of the suspended sentence as at the time of the breach in hard labour at the Lorengau Correction Services; and
   
10. you will be at liberty to apply for a review and or variation of any of these terms including a lifting of any of them provided there has been substantial compliance.

________________________________________________________
Lawyers for the State: The Public Prosecutor
Lawyers for the Accused: The Public Solicitor