State v Toluana [2011] PGNC 138; N4417 (5 September 2011)

N4417

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1032 OF 2008

THE STATE

V

OLIVER TOLUANA and PENIAS KIVUNG

Kokopo: Maliku, AJ
2011: 15th, 24th August & 05th September

CRIMINAL LAW – Sentence on a Guilty plea to one count of unlawfully causing grievous bodily harm – Section 319 Criminal Code Act- First time offenders

CRIMINAL LAW – Sentencing co-offender with deferring degrees of participation – Main perpetrator should receive higher penalty than the one who played a lesser role - Deterrence – Need to protect community – Seriousness of the offence committed – Request for Probation Orders and Means Assessment Reports - Custodial sentences considered appropriate for each defendant.

Cases cited:

Winugini Rugitaru-v- The State [1974] PNGLR 283
The State-v- Paul Kundi Rape [1976] PNGLR 96.
The State-v- John Elipa Kalabus [1988] PNGLR 193
Andrew Uramani and Others-v- The State [1996] PNGLR 287
The State-v- Nickson Pari (No.2) (2001) N2033
The State-v- So'on Torah (2004) N2675
The State-v- Kerry Trowen (2004) N2239
The State-v- Henry Idab (2004) N2172
The State-v-Bomai Hesi (No.2) (2008) N3323
The State-v- Tamumi Lawrence and 2Ors (2006) N3117

Counsels:

Mr. A. Bray, for the State
Mr. P. Kaluwin, for the Accuseds

5th September, 2011

1. MALIKU AJ: The two defendants pleaded guilty to one count of

causing grievous bodily harm to Peter Woollcott (Jr) at Klinwara Plantation on the 29th of May 2008. This is an offence against Section 319 of the Criminal Code Act.

The Facts

2. The victim to this matter is Peter Woollcott (Jr). It is alleged that while he

was addressing his workers at Klinwara Plantation on the morning of 29th of May 2008, he was confronted by a group of persons which included the two defendants, namely Oliver ToLuana and Penias Kivung both of Vunadavai village, Gazelle District, East New Britain Province.

3. An argument ensued and during the argument the victim walked toward

his vehicle. He was about to open the door to his vehicle when both the accused approached him armed with bush knives.

4. The accused Penias Kivung swung his bush knife at the victim which was

obstructed by the vehicle door but still cut the victim on his hand. Oliver ToLuana then swung his bush knife at the victim and chopped the victim on the left side of his head, the chin and jaw. This caused life threatening injuries to the victim. The injury sustained was 30 cm long and it was a deep wound.

5. This involved complex facial bone fractures. The victim had to be evacuated to Kokopo - Vunapope hospital where he received preliminary treatment and was later flown to Australia for proper medical treatment.
   
6. The State alleges that when Oliver ToLuana swung his bush knife and

chopped the victim, he intended to cause grevious bodily harm to Peter Woollcott (Jr) and did unlawfully cause grievous bodily harm to the victim pursuant to section 315(b) and (d) of the Criminal Code Act.

7. The accused Penias Kivung is caught under Section 8 of the Criminal

Code Act that he and Oliver ToLuana formed one common intention to cause grievous bodily harm to the victim and that they had consulted each other.

8. The State alleges that he too (Penias Kivung) intended to cause grievous

bodily harm to Peter Woollcott (Jr) and did cause grievous bodily harm to Peter Woollcott pursuant to section 315 (b) and (d) of the Criminal Code Act.

Medical Reports

9. The preliminary Medical Report of Doctor Jennifer Ho of Vunapope

Hospital shows the victim had an extensive laceration to the left side of his face which she assessed to be 12 cm in length, 5cm wide and 8cm deep. It also shows that the facial nerve had been severed as well as a deep layer of muscles. The Medical Report received from Townsville Hospital shows that the victim suffered a large laceration on the left face approximately 30centimetres and very deep. A CT scan showed complex facial bone fracture involving Left maxillary astral walls etc.

Antecedents

10. Defendant Penias Kivung comes from Vunadavai village. He is married

with three children. He attended Vunadavai Primary School. He never had formal employment but is a subsistent farmer. He is in his 30s.

Defendant Oliver ToLuana comes from Vunadavai village. He is married with one child. He attended Vunadavai Primary School. He never had formal employment but is a subsistent farmer. He is in his mid 30s.

Allocutus on Sentence

11. In his address to the Court in his allocutus, the defendant Oliver ToLuana

said he is sorry for his victim. He said that he cut him because the victim said something to him. He also said sorry to the court. He said he has a wife and children and that they find it difficult to survive at home without him. He also said his mother is very old and his father is deceased. He asked the court for leniency and further if he could be considered for probation.

12. The defendant Penias Kivung says in his allocutus that he is sorry for

what he did to the victim. He said he is married with two children. His mother is very old and his father had already died. He asked for leniency from the court and further asked if he could be considered for probation.

Prior Convictions

13. Defendant Oliver ToLuana has a prior conviction on Break and Enter

charge made against him in 2001. This is however not properly recorded.
Defendant Penias Kivung has had no records of prior convictions.

Mitigating Factors

14. Mr Kaluwin asked the court to consider:
    
    1. The guilty plea of each defendant.
    2. Their previous good characters.
    3. Their co-operation with the police during the investigation.
    4. Their remorse expressed to this Court.
    5. Mr Kaluwin submitted that the sentences to be imposed should reflect the roles played by each defendant in committing the offence
    6. The attack on the victim should not have occurred had the victim not said what he said which amounted to de facto provocation.
       
15. Mr Kaluwin submitted that in respect to the cost incurred by the victim, it

was of his own choice and there is no evidence that such medical treatment could not be performed in Port Moresby.

16. While I agree with that argument it is also true on the contrary that there

is no evidence by the defendant that Port Moresby could perform the operation done to the victim to restore his face as near as possible to where it was before the injuries was inflicted on him by the defendants.

17. Therefore the choice was up to the victim to go to where he believed he could get the kind of medical treatment rendered to him. That choice could not have been made if the defendants did not seriously injure the victim.
    

The Aggravating Factors

18. Mr Bray agrees that the maximum penalty is reserved for the worst type

cases. He asked the Court to consider the following as aggravating factors.

1. The prevalent of this type of offence in the community.
2. The strong intent to do grievous bodily harm to the victim by the defendants
3. The attack of the victim with the bush knife was uncalled for as there were other ways to solve the problem.
4. The seriousness of the injuries inflicted on the victim because it was life threatened to the victim.
5. The cost involved in the medical treatment on the victim.
   

The Law on penalty:

19. The maximum penalty for this offence according to section 315 of the

Criminal Code Act is imprisonment for life. The court has discretion under section 19 of the Criminal Code Act.

"Section 315 (a) states: A person who with intent to do grievous bodily harm to any person is guilty of a crime"

Penalty: Subject to Section 19, imprisonment for life".

20. On sentencing the two defendants, I consider the sentencing trend on this

offence. In more serious case, the Courts have imposed high penalties depending on the nature of each case as was in the case of The State-v- Kerry Trowen (2004) N2239 which the maximum penalty was imposed. In this case the victims were forced to strip and the defendant caused permanent injuries on to their bodies with a bush knife.

21. In the unreported case of The State-v- Nickson Pari (No.2) (2001)

N2033 the defendant was at young age and was charged with one count of similar nature as the matter before me. He was sentenced to 4 years imprisonment. This case was one where the defendant shot the victim with a gun seriously wounding the victim after a failed armed robbery.

22. In another unreported case of The State-v-Bomai Hesi (No.2) (2008)

N3323, the defendant was assaulted in a fight and was unconscious. After he regained his consciousness he took two bush knives and went to the house where he was assaulted and there he found the victim and some others. He then swung the knives in all directions and cut the victim and injured two others. He was sentenced to 3 years imprisonment.

23. In the unreported case of The State-v- Henry Idab (2004) N2172, the

defendant was with a group of persons who attacked a Village Peace Officer and inflicted injuries on his hand. The injury was assessed to 89% loss of the use of the hand. The defendant was sentenced to 5 years imprisonment of which 2 years was suspended on conditions imposed.

24. The law says that, the maximum penalty must be imposed only in the

worse type case: The State-v- John Elipa Kalabus [1988] PNGLR 193.

25. I have considered the material put to me which includes the medical

reports which clearly show the injury inflicted on the victim by the two defendants that are before me and I am of the view that the present case falls in quite the worse type case category: The State-v- John Elipa Kalabus [1988] PNGLR 193 applied.

26. Both defendants have asked for leniency from the Court and have through

their lawyer requested for a Pre Sentence and Means Assessment Reports is prepared by the Office of Community Based Correction for consideration by the Court. These Reports were prepared and tendered to the Court. I have read the Reports and they are of not much assistance to the defendants particularly the Means Assessment Report.

27. Both counsels agree that sentences to be imposed to the defendants

should reflect the roles each defendant played in the commission of the offence.

28. Mr Kaluwin urged the Court to consider the starting point to the

defendant Penias Kivung to be from 5 to 7 years imprisonment however to be suspended fully, where as in the case of Oliver ToLuana, the main perpetrator his sentence start from between 7 to 8 years but to be partially suspended.

29. I agree that the sentences to be imposed on each defendant should reflect

the role each of them played in the commission of the offence charged.

30. This is consistent with the case of Andrew Uramani and Others-v- The

State [1996] PNGLR 287 and also the case of Winugini Rugitaru-v- The State [1974] PNGLR 283 which I apply and follow.

31. I consider custodial sentence is appropriate on this matter for each

defendant.

32. Accordingly, I sentence defendant Oliver ToLuana, the main perpetrator

to 10 years imprisonment.

33. I do so because of the prevalence of this type of offence in the community

nowadays. There was strong intention by this defendant to cause grievous bodily harm to the victim.

34. Although the defendants were provoked by the victim, the victim was

unarmed and was pursued from where the meeting was held to his vehicle by the defendants who had already armed themselves with two knives.

35. The injury that was inflicted on the victim was certainly serious and life

threatening. The use of the knife on the victim was uncalled for as there are other ways which could have been looked at by the defendants to solve their differences with the victim peacefully.

36. Although the defendant Penias Kivung played a lesser role, he, according

to the facts before the Court was indeed the first person to swing his knife at the victim but thanks to the vehicle door which obstructed his knife from cutting the victim. That in itself shows the strong intention by him to cause grievous bodily harm on the victim.

37. The defendant Penias Kivung is sentenced to 9 years imprisonment. I do

so also because of the reasons I have alluded to above.

38. I do not consider a partial suspension of the sentence I have imposed on

Oliver ToLuana nor do I consider suspending the whole sentence for Penias Kivung as urged by counsel for each defendant.

39. The Defendants are however, to serve the balance after the pre trial

custody period is deducted.

________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accuseds