N4802

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 335 OF 2011

THE STATE

V

WANPIS PELETE
Accused

Porgera:  Gauli, AJ;
2011: 6, 9 September

CRIMINAL LAW – Sentence – Plea of guilty – Grievous bodily harm, s. 319 of the Criminal Code Act – hit on the ribs on the left side with a stone once – caused spleen rupture – assault provoked – first time offender – not a habitual offender – sentence to 3 years imprisonment – sentenced reduced for strong mitigating factors – time in custody deducted – balance of the sentence suspend with conditions.

Facts:

The accused hit the victim on the left side of his abdomen with a stone once, which resulted in spleen rapture, thereby causing grievous bodily harm to the victim.

Held:

1.	Where a vital part of a body of a person is strut causing grievous bodily harm using less offensive weapons such as stone or piece of wood, the appropriate starting point for the head sentence should be 3 years imprisonment.

2.	The head sentence may be reduced on strong mitigating factor or it may be increased on strong aggravating factors.

3.	Time in custody should always be deducted.

4.	Balance of the sentence suspended with strict conditions where the prisoner is not a habitual offender or a threat to the community.

Cases Cited:

The State v Marting Kons (2010) N4157
Yali Pakup v The State (2006) SC 890
The State v Reuben Trowen (2004) N2339
The State v Ambe Tu (2008) N3306
The State v Isaac Wapuri (1994) PNGLR 271
The State v Apa Kuman (2000) N2047
The State v Ben Robert (2009) N3629

Counsel:

Mr. M. Ruari, for the State
Mr. M. Nagle, for the Accused

SENTENCE

9 September 2011

1.	GAULI, AJ:	The accused Wanpis Pelete pleaded guilty to one count of doing grievous harm, pursuant to section 319 of the Criminal Code Act, Chapter 262. This offence has a maximum penalty of seven years imprisonment, but subject to section 19 of the Criminal Code Act, where Court may impose lesser custodial sentence or non-custodial sentence.

2.	After the indictment and the summary of facts were read and explained to the accused, the accused pleaded guilty and I entered a plea of guilty provisionally. The State tendered the depositions which I read them. And I was satisfied that ti is safe to accept the accused plea of guilty to the charge of grievous bodily harm. I entered a verdict of guilty and convicted the accused.

SUMMARY OF FACTS

3.	On the 16th of November 2010 about 7:00 pm the accused was at Anawe village in Porgera District, Enga Province. After watching a video he walked to another store. While on his way, he Alo Bob Lare having sexual intercourse with the accused sister. He picked up a stone and hit the victim on the side of his body so hard. He did not throw the stone but he held the stone in his hand and hit him with a sizable stone.

4.	The victim was in a lot of pain. He went to a nearby relative's house and slept there. Next day he went to Paiyam hospital and received medical attention. As a result of the blow from the accused, the victim suffered rupture spleen. He lost 2 litres of blood. He under-went operation to remove the blood from inside his body and removed the rapture spleen. He was hospitalized until 25 November 2009 when he was discharged. The victim is now without a spleen. He is vulnerable to other infections due to having no spleen. He is now in a life threatening situation.

	ANTECEDENT REPORTS:

5.	The State presented the antecedent report. The prisoner is a first time offender. He has being a good law abiding citizen until this incident.

ALLOCATUS:

6.	In allocates the accused said: 

 "I was in a shop watching video. After that I left to another store. While my way, I met Alo who tried to drag my younger sister behind a broken down vehicle and tried to rape her. He was drunk at the time. When I tried fight him off he hit me with his fist. So I took a stone and hit him at the spot where I met him. We went to village court trying to settle with pigs but he sent me to police custody. I spent almost one year in custody and now I appear in Court. That bloke is my cousin brother. I am sorry for what I did to him. I ask the Court to be lenient in its decision. I know I have done wrong in the eyes of God, the people and the Court. I say sorry for that. I ask mercy from the Court. That is all."

OTHER MATTER OF FACTS:

7.	The deposition established that the incident took place inside Karapia's store at Anawe village. The medical report showed the victim was experiencing severe pains on the left side of his abdomen. There was blood accumulated in the intra-abdomen cavity with possible spleen rapture. He needed immediate surgery and was operated upon to save him from the rapture spleen. He was admitted in the hospital on 16th and discharged on the 25th November 2010 as he was recovering very well.

8.	In the Record of Interview, the accused in answer to Question 20, said that after watching the video he was walking toward one of the store. Before reaching the store, he saw his sister and the victim Alo having sexual intercourse. He wanted to his sister but she ran away so he hit Alo because he was angry and ashamed of what he saw.

9.	The prisoner's answer to Question 20 in the ROI was given when his mind was still fresh about the incident. After a year later he now seems to change his story by saying he saw Alo pulling his sister trying to rape her. I accept what he said during the ROI when the matter was still fresh in his mind, as the truth of what exactly happened. And I do find that all that time the accused was provoked by what he saw and he assaulted the victim.

MITIGATING FACTORS:

10.	Accused is 21 years old, single and only educated up to grade 4. He is member of Christian Apostolic Faith. He has no prior convictions. He has being a good law abiding citizen until this incident. He pleaded guilty on the first available opportunity. His guilty plea has saved a lot of time and cost than had he forced the matter to trial. I must give him the credit for his courageous stand in pleading guilty to the charge.

AGGRAVATING FACTORS:

11.	He used a stone and hit the victim on the left side of his stomach. He executed a lot of force to do that. Victim lost a lot of blood and suffered spleen rapture. He under-went medical operation. His spleen was removed. According to medical report, he is pruned to develop an overwhelming infection due to the absence of his spleen. It would therefore be correct to say that his life will be in a vulnerable situation.

SUBMISSION BY DEFENCE:

12.	Mr. Nagle for the prisoner submitted that in sentencing, the Court is to consider the following issues:

(1)	Whether or not the present case is a worst type of case.
(2)	What is the appropriate starting point for the head sentence.
(3)	Whether sentence be equal to, less than or greater that the starting point.
(4)	Whether it is appropriate to suspend the whole or part of the sentence.

13.	He referred the Court to the following grievous bodily harm cases where sentences were imposed. In The State v Reuben Trowen (2004) N2339, the prisoner forced his two wives to strip naked and he inflicted serious bodily harm to them with a bush knife. He was sentenced to 7 years imprisonment. In the State v Ambe Tu (2008) N3306, the prisoner repeatedly cut his wife with a bush knife on her back, neck and shoulder. He cut her both hands. He was sentenced to 4 years. In The State v Isaac Wapuri (1994) PNGLR 271, the prisoner refused to have sexual intercourse with the victim. The victim took the prisoner's clothes and spread them all over the place. Aggrieved by that, the prisoner took a car handle brake cable and struck the victim across the face, slashing the victim's eyes causing permanent damage. She lost 90% disability. He was sentenced to 18 months with 5 months suspended. And in The State v Apa Kuman (2000) N2047, the prisoner after raping the victim he slashed the victim in the stomach to prevent her from shouting for help. Her right and left lobes were severely damaged and bled profusely. He was sentenced to 3 years imprisonment.

14.	Mr. Nagle submitted that from the above mentioned case, the present case is not a worse type of cases. Therefore the prescribed maximum penalty should not be imposed. This case not being that serious, he submitted that the head sentence should be 2 – 3 years. And considering the mitigating factor and the aggravating factors, he submitted that his mitigating factors far out – weighted the aggravating factors. Therefore the head sentence be lowered to 18 months. The Court to take rehabilitative approached to give him the second chance to learn from his mistake. The Court to deduct for pre-sentence period in custody and the balance be suspended with strict conditions to be imposed.

SUBMISSION BY STATE:

15.	The sentence for the offence of grievous bodily harm currently averages between 2 – 3 years imprisonment. In The State v Ben Robert (2009) N3629, Canning J, sentenced the prisoner to 3 years 2 months on plea of guilty for cutting his brother with a bush knife. The starting point should be 3 ½ years. This is a prevalent offence and a custodial sentence of 3 years should be imposed.

SENTENCE

16.	The penalty for the offence of causing grievous bodily harm has a maximum term of imprisonment of 7 years, pursuant to s. 319 of the Criminal Code Act, but it is subject to s. 19 of the Criminal Code Act, which allows the Court to impose sentence lesser than the prescribed maximum penalty. The cases which both the prosecutor and the defence counsel referred the Court to, involved the use of knives. And the sentence imposed ranges from 3 years to 7 years except the case of The State v Isaac Wapuri [1994] PNGLR 271 where sentence imposed was 18 months. The victim was assaulted with a car hand brake cable on the eye causing permanent damage. I consider that sentence imposed to be very lenient in the circumstance.

17.	In the case of The State v Martin Kons (2010) N4157, Cannings, J; imposed a sentence of 3 years imprisonment on plea of guilty where the prisoner assaulted his nephew with a piece of wood fracturing his knee. He suspended the whole of the sentence with conditions.

18.	In the present case the prisoner used a stone. He held the stone in his hand and hit the victim on the side of his stomach or abdomen. The parts of a human body, particularly, the head, neck and abdomen or stomach, are very vital parts. An assault on any of the vital parts of the body could result in death. I consider that where a vital part of the body of a person is struck causing grievous bodily harm, the appropriate starting point for the head sentence should be 3 years imprisonment where less offensive weapons such as a stone or a piece of wood is used. The sentence may be reduced on strong mitigating factors or it may be increased on strong aggravating factors. I impose a sentence of 3 years imprisonment.

19.	I do take into account of the prisoner's mitigating factors. He is the first time offender. He entered an early plea of guilty on the first available opportunity. There is the presence of provocation on the part of the victim. His mitigating factors far out-weighed the aggravating factors. Holding stone in the hand when used has a lesser force than when it is hurled or thrown. I will reduce the sentence by 12 months for his strong mitigation factors.

20.	He is being in custody for 8 months 20 days since his arrest on the 21st of December 2010. The period in custody should be deducted. I deduct the pre-sentence period in custody.

21.	I am of the view that this is an appropriate case to impose suspended sentence. Where the prisoner is not a habitual criminal offender nor is he in any way a treat to the community, the balance of the sentence should be suspended. This will allow the prisoner to rehabilitate outside of prison for his wrong doing. Prisons are not always the place to rehabilitate a prisoner. A person can become worse while in prison than when he first went into jail. In suspending a sentence, there must be some stringent conditions attached to it for the purpose that the prisoner does rehabilitate himself while outside of prison. I understand that there are no probation officers in Pogera to supervise those that may be placed on suspended sentence.

22.	That makes if difficult to supervise should the Court impose community work as one of the conditions. Face with the dilemma of such supervisory difficulty, it is inappropriate to impose community work. But that does not pose any problem in the Court imposing suspended sentence. And I suspend the balance of the sentence of 15 months 10 days on conditions that:

1.	The prisoner must keep the peace and be of good behavior towards the victim and he must not cause any trouble to anyone for a period of two years.

2.	The prisoner must reside at Anawe village, Pogera District and nowhere else during the period of the suspended sentence except with the written approval of the National Court.

3.	The prisoner must attend his local Christian Apostolic Church and attend church services every week for worship and for counseling.

4.	The prisoner must report to the Clerk of Court of Pogera District Court on Fridays of each week between 8:00 am and 12:00 noon.

23.	Should any one or more of these conditions is breached by the prisoner he will be re-arrested to fully serve his sentence of 15 months 10 days.

COURT ORDERS:

24.	The Court convicts;you for one count of grievous bodily harm, pursuant to s. 319 of the Criminal Code Act and you are sentenced as follows:

1.	Length of sentence imposed: 3 Years imprisonment.
2.	Sentence reduced for strong mitigation factors: 12 Months.
3.	Time in custody deducted: 8 Months 20 Days.
4.	Suspended sentence: 15 Months 10 Days with conditions to keep the peace and be of good behaviour for 2 years.
_________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused