State v Kund [2011] PGNC 42; N4262 (18 April 2011)

N4262

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 1268 OF 2009

THE STATE

v

ABEL CITY YA KUND

AND

CR NO 1269 OF 2009

THE STATE

v

WALI PYAKAI

Mount Hagen: Makail, J
2011: 11th, 14th & 18th April

CRIMINAL LAW - Sentence - Plea - Unlawful grievous bodily harm - Multiple offenders - Attack on unsuspecting victim - Serious injuries - Permanent loss of teeth - No use of offensive weapons - First offenders - Remorseful - Payment of substantial compensation - Non custodial sentence imposed - Criminal Code, Ch 262 - Sections 19 & 319.

Cases cited:

The State -v- Eddie John Naopa (2003) N2411
The State -v- Henry Idab (2001) N2172
The State -v- Rueben Irowen (2002) N2239
The State -v- Benjamin Sawali (No 3): CR No 229 of 2010 (Unnumbered & Unreported Judgment of 30th March 2011)

Counsel:

Mr J Waine, for the State
Mr R Bellie, for the Offenders

SENTENCE

18th April, 2011

1. MAKAIL, J: The two offenders pleaded guilty to one count of unlawful grievous bodily harm caused to Michael Kunai on the night of 28th May 2009 at Tit camp in Mt Hagen under section 319 of the Criminal Code, Ch 262. They were convicted on their guilty plea.

2. On that day, they had visited a relative named Noipa Pok at Tit camp in Mt Hagen. Sometimes before that date, the daughter of Noipa Pok called Pamela Pok was a victim of a rape incident. The victim in this case was a neighbour of Noipa Pok and on that night between 11 and 12 midnight, visited Pamela. They talked for sometimes and suddenly the offender Abel City Ya Kund appeared followed by the offender Wali Pyakai. They mistook the victim for a rascal or the person who raped Pamela and attacked him. As a result of the attack, the victim suffered multiple bruises and swelling all over his body. He also suffered three broken teeth.

3. The offence of unlawful grievous bodily harm is provided under section 319 of the Criminal Code, Ch 262. It carries a prescribed maximum penalty of 7 years imprisonment. That is what the offenders in this case are looking at. But under section 19 of the Criminal Code, Ch 262, the Court has discretion to impose a lesser penalty.

4. On allocutus, they apologised to the Court, the victim, his parents and relatives and said they did not mean to cause grievous bodily harm to him. They did it because it was in the night and the victim was seen in the premises of Noipa Pok and attacked him. They had learnt their lesson and promised not to re-offend. They also said, they had paid substantial amount of compensation to the victim and his relatives comprising of 32 pigs, 1 cassowary, 1 goat and K16,500.00 cash giving a total of K48,000.00. The payment of compensation is confirmed by a record of mediation from the Provincial Peace and Good Order Committee of 14th March 2011. It confirmed payment had been made on 24th October 2009.

5. A pre-sentence report has been provided by the probation officer for each offender. Each report also confirmed the offenders and their relatives paid compensation of 32 pigs, 1 cassowary, 1 goat and K16,500.00 cash giving a total of K48,000.00 to the victim, his parents and relatives. However, each report stated the victim and his parents do not support a non-custodial sentence.

6. This case appears to be a one off incident where the offenders mistook the victim for being an intruder or rapist and attacked him. It has not been suggested that offensive weapons were used in the attack. The offenders only punched him and when he fell on the ground, they kicked him. That was how he sustained the bruises and swelling on his body and lost three of his teeth. But I can see that the attack was on an unsuspecting victim. He had gone to visit Pamela and both men should have enquired first before attacking him. The victim was alone and was attacked by two men, the offenders. He was overpowered and that is why he could not defend himself from the attack. He was almost killed.

7. According to the pre sentence reports, the victim has lost three teeth and is wearing false teeth as replacement. He also has visual impairment. There is a medical report from Dr Joel Martin of Mount Hagen General Hospital verifying the loss of teeth but does not verify the victim's visual impairment. Based on the medical report, I accept the victim has permanent disfigurement on his face due to the missing teeth but I shall give the offenders the benefit of the doubt that there is no visual impairment. That means, the offenders must be told in very specific terms that because of their actions, the victim will live for the rest of his life with false teeth.

8. It is also true the offence of unlawful grievous bodily harm is prevalent in the country and people seemed not to take heed of the law which prohibits such conduct. It also seems to be a common trend nowadays that whenever there is a dispute between two conflicting parties, it always end up in a physical confrontation. As a result, people get injured and even die. The Parliament has legislated against such conduct and the Court, as the law enforcing body, has imposed hefty penalties on offenders of such offences but people continue to flout the law.

9. In this case, the offenders are first offenders, have expressed remorse and have paid substantial compensation to the victim for the wrong they had committed. They said they have learnt their lesson and promised not to re-offend. It was a one off incident and no offensive weapons were used. In my view, their cases are not as serious as the case of The State -v- Eddie John Naopa (2003) N2411 Kandakasi, J imposed a sentence of 5 years imprisonment on the offender and partly suspended the sentence because of a guilty plea and an order for compensation. The victim in that case lost one of her eyes completely from a slingshot.

10. In a more serious case of The State -v- Henry Idab (2001) N2172, a group of men attacked another group mistakenly taken to be the ones responsible for verbally abusing one of the attacking group member's mother. In the process, a village court magistrate sustained serious bush knife injuries to both of his hands, resulting in an estimated 85% loss of efficient use of his hands and restricted to only light work. Again, Kandakasi, J imposed a sentence of 5 years imprisonment, and suspended part of it on strict terms including community work. His Honour also allowed at the discretion of the village court magistrate, room for the offender to render services free of charge to his victim.

11. But a more serious case of grievous bodily harm was the case of The State -v- Rueben Irowen (2002) N2239, again a decision by Kandakasi, J. In that case, the offender forced his two wives (victims) to strip down naked and effected 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. His Honour imposed the maximum sentence of 7 years imprisonment each for the harm the prisoner he had occasioned to the victims for him to serve cumulatively.

12. A closer case to the present case is the recent case of The State -v- Benjamin Sawali (No 3): CR No 229 of 2010 (Unnumbered & Unreported Judgment of 30th March 2011) where I sentenced the offender to 2 years imprisonment for unlawful grievous bodily harm caused to a female victim. 13. He struck her with a stone on her face resulting in a deep laceration and stabbed her on her vagina with a kitchen knife. It was a trial matter and an offensive weapon was used although the offender was a first offender. I did not suspend the sentence either wholly or in part.

14. I note the State does not oppose the offenders' counsel submissions for a non-custodial sentence. The State conceded a wholly suspended sentence of 2 years imprisonment with conditions would be an appropriate sentence for the offenders. This is because the offenders had paid substantial compensation to the victim and the probation officer has recommended that the offenders were suitable candidates for a non-custodial sentence.

15. Taking into account all these matters, I have decided a sentence of 2 years imprisonment is appropriate. 4 months shall be deducted for each offender for time spend in pre-trial custody. In the exercise of the Court's discretion under section 19 of the Criminal Code, Ch 262, I wholly suspend the sentence and order the offenders to enter into own recognizance and be of good behaviour during the period of the suspended sentence.

Sentence accordingly.
______________________________

Acting Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Offenders