State v Kiatni [2011] PGNC 67; N4331 (20 June 2011)

N4331

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR 729 OF 2009

STATE

V

FIDELIS KIATNI
Accused

Wewak: Ipang AJ
2011: 9, 15 & 20 June

CRIMINAL LAW – Sentence – Grievous bodily harm – right hand completely chopped off – Criminal Code Act Section 319 – guilty plea – victim argued and struggled with wife who is offender's sister – offender slashed his brother in-law's right hand off – de-factor provocation – sentence of 4 years – 2 years suspended on conditions.

Cases Cited

State v Charles Kaona (2007) 24 August, 2007
State v Ludwina Waiguma (2007) 21 March, 2007

Counsel

Mr. F. Popeu, for the State

Mr. J. Kolkia, for the Offender

DECISION ON SENTENCE

20 June, 2011

1. IPANG AJ: The offender Fidelis Kiatni pleaded guilty to a charge of causing grievous bodily harm to one Golsy Dickson.
   
2. The facts of this case are as follows; on the 15 March, 2009 at around 8.00 am to 9.00 am the offender was at the market area at Raungi Kuminimbis No.1 village. The complainant's wife was also at the market at that time. It was alleged that the complainant Golsy Dickson approached his wife at the market and argued with her. The wife of the victim or complainant in this matter is the sister of the offender.
   
3. During the argument the victim had a knife in his possession. The victim was told to put his knife away in which he threw it on to the ground. At that time the victim's wife also had possession of another knife. So, the victim tried to remove the knife from his wife and both scoffold together. Seeing what was happening, the offender picked up the victim's knife which was on the ground and swung it at the victim. The victim then put his right hand up to block the knife, resulting in the knife chopping his hand off.
   
4. I entered a provisional plea of guilty and then, after reading the District Court committal depositions, I confirmed the plea and entered a conviction for grievous bodily harm under section 319 of the Criminal Code Act.
   

Allocutus

5. In his allocutus, the offender apologized to the Court for what he did. He said it was on a Sunday, he went to the market and he sat beside his sister. He said her husband walked up and assaulted her. He said he got the knife and chopped him. He said the victim does this to his sister all the time. The offender apologized to his sister and his brother in-law, to Golsy's parents and to his own family. He asked this court for mercy and said he will compensate the victim.
   

Submission by Defence

6. Mr. Kolkia of counsel for the offender submitted that the offender is 19 years old and he is the seventh (7th) boy of the family of eight girls. He was doing his grade 2 at the primary school when he committed the offence. The offender's father and mother are living in the village with the offender's sisters.
   
7. The following are said to be the mitigating factors and aggravating factors in this case.
   

FACTORS
NO.	MITIGATING	AGGRAVATING
1	The offender is below 20 years old	Completely chopped off victim's hand and fingers – 100% loss of right hand.
2	He is a first-time offender	Use of dangerous weapon – bush knife
3	He pleaded guilty saving Court's time and State's expenses for putting up a trial
4	He expressed remorse

8. Issues
   
   1. What is the appropriate sentence to impose?
      
   2. Whether part or whole of the sentence should be suspended?
      
9. Law
   

The offender was charged under section 319 of the Criminal Code Act, chapter 262 Section 319 states;

"A person who unlawfully does grievous bodily harm to another person is guilty of a crime.
Penalty: Imprisonment for a term not exceeding seven years."

10. Defence Counsel submitted the following cases for offences under section 319 and in which different sentences were imposed. In State v Ludwina Waiguma (2007) 21 March, 2007, a middle aged woman stabled the victim with a knife. This was after the victim said bad things to her. The victim suspected that the prisoner was having an affair with her (victim's) husband.
    
11. The court in that case imposed a term of four (4) years imprisonment. None of the period of suspended sentence was considered. The court considered that the prisoner was a person with violent behavior, with a prior conviction for grievous bodily harm and that the attack on the victim was unprovoked.
    
12. In State v Charles Kaona (2007) 24 August, 2007, the offender pleaded guilty to one count of causing grievous bodily harm. The offender hit the victim with a bush knife during confrontation between two (2) clans. This was after a man was alleged to have committed adultery with another man's wife. A term of 4 years was imposed. The pre-sentence period was deducted and the court suspended one third of the head sentence with strict terms and conditions.
    
13. Defence counsel submitted that the court consider the background to this case in that the offender was with his sister at the market and when the victim came and attacked his sister, he responded and chopped the victim's hand off.
    
14. Counsel said the court should consider the cases he cited together with weighing the mitigating factors against the aggravating factors and start with a head sentence of 4 years. Then suspend part of the sentence as the offender is a young person with no prior conviction. The counsel submitted that the court should also consider the Pre-Sentence Report plus the Means Assessment Report.
    
15. The state prosecutor submitted that the maximum sentence is normally reserved for worst cases. In this case, the state prosecutor said the victim had his right hand chopped off completely. The prosecutor was of the view that still this case is not of the worst case scenario justifying maximum of 7 years. He said considering the circumstances on which the commission of the offence took place, what the offender said in his allocutus, his plea of guilty, the pre-sentence report, a head sentence higher than 3 and half years be imposed.
    
16. This court now considers the mitigating factors - that the offender has no prior convictions, he pleaded guilty, he said sorry for what he has done. The pre-sentence report (PSR) recommends that the offender is a suitable candidate for probation. However, I have not lost sight of the fact that the victim has completely lost his right-hand. The victim had disarmed himself already when he threw his bush knife on the ground. As the evidence show, the victim was trying to remove the knife which his wife was in possession of when the offender picked the bush knife on the ground and swung it at the victim. As a result victim's hand was chopped off. I find the offender's action is pre-mature and he acted so soon with the bush knife. He could have stopped the fight without the use of bush knife. Offender needs to be thought a lesson to exercise caution with use of offensive weapons. I give the following orders
    
    1. The offender is sentenced to imprisonment for a term of 4 years, to be served at Boram Correction Institute;
       
    2. The above sentence is partly suspended in that the offender will only serve two (2) years imprisonment and the remaining two (2) years, the offender is placed on probation with the following conditions;
       
       • (a) After serving two (2) years imprisonment at Boram Correctional Institute, the offender –
         
         • (i) Reports to CBC Maprik Office to be supervised with any community work.
           
         • (ii) Given the 12 months to his suspended sentence, offence pays victim a sum of K6,000 as compensation –to be witnessed by CBC Maprik, Ward Member Kuminbus No.1 and the Arresting Officer Detective Constable V. Maku.
           
    3. In the event any terms of this order are breach, offender is ordered to serve the balance of his suspended sentence.
       

____________________________________
Public Solicitor: Lawyer for the State

Paul Paraka Lawyers: Lawyer for the Accused