State v Kaminja [2011] PGNC 69; N4329 (21 June 2011)

N4329

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR 489 OF 2011

STATE

V

JAMES KAMINJA
Accused

Wewak: Ipang AJ
2011: 8, 16 & 21 June

CRIMINAL LAW – Grievous bodily harm – guilty plea – mitigating and aggravating factors, pre-sentence report considered – chopped off completely victim's right leg – Criminal Code Act – s. 319

CRIMINAL LAW – Sentence – not worst type case – though the injury sustained is serious – part custodial and non-custodial sentence considered appropriate – a head sentence of 5 years of which 3 years is suspended on conditions.

Cases Cited

Saperus Yalibakut v State (2006) SC 890
State v Ben Robert N3629
State v "W" N3889

Counsel

Mr. F. Popeu, for the State

Mrs. A. Meten, for the Accused

DECISION ON SENTENCE

21 June 2011

1. IPANG AJ: The offender James Kaminja pleaded guilty to an indictment alleging that he on the 17 day of September, 2009 at Baliningi did unlawfully cause grievous bodily harm to another person namely Robert Ari Kun. He was charged under section 319 of the Criminal Code Act.
   
2. The brief facts of this case are as follows: On the 17 September, 2009 at around 3.00 pm to 4.00 pm the offender was at Baliningi Hamlet, Mondu village. The complainant Robert Ari Kun had gone to the Revival Church and he chopped off flowers around the Revival Church. The complainant had a land dispute on the land on which the church was built. He claimed he was the landowner and he was not compensated. So, on the date as stated above, after cutting the flowers, the complainant attempted to set fire on the church building. The offender and other members of his family armed themselves with various weapons and approached the complainant. They then attacked the complainant.
   
3. The offender used a bush-knife and chopped the complainant's right leg off from the ankle.
   
4. Mrs. A. Meten of Counsel for the offender applies for a Pre-Sentence Report so the Court granted order for a pre-sentence report to be done and adjourned the matter to the 16 June, 2011 for submissions to be made on sentence.
   

Antecedent

5. The offender has no prior conviction.
   

Allocutus

6. I asked him if he has anything he wish to say regarding the offence and the penalty that this court should consider on his behalf. He said;
   

"The complainant put fire on the church. So he (offender) got a spear and put the fire out. He said the victim wanted to chop my neck off with the bush knife. I evaded the knife and speared him. Spear fall down from his back. I then chopped his leg. I said sorry to him. I told him you cut flowers so I chop your leg. I gave him K200 and they took him to the hospital. I also paid him K4,000 as bel-kol money. On the 1 May, 2011, I shook hands with him and I gave him K2070."

Other Matters of Fact Raised

7. I do take into account that the offender has already pleaded guilty, he will be given the benefit of doubt on mitigating matters raised in the allocutus or in the submissions that are not contested by the prosecution. See Saperus Yalibakut v State (2006) SC 890.
   

Pre-Sentence Report

8. The offender aged 23 years is married and has two children and is from Baliningi hamlet, Mondu village in the South Wosera in the Wosera/Gawi area. He is a member of the PNG Revival Church and holds the position of a Deacon in the church. He is remorseful and has taken up steps to make things right. He is no danger to the community. The offender is a suitable candidate for non-custodial supervision under probation.
   

Submission by Defence Counsel

9. Mrs. Meten of counsel for the offender submitted that the court takes in to account what the offender said in the Record of Interview (ROI) and the circumstances leading up to the commission of this offence. Counsel also submitted that the Court considers weighing the mitigating factors and the aggravating factors to consider an appropriate sentence for the offender.
   
10. Both counsels have mentioned the issue of mitigating and aggravating factors in their respective submission so I will state this in a table form.
    

FACTORS
NO.	MITIGATING	AGGRAVATING
1	Guilty plea – saves Court's time and State's cost of putting up trial	Dangerous or offensive weapon used.
2	Early plea – on arrest and ROI.	Victim's leg completely chopped off.
3	Co-operated with police.	He did not act alone but was with a group.
4	Nil prior conviction.	Victim was able-bodied.
5	Shows remorse – helped victim with K200 for victim to go to the hospital.	No accident.
6	Element of de-facto provocation.

Issue

11. What then would be the appropriate sentence?
    
12. The law under which the offender was charged with is section 319 of the Criminal Code Act. The 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."

13. Defence Counsel submitted that the Court considers section 19(1) of the Criminal Code Act and impose a shorter term of years. The counsel also submitted that the mitigating factors outweigh the aggravating factors in this case. Counsel referred to the case of State v Ben Robert, N3629, a guilty plea case. Offender cut his brother with the bush knife inflicting a deep wound over the right side of the face. Cannings, J imposed a sentence of 3 years, 6 months. The extent of injuries sustained by the victim in this case is not similar to the present case. In the present case, the victim's leg has been completely severed off and the offender was in the company of others when he committed this offence.
    
14. In the case of State v "W" N3889, the offender pleaded guilty to grievous bodily harm. The offender used a knife injured the right foot of his brother's wife. He had no prior conviction. Ellis, J imposed a term of 3 years. I do agree with the State Prosecutor in that the victim still retained 40% use of her foot unlike in this case its 100% loss of his leg.
    

Submission by State Counsel

15. In regard to the two (2) cases cited by the defence counsel the State Prosecutor submitted that those cases can be differentiated with this present case. He said in this present case the offender is directly responsible for severing the victim's leg completely off. He was part of a group and also the victim received other injuries. Prosecutor submitted that the sentence should be higher than the ones imposed in the two (2) cases cited. The State submitted that a head sentence of 5-6 years would be appropriate. On the converse, the defence counsel submitted the court impose a head sentence of 3 years.
    
16. Having heard submission from both counsels, this is my decision on the sentence. The cases that Mrs. Meten cited, the circumstances, and the nature of injuries sustained do not come closer to the nature of injuries sustained by the victim in the present case. For example in Ben Robert's case (supra), though the injury was sustained through use of bush knife, the injury was a deep wound on the right side of the victim's face and the offender inflicted the bodily injury alone. A sentence of 3 years 6 months was imposed.
    
17. In State v "W" (N3889) again a bush knife was used to inflict injury to the victim's right foot by the offender on his brother's wife. A sentence of 3 years was imposed. The Ben Robert's case and "W"'s case can be contrasted with the current case on the extent of injury sustained. In the present case, the extent of injury sustained by the victim is quite enormous or substantial compared to the cases cited. It is therefore appropriate that a head sentence higher than 3 years be imposed.
    
18. Considering the mitigating factors and pre-sentence report are in favour of the offender, I consider a part custodial and a non-custodial sentence be appropriate. I consider a head sentence of 5 years imprisonment. Offender is to serve two (2) years imprisonment at Boram Correction Institute and the other 3 years is conditionally suspended in that:-
    
    1. Offender is placed on 3 years probation;
       
    2. Offender is to report to CBC Maprik office soon after he served his prison term;
       
    3. Offender to do 8 hours of community at the Maprik Hospital every Tuesday and Thursday each week during 3 years probation;
       
    4. Not to commit any offence within 3 years of his probation;
       
    5. Offender pays further K5,000 to the victim after six (6) months in to his 3 years probation period;
       
    6. Offender's bail is refunded; and
       
    7. If the offender breaches any of these conditions, he will serve balance of 3 years in prison.
       

____________________________________
Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Accused