N4595

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1093 & 1052 OF 2011

THE STATE

V

JULIUS MINSIPI

Arawa: Maliku AJ
2012: 08th, 15th February

CRIMINAL LAW - Unlawful Grievous Bodily Harm- Section 319 Criminal Code Act - Appropriate sentence on a plea of guilty- First offender.

CRIMINAL LAW - Unlawful Wounding- Section 322 (1) (a) Criminal Code Act -Appropriate sentence on a plea of guilty – First offender -Whether sentences served cumulative or concurrent.

Cases cited:

Goli Golu v The State [1979] PNGLR 653 
Avia Aihi v The State (NO3 [1982] PNGLR 92 at page 96
Rex Laliu v The State [1990] PNGLR 487
The State v Vincent Naiwa (2004) N2710
The State v Rea Bernard CR N0 375 of 2005

Counsels

Mr Kuvi, for the State
Mr Kaluwin, for the Accused

SENTENCE

15th February, 2012

1.	MALIKU AJ: The accused pleaded guilty to two counts of unlawful wounding which I set out below:

i.	1st Count: The accused Julius Minsipi of Tugiu village, Buin District, Autonomous Region of Bougainville stands charged that he on the 24th o f April in 2009 unlawfully did grievous bodily harm on one James Minsipi contrary to section 319 of the Criminal Code Act.

ii.	Count Two: The accused Julius Minsipi of Tugiu village, Buin District, Autonomous Region of Bougainville stand charged that he on the 24th of April in 2009 did unlawfully wound one Aloysius Kumuniu contrary to Section 322 (1) (a) of the Criminal Code Act.

Facts

2.	On the 25th of April in 2009 between 3and 5pm the victims James Minsipi and Aloysius Kumunu were returning from Piaringo village. They stopped at a hamlet called Okurai located at Numukei village to look for some native tobacco (brus). The victims were standing apart from each other outside the house they had gone to and were standing and waiting. The accused was drunk at that time and approached the two victims. He had a grass knife in his hand. He approached the victim James Minsipi and cut him with the grass knife on the right hand. He then approached the victim Aloysius Kumuniu and cut him with the grass knife on his upper left hand. Both victims were bleeding heavily and were taken to Buin Health Centre where they were treated. The victim Aloysius Kumuniu was later discharged after receiving treatment at Buin Health Centre. The victim James Minsipi was referred to Buka General Hospital where it was discovered that his right hand was starting to decompose. His right hand was eventually amputated.

i.	Issue1: Does this matter fall in the worst category of cases? 

ii.	Issue2: What is the appropriate sentence?

The allocutus

3.	In his address on his allocutus the accused told the Court the following:

i.	I say sorry for what I did.

ii.	I ask the Court to have mercy on me.

iii.	I promise to this Court that I will not do it again.

iv.	I paid K800.00 in cash to James Minsipi and K200.00 to Aloysius Kumunia for the medical expenses. 

v.	My father is dead and my mother is married to another man.

vi.	I realize that I was wrong and will not do it again.

The mitigating factors

i.	The accused had pleaded guilty to the two charges which saved the Court's time and other resources to conduct a trial.

ii.	The accused paid K800.00 to victim James Minsipi for medical expenses and K200.00 to victim Aloysius Kumunia for medical expenses also.

Personal Background:

i.	Accused comes from Tugiu village

ii.	Married with a three year child.

iii.	Father died already.

iv.	Accused is the only child in the family

v.	Completed Grade 6 at Tugiu Primary School

vi.	Accused has repented and is now a member of CLC Church

Aggravating factors:

i.	A dangerous weapon was used by the accused on to the two victims.

ii.	The extent of injuries suffered by the two victims.

iii.	The imputation of the right hand of victim James Minsipi which became permanent loss.

Guideline on sentencing 

4.	The guideline on sentencing is well settled in our jurisdiction in the case of Rex Lialu - v - The State [1990] PNGLR and is:

 "Sentence in any given case will depend on its own peculiar facts.... the Court ought to have regard to all aggravated effects of all relevant considerations on matters which aggravate or mitigate the serious nature of the offence and then to decide an appropriate penalty". 

I am bound to follow this principle.

5.	 I agree with both counsel that maximum prescribed penalties are reserved for the worst type or worst category of cases. This was settled in the case of Goli Golu-v- The State [1979] PNGLR at page 653 and re stated in the case of Avia Aihi-v-The State (No3) [1982] PNGLR 92 at page 96.

Does this matter fall in the worst category unlawful killing?

6.	Although this matter does not fall in the worst category of cases it is still serious because of the extent of injuries received by the victim James Minsipi and Aloysius Kumunia. 

7.	Unlawful causing grievous bodily harm and unlawful wounding are on the rise in many parts of Papua New Guinea which includes the Autonomous Region of Bougainville. The use of dangerous weapons such as knives has been frequently used to inflict injuries, many of which have been very serious and permanent on the victims. 

8.	It is the duty of the Court to impose sentences that will deter the accused from recommitting and others from committing the similar offences in the future and to ensure that everyone is safe and without fear of being attacked.

The appropriate sentence
 
9.	Although Mr Yawip for the accused conceded to the right hand of James Minsipi being amputated, he however submitted it was not an immediate result of the cutting by the accused. It is that which medical officers had a part to play so as to prevent any decompose on the victim's hand. Mr Yawip urged the Court to take into account that such could have been prevented should the victim James Minsipi had received proper medical treatment either at Buin or Buka General Hospital.

10.	Mr Yawip urged the Court to take into account that the accused paid for the medical expenses of both victims. Also the accused had no prior convictions.

11.	Mr Yawip referred to the case of The State-v- Vincent Naiwa (2004) N2710. In this case there was domestic argument. The accused grabbed the victim by the neck and squeezed it and then attacked the victim with a knife which amputated three fingers of the victim. The accused was sentenced to five years taking account of the prevalence of the offence in the area. There was no suspension of the sentence. 

12.	In the case cited by Mr Yawip the victim suffered loss of three fingers where as in the present case the victim suffered loss of a right hand which was amputated at Buka General Hospital because it was decomposed. In the earlier case the victim was still able use his hand despite the loss of three fingers. The victim James Minsipi lost the use of his right hand.

13.	Mr Yawip nevertheless conceded that the victim James Minsipi had suffered permanent injuries to his right hand and submitted that the Court should consider four to six years imprisonment as appropriate sentence for the 1st count. On the 2nd count Mr Yawip submitted a sentence of one year to18 months is appropriate. Mr Yawip submitted although his client attacked the two victims separately the episode however arose from the same set of facts.

14.	Mr Kuvi for the State however submitted that in considering the appropriate sentence for the accused the Court should take into account the use of a dangerous weapon which was a grass knife, the extent of injuries received by the victims and the permanent loss of the right hand of victim. 

15.	Mr Kuvi relied on the case of The State-v- Rea Bernard. CR N0 375 of 2005 in which the accused pleaded guilty to two counts of grievous bodily harm. The accused was under the influence of liquor when he committed the offence. He cut the victim with a knife. The father tried to assist the victim and was cut too by the accused. Both suffered injuries. The accused was sentenced to four (4) years imprisonment on each count and were to be served cumulatively upon each other. Mr Kuvi did not plead the type of injuries suffered by the victims.

16.	Bearing this in his mind Mr Kuvi submitted that five (5) years imprisonment is appropriate to the 1st count on the present matters because of the severity of injuries received by James Minsipi. Mr Kuvi conceded to the defence that the Court considers a term of imprisonment of one (1) year to 18months for the 2nd count however Mr Kuvi submitted that it be served cumulatively and not concurrently.

17.	In the case cited by Mr Kuvi the accused was convicted of two counts of grievous bodily harm and it was in my view appropriate that he was rightly sentenced to four years imprisonment to be served cumulatively. In the present matter the accused was convicted of one count of grievous bodily harm and one count of unlawful wounding which are of two separate degree of seriousness.

Address to the accused 

18.	You pleaded guilty to the charges of unlawful grievous bodily harm to James Minsipi and unlawful wounding to Aloysius Kumunia contrary to Section 319 and Section 322 (1) (a) of the Criminal Code Act. 

19.	I found you guilty and convicted you of these two charges. 

20.	 I heard what you told me in your allocutus. 

21.	I also heard what your lawyer told the Court to take into account when it considers the appropriate sentences for the two charges against you which was your mitigating factors and your personal background. I also heard what the State lawyer said is the appropriate sentences for the two charges against you. 

Conclusion

22.	In the present case the maximum for unlawful grievous bodily harm is imprisonment not exceeding (7) seven years, and an imprisonment not exceeding (3) three years for unlawful wounding. My view in taking into account the interest of the State and also of the accused put before me for consideration the proper sentences are: 

i.	1st Count: The accused is sentenced to five (5) years imprisonment with hard labour. I do not suspend any part of this sentence.

ii.	 2nd Count: The accused is sentenced to 18 months imprisonment to be served concurrently to the sentence imposed on the 1st count.

23.	Bail of K400.00 shall be refunded.

__________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused