State v Pendin [2012] PGNC 292; N4541 (26 March 2012)

N4541

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1054 OF 2005

BETWEEN:

THE STATE

AND:

PETER PENDIN

Lae: Kawi, J
2012: 23- 26th March

CRIMINAL LAW – prisoner pleaded guilty to one count of doing grievous bodily harm – initially charged for attempted murder but down- graded to unlawful GBH upon plea bargaining - prisoner completely severed victims hand with bushknife in an unprovoked assault – mitigating and aggravating factors considered – sentence of 16 years less time spent in pre – trial custody imposed – s315 (b) (d) Criminal Code Act

Cases Cited:

The State -v-So-on Taroh [2004] N2675
The State v. Tamumei Lawrence, Koloata James and Tobias Thomas [2006] N 311
The State –v- Yale Sambrai [2005] N2886

Counsel:

J. Done, for the State
L. Vava Jnr, for the Accused

26 March, 2012

1. KAWI J: Peter Pendin pleaded guilty on arrangement to an indictment charging him with one count of an act intending to cause grievous bodily harm contrary to Section 315(b)(d) of the Criminal Code.

2. He is charged that on Sunday 4th September, 2004 at Lae in Papua New Guinea, he with intent to cause grievous bodily harm to one, Tingali Ben Kawi did in fact cause grievous bodily harm to the said Tingali Ben Kawi. He was initially charged with attempted murder under Section 304 of the Criminal Code. However, through the process of plea bargaining, both defence and prosecution agreed to have the accused charged with a lesser offence. Hence, the charge proffered under Section 315(b)(d).

FACTS

3. The following allegations were put to the accused on the basis of which he pleaded guilty.

4. On Sunday the 4th of September 2004, the accused was sitting near informal roadside market at the PTC main gate. He was armed with a long sharp bush knife which he concealed under the shirt he was wearing. His victim one, Ms Tingali Ben Kawi came on a bus and alighted at the PTC main gate bus stop. There she met a friend of hers and began conversing. While still conversing they walked towards the spot where the accused was sitting. The accused was agitated by the presence of Tingali Ben Kawi. He pulled out the bush knife he concealed and attacked the victim, initially cutting her on the head. The victim was quite shocked at this unprovoked attack. She than began fleeing for her life. She had wanted to go to her house located within the PTC College area. As she was fleeing for her life, the accused pursued her. Running from behind, the prisoner kept swinging the bush knife aimed at chopping her head off. Sensing this, the victim put her hand up to protect herself from the knife attack.

5. The knife was swung with such savagery and ferocity that it cut the victim just below her right forearm elbow joint. This savage and ferocious blow cut off her arm severing the hand from the limb completely. The severed hand and the plastic which she was carrying containing her family shopping fell onto the ground. She bravely ran into the main PTC gate where she was rescued by security personnel manning the gate. Her attacker, the prisoner continued to pursue her all the way into the PTC College Compound where he too was subdued by College Security Personnel.

6. The victim, Ms. Tingali Ben Kawi was taken to the Angau Memorial Hospital where she was hospitalized and medical treatment administered on her. Medical Report from the Chief Surgeon of Angau, Dr. Pokatau Chalau reported the following injuries:-

(a) Complete amputation of the forearm below the right elbow with bleeding vessels.
(b) 10cm x 2cm deep wound to the scalp.
(c) 10 x 4cm would to right posterior shoulder.
(d) 4 x 15cm deep wound to the thoracic lumber area at the back.

7. Colored photographs taken by a police crime scene photographer clearly showed the wounds including the strong of the severed right forearm.

8. The prisoner was given an opportunity to speak during the administration of the allocutus. He apologized for his criminal actions and begged the Court for mercy and leniency. Furthermore, as an expression of his remorse, he had paid compensation of K2,000.00 in hard cash to the victim.

MITIGATING AND AGGRAVATING FACTORS

9. I take into account the following mitigating and aggravating factors which operate for and against the prisoner.

10. For the prisoner, I read the following:

1. He is a young man aged 32 years. He committed the offence when he was 25 years old.
   
2. He co-operated well with police and made relevant admissions right from the outset.
   

100. He pleaded guilty to the charge and saved the court a lot of expense that would have been incurred if a full trial was run to determine his guilt.
     

4. He is a first time offender. This fact was confirmed when the State presented his antecedent report which showed as prior convictions.
   
5. The prisoner at one time receiving medication being suspected with having a schizophrenic state.
   

11. I record the following factors against the prisoner.

1. A lethal and dangerous weapon, namely a 1 meter long sharp Tramontina bush knife was used to attack the victim.
   
2. The attack was never provoked in any way at all.
   

100. The prisoner had intentionally raged the attack on an unsuspecting innocent victim.
     

4. The dangerous lethal weapon (ie. The long sharp tramontina bush knife) was swung with such savagery and ferocity that it cut and completely severed and amputated the right forearm just below her elbow joint.
   
5. The victim lost a lot of blood (3%) and was clearly shocked over what happened and was clearly in a lot of pain and suffering.
   
6. The victim, a beautiful young girl will forever live with the social stigma of carrying around a stump. Her prospects of furthering her education to higher tertiary educational institutions and her prospects of getting a good job now lie in tatters. Even more, worrying is the prospect of her getting married and raising her own children. The future prospects look bleak and daunting with the tasks ahead doubtful for her now that she has completely lost her right forearm.
   
7. She will now live with a 100% permanent disability and the shame and embarrassment that goes with it.
   

12. When I balance both these factors out against each other, I find that the aggravating factors significantly tip the scale in their favour. The mitigating factors have been rendered insignificant.

13. I will find that in the category of cases dealing with grievous bodily harm unlawful wounding and intentionally doing grievous bodily harm I find that this case is immediately categorized as belonging to the worst case category. Taking into account all evidence in this case, I will categorize this case as falling in the worst case category. For one thing too it is aggravated by very many serious and ferocious body injuries inflicted upon the victim at the hands of the prisoner.

THE OFFENCE

14. I have taken note of all the mitigating factors operating in favour of the prisoner. However, these factors have not convinced me one bit to impose some sentence other than a strong punitive custodial sentence which will have a deterrent effect not only upon the prisoner but also other would be offenders. The offence for which the prisoner was charged and pleaded guilty is prescribed under Section 315(b)(d).

15. Relevantly, this provision is stated in these terms:

S 315. Acts intended to cause grievous bodily harm or prevent apprehension.

A person who with intent:-

(b) to do some grievous bodily harm to any person or

(c) does any of the following things is guilty of a crime

(d) unlawfully wounding or doing a grievous bodily harm to a person; or

Penalty – subject to Section 19 imprisonment for life.

16. In my view, this offence involves an element of deliberate intention to wound someone. On this basis, it is markedly different in character to the crime of unlawfully causing grievous bodily harm prescribed under Section 319.

17. Secondly, the penalty regime created under Section 315 and 319 are quite different. An accused person under section 319 attracts a maximum sentence of up to seven (7) years in jail. On the other hand, the penalty regime under section 315 attracts any sentence up to life imprisonment.

18. Accordingly, the penalty regime under section 315 indicates the seriousness of this offence.

19. Lay J in the case of The State v. Tamurei Lawrence, Koloata James and Tobias Thomas [2006] N 311, a charge brought under section 315 made this comments:

"The court cannot treat lightly serious attackers which intentionally cause grievous bodily harm. They are far too prevalent, and call for an immediate custodial sentence as Sawong, J observed in The State v. Sambrai [2005] N 2886;

I cannot readily accept the Submission of Counsel for the Offender, that the time clearly spent in custody of a little over one year is sufficient."

SENTENCING TARRIFS

20. Defence Counsel cited cases which he submitted should assist me in determining the penalty to be imposed.

21. The first is the decision of Sawong, J in The State v. Yale Sambrai [2005] N2886.

22. In this case the prisoner pleaded guilty to intentionally doing grievous bodily harm to another person. He had intentionally cut the victim on the back of his head with a sharp bush knife. The victim lost a lot of blood and fell unconscious. He pleaded guilty to the charge under section 315 and was sentenced to jail for two (2) years in hard labour.

23. The second case cited by Counsel is the case of The State v. Tamumei Lawrence, Koloata James and Tobias Thomas [2007] N 3117.

24. The accused persons pleaded guilty to a charge under Section 315 that they intentionally caused grievous bodily harm to another person by cutting him with a very sharp tramontina brand to the left upper arm which cut right through to the bone, the left shoulder joint, another cut to the right upper chest, and still another cut to the right forearm and elbow. The accused in that case was gardening along with his wife and children. The attack on him was unprovoked. Each of the accused persons were sentenced to six (6) years. In The State -v-So-on Taroh [2004] N2675 Kandakasi J sentenced the prisoner who pleaded guilty to a charged against him proffered under section 315 to eight years jail in hard labour for cutting another person and grievously wounding him, in various parts of his body.

25. In this case, I find the attack on the victim was unprovoked. It was penetrated by a knife wielding madman on a harmless young innocent girl. Whilst, I take into consideration the early plea of guilty, and the expression of remorse and contribution showed by the prisoner, in my view, it is the gravity of the offence, characterized by the serious bodily injuries sustained by the young female victim, which will override any consideration based on an expression of remorse and contrition.

26. I find that this was a cold blooded spiteful and barbaric attack on an innocent harmless female victim. Whilst the rehabilitation of a prisoner is important in criminal sentencing, such objectives of rehabilitation and reformation of offenders such as this prisoner must not be allowed to obscure the consideration of deterrence and the protection of the public from the commission of such heinous and violent crimes. In my view, this case calls for a more hefty custodial punishment to be imposed.

27. On this basis, I will not follow the punishment imposed by Sawong, J in Yale Sambrai (N 2006) and Lay, J in Tamumei Lawrence (2007) N3117

28. In their respectful submissions both Counsel agreed that a custodial sentence in the range of 6 – 8 years is warranted. Having looked at the whole evidence, and the horrific injuries suffered by the young innocent girl, I am of the view that a more stiffer penalty should be imposed to serve as a deterrence to offenders and would be offenders. In my view, the Courts should now impose higher sentence for intentionally doing grievous bodily harm on others. This is to reflect the courts abhorrence at this kind of crimes committed by one person on another.

29. I will therefore impose a sentence of 16 years in hard labour. Of this, I will suspend 3 years on account of the prisoner's schizophrenic condition and the time he spent in custody awaiting trial. The balance of 13 years will be served by the prisoner who will be incarcerated at the Buimo Jail out of Lae in hard labour.
___________________________________________________________

Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Accused