State v Aret [2015] PGNC 202; N6103 (12 October 2015)

N6103

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No.1072 of 2015
CR No.1073 of 2015

BETWEEN:

THE STATE

AND:

GERA ARET
Offender

Mt. Hagen: David, J
2015: 17 September, 8 & 12 October

CRIMINAL LAW – sentence – doing grievous bodily harm with intent to do grievous bodily harm – two victims - two counts - pleas of guilty - Criminal Code, Section 315.

The offender attacked two female victims (his wife and mother in-law) with a bush knife and inflicted multiple life-threatening injuries to both of them. The offender chopped off his wife's right arm just below her elbow and inflicted three other cuts to the right arm, shoulder and back. The offender chopped his mother in-law on her arm, shoulder and back. The victims were hospitalised as a result. He pleaded guilty to two counts of doing grievous bodily harm with intent to do grievous bodily harm and was convicted.

Held:

1. Mitigating factors are; the offender is a first time offender; he saved the Court's time by his pleas of guilty; he cooperated with police investigations by his early admissions in the Record of Interview which he reaffirmed when making his statement under Section 96 of the District Courts Act; he expressed genuine remorse; this was an incident in which there was a moderate amount of de facto provocation offered by the victims; this was an extreme case of violence in a domestic setting which was self-inflicting; until the offence, the offender had previous good record; and the offender paid some form of compensation comprising K1,300.00 cash and 7 pigs to mend and restore relationships.
   
2. Aggravating factors are; the offender used a dangerous and lethal weapon; multiple victims; both victims sustained serious life-threatening multiple injuries to vulnerable parts of their bodies including permanent amputation of the offender's wife's right arm; it was a vicious attack; both victims were unarmed and harmless; mother in-law attacked; the offender's action was contemptuous of the Village Court or village leaders; the offender is a middle-aged adult who ought to have a moral conscience which should tell him what was right and wrong; and the offence was prevalent.
   
3. Sentences imposed were; first count, eight years imprisonment in hard labour; and second count, 6 years imprisonment in hard labour. No part of any of the sentences was suspended. Sentences to be served concurrently.
   

Cases cited:
Avia Aihi v The State (No 3) [1982] PNGLR 92
Edmund Gima and Siune Arnold v The State (2003) SC730
Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
Public Prosecutor v Don Hale (1998) SC564
Richard Liri v The State (2007) SC883
The State v Peter Pepa (2010) N4146
The State v Peter Pendin (2012) N4541
The State v So'on Taroh (2004) N2675
The State v Yale Sambrai (2005) N2886
The State v Steven Moni (2006) PGNC 109; CR 293-297 of 2004, a judgment delivered by Cannings J at Kimbe on 19 December 2006
The State v Tamumei Lawrence (2007) N3117
Ure Hane v the State [1984] PNGLR 105

Counsel:

Joe Kesan, for the State
Misil Yawip, for the Offender

SENTENCE

12th October, 2015

1. DAVID, J: Gera Aret pleaded guilty to two counts of doing grievous bodily harm with intent to do grievous bodily harm to the victims, Kina Gera and Lina Nentepa and was convicted of both counts under Section 315(b) and (d) of the Criminal Code.

2. The incident occurred at Geg village, Baiyer District in the Western Highlands Province on 22 January 2015 at about 10:00 o'clock in the morning. At the material time, the victims namely, the offender's wife, Kina Gera and her mother and the offender's mother in-law, Lina Nentepa were trying to solve a family problem concerning the offender and his wife with the involvement of local leaders and the leaders sent word for the offender to meet with them. When the offender arrived, he was armed with a bush knife. He attacked his wife with the knife by; first chopping her right arm off just below the elbow; second, he chopped the same arm again; third, he chopped her shoulder; and finally, he chopped her back. He then proceeded to attack his mother in-law with the same bush knife and chopped her on her arm, shoulder and back. Both victims sustained serious and life-threatening injuries. The severity of the wounds caused them to fall down unconscious and both of them were taken to the hospital and hospitalised. The offender intended to cause grievous bodily harm to the victims.

3. The nature and extent of the injuries sustained by Kina Gera are described in the Medical Report produced by Dr Peter Anjo of the Mt. Hagen Provincial Hospital dated 31 January 2015 and the four coloured photographs of the injuries after the attack and hospitalisation. The medical report reports that the victim was attended to at the Outpatient and Accident & Emergency Sections of the Mt. Hagen Provincial Hospital on 22 January 2015 with a completely amputated right arm with axillar bundles visible and three minor lacerations at her back. She was hospitalised at the surgical ward and her wounds were appropriately treated and managed.

4. The nature and extent of the injuries sustained by Lina Nentepa are described in the Medical Report produced by Dr Peter Anjo of the Mt. Hagen Provincial Hospital dated 31 January 2015 and the five coloured photographs of the injuries after the attack and hospitalisation. The medical report reports that the victim was attended to at the Outpatient and Accident & Emergency Sections of the Mt. Hagen Provincial Hospital on 22 January 2015 with deep lacerations to her anterior left upper shoulder (6 cm long x 2 cm deep wound), multiple wounds to the left forearm with x-ray confirming fracture of the left proximal ulna and a punctured wound to the left lateral ribs between the 8th and 10th rib cage. She was hospitalised at the surgical ward and her wounds were appropriately treated and managed.

5. The offender has no prior convictions.

6. On his allocutus, the offender admitted committing the offences against his wife and mother in-law on 22 January 2015. Accepting criminal responsibility, he then said that he surrendered to the police to be dealt with according to law. He said that he was concerned about his six children therefore acted in the way that he did. His wife was a gambler and a woman who frequented picture houses and took their children to gambling places and picture houses so he was very concerned. The night before the incident, when he returned home, she was not there. When she arrived late in the evening, he chased her out of the house out of frustration. He told her that they would talk later more particularly about their children when he was in a good state of mind. On the morning of the incident, he went to their garden with a bush knife. Unbeknown to him, his wife had registered a complaint with village court officials or village leaders and they summoned him to attend the hearing that was being convened that morning. He was working in the garden when he received word from village court officials or village leaders to appear. He was quite disturbed and unhappy because a family or marriage problem was brought to the Village Court or village leaders for their intervention. He returned to the village armed with his bush knife and attacked his wife and mother in-law and wounding both of them with the bush knife. He attacked his mother in-law because he assumed that she convinced his wife to register a complaint against him with the Village Court officials or village leaders.

7. A pre-sentence report was compiled and filed by the Probation Service, Mt. Hagen Branch at the request of the offender. I commend Ms Theresa Puk, Probation Officer for the report. I have considered the report. The offender is willing to pay compensation with the assistance of members of the community, but he does not have a strong financial status. The victims acknowledge receiving some form of compensation comprising cash of K1,300.00 and 7 pigs, but are not satisfied due to the permanent injuries they have sustained and they will live with such injuries unable to do gardening and other chores that they would do before the incident for the remainder of their lives. The victims have expressed the desire that non-custodial sentences be imposed so that the offender is given the opportunity to pay additional compensation which would not be possible if incarcerated. The victims demand additional compensation of K20,000.00 and 40 pigs. The report recommends custodial sentences due to the gravity of the victim's injuries and the offender lacked the financial capacity to meet the victim's claim for additional compensation.

8. The offender is a 49 year old villager. He is from Geg village, Baiyer District in the Western Highlands Province and resides there. He is married and has six children. Three of the children go to school. His father is deceased and is survived by his mother who is old. He comes from a family of four comprising three males and a female. He has had no formal education and earns a living through engaging in subsistence activities such as growing coffee and other garden produce and raising pigs. He is a member of the Roman Catholic Church. His health is sound. He does not have a strong financial status. He was arrested and detained on 23 January 2015 and charged for two counts of attempted murder. He was committed to stand trial in the National Court on 17 June 2015. He has been in custody now for 8 months, 2 weeks and 5 days.

9. I take into account in mitigation that; the offender is a first offender; he saved the Court's time by his pleas of guilty; he cooperated with police investigations by his early admissions in the Record of Interview which he reaffirmed when making his statement under Section 96 of the District Courts Act; he expressed genuine remorse; this was an incident in which there was a moderate amount of de facto provocation offered by the victims; this was an extreme case of violence in a domestic setting which was self-inflicting; he voluntarily surrendered to the police; until the offence, the offender had previous good record; and the offender paid some form of compensation comprising K1,300.00 cash and 7 pigs to mend and restore relationships.

10. I reject the defence submission to give consideration to the welfare of the children as a mitigating factor given the offender's wife will not adequately cater for their welfare due to her partially incapacitated state. This is a self-inflicting consequence which the offender has to face.

11. I find no additional factor that will further mitigate the offence.

12. I take into account in aggravation that; the offender used a dangerous and lethal weapon; multiple victims; both victims sustained serious life-threatening multiple injuries to vulnerable parts of their bodies including permanent amputation of the offender's wife's right arm; it was a vicious attack; both victims were unarmed and harmless; mother in-law attacked; the offender's action was contemptuous of the Village Court or village leaders; the offender is a middle-aged adult who ought to have a moral conscience which should tell him what was right and wrong; and the offence was prevalent.

13. Mr Yawip for the defence submitted that this was not a case that warranted the maximum penalty to be imposed. He urged that Court impose sentences of seven years imprisonment for the first count and six years imprisonment for the second count and both sentences be served concurrently.

14. Mr Kesan for the prosecution submitted that this was a serious case due to the presence of serious aggravating factors. He suggested that the sentences for each count be in the vicinity of 8 years imprisonment.

15. I have considered the following comparable sentences.

16. In The State v So'on Taroh (2004) N2675, the offender cut the victim's hands three times with a bush knife, an incident arising from a land dispute. The victim received appropriate medical treatment and recovered without any serious residual disability. On a conviction after a trial to a charge of doing grievous bodily harm with intent and the prisoner being a first offender, the Court imposed a custodial sentence of eight years imprisonment in hard labour less time already spent in custody.

17. In The State v Yale Sambrai (2005) N2886, the offender told the victim, his brother in-law to cut some posts for him. Thereafter, an argument arose between them. The offender then left his house and went to a hamlet. A few hours later, the offender met the victim and cut him on the back of the head with a bush knife inflicting a serious injury which caused the victim to fall unconscious. On a guilty plea to a charge of doing grievous bodily harm with intent under Section 315 (b) and (c) of the Code and being a first offender, the Court imposed a custodial sentence of two years imprisonment in hard labour less time already spent in custody.

18. In The State v Steven Moni ( 2006) PGNC 109; CR 293-297 of 2004, a judgment delivered by Cannings J at Kimbe on 19 December 2006, five male offenders attacked two men using bush knives and other weapons. They were charged for two counts; one for doing grievous bodily harm, with intent to do grievous bodily harm, contrary to Sections 315(b) and (d) Code; and the other for unlawful wounding contrary to Section 322(1)(a) of the Code. One of the victims suffered multiple knife wounds and a broken hand and had an arm chopped off in the incident although not by the offenders before the court; and the other suffered a knife wound to his left arm. On pleas of guilty, the court imposed sentences according to degrees of involvement for each offence. For the charge of doing grievous bodily harm with intent to do grievous bodily harm, sentences ranging from three to four years were imposed. For the charge of unlawful wounding, sentences ranging from three months to one year were imposed.

19. In The State v Tamumei Lawrence (2007) N3117, the offender, Tamumei Lawrence cut the victim on his left upper arm with a knife then he and the other offender, Tobia Thomas attacked the victim with sticks and stones. The victim received other cuts as well. He bled heavily. The cut on the left arm went through to the bone. Other cuts were inflicted on the left shoulder, right upper chest and the right fore arm involving the elbow joint as well. He was admitted to the hospital. Those injuries were life threatening and because of complications caused by the injuries, the victim had to undergo a number of operations. On guilty pleas to a charge of doing grievous bodily harm with intent, being first offenders and that compensation was promptly paid by each of them, the offenders were each given a custodial sentence of six years imprisonment in hard labour less time already spent in custody.

20. In The State v Peter Pepa (2010) N4146, the offender confronted the victim and had an argument over some roofing iron which the offender claimed were taken by the victim from his house. The offender swung his bush knife at the victim a number of times and cut him on the left side of his face, right arm and right leg. The victim lost a lot of blood and fell to the ground unconscious. He was rushed to the hospital and received medical treatment. On a plea of guilty to a charge of doing grievous bodily harm with intent, I imposed a sentence of six years imprisonment in hard labour. Three years was suspended on terms.

21. In The State v Peter Pendin (2012) N4541, the offender attacked the female victim with a long sharp bush knife which he concealed under the shirt he was wearing as the victim was walking home. This was an unprovoked and vicious attack. The victim was hospitalised and treated. The victim sustained multiple injuries including; a complete amputation of the forearm below the right elbow; a 10 cm x 2 cm deep wound to the scalp; a 10 cm x 4cm wound to the right posterior shoulder; and a 4 cm x 15 cm deep wound to the thoracic lumber area at the back. On a plea of guilty to a charge of doing grievous bodily harm with intent, a sentence of sixteen years imprisonment in hard labour was imposed. Three years was suspended or ordered not to be served taking into account the pre-sentence custody period and the offender's schizophrenic condition.

22. What is the appropriate sentence for the offender?

23. The maximum penalty for the offence of doing grievous bodily harm with intent to do grievous bodily harm under Section 315 of the Code is subject to Section 19, imprisonment for life.

24. Applying the principle of proportionality, i.e., a man must be given the sentence befitting his crime, the maximum penalty is reserved for the worst examples of doing grievous bodily harm with intent to do grievous bodily harm cases: see Goli Golu v The State [1979] PNGLR 653, Avia Aihi v The State (No 3) [1982] PNGLR 92 and Ure Hane v the State [1984] PNGLR 105.

25. The use of a bush knife in the commission of any offence, is an extremely serious matter. Serious multiple life threatening injuries were inflicted by the offender upon vulnerable parts of the victims' bodies including amputation of the offender's wife's right arm. This demonstrates that the attack was extremely vicious. Fortunately for the victims, the attacks were not fatal. The offender is also fortunate because if the attacks were fatal, he would have been charged with multiple homicide offences.

26. In the present case, the mitigating factors are on par with the aggravating factors. The weight I attach to the aggravating factors actually outweigh the mitigating factors. It is my view that whilst this is a serious case, it does not fall within the worst category of doing grievous bodily harm with intent to do grievous bodily harm cases to warrant the imposition of the maximum penalty with respect to each offence.

27. In all the peculiar circumstances of the present case (Lawrence Simbe v The State [1994] PNGLR 38) applying the principle of proportionality and for purposes of personal and general deterrence and guided by the comparable sentences, I impose the following sentences; for count one, eight years imprisonment in hard labour; and for count 2, six years imprisonment in hard labour.

28. I will, in accordance with the Criminal Justice (Sentences) Act 1986, deduct 8 months, 2 weeks and 5 days from each of the head sentences for the two counts for the time that the offender has spent in custody up until now.

29. The offender will serve the balance of the head sentences at the Baisu Correctional Institution.

30. Should I suspend the whole or any part of the balance of the head sentences? The Supreme Court has held that there can be no suspension of sentence without the support of a pre-sentence report: Public Prosecutor v Don Hale (1998) SC564; Edmund Gima and Siune Arnold v The State (2003) SC730; Richard Liri v The State (2007) SC883. Suspension of sentence is discretionary and must be exercised upon a proper basis.

31. As I have adverted to already, the pre-sentence reports recommend custodial sentences. I have given careful consideration as to whether I should give the offender custodial sentences in view of the unfavourable pre-sentence report. I have also given careful consideration as to whether a wholly or partly suspended sentence would be appropriate. I must state here that the recommendations made in a pre-sentence report are not binding on this Court as to treat them otherwise would amount to a fetter of the Court's sentencing discretion. The penalty regime under Section 315 demonstrates the seriousness of this offence when compared with the offence of unlawful doing grievous bodily harm under Section 319. Hence, it has been suggested that immediate custodial sentences ought to be imposed: Yale Sambrai, Tamumei Lawrence. I agree with that suggestion. It is therefore my view that given the gravity of the offences demonstrated by the presence in the present case of serious aggravating factors and attaching weight that is reasonable to the mitigating factors, I think immediate custodial sentences would be appropriate. I will not suspend any part of the balance of the sentences.

32. The judgment of the Court is that the offender is sentenced to be imprisoned as follows:

Count 1

Length of sentence: 8 years in hard labour.

Length of period deducted: 8 months, 2 weeks and 5 days

Length of sentence to be served: 7 years 3 months, 1 week and 2 days

Count 2

Length of sentence: 6 years in hard labour.

Length of period deducted: 8 months, 2 weeks and 5 days

Length of sentence to be served: 5 years 3 months, 1 week and 2 days

33. The sentence for count two will be served concurrently with the sentence for the first count.

34. A warrant shall issue in the above terms forthwith.

Sentenced accordingly,
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender