State v Alupi [2016] PGNC 101; N6311 (9 May 2016)

N6311

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 742 OF 2013

BETWEEN:

THE STATE

V

MOSES ALUPI

Wabag: Auka, AJ

2016: 7^th April & 9^th May

CRIMINAL LAW – Sentence – Particular offence - Plea – Unlawfully causing Grievous Bodily Harm– Mitigating and aggravating factors considered - Four (4) years imprisonment imposed less time spent in pre-trial custody – Criminal Code s.319 and s.19

Cases cited:
Ignatius Pomalah v. The State (2006) SC 894
The State v. Bill Kera (2012) N 4663
The State v. Henry Idab (2004) N2172\
The State v. Martin Konos (2010) N4157
The State v. Ruben Irowen (2002) N2239
The State v. Tovita Mann (2007) N4028

Counsel:
S.Luben, for the State

Mr. R. Bellie, for the Accused

DECISION ON SENTENCE

9^th May, 2016
1. AUKA, AJ: The accused pleaded guilty to an indictment containing one count of unlawful causing Grievous Bodily Harm under s. 319 of the Criminal Code.

2. The maximum punishment for this crime is 7 years imprisonment. The court has a general discretion to impose a lower sentence with or without other forms of punishment enumerated in s.19 of the Criminal Code.

3. The brief facts are that on Thursday 17^th January, 2013 at about midday at Monokam village, Ambum valley, Enga Province, the victim Londari Karawalo was sitting with others near a trade store when accused Moses Alupi and another person by the name of Bere Alupi armed themselves with bush knifes approached the victim and accused’s friend Bere Alupi cut the victim across the face. Accused’s friend swung the bush knife second time and cut the victim on the head causing victim to bleed heavily. Whilst victim was bleeding accused Moses Alupi used his knife and cut the victim on the right shoulder. Victim’s friend saw him in blood and rushed him to Wabag General Hospital and he was admitted.

4. A Medical Report of Dr. Jerry Hoga dated 27^th January, 2013 confirms that the victim was admitted to the surgical ward with multiple bush knife wounds to this face, thorax and limbs and was bleeding heavily and in state of shock.

5. The Medical Report shows further that the victim developed upper airway obstructions to the facial wounds also had fractured maxilla from the wound which was reduced and wired. After going through general operative procedures, the victim was finally discharged on 28^th January, 2013 with minor dental and facial disabilities. Dr. Hoga in his report stated that the victim was required to attend surgical clinics on regular basis till he has recovered.

6. In his address on Sentence, the accused said that he did cause the trouble by cutting the victim on the shoulder once only. That he has paid compensation and ask the court to have mercy on him.

7. On address on Sentence, Mr. Bellie of Counsel for the accused said the accused is aged 20 years old. Both parents are deceased. He is the youngest in the family of six (6). Never attended any formal education and never employed in any formal employment. At the time of offence he was a subsistence farmer at his village of Monokam. In custody for 2 years 2 months and 25 days awaiting trial.

8. Mr. Bellie submitted that a sentence of 2 to 4 years should be imposed. Mr. Bellie urged the court to take into account prisoner’s plea of guilty to the offence, some compensation in the form of K7000. 00 cash and 29 pigs paid and peace was restored back in the community. Accused is first time offender and a man of prior good character. He played a lesser role in the commission of the offence.

9. Mr. Bellie brought to the court’s attention the National Court decision of The State v. Bill Kora (2012) N4663. The accused pleaded guilty to unlawfully doing grievous bodily harm to his female neighbour in an urban setting, cutting her on the face with a bush knife, inflicting an eye injury and superficial injuries requiring seven (7) stitches. His Honour Cannings J sentenced him to 4 years fully suspended the term in view of a favourable pre-sentence report and preparedness to pay further compensation.

10. Ms. Luben for the state submitted that the accused attacked the victim using a bush knife with some intention to do harm. The offence of causing Grievous Bodily Harm is very prevalent. She submitted that a term of 4 to 5 years without suspension is appropriate.

11. The trend of sentencing on Grievous Bodily Harm and similar offences depends entirely on the facts of each case. On extreme side of sentence on this offence, let me cite two cases involving very serious aggravations. In State v. Ruben Iroven (2002) N2239 the maximum penalty of seven (7) years was imposed. That was a case where the prisoner forced his two (2) wives to strip naked before him and he inflicted certain permanent injuries on to their bodies by using a hot iron. That case involved family problem and the presiding judge imposed maximum penalty.

12. In the State v. Tovita Mann (2007) N4028 where the offender pleaded guilty to unlawfully doing Grievous Bodily Harm to the victim. The victim was holding a baby when accused cut him on the right shoulder and inflicted deep and extensive wound. Injia CJ sentenced him to five (5) years reduced by the pre trial custodial term to serve the remaining balance of 2 years 11 months 12 days.

13. In the case of The State v. Martin Konos (2010) N4157 where the offender pleaded guilty to unlawfully doing Grievous Bodily Harm to his nephew by attacking him with a piece of timber, fracturing his knee and inflicting many other superficial injuries by multiple blows. Cannings J sentenced the prisoner to 3 years. The sentence was fully suspended with stringent conditions.

14. In the case of The State v. Henry Idab (2004) N2172, a group of men mistakenly took another person to be the one who had verbally abused and insulted one of the group member’s mother. There was a great commotion and in that process, a magistrate of the Local Village Court sustained serious bush knife injuries. He lost 85% of use of his hands. It was a guilty plea. A sentence of 5 years was imposed which was partially suspended with conditions.

15. I have considered the accused’s expression of remorse during allocatus. I have also considered counsels submission on mitigation and aggravations. I have also considered the terms of the Pre-Sentence Report. It is noted that the accused co-offender Bere Alupi was the main Perpetrator and was sentenced to 6 years. For this accused he played a minor role in the commission of the offence and as such it is proper to take into account his degree of participation in commission of the offence. In the case of Ignatius Pomalah v. The State (2006) SC 894, Supreme Court said the “When sentencing co-offenders, it is proper to consider the role each of them played in commission of the offence”.

16. I consider the following mitigating factors on behalf of the prisoner.
- that he pleaded guilty
- that he is first time offender
- he expressed remorse
- some compensation paid and peace restored at the community level
-has prior good character

17. Following Aggravating Factors were considered against the accused:

1. Use of bush knife
2. There was some intention to do harm
3. Victim received serious injuries
4. The offence is a prevalent offence
   

18. In weighing all these factors I placed great weight on the fact that the offender pleaded guilty, he is a first time offender and expressed remorse. The appropriate sentence is four (4) years imprisonment. I order a deduction of 2 years 2 months 25 days already spent in custody whilst awaiting trial and sentence. That will leave the balance of one (1) year, nine (9) months and five (5) days yet to serve. I order that you serve the sentence in hard labour at Baisu Correctional Service. A Warrant of commitment in those items shall be issued forthwith.
________________________________________________________________
Public Prosecutor : Lawyer for the State

Public Solicitor : Lawyer for the Accused