State v Pire [2016] PGNC 125; N6319 (14 June 2016)

N6319

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1039 OF 2013

THE STATE

V

MOREA PIRE

Kundiawa: Liosi AJ
2016: 21^st March, 14^th June

CRIMINAL LAW – SENTENCE – Grievous Bodily Harm – Criminal Code Section 319 – Guilty Plea – Offender cut victim with Bush knife after an argument at Land mediation – 4 years In Hard Labour.

Held:

1. The maximum sentence under s. 319 of Criminal Code is seven years Imprisonment and an appropriate starting point is 3 years.
2. Mitigating Factors: The offender pleaded guilty, he has no prior conviction, has cooperated with police, expressed remorse, his House was burnt in retaliation, there was moderate amount of defacto provocation, injury was sustained in the hand which was not vulnerable part of the body.
3. The Aggravating Factors included Multiple wounds inflicted, use of a deadly weapon, there was no genuine remorse shown, the offence was committed in village court officials presence, it was a vicious attack and the offence is prevalent.
4. Head Sentence of 4 years imposed wholly suspended on conditions.
   

Cases Cited:

The following Cases are cited in the Judgment:
State v. Kara (2012) N4663
State v. Manu Kovi ( 2005) SC 789
State v. Ray Sheekiot (2011) N4454

Sentence:

This is a judgment on sentence for Grievous Bodily Harm.

Counsel:

Mr. P. Tengdui, for the State
Mr. M. Yawi, for the Offender

FACTS

14^th June, 2016

1. LIOSI AJ: The prisoner pleaded guilty to causing Grievous Bodily Harm to Paul Ishmael Maben the victim. The incident happened at 9 am in the morning on 1^st December 2012 at Wara /Sible at Gumine District. The offender was attending a Land Dispute Mediation between himself and Simon Tulubun. The victim was also there. The victim told land mediators that the offender was making false claims to the land that belonged to Simon Tulubun and himself. This caused an argument between the offender and the victim. The offender pulled out a bush knife he had with him and cut the victim on the left arm. He suffered a deep cut to the hand as well a bone fracture. The victim was rushed to the Kundiawa hospital for treatment. He was awarded a 50 % loss of effective function of the left hand. The matter was reported to Police and the offender was on the run until his capture on 27^th May 2013 in Kundiawa wherein he was arrested and charged.

Antecedents

2. The offender has no prior conviction

Allocutus

3. On allocutus, he says he is sorry for what happened. The land is his land and Simon Tulubun purchased it for only K80 – 00 through another father of his. There were some contractors who were on the land trying to develop the land but Simon did not allow him to participate. He did not go through the proper legal process to buy the land. Then Paul Maben came into their communication. He says the victim swore at him and assaulted him twice. He said he swung the bush knife to defend himself and the victim received the wounds. After that they stopped the mediation and everybody dispersed. He went home and the victim went to Kundiawa and got hospitalised. He was arrested later on. He says he is sorry to the court and to God above. He will accept whatever decision the court makes. He says he has a family at home and wants to go home and serve them.

Pre-Sentence Report

4. A Report on the offender was prepared by the Probation Services Kundiawa Branch to assess his suitability for Probation. The offender is from Yoregul Village Gumine District, Simbu. He is now 51 years old. He is a single parent with one (1) daughter now 23 years old. His wife died in 2008. He is a subsistence farmer in the village and his big brother Tom Kale says he will support his brother to pay compensation with pigs and cash. The report suggests a longer term of Probation sentence to be considered as an alternative sentence rather than a prison sentence.

Submissions by Defence Counsel

5. Mr. Yawip acknowledged the seriousness of the matter in the use of a bushknife in causing the injury. He however says the mitigating factors outweigh the aggravating factors citing the guilty plea, no priors, cooperation with police, and the offender being an aging old man. He submits that a term between 1- 4 years wholly suspended on conditions would be appropriate given the mitigating factors.

Submission by the State

6. Mr. Tengdui submitted that the aggravating factors included, multiple wounds being inflicted, use of a bushknife, the offence been committed in the presence of village court officials, serious injuries been sustained and prevalence of the offense. The victim has suffered permanent injuries and therefore a head sentence of 5 years is appropriate. If the court is to suspend any part of the sentence, then compensation should be paid as one of the conditions for a suspended sentence.

Decision

7. The maximum penalty for the offense is 7 years under Section 319 of the Criminal Code Act. I will use a starting point of 2 years given the circumstances of the case. The range of sentences generally for Grievous Bodily Harm cases where an offensive weapon is used particularly a bushknife has been 3-5 years Imprisonment depending on the circumstances of each particular case.

8. In deciding on imposition of the head Sentence, the mitigating factors and the aggravating factors have to be weighed out. In mitigation the following factors were considered.
   • The offender pleaded guilty.
   • First time offender.
   • Co-operated well with the police.
   • Expressed some remorse during allocutus.
   • His house was burnt down in retaliation.
   • Offender is an aging old man.
   • Offender has good Pre-sentence report.
     
9. The Aggravating Factors are:
   • Use of a lethal Weapon.
   • Multiple wounds inflicted.
   • Offence committed in presence of village Court Officials and during mediation proceedings.
   • Victim suffered permanent disability.
   • Offence is prevalent.
     
10. I place great weight on the fact that the offender pleaded guilty, is prepared to compensate the victim and is an ageing offender. However any Grievous Bodily Harm case where a bushknife is used is very serious. Although the wound here is not to a vulnerable part of the body like the head, the victim nevertheless suffered serious injuries rendering permanent disability in the left hand (State v. Ray Sheekiot N4454). The appropriate sentence in my view is 4 years head sentence which I impose. The offender has spent 3 months and 3 days in custody which I will deduct.
    
11. Should all or part of the Head Sentence be suspended? The favourable pre-sentence report appears to warrant a suspension. However, I agree with the state that the use of a bushknife and the victim’s permanent injuries will mean conditional suspensions. There is no information on the Pre-sentence Report as to whether the victim will accept compensation as a form of punishment. Nevertheless there appears to be a genuine motivation to hinder the offender from reoffending hence a longer term of probation sentence is to be considered as an alternative punishment. Although the offence is serious the offender’s family shows a willingness to assist the offender to pay compensation and to reconcile. I further note the offender is now 51 years old which may impact on the possibility of reoffending given his age.
    
12. In weighing all this factors the offender is sentenced to 4 years Imprisonment in Hard Labour. I deduct 3 months for the period spent in custody leaving the balance of 3 years 9 months to be effectively served. The combination of the above factors in my view warrants a suspended sentence subject to strict conditions one of which is Payment of Compensation.
    
13. I Order that the entire balance of the sentence is suspended and that probation orders are issued to the offender under Section 16, 17 and 18 of the Probation Act that the offender must comply with on the following conditions;
    • (a) Compensation of K2, 000-00 and 3 live pigs is to be paid to the victim within six months from the date of sentence.
    • (b) This payment must be made at a reconciliation ceremony with the victim to be supervised and witnessed by the village court and the probation office at the reconciliation ceremony.
    • (c) The Offender must attend his local church every weekend for service and worship and counselling.
    • (d) He must report to the Probation office on the first Monday of every Month between 9 am – 3 pm.
    • (e) He must not consume alcohol or drugs.
    • (f) He must keep the peace and be of good behaviour.
    • (g) If the offender commits Breaches of anyone or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of his sentence.
    • (h) The prisoner is at liberty to apply for a review and variation of any one of the conditions with support of appropriate evidence.

SENTENCE

14. Morea Pire, having been convicted of one count of unlawfully doing Grievous Bodily Harm contrary to s. 319 of Criminal Code is sentenced as follows;
    • Length of Sentence imposed 4 Years.
    • Pre-sentence period deducted – 3 months.
    • Length of sentence to be served – 3 Years, 9 months.

• Period of Sentence suspended – 3 Years 9 months
• Time to be served in custody – Nil.

Sentenced Accordingly,

I further order that his bail money of K1, 000 – be refunded.

________________________________________________________________

Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Offender