State v Pakuma [2016] PGNC 351; N6573 (13 October 2016)

N6573

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 91 OF 2016

STATE

V

JACOB PAKUMA

Mendi: Ipang, J

2016: 10^th & 13^th October

CRIMINAL LAW- Sentence- Criminal Code Act, Chapter 262-s.319 grievous bodily harm- the offender is the son of the victim-argument over ownership of a pig, offender armed with a bush knife swung the bush knife at the victim, the bush knife cut the left thumb, pointer and the third finger, victim’s right forearm and wrist had a deep cut, left pointer amputated at the metaphalageal joint and third finger had a cut.

CRIMINAL LAW- Sentence-Criminal Law (Compensation) Act, 1991- Offender paid compensation to the victim- Victim accepted the compensation paid to him and expressed that he does not want to see his son, the offender go to jail.

CRIMINAL LAW- PRACTICE & PROCEDURE - Sentencing practice - each case be decided on its own set of facts and merits - maximum penalty is always reserved for worst types of cases. The antecedent report, allocutus, offender’s personal particulars taken in to account, the mitigating factors and aggravating factors considered - relevant case precedents applied - sentence considered must also reflect the prevalence of the offence and served as deterrent to the offender and any like minded individual who might want to commit similar offence in the future.

Cases Cited
State-v-Jumbugu (2012) PGNC 36; N4627
State-v- Nandex Wepo [2016] PGNC 164; N6356 (14 July, 2016)
The State-v- Veroncia Kulia (2010) Unreported

Counsel:
Ms. S. Luben, for the State
Ms. C.Koek, for the Offender

DECISION ON SENTENCE

13^th October, 2016

1. IPANG J: On the 10^th October, 2016 you pleaded guilty to one(1) count of causing grievous bodily harm to the victim namely Simon Pakuma who is your father contrary to section 319 of the Criminal Code Act, Chapter 262. This is the decision on your sentence.
   
2. The brief facts for the purpose of your sentence are as follows; on the 4^th of May, 2015 at around 7am the victim went to his house at Oiyarap village after spending the night at his late brother’s house. He got dressed up for work. Before leaving for work, he told his wife, the offender’s mother to take care of his pig which was making lots of noises. The offender who was there heard what the victim had told his mother shouted from a distance telling the victim that the pig was his. The offender and the victim then had a heated argument and the victim left. The offender’s mother, who was armed with a bush knife at that time, swung the bush knife at the victim cutting him on his left thumb. Both, the victim and the offender’s mother then went to Mendi Police Station; however they were told to go home and solve their domestic dispute. The victim went to Mendi General Hospital and had his thumb stitched. That evening the victim spent the night at his late brother’s house in order to avoid further confrontation with the offender and his mother.
   
3. The next day the 5^th of May at around 6.30am the victim went to his house to get change and go to work. The offender and his mother were there waiting for the victim. The offender was armed with a bush knife. Seeing that the offender called out to his other sons who were with him at his late brother’s house. Both houses are 100 metres apart. The offender swung his bush knife at the victim’s head. The victim then raised his both hands to defend himself. The knife cut his left thumb, his pointer and the third finger. The offender’s right forearm and his wrist had also sustained deep cuts. The victim fled the scene and the offender chased after him. The offender then collapsed and was assisted by bystanders and taken to the hospital. The offender called out the bystanders to leave the victim so that he could finish off the victim. The victim was admitted to the Mendi General Hospital and got discharged on the 1^st of June, 2015. His left thumb was amputated at base level. His left pointer was amputated at the metaphalgeal joint and his third finger had a cut. The right forearm and his wrist also had deep cuts.
   

The Offence

4. The offender was charged and found guilty of the offence of grievous bodily harm contrary to section 319 of the Criminal Code Act. This provision reads;

s.319 Grievous bodily harm

A person who unlawfully does grievous bodily harm to another person is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

5. Considering the circumstances of this case, whether a maximum term of seven years should be imposed or subject to section 19 of the Criminal Code Act a lesser term of sentence be imposed. Coming up with an appropriate sentence is not an easy task as there are number of factors which will come into play.
   

Antecedent Report

6. The antecedent report tendered by the State Prosecutor recorded no prior conviction against the offender. Therefore, the offender is a first time offender now before this court.
   

Allocutus

7. The offender said sorry to God for what he did. He said sorry to this court for taking court’s time to attend to his case. He said sorry to the victim, his father. He promised he will not commit this offence again. He asks this court to have mercy on him.
   

Submission by Defense

8. Ms. Koek of counsel for the offender submitted the following to be the personal particulars of the offender;
   1. The offender is 36 years old and comes from Oyarap village in the Imbongu District, Southern Highlands Province.
   2. The offender is the first born out of three children from his parents’ marriage. Both his parents are still alive and the victim is the offender’s father.
   3. The offender is a member of the United Church and he was a peaceful and abiding citizen until this offence was committed.
   4. He has been educated up to grade 10 level. He is an excavator operator but he is currently unemployed. He works on hire bases and not on full time.
   5. He is married to three wives and has five children. His first wife is a villager and his second wife is a third year student at Mendi School of Nursing. Two of his children are attending primary school and the three others are not of school age and they stay at home.
   6. The offender has paid compensation to the victim. The offender paid K10, 000 worth of pigs and K800 in cash. A further K6000 in cash and a pig worth K4000 was paid to the victim on the 8^th of October, 2016. The victim and the offender have made peace and the victim does not want the offender to be given a custodial sentence.
   7. The offender had been remanded in custody for a period of six months until he was released on K500 bail and his two guarantors have paid K200 cash sureties each.
   8. The offender is a first time offender.
      
9. Ms. Koek for the offender submitted that the offence was committed with the use of a dangerous weapon, a bush knife. The offender used the weapon to chop the left thumb, the pointer and the middle finger of the victim. The assault took place as a result of a domestic dispute over a pig. Ms. Koek submitted that the offender acted in self defence as he was attacked by the victim and his two sons who are the offender’s step brothers. The victim used an axe to attack the offender and the offender used the bush knife to block the axe. The bush knife slide down and cut the victim’s fingers. Defense submitted that this is confirmed by the nature of injuries sustained by the victim. Defence submitted that despite this the offender decided to plead guilty. Koek submitted that this court should consider the mitigating factors and the circumstances of this case as the case is not one of the worst types of cases. Koek therefore, submitted for a head sentence of three years to be imposed. From this three years, six months be deducted for time spent in custody and the balance of the sentence be suspended with conditions.
   

Submission by the State

10. Ms. Luben of counsel for the State conceded with the Defense that this case does not fall under worst types of cases. However, she submitted that the offence committed is a crime of violence and the offence is very much prevalent and is happening in domestic settings. She further submitted that the victim has suffered permanent injury. Ms. Luben told this court that she has spoken with the victim on the 8^th October, 2016 and the victim has advised her that he has received compensation from the offender and had accepted the compensation. He said he has forgiven the offender and does not want the offender to be sent to prison. The State counsel submitted for a head sentence of three years and that the sentence be suspended.
    

Mitigating Factors

11. The following are the mitigating factors I found in favour of the offender;
    1. He has pleaded guilty thus saves court’s time and State’s time for putting up a trial.
    2. He has expressed genuine remorse to this court and also to the victim.
    3. He is a first time offender as this is first offence committed.
    4. He is the son of the victim.
    5. The offender was the lone attacker.
    6. Offender is a husband and a father.
    7. He co-operated with the police.
    8. He has paid compensation and peace has been restored.
       

Aggravating Factors

1. There was use of offensive weapon, a bush knife to commit this offence.
2. The victim sustained permanent injuries.
3. The offence of grievous bodily harm is prevalent.
   

Application of relevant case precedents

12. There are several case precedents submitted. In the case of State –v- Neiman (2013) PGNC 8; N4957, the offender pleaded guilty to unlawfully causing grievous bodily harm to his wife, Margaret Dua and was convicted for the offence under s.319 of the Criminal Code Act. The incident occurred at Murunas along the North Coast Road in Madang on Saturday 28^th of April, 2012. The offender had suspected his wife of having extra marital affairs. So, as both were travelling on a PMV bound for Murunas, the offender questioned the victim and threatened her with a bush knife and a pair of scissors. The victim was frightened and upon arrival at Murunas, the victim attempted to escape from the offender but the offender chased after her and attacked her with a bush knife. The offender inflicted two separate wounds the most serious of which almost severed her left arm. The victim was rescued by passers-by and thereafter the police arrived. The victim sustained permanent disability of both arms. The offender was sentenced to five years imprisonment. He co-operated with the police and paid compensation and the custodial sentence was wholly suspended.
    
13. In the case of State –v- Veronica Mandili Kulia (2010) the offender pleaded not guilty and a trial was conducted. The offence arose from a domestic setting. The offender complained that the victim her husband was having extra marital affairs with other women. The offender and the victim both were in possession of bush knives and were threatening each other. During the struggle, the victim sustained injuries on his right hand which included fractures to his metacarpal ones 3^rd and 4^th digits. There was a clear disfigurement of the middle fingers thus permanent injury. The court considered that the offender was a first time offender, a good citizen with Christian principles and also paid compensation to the victim. The offender was sentenced to one year imprisonment. Time spent in custody was deducted and the balance of the sentence was suspended. This was a trial matter after a plea of not guilty. A permanent injury was evident however; the court gave a wholly suspended sentence after the offender was found guilty.
    
14. In the case of State-v- Nandex Wepo [2016] PGNC 164; N6356 (14 July, 2016) there were two victims. The offender used a bush knife to slice the left hand in between the pointer and the middle finger. The injury has caused the victim 80% loss of use of the first victim’s use of his pointer finger. The first victim is the brother in-law of the offender. The second victim is the wife of the offender and she sustained a broken arm and scars to parts of her body. The offender was sentence to four years for the first count and also sentenced the offender to four years for the second count. The sentences were ordered to be served concurrently. The pre trial period of 8 months spent in custody was deducted. One year was suspended taking in to account the mitigating factors and plea of guilty. The offender was ordered to serve the balance of one year and four months.
    

Court Analysis

15. This is one of the serious cases of grievous bodily harm given the type of offensive weapon that was used to commit this offence. Also, the offender has committed this offence upon the victim who is his very own father. The nature or type of injury the victim has sustained is of permanent in that the victim’s left thumb was amputated at the base, the second pointer finger was amputated at the metaphalangeal joint and the laceration to the 3^rd finger. This is of course unimaginable offence in that one would think of how a son can do this to his very own father. A hard lesson has to be learnt by the offender that he cannot use violence to solve domestic problem. The offender’s action cannot be tolerated one bit. Being educated up to grade 10 level and using primitive way of solving problem is totally uncalled for. The offence of grievous bodily harm committed with the use of offensive weapons like bush knives is very common and very prevalent.
    
16. In the turn of events, the victim in this case who is the offender’s father willingly accepted the compensated paid to him and forgave his son despite losing permanently his left thumb and second pointer finger. The victim also expressed that he does not want the offender to be imprisoned. Even though the offence committed on him was one of life threatening.
    
17. I have taken in to consideration the offender’s personal particulars, his allocutus, his antecedent report which recorded no prior convictions, the mitigating factors as oppose to aggravating factors, the relevant case precedents, payment of compensation, reconciliation & peace being restored, the respective submissions by both counsels and have decided that this case does not attract the maximum penalty to be imposed. Instead I will apply section 19 of the Criminal Code Act, Chapter 262 and impose a lesser term of penalty.
    
18. I consider a custodial sentence of three (3) years is appropriate in the circumstances. I deduct six (6) months for the pre-sentence period spent in custody. This will live the balance of two (2) years, six (6) months. Taking in to account, the offender’s plea of guilty, compensation paid, being a first time offender, the expression of genuine remorse and his promise not to commit this offence again in the future, I further deduct six (6) months. This will live the offender to serve only two (2) years custodial sentence. I wholly suspended the two (2) years and placed the offender on two (2) years good behaviour bond with the following conditions;
    1. First and the foremost, the offender shall keep peace and be of good behaviour towards the victim and his step brothers.
    2. The offender shall not consume or take any form of alcoholic drinks.
    3. The offender shall not take any illicit substances or dangerous drugs like...marijuana
    4. The offender shall attend church service regularly.
       

19. The offender’s bail of K500 and his Guarantors’ cash sureties of K200 each are refunded.

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor : Lawyer for the offender