State v Alupi [2016] PGNC 94; N6312 (5 May 2016)

N6312

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 741 OF 2013

BETWEEN:

THE STATE

V

BERE ALUPI

Wabag: Auka, AJ

2016: 18^th February, 7^th April and 5^th May

CRIMINAL LAW – Sentence - particular offence – Two Counts of causing grievous bodily harm with intent –Committed on same victim at different times and places - Guilty pleas – Use of dangerous weapon-de-facto provocation – Multiple cuts to body – Injuries – Life threatening- Mitigation and Aggravating factors considered – Cumulative sentence appropriate ––Totality Principle - less time spent in Pre-trial custody- Criminal Code s.315 (b(d) and s.19.

Cases cited:
Acting Public Prosecutor v. Konis Haha [1981] PNGLR 205 at 216-217
Avia Aihi v. The State (No. 3) [1982] PNGLR 92
Public Prosecutor v. Sidney Kerua and Others [1985] PNGLR 85
Paul Mase & Another v. The State [1991] PNGLR 88 at p.91 to 92
The State v. Oliver Toluana and Penias Kivung (2008) N4417
The State v. Simon Taroto (2004) N2675
The State v. Yale Sambrai (2005) N2886
The State v. Tamumei & other (2007) N3117
The State v. Roga and 3 others (20012) N4804
The State v. Neriou Pinda (2012) N4872
The State v. Peter Pendin (2012) N4541
Ure Hane v. The State [1984] PNGLR 105
Wari Mugining v. The Queen [1975] PNGLR 352

Counsel:
Mr. Joe Waine and Ms. Sheila Luben, for the State
Mr. Robert Bellie, for the Offender

DECISION ON SENTENCE

5^th May, 2016

1. AUKA AJ: The accused pleaded guilty to two (2) Counts of Causing Grievous Bodily Harm with intent Contrary to Section 315 (b) (d) of the Criminal Code.

2. The relevant facts for the first Count were that on Wednesday 2^nd January, 2013 around midday at Monokam Village, Ambum Valley, Enga Province, the victim Londari Karawalo was with others taking measurements of dwelling houses built on the land which Mapai Trucking Company had offered to buy to build its office. Mapai Company was going to compensate the owner of the houses and the land later on. One of the houses which was going to be measured was accused father’s house which victim built and was living in at that time. As the victim and others were taking measurements of the houses, the accused Bere Alupi and another person armed with bush knifes approached the victim from his back and attacked him. State alleged that the accused swung his bush knife at the victim’s neck but the victim raised his left arm in order to protect his neck and as a result his left forearm was cut off. The victim fell to the ground and bled heavily. Victim’s friends saw him in blood from the attack and they rushed him to Monokam Aid Post where he was given first aid treatment and later transferred to Wabag General Hospital and was admitted and appropriately treated and after two (2) weeks was discharged.

3. A medical report of Dr. Jerry Hoga dated 27^th January, 2013 confirms the victim sustaining injury to his left forearm with complete amputation of his distal limb. An operation procedure was applied on the injury and he appeared to have recovered uneventfully and was finally discharged on 11^th January, 2013.

4. The relevant facts to the second count were that on Thursday 17^th January, 2013 at about midday at Monokam village, Ambum Village, Enga Province, the victim Londari Karawalo was sitting with others near a trade store when accused Bere Alupi with another person armed with bush knifes approached the victim and accused swung his bush knife and cut the victim across the face. The accused swung his bush knife again and cut the victim on the head causing the victim to bleed heavily. Victim’s friends saw him in blood and rushed him to Wabag General Hospital and he was admitted for the second time.

5. The same Medical report of Dr. Jerry Hoga dated 27^th January, 2013 particularly paragraph three (3), confirms the victim’s readmission to the Surgical Ward with multiple bush knife wounds to his face, thorax and Limbs and was bleeding heavily and in state of shock.

6. The same medical report shows further that the victim developed upper airway obstructions due to the facial wounds and 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.

7. In his address on Sentence, the accused said that he did commit the trouble but did so with a motive. Accused said Mapai Company was going to work on his land at Monokam Village but the victim was going to get the land and house and when he insisted to get the land the accused attacked him. The accused said the victim is his big uncle’s son and he is big uncle’s brother’s son. After the incident the families and relatives of the victim asked for compensation payment. He paid 29 pigs and K7, 000. 00 cash to the victim’s line. During the compensation payment there was some witnesses present like land mediators from the village, Village Court officials, the CIDs and other Community leaders. Finally he asked the court to have mercy on him.

8. On the request of Mr. Bellie of Counsel for the accused, the Court directed the Probation officer based in Mount Hagen to furnish and file a pre-sentence report on the prisoner and directed the matter to return on 4^th April, 2016. I am now in possession of that report.

9. On 7^th April, 2016 the Court heard counsels address on Sentence. For the accused Mr. Bellie submitted that the accused is aged 25 years from Monokam Village, Enga Province. He is married with three (3) children. Both parents are alive. He is the fourth born in the family of six (6) children. He never attended any formal education. At the time of the offence he was a subsistence farmer.

10. The offences were committed on 2^nd and 17^th January, 2013. Police arrested him on 17^th January, 2013 and was remanded in custody. On 17^th May, 2013 was released on K500. 00 cash bail by the District Court. He absconded bail and was arrested on 22^nd May, 2013. Since then he has been remanded in custody for 2 years 2 months 25 days.

11. In mitigation Mr. Bellie submitted and urged the court to consider in accused favour his guilty plea, that he is first time offender, that he freely admitted the offence to the police, that there was de-facto provocation, that payment of compensation in the sum of K7000. 00 cash and total of 29 live pigs were paid to victim’s line. An affidavit In Support by village Court officials and Ward councillors filed on 7^th April, 2016 confirmed the payment.

12. For the prosecution Ms. Sheila Luben submitted and urged the Court to consider the following aggravating factors:

1. A dangerous weapon namely a bush knife was used on attacking the victim
2. The accused attacked the victim two (2) times on different places and dates.
3. That the victim was still recovering from the first injury/wound when the accused cut him again with the bush knife.
4. There was strong intention to cause grievous bodily harm
5. The victim received serious injuries which were life threatening
6. The victim was unarmed and defenceless.
7. The offence is very prevalent.
   

13. Ms. Luben submitted that this was a very serious case and the Sentence to be imposed should reflect the seriousness of the offence. She submitted that imprisonment terms of 5 to 7 years for each count were appropriate and should be served cumulatively.

14. I have had the advantage of reading the Pre-Sentence Report. At page 7 of such report, the writer reports that compensation of K7, 000. 00 cash and 29 pigs were paid to the victim’s line and peace was restored at the community level. The report however show that if the victim continue to claim ownership of the Land, that may provoke the accused to commit another crime. The report also show that accused and his line have requested for non-custodial sentence on the basis that compensation have been paid and he has been in pre-trial custody term for about 3 years.

15. The request and the recommendation that the accused should be given a non-custodial sentence because of compensation been paid is unacceptable. The compensation already paid reduces the sentence the accused should receive but does not and should not be substitute for criminal punishment. This is to avoid the risk of giving the impression that such a person like the accused can escape a severe and appropriate penalty by paying his way out.

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

17. It is established principle in Sentencing that the maximum penalty should be reserved for the worst type case: Avia Aihi (No.3) [1982] PNGLR 92, Ure Hane v. The State [1984] PNGLR 105.

18. The accused is a matured person and now aged 25 years and married with 3 children. At the time of the offence he would have been aged 22. He is the fourth born in the family of six (6) children. He has no formal education. He is a man of prior good character and has no prior conviction against him. He has pleaded guilty to the offences and saved Court’s time. He freely admitted the offences to Police and co-operated with them in their investigation on the crime. He has paid compensation to the victim and his line. All these are mitigating factors which were part of his Counsels submission on sentence. In determining the appropriate penalty, I take all these factors into account in his favour.

19. I also take into account in his favour that he attacked the victim for a reason. There was some provocation in a non-legal sense on the victim’s part. The victim was still claiming ownership of accused fathers land and house and he became upset and cut the victim. See question and answer 17 in Record of Interview. This is a extenuating circumstance which reduces the gravity of the offence in a small way.

20. Against the mitigating factors, I take into account the aggravating factors as follows;

"The attack using dangerous weapon was vicious and repeated. The second attack happened at the critical time when the victim was recovering from the first attack. To cut the victim twice again shows that accused had no regard of the victims wounded body. It was a shocking attack. Accused actions show that he was such a violent person showing no hesitation in using dangerous weapon. The accused showed strong intention to do grievous bodily harm which in my view should be equally visited with a strong punitive and deterrent sentence”.

21. The injuries inflicted on the victim’s body were life threatening. If it had not been for prompt action by the victim’s friend in seeking medical attention, the victim could have died from loss of blood. It is only fortunate that the victim is not left with any serious disability.

22. Mr. Bellie of Counsel for the accused brought to the attention of the Court, the National Court decision on Sentence in the case of State v. Oliver Toluana and Perias Kivung (2008) N 4417. The offenders pleaded guilty to charge of grievous bodily harm to the victim. This is a case where the victim was addressing his workers at a plantation when the offenders approached him and swung bush knives at him cutting him on his hand and inflicting a life-threatening 30 cm long deep wound on the side of the head, chin and jaw involving complex facial bone fracture, for which the victim sought medical treatment in Australia. The court held that the case was in the worst-case category. Oliver Toluana the main perpetrator was sentence to 10 years imprisonment and Perias Kivung who played the lesser role was sentenced to 9 years imprisonment. The pre-trial custodial term were deducted and ordered to serve the balance.

23. Mr. Bellie submitted that seven (7) years would be the appropriate sentence in the present case.

24. I did not consider the sentences imposed in the cases of State v. Toluana and Kivung (supra) because the charge in that case was one of doing grievous bodily harm under s. 319 of the Criminal Code which provides a maximum sentence of 7 years imprisonment. And as such the terms of 10 years and 9 years imposed on the offenders were not according to the penalty provision.

25. A number of Judgements have already dealt with the offence under s. 315 before imposing a variety of sentences ranging from a wholly suspended sentence to a term of 16 years imprisonment.

26. In the case of The State v. Simon Tarato (2004) N2675 the accused pleaded guilty to a charge under section 315 (b) (d) of the code. This is a case where the accused cut the victim’s hands three (3) times using a very sharp bush knife from which the victim lost a lot of blood. There were no residual disabilities noted. The accused was sentenced to eight (8) years imprisonment in hard labour.

27. In the case of The State v. Yale Sambrai (2005) N2886, the accused pleaded guilty to a charge under s. 315 (a) and (c) of the Criminal Code and sentenced to two (2) years in hard labour. This is a case where the accused had earlier asked the victim to cut some posts for a new house which he was building. The victim who is the brother in law of the accused failed to do what he was requested to do and instead joined his friends to go and watch a game of soccer. The accused followed him to the soccer field and approached him from the back and swung the bush knife on the head rendering him unconscious. The victim was taken to the hospital and admitted for observation and further treatment. He was finally discharged after spending some time in hospital.

28. In the case of The State V. Tamumei & Others (2007) N3117, the accused and his co-accused all pleaded guilty to the charge under s.315 of the Criminal Code. Each of them was sentenced to six (6) years imprisonment in hard labour. This is a case where the victim and his family were working in their garden when the accused cut the victim on his left hand leaving a deep wound causing him to lose a lot of blood. He was further attacked with sticks and stones and he was inflicted with many other deep cuts to his body and he bled heavily from those wounds.

29. In the case of State v. Roga and 3 others (2012) N 4804, the four (4) accused pleaded guilty to charge of unlawful causing grievous bodily harm with intent under s. 315 of the Criminal Code. The four (4) accused are a father and his 3 sons. They went to another village armed with bush knives and a factory made shotgun on a morning to have an argument over a piece of land, resulting in the victim being cut on his arm just above the elbow, a cut on the head and the permanent loss of his left thumb. The court said that the sentence of grievous bodily harm under s. 315 should be above the sentencing guideline under s. 319 of the code. The 3 sons were sentenced to 8 years imprisonment and suspended 4 years with conditions. The father (Roga Rogoti) was sentenced to 4 years and the whole sentence suspended on conditions.

30. In the case of State v. Pinda (2012) N4872, the accused pleaded guilty to one count of unlawfully doing grievous bodily harm with intent under s. 315 (b), (d) of the Criminal Code. The prisoner was sentenced to 16 years

Imprisonment less time spent in pre-trial custody. This was a case where the accused and his two (2) friends armed themselves with bush knife and were at the main road near their village. They saw the victim and his wife got off from a PMV truck. The accused and his friends approached them. The victim and wife began running away. However the accused and his friend caught up with them and they targeted the victim who tried to submit and surrender himself by putting both his arms up to indicate his surrender. Accused then swung his bush knife at him with vicious force that it cut and completely, severed and cut off his left arm just below his elbow joint. The victim also received other knife cuts to his body resulting in receiving other cuts and lacerations on his bicep muscles.

31. In the case of State v. Peter Pendin (2012) N 4541, the accused pleaded guilty to unlawful causing grievous bodily harm with intent under s.315 (b) (d) of the Criminal Code. He was sentenced to 16 years imprisonment, three (3) years suspended on account of prisoner’s schizophrenic condition, less the pre-trial custodial term. This was a case where the prisoner was in possession of a bush knife and made an unprovoked attack on a young woman who has just alighted from a bus and was going to her house. He cut her on the head and as she ran away he chased her swinging the bush knife at her head. The victim put her head up to protect her head as she ran. The accused swung the bush knife with strong force that it cut the victim’s arm off just below the right elbow joint.
The accused continued to pursue the victim into her accommodation compound where the security guards apprehended him. Besides the severed forearm, the victim suffered a large wound to the scalp, another to the right shoulder and deep wound to her back. The accused made early admissions to Police and is a first time offender. Compensation of K2000.00 in cash was paid.

32. In carefully weighing both the factors in mitigating as well as those against the accused and the sentencing trend or range I have briefly discussed above, I consider that a sentence below the prescribed maximum sentence of life Imprisonment is appropriate in the particular circumstances of the case. Accordingly I consider a sentence of 6 years each in hard labour appropriate.

33. The final issue for determination in this case is whether the sentence of 6 years each should be cumulative or should they be made concurrent. The accused did not asked for concurrent sentence in the event that the Court decides to impose custodial sentence. His Counsel did not make any submission on that aspect.
The cases on point amongst others are Acting Public Prosecutor v. Haha [1981] PNGLR 205 and Public Prosecutor v. Kerua & others [1985] PNGLR 85. From those cases, it is apparent that three principles are involved when it comes to

determining the issue. These are set out in Kerua’s case at page 90 in the following terms;

“The National Court has discretion whether a Sentence should be concurrent or cumulative but that discretion should be exercise in accordance with well-known principles. The best local case on these principle is Acting Public Prosecutor v. Konis Haha [1981] PNGLR 205. We follow that case and useful statement of the English Law found in Thomas Principles of Sentencing (2^nd Ed, at 53-61). The first principle is what Thomas call “the one transaction rule’ where two or more offences are committed in the courses of a single transaction all sentences in respect of the offences should be concurrent. The Supreme Court in Tremellan v. The Queen (1973) PNGLR 116 made the same point in different words (at117). ‘Although it is neither desirable nor possible to lay down any all embracing rule as to when sentences for two or more convictions should be made concurrent, sentences should generally speaking be made concurrent where a Congeries of offences are committed in the prosecution of a single purpose or the offences arises out of the same or closely related facts’.
The facts of Tremellan’s case illustrate this rule. The Courts were paired for stealing and for fraudulent and false accounting and the Supreme Court on appeal imposed concurrent sentences. Other examples are a series of sexual assaults or frauds on the same victim.
There can be exceptions on this rule and the Court of Appeal in England has upheld sentences which appear to offend this rule because the Court considered that the totality of the Sentences was correct. It is more a rule of thumb or a guiding principle than a strict rule and it is subject to the totality principle which we mention in a moment.
The second rule is that where the offences are so different in character, or in relation to different victims, cumulative sentences are normally applicable. Examples given by Thomas are burglary and violence to the householder, assault plus escaping from custody, and sexual assaults on different victims. Wari Mugining v. The Queen [1975] PNGLR affords a local example. Cumulative sentences were upheld for grievous bodily harm and assault with intent to commit rape. Konis Haha case (supra) supplies another local example; cumulative sentences for robbery with violence and rape were imposed. This rule, like the first one, is flexible; it is a rule for guidance only and like the first rule is also subject to the totality rule.
The third rule, the totality rule or principle, is that when the sentence has arrived at appropriate sentences and decided whether they should be concurrent or cumulative he must then look at the total sentence and see if it is just and appropriate. If it is not, he must look at the total sentence and see if it is just and appropriate for the totality of the criminal behaviour”.

34. These principles have been adopted and applied in many subsequent cases. An example of that is Paul Mase & another v. The State (1991) PNGLR 88 at page 91 to 92.

35 In the present case, the offences are unrelated in that they were committed at two different places at two different times. However, it involves the same victim. The first offence was committed on the 2^nd of January, 2013 at Monokam Village, Ambum Valley, Enga Province. The second offence was committed outside a Trade Store at Monokam Village, Ambum Valley, Enga Province on 17^th January, 2013 involving the same victim. This in my view qualifies this case for a sentence to be made cumulative having regard to the principles enunciated and applied by the cases cited above.
36. What is left for this Court to do is to decide on whether the totality of the sentence to be served is appropriate. In other words I have to decide whether, the total of 12 years is crushing on the accused. If the accused was given the term of 7 years each, he would be looking at a total of 14 years.

37. Given the serious circumstances in which the offences were committed, I consider giving a sentence to be served cumulatively not so crushing against the accused who is an adult. The accused will therefore, serve the total term of 12 years in hard labour. Of that 2 years 2months and 25 days are deducted for the period spent in custody awaiting his trial and sentence on both offences.

__________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Offender