State v Kundapen [2017] PGNC 305; N6980 (24 May 2017)

N6980

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 611 of 2014

THE STATE

V

JET KUNDAPEN

Wabag: Auka AJ
2017: 22^nd & 24^th May

CRIMINAL LAW – Sentence – Particular Offence – Plea guilty – Unlawfully causing grievous bodily harm – Mitigating and Aggravating factors considered – Four years imprisonment – Reduced by the term spent in custody awaiting his trial and Sentence– To serve the balance – Criminal Code S.319.

Case Cited:

Goli Golu v. The State [1979] PNGLR 633
Lawrence Simbe v. The State [1994] PNGLR 38
The State v. Exely Hala Heni (2008) N3541
The State v. Justin Ipa (2008) N3439
The State v. Robert (2009) N3629
The State v. Tovita Mann (2007) N4028
The State v. Vincent Naiwe (2004) N2710
The State v. Wanpis Sukul Kapi, CR 1101 of 2016 dated 12&13 March 2017

Counsel:

Ms. Rebecca Koralyo, for the State
Mr. Charles Kaki, for the Accused

DECISION ON SENTENCE

24^th May, 2017
1. AUKA AJ: An Indictment was presented by the State against the accused on 22^nd May, 2017. The state charged the accused with one count of unlawfully causing grievous bodily harm pursuant to S.319 of the Criminal Code Act. That followed a plea bargain between the parties from the more serious offence of attempted murder under S.304 of the Criminal Code. The accused pleaded guilty to the charge.

2. The brief facts of the case were that on 24^th December, 2013 in the afternoon there was a bride price pig killing ceremony at Kiwi Village at a gathering place called Kondou. It was alleged that the accused, Jet Kundapen’s father had an argument with the complainants/victim’s father George Takale over a piece of land. The victim Pes George was at his house and heard his father calling that he was being attacked so he rushed over to Kondou. The victim then argued with accused’s father and a fight broke out and people there tried to stop them. During the fight the accused swung his bush knife at the victim and cut the victim on the right side of his head and face, cutting down his right eye, causing the victim to fall to the ground and lost consciousness. The accused then ran away. The victim laid on the ground bleeding heavily. There were by standers who carried the victim to the main road and stopped a PMV bus, placed him in the PMV bus and rushed him to Wabag General Hospital and was appropriately treated.

3. There were (2) Medical Report by Dr Jerry Hoga. The first Medical Report showed that the victim was admitted to the surgical unit on the date of incident (24.12.13). There was a huge bush knife wound across his head and face and he bled profusely from the wound and was rushed to the emergency department. Upon examination he was clinically neurologically stable however very pale from the massive blood loss. The wound extended from the right occupant to the frontal areas of his head and further down across his right eye. The right orbit was protruding through his socket. Radiological imagining of his skull showed a liner outer table fracture of the parietal and frontal bone. Initial resuscitation was performed and he was admitted to the surgical ward. During his stay he underwent two surgical procedures. His right eye was becoming gangrenous with a functional visual loss of 100% and as such the doctors had to perform an evisceration of his eye with his consent. Wounds were all sutured and he recovered uneventfully in the wards and was finally discharged on 24^th January, 2014.

4. The second Medical Report of Dr Jerry Hoga dated 11^th August, 2014 confirmed that the victim has 100% vision loss with some delayed neurological symptoms. The doctor said that due to inadequate investigative procedure a definite diagnosis could not be attained as to the extent of neural tissue damage. Neurological recovery will take a while or might even be permanent. According to the report the victim requires proper opthalmological specialist review and management.

5. In his statement on Allocatus the accused said the victim is like my father’s brother. I cut the victim because victim cut my father at the first place. After that, compensation of 7 pigs and K3, 500. 00 in cash was paid. He said sorry to the court for the offence he had committed on the victim. He also said sorry to the family of the victim. He said the offence was committed in 2013 and he was arrested for that. He asked the court to have mercy on him.

6. In relation to accused’s personal particulars, Mr Kaki in his written submission submitted that the accused was 20 years old when he committed the offence. He is now 23 years old. The accused has two (2) children and he is the sole bread winner of his family. He was educated up to grade 11 and has since been a carpenter working with Lorma Construction.

7. On address on sentence, Mr Kaki submitted and urged the court to consider in Accused’s favour the following mitigating factors;

1. The accused pleaded guilty;
2. That he is a first time offender;
3. That there was some provocation in the non-legal sense;
4. That some compensation in the form of seven (7) pigs and K3,500. 00 in cash was paid to the victim;
5. That he had expressed remorse;
6. That there was no Pre-Planning in the commission of the offence; and
7. The accused co-operated well during the investigation and has attended all court call-overs and mentions.
   

8. In relation to the trend of sentencing on causing grievous bodily harm cases, Mr Kaki in his written submission referred the court to some seven (7) National Court cases where respective judges have imposed varying sentences depending on the facts and circumstances of each particular case.

9. And this is in line with the established principle in sentencing that each case must be considered on its own facts and circumstances: Lawrence Simbe v. The State [1994] PNGLR 38.

10. The maximum penalty for unlawfully causing grievous bodily harm as correctly stated by Mr Kaki is an imprisonment term of 7 years. The court has considerable discretion whether to impose the maximum penalty by virtue of S.19 of the Criminal Code. And Mr Kaki of counsel for the accused referred the court to the case of The State v. Able Airi Unreported Judgement of 28^th November, 2000 to support that point.

11. On Authority of cases like Goli Golu v. The State [1979] PNGLR 633 the maximum penalty should be reserved for the worst type case. In my view this case is a serious case of unlawfully causing grievous bodily harm where bush knife was used inflicting serious injury on the victim’s body.

12. Mr Kaki submitted and urged the court to use a term of 3½ years as the starting point. Mr Kaki referred the court to the cases of The State v. Robert (2009) N3629 and The State v. Justin Ipa (2008) N3439 and supported his submission. Mr Kaki further submitted and urged the court to impose a term of 3 ½ years against his client and then the term be wholly suspended with conditions.

13. Ms Koralyo of Counsel for the state submitted and urged the court to consider the following aggravating factors against the accused;

1. That the accused used a dangerous weapon, namely a bush knife;
2. That the nature of injuries received by the victim was very serious and life threatening and if there was no urgent medical treatment given, the victim would have died;
3. The victim as shown in the victim impact statement which was handed up in court and which is supported by the Doctors report that victim lost 100% vision to his right eye. The victim impact statement also shows that the victim also suffers instances of blackout and loses consciousness. It is clear that the victim has to live with a permanent discomfort to his health for the rest of his life.
4. That there was no evidence of provocation and in fact no such evidence was produced in court at the time of submission on sentence.
5. That no proper compensation was paid by the accused. What was paid in the form of 5 pigs and K3, 500. 00 in cash was a “Bel kol” and it was paid by the community. The victim accepted it as he needed the money to meet his medical expenses.
6. The offence is a prevalent offence.
   

14. In view of the serious injuries inflicted on the victim’s right eye by use of a bush knife, Ms Koralyo submitted that a term of between 5 to 7 years imprisonment would be appropriate.

15. As stated the maximum penalty for this offence under S.319 of the Code is 7 years. The court has discretion whether to impose the maximum penalty by virtue of S.19 of the Criminal Code.

16. On authority of cases like Goli Golu v. The State (supra) the maximum penalty should be reserved for the worst type of case. In my view, the accused’s case is a serious case. A dangerous weapon was used to inflict serious injuries on the victim’s right eye which is life threatening.

17. The trend of sentencing in unlawfully causing grievous bodily harm and similar offences depend on the facts of each case. I refer to the following cases to assist in considering the appropriate penalty, especially when dangerous weapons such as a bush knife is used to cause injuries;

1. In the State v. Ben Robert (2009), the accused pleaded guilty to unlawfully causing grievous bodily harm to the victim who was his younger brother. The prisoner used a bush knife causing serious wound to the right side of the victim’s face. He was sentenced to 3 years 5 months 1 week after his 3 weeks pre-sentence custodial term was deducted. There was no suspension on any part of the sentence.
   
2. In The State v. Exely Hala Heni (2008) N3541, the accused pleaded guilty to the charge of unlawfully causing grievous bodily harm, accused used a bush knife and slashed victim’s left hand. His Honour Cannings J sentenced him to 4 years imprisonment, none of which was suspended.
   
3. In The State v. Vincent Naiwe (2004(N2710, the accused during a domestic argument used a bush knife and amputated 3 fingers of the victim. Accused pleaded guilty to the charge of unlawfully causing grievous bodily harm. He was sentenced to 5 years. The court declined to suspend any part of the sentence.
   
4. In The State v. Tovita Mann (2007) N4028, the offender pleaded guilty to unlawfully causing grievous bodily harm to the victim. The victim was holding a baby when accused cut him on the right shoulder with a bush knife and inflicted a very serious wound. His Honour Injia CJ sentenced him to 5 years, reduced by the pre-trial custodial term. He was ordered to serve the remaining balance term of 2 years 11months 12 days.
   
5. In The State v. Wanpis Sukul Kapi, Cr 1101 of 2016 dated 12 and 13^th April, 2017, the accused pleaded guilty to one count of unlawfully causing grievous bodily harm to the victim. The accused used a bush knife and cut the victim on the head and face and as a result the victim received injuries to his eyes and nose. The medical report showed that that victim had lost 100% vision of his right eye. He was sentenced to 3 years, reduced by 1 year 3 months for pre-trial custodial term. He was ordered to serve the balance of 1 year 9 months.
   

18. It is clear from the above cases that the courts have been exercising their discretion to impose sentences after taking into account the different circumstances of each case with respect to the factors of mitigation and aggravation as they may be.

19. I have considered in the accused’s favour on sentence the following factors;

1. That he pleaded guilty;
2. That he expressed remorse to the victim;
3. That he is a first time offender;
4. That there was provocation in non-legal sense
5. That the accused’s community paid 7 pigs and K3,500.00 in cash as “Bel Kol”;;
   

20. Against the factors in favour of the accrued, the court considered the following aggravating factors;

1. That a dangerous weapon namely a bush knife was used;
2. That the victim sustained very serious injuries;
3. That victim has 100% loss of his right eye;
4. That there was some intention to do harm; and
5. The offence is a prevalent offence.
   

21. Going by the maximum penalty for the offence, the trend of sentences imposed in some cases referred to and the particular facts and circumstances of this case, I consider that this is a serious case in that the attack using a bush knife was vicious. The victim had permanently lost his right eye sight as a result. Accused’s action shows that he was a violent person showing no hesitation in using the bush knife. In my view the accused showed some intention to do grievous bodily harm which in my view should be equally visited with a strong punitive and deterrent sentence.

22. In the end I consider that a sentence of 4 years is appropriate. Accordingly I impose a sentence of 4 years imprisonment. I order that the period already spent in custody whilst awaiting trial and sentence shall be deducted from the head sentence of 4 years. I further order that you serve the balance of the sentence in Hard Labour at Baisu Correction Service.

A Warrant of Commitment in those terms shall be issued forthwith
______________________________________________________________
Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused