State v Pyaro [2017] PGNC 64; N6690 (20 March 2017)

N6690

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1091 OF 2015

THE STATE

V

PERAKIN PYARO

Wabag: Auka AJ
2017: 14^th & 20^th March

CRIMINAL LAW – Sentence – Particular offence – Plea – Unlawfully causing grievous bodily harm – Mitigating and aggravating factors considered – Three years imprisonment – Sentence fully suspended on conditions – Criminal Code S.319 and S.19

Case Cited:
Avia Aihi v. The State (No.3) [1982] PNGLR 92
Goli Golu v. The State [1979] PNGLR 653
The State v. Bill Kora (2012) N4663
The State v. Francis Kurufher (2008) N3364
The State v. Martin Konas (2010) N4157
The State v. Peter Olombol (2014) N5748
The State v. Ruben Iroven (2002) N2239
The State v. Tovita Mann (2007) N4028
The State v. Veronica Kulina (2010) N5403
The State v. Wapuri [1994] PNGLR 271

Counsel:
Mr. Emmanuel Thomas, Lawyer for the State
Mr Robin Yallon, Lawyer for the Accused.

DECISION ON SENTENCE

20^th March, 2017
1. AUKA AJ: The accused pleaded guilty to unlawfully causing grievous bodily harm to one YOMBON WAIYEN pursuant to S.319 of the Criminal Code.

2. The brief facts of the case were that on 23^rd of December, 2014 at around 11:00am the accused, Parakin Pyaro was at Par Catholic Mission area, Ambum District, Enga Province. The accused was armed with a bush knife and standing at Par Bus Stop. While standing there the victim, Yomben Waipen came to the same bus stop to catch a PMV into Wabag town. Without saying a word the accused walked over to Mr Waipen and cut him on his right leg with the bush knife. As a result of the attack the victim suffered an amputated right leg from the knee down. The state alleged that the accused was not excused by law to attack the victim in the way he did.

3. A Medical report by Dr Jerry Hoga dated 14^th April, 2015 showed that the victim received bush-knife multiple wounds across his left leg. He was bleeding profusely from the wounds. He was admitted to the surgical ward and underwent several operative procedures for his wounds. However his Limb became ischemic and gangrenous thus a decision was made to ampute his left leg above his knee. He recovered and was finally discharged two (2) months later. He was advised to attend both physiotherapy clinics and surgical clinics on regular basis. No further clinical report was placed before the court at the time of sentence.

4. In his statement on Allocatus, the accused said that it is true that he committed the trouble but victim was the one who instigated it. He said sorry to the victim. During the compensation payment he told the public that he will look after the victim. He paid K10, 090.00 in cash and 21 live pigs as compensation to the victim. He said sorry to the victim again and pleaded for court’s mercy on sentence.

5. In relation to accused’s personal particulars, Mr Yallon submitted that the accused is 30 years old, married with two children. He is unemployed and does subsistence gardening to look after his young family. He is a faithful member of the Catholic Church. Both his parents are deceased.

6. Mr Yallon submitted and urged the court to take into account in accuseds favour the following mitigating factors;

1. The accused pleaded guilty and saved court’s time and resources;
2. That he is a first time offender;
3. That the accused have expressed remorse to the victim;
4. That the accused have paid K10, 090.00 and 21 pigs as compensation to the victim and his relatives. An Affidavit in Support by Michael Kaipol a village court clerk for Wabag Mekim Save dated 16 March 2017 confirm the payment;
5. That there was some de-facto provocation;
6. That the accused fully co-operated with police during his arrest and admitted the offence during the Record of Interview;
7. That he has spent 6 months in custody awaiting his trial and sentence.
   

7. Mr Yallon submitted that the facts and circumstances surrounding the commission of the offence does not show that this is the worst type of case and as such does not warrant the imposition of the maximum sentence. Mr Yallon submitted and urged the court to consider both the mitigating and aggravating factors and impose a non-custodial sentence.

8. Mr Thomas of Counsel for the State submitted and urged the court to consider against the Accused the following aggravating factors;

1. The victim, a 52 years old man did not expect the attack;
2. The attack took place at a public place namely a bus stop;
3. A dangerous weapon namely a bush-knife was used;
4. The Amputation of victims left leg occurred as a result of accuseds unlawful action.
   

Mr Thomas submitted that it is a serious case and a term of 3 years is the appropriate sentence in the circumstances of the case.

9. The maximum penalty for unlawfully doing grievous bodily harm under S.319 is an imprisonment term of 7 years subject to S.19 of the Criminal Code.

10. On authority of cases like Goli Golu v. The State [1979] PNGLR 653 and Avia Aihi v. The State (No.3) [1982] PNGLR 92, the maximum penalty should be reserved for the worst type of cases of grievous bodily harm. In my view and I agree with Mr Thomas that this is a serious case.

11. It is an established principle that each case should be considered on its own facts and circumstances, Lawrence Simbe v. The State [1994] PNGLR 38.

12. The trend of sentencing on Grievous Bodily Harm and similar offences depends entirely on the facts of each case. I refer to the following cases for purposes of comparing the type of sentences imposed on the offence of grievous bodily harm:

1. In 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) stiches. His Honour Cannings J sentenced him to 4 years and fully suspended the term in view of a favourable pre-sentence report and his preparedness to pay further compensation.
   
2. In the case of The State v. Martin Konos (2010) N4157, the accused pleaded guilty to Unlawfully doing grievous bodily harm to his nephew by attacking him with a piece of timber, fracturing his knee and inflicting may other superficial injuries by multiple blows. His Honour Cannings J sentenced the prisoner to 3 years. The sentence was fully suspended with stringent conditions.
   
3. In the case of The State v. Tovita Mann (2007) N4028, 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 a deep and extensive cut. His Honour Injia CJ sentenced him to 5 years reduced by the pre-trial custodial term and order to serve the remaining term of 2 years 11 months 12 days.
   
4. In the case of The State v. Veronica Kulina (2010) N5403, the accused during an domestic argument used a knife and inflicted injuries on victims fingers and caused fractures to his fingers. A sentence of one (1) year imprisonment was imposed with time spent in custody deducted and the balance wholly suspended on conditions.
   
5. In the case of The State v. Francis Kurufher (2008) N3364, the accused struck a young man in the back with a coconut palm frond. The victim sustained a broken rib. The accused was sentenced to 3 years imprisonment. The sentence was wholly suspended with conditions.
   
6. In the case of The State v. Wapuri [1994] PNGLR 271, the accused pleaded guilty to a charge of doing grievous bodily harm. The accused strucked the face of wife of his cousin using a motor vehicle handbrake cable. The assault left the victim with 90% loss of vision in her left eye. The court imposed a sentence o 18 months, deducted 5 months for pre-trial custodial term and suspended the balance of the term and placed the accused on good behaviour bond for 12 months. In addition the court made orders for accused to pay compensation to the victim in form of K500.00 cash, five (5) pigs. In default of payment, the accused was liable for 2 months imprisonment. The orders were made after considering a Means Assessment Report and evidence of custom and compensation payments made in the area at that time.
   
7. On extreme side of sentence on this offence, let me cite a case involving very serious Aggravating factors. It’s the case of The State v. Ruben Iroven (2002) N2239 where the maximum penalty of seven (2) years was imposed. It was a case where the prisoner forced his two (2) wives to strip naked before him and he inflicted certain permanent injuries onto their bodies by using hot iron. That case involved family problem and the presiding judge imposed the maximum penalty as it was a worse type of case.
   

13. In considering the appropriate sentence, I consider the following factors in favour of the Accused;

1. That he pleaded guilty and saved court’s time;
2. That he is a first time offender;
3. That he co-operated with police and readily admitted the offence;
4. That he expressed remorse in court and said sorry to the victim
5. That compensation in the form of K10, 090. 00 cash and 21 pigs have been paid to the victim and his relatives. An Affidavit in Support by Mr Michael Kaipal, a village Court Clerk for Wabag Mekim Save dated 16^th March, 2017 confirmed the payment;
6. That he told the public during the payment of compensation that he will look after the victim.
   

14. The Aggravating factors considered against the accused are that there was some intention to harm and that the victim received a permanent Injury. A dangerous weapon namely a bush knife was used. That the victim did not expect the attack. The court also considered the fact that the offence is a prevalent offence.

15. Going by the trend of Sentences imposed in some of the cases referred to and the particular factors and circumstances of this case, I consider that this is a serious case in that the attack using dangerous weapon was vicious and repeated. The second attack happened when the victim was already on the ground. To cut the victim twice again shows that the accused had no regard of the victims wounded leg. It was a shocking attack. Accused actions show that he was such a violent person showing no hesitation in using the bush-knife which is a dangerous weapon. It is unfortunate that victim is left with some disability. The accused showed some intention to do grievous bodily harm which in my view should be equally visited with a strong deterrence sentence.

16. The Appropriate sentence is three (3) years imprisonment. Accordingly I impose a sentence of 3 years imprisonment. The time spent in custody awaiting trial and sentence shall be deducted and the remaining term is fully suspended on condition that accused shall keep the peace and be of good behaviour for 2 years.

Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused