State v Waitapale [2017] PGNC 66; N6692 (20 March 2017)

N6692

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 580 OF 2016

THE STATE

V

MASON WAITAPALE

Wabag: Auka AJ
2017: 8^th & 20^th March

CRIMINAL LAW – Sentence – Particular offence –Plea – Unlawfully causing Grievous Bodily Harm – Mitigating and Aggravating factors considered – Three (3) years imprisonment imposed less time spent in pre-trial custody – Criminal Code S.319 and S.19

Case Cited:
Goli Golu v. The State [1979] PNGLR 653
The State v. Exley Heni (2008) N3541
The State v. Ludwina Waiguma, CR 68/2007 dated 21.03.07
The State v. Ruben Iroven (2002) N2239
The State v. Tovita Mann (2007) N4028
The State v. Vincent Naiwa (2004) N2710

Counsel:
Mr. E Thomas, for the State
Mr .J Kolowe, for the Accused

DECISION ON SENTENCE

20^th March, 2017

1. AUKA AJ: The accused pleaded guilty to one count of Unlawfully Causing grievous bodily harm to Naga Nigipin pursuant to S.319 of the Code.
   
2. The brief facts of the case were that the accused Mason Waitapale is the second wife to Nigipin David and the victim Nanga Nigipin is the first wife. There had been a number of differences between the accused and the victim since the accused’s marriage to Nigipin David.
   
3. On the morning of 26^th August, 2015 at about 9:00 am, the victim went to Waimbare river to have her bath. While she was washing her face and hair, the accused armed with a bush knife approached the victim from behind and cut her on her right arm. The victim shouted for help and the accused continued attacking her by cutting her on her right and left forearms, forehead, right wrist, scalp and left foot causing heavily bleeding and eventually became unconscious by the river. The victim was taken to the Wabag General Hospital on 28^th August 2015 where she was admitted and appropriately treated.
   
4. A Medical report by Dr. Kandaru Pondros dated 2^nd November, 2015 showed the following wounds;
   
   1. Right mid-forearm: Bush-knife wound of 6 cm x 4cm, depth of 3 cm on the Medical aspect, severed muscles, tender active bleeding, visible distal 2/3 fracture of radius bone with 100% displacement and restricted forearm movements (supination and pronation).
      
   2. Right wrist: Bush – knife wound of 10 cm x 4cm, depth of 4cm, active bleeding, several muscles and muscles and ulnar nerve, tender with restricted wrist and all the finger movement.
      
   3. Left forearm (Proximal 1/3): Bush – knife wound of 4cm x 2cm, depth of 3 cm on the proximal third (1/3) of the posterior aspect, tender, active bleeding, and visible fracture of the mid shaft of ulnar bone with fragment and restricted forearm movement.
      
   4. Left forearm (Distal 2/3): - Bush – knife wound of 8cm x 2cm, depth of 3 cm on the distal two-third (2/3) of the posterior aspect, tender, active bleeding, severed muscles with restricted forearm and the finger movements.
      
   5. Forehead: - Bush – knife wound of 8 cm x 2 cm, active bleeding, and tender with no depressed skull fracture.
      
   6. Scalp: - Bush – knife wounds x3 of 8cm x 2cm, active bleeding, and tender with no depressed skull fracture.
      
   7. Left foot: - Bush – knife wound at 12 cm x 3 cm, depth of 3cm on the anterior mid foot area, active bleeding, and severed muscles with tendons and restricted to small toe movement.
      
5. The X-ray of her revealed the following:
   
   1. Left forearm show fracture of the mid – shaft of ulnar with chip fragment and no displacement.
      2. Right forearm shows fracture of the distal 2/3 of radius with 100% displacement.
      3. Skull shows no depressed skull fracture.
      4. Left foot shows no fracture.

6. The report further shows that she underwent surgery (open Reduction with insertion of internal fixation) for Right Radial Bone Fracture, POP (Cement Application) on left Forearm, Tendon Repair and Suturing) on the 8^th September, 2015.
   
7. The Medical report shows that the victim made an uneventful recovery and was discharged on 11^th September, 2015 with treatment.
   
8. The report shows also that on her last visit at the Surgical Out-Patient Clinic she told the doctor that she still had the following Complaints;
   

1. Unable to fully pronate or supinate her right and left forearm.
2. Unable to extend her right wrist (wrist drop)
3. Unable to do dorsiflexion and dorsicxtension her left foot
4. Severe head ache with watery eyes when out in bright sunlight.
5. Severe head ache when carrying billum over her head (site of bush – knife wound)

9. The doctor from his own clinical assessment, reported that the victim sustained Bilateral Forearm Compound (open) Fracture, Head Injury with Multiple Bush – knife Wounds.
   
10. The doctor in his report concluded that the victim will have the following disabilities;
    

1. 80% permanent efficient functional loss of her right wrist/hand
2. 60% permanent efficient functional loss of her both (right and left) forearms.
3. 50% permanent efficient loss of her left foot.

11. In her statement on Allocatus, the accused said that she committed a serious offence and said sorry for that. She said sorry to the victim. She said she did not intent to do the trouble and asked the court to have mercy on her.
    
12. On the request of Mr. Kolowe of Counsel for the accused the court directed the Probation officer based in Mt. Hagen to prepare and file a Probation Report by 1:30pm on 20^th March 2017.
    
13. I’ve been handed a copy of the report which I have read and in my view the report is in favour of the accused in that she had been a good member of the community and lived happily before the trouble. She has no money but she said if asked to pay compensation she will ask the family members to help her to pay K2, 000. 00. No family members were spoken to for purposes of verifying that. She plans to reconcile with the victim after the case. She promised not to do such thing again. She has indicated that she will accept any sentence imposed on her.
    
14. In relation to accused’s personal particulars, Mr Kolowe submitted that the accused is 20 years old from Laiagam District. She is the last born in the family of four. Have 2 brothers and 2 sisters. Both parents are still alive. She is married and has an adopted child who is 1 year 2 months old. She is married to the same man the victim is married to. She is a member of Assembly of God church.
    
15. Mr. Kolowe submitted and urged the Court to take into account in accused’s favour the following mitigating factors.
    
    1. That she expressed remorse to the victim;
    2. That she pleaded guilty and saved Court’s time;
    3. That she has no prior conviction;
    4. That she surrendered to police;
    5. That she had been in custody awaiting trial for 1 year 7 months;
    6. That she had no intention to assault the victim.

16. Mr Kolowe submitted and urged the Court to impose a term between 1 and 4 years and the term to be suspended with condition. He referred the court to the National Court case of The State v. Exely Hala Heni (2008) N3541. In that case the accused pleaded guilty to the charge of unlawfully causing grievous bodily harm. He 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.
    
17. Mr Thomas for the state submitted that the accused attacked the victim using a bush knife with some intention to do harm. She caused bush knife wounds to both right and left forearm, another wound on the right wrist, another wound to the fore head and the skull and another wound to the left foot. He urged the court to consider the medical report where the report shows that there is 80% permanent functional loss of the right hand, a permanent functional loss of both the right and left forearms and a permanent functional loss of her left foot. Mr Thomas submitted that the victim greatly suffered loss of the essential part of her body which makes this case very serious. Mr Thomas further submitted that the offence is very prevalent. He submitted that a term between 3 and 4 years is appropriate for purposes of deterrence. He referred the court to the case of The State v. Vincent Naiwe (2004) N2710. In that case the accused during a domestic argument used the 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.
18. The maximum penalty for this offence under S.319 of the Code is seven (7) years imprisonment. The court has considerable discretion whether to impose the maximum penalty by virtue of section 19 of the Criminal Code.
    
19. On authority of case like Goli Golu v. The State [1979] PNGLR 653, the maximum penalty should be reserved for the worst type case of unlawfully causing grievous bodily harm. In my view, the accused case is a very serious case.
    
20. The trend of Sentencing on Grievous Bodily Harm and similar offences depend entirely on the facts of each case. On the extreme side of sentence on this offence, let me cite two cases involving very serious aggravations. In The State v. Ruben Iroven (2002) N2239 the maximum penalty of seven (7) years was imposed. That was a case where the prisoner forced his two (2) wives to strip naked before him and he inflicted certain permanent injuries on to their bodies by using a hot iron. That case involved family problem and the presiding Judge imposed the maximum penalty.
    
21. In The State v. Tovita Mann (2007) N4028 where 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 deep and extensive wound. Injia CJ sentenced him to five (5) years reduced by the pre-trial custodial term and to serve the remaining balance of 2 years 11 months 12 days.
    
22. In The State v. Lundwina Waiguma CR 68 OF 2007 dated 21.03.07, the female offender pleaded guilty to unlawfully causing grievous bodily harm to another woman. A bush knife was used to stab the victim after a history of bad feeling between them. The accused claimed that victim had been saying bad things about her, due to suspicious that she was having an affair with the victim’s husband. His Honour Cannings J sentenced her to four (4) years imprisonment none of which was suspended.
    
23. I have considered in accused favour on sentence, the following mitigating factors:
    
    1. That she pleaded guilty and saved courts time;
    2. That she expressed remorse to the victim;
    3. That she is a first time offender;
    4. That she surrendered to Police;
    5. That she had been in custody awaiting trial for 1 year 7 months.
       
24. Against the factors in favour of the accused, the court considered the following aggravating factors:
    
    1. The victim sustained serious injuries;
    2. That a dangerous weapon namely a bush-knife was used;
    3. That the victim did not expect the attack;
    4. That there was some intention to do harm;
    5. No compensation has been paid. However from the pre-sentence report she has indicated to pay K2, 000.00.
       
25. 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 namely a bush knife was vicious and repeated. The second and subsequent attacks or cuts happened when the victim was already bleeding heavily. To cut the victim twice and more again show that the accused had no regard of the victim’s wounded body. It was a shocking attack. Accused actions show that she was such a violent person showing no hesitation in using the bush-knife which is a dangerous weapon. It is unfortunate that the victim is left with some disabilities. 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.
    
26. I consider that a sentence of 3 years is appropriate. Accordingly I imposed a sentence of 3 years imprisonment. I order a deduction of 1 year 7 months already spent in custody whilst awaiting trial. That will leave the balance of 1 year 5 months yet to serve. I order that you serve the sentence in Hard Labour at Baisu Correctional 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