State v Kapi [2017] PGNC 94; N6734 (13 April 2017)

N6734

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1101 OF 2016

THE STATE

V

WANPIS SUKUL KAPI

Porgera: Auka AJ
2017: 12^th & 13^th April

CRIMINAL LAW – Sentence – Particular Offence – Plea guilty – Unlawfully causing grievous bodily harm – Mitigating and Aggravating factors considered – Three (3) years imprisonment – Reduced by 1 year 2 months for pre-trial custodial term – The balance of 1 year 9 months yet to serve. Criminal Code S. 319.

Case Cited:
The State v.Bill Kare [2012] N4663
Goli Golu v. The State [1979] PNGLR 653
Lawerence Simbe v. The State [1994] PNGLR 38
The State v. Ruben Iroven (2002) N2239
The State v. Tovita Mann (2007) N4028
The State v. Ben Robert (2009) N3629
The State v. Lundwina Waiguma CR 68 of 2007 dated 21.03.07

Counsel:

Mr. Philip Tengdui, for the State
Mr. Jeffrey Kolowe, for the Accused

DECISION ON SENTENCE

13^th April, 2017

1. AUKA AJ: An Indictment was presented by the State against the accused on 12^th April, 2017. The State charged the accused with one count of unlawfully causing grievous bodily harm to one GIBSON KEMBEW pursuant to s.319 of the Criminal Code. That followed a plea bargain between the parties from the more serious offence of attempt 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 1^st February, 2016 at about 10:30pm, the victim Gibson Kembew and his two brothers were walking home along the main road at Paiam Station. At that time, the accused, Wanpis Sukul Kapi, who was with two others were armed with bush knives and were hiding at the side of the road. When the victim and his brothers passed them, the accused and his friends attacked them without any warning. In the attack, the victim was struck with bush-knife on the head and face, receiving injury to his eyes and nose. After attacking the victim, the accused and his friend escaped. The victim was taken to the hospital and was appropriately treated. The matter was reported to the police and the accused was arrested and charged.
   
3. A Medical Report of Dr. Moises v. Granada dated 4^th April, 2016 confirms that the victim received a bush knife injury to the left forehead and right eye. He was brought to the hospital on the night of the incident of 1^st February, 2016 and was admitted. The report shows that there was a linear bush knife wound noted from left temporal area across the left side of the forehead down the right eye with a ruptured eyeball. Brain tissue was pouring out the wound at the temporal area. X-ray of the skull showed a linear depressed fracture of the forehead from left temporal area to the right superior orbital fossa. The victim was appropriately treated including operation of his right eye ball and the related parts. He was discharged on 19^th February, 2016. Dr Moises Granada in his final remark reported that the victim has lost 100% of his right eye.
   
4. In his statement on Allocatus, the accused said he has done the wrong already. He had no grudges against the victim prior to the incident. He said sorry to the victim and had paid K5, 600. 00 cash as form of bel kol. He said he spent 1 year 3 months in custody awaiting his trial. He again said sorry to the victim and to his relatives. He said all his children are at school and there is no one to look after them. He asked the court to have mercy on him and place him on good behaviour bond.
   
5. In relation to accused’s personal particulars, Mr Kolowe submitted that he is 35 years old and has 1 wife and 5 children, Eldest been 12 years. He is first born in the family of 3. His father is deceased and mother still alive. He was formally employed by Porgera Joint Venture as a driller prior to his arrest. He completed grade 10 at Porgera High School. He is a member of SDA Church.
   
6. On address on sentence, Mr Kolowe submitted and urged the court to consider in the Accused favour the following mitigating factors;
   
   1. Accused pleaded guilty and saved courts time and resources;
   2. He expressed genuine remorse;
   3. He surrendered to police straight after committing the offence;
   4. He is a first time offender;
   5. He had no intention to cause injury to the victim;
   6. He paid K5, 600. 00 cash to the victim as compensation.
      

Mr Kolowe submitted and urged the court to consider that this is not a worst type of case and as such urged the court to impose a term between 1 to 3 years and the sentence be wholly suspended with condition.

7. Mr Tengdui of counsel for the state submitted and urged the court to consider against the accused the following aggravating factors;
   
   1. That dangerous weapon namely a bush knife was used;
   2. The attack was pre- meditated in that accused was already armed with a bush knife and was hiding ready to attack;
   3. It was a surprise attack in a ambush manner;
   4. Victim suffered serious injuries and lost 100% of his eye sight;
   5. The offence is a prevalent offence;
   6. It is a serious case of grievous bodily harm and referred the court to the case of The State v. Bill Kara (2012) N4663. In that case the accused pleaded guilty to unlawfully doing grievous bodily harm to his female neighbour in urban setting, cutting her on her face with a bush knife, inflicting an eye injury and superficial facial injuries requiring 7 stitches. Cannings J imposed a term of 4 years, fully suspended in view of a favourable pre-sentence report and his preparedness to pay further compensation.
      

Mr Tengdui strongly submitted that a term between 3 to 5 years is the appropriate sentence in the circumstances of the case.

8. The maximum penalty for unlawfully causing grievous bodily harm 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 Code.
   
9. On authority of cases like Goli Golu v. The State [1979] PNGLR 653, the maximum penalty is reserved for the worst type of case. In my view this is a serious case.
   
10. 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.
    
11. The trend of sentencing on Grievous Bodily Harm and similar offences depends entirely on the facts of each case.
    
12. On the extreme side of sentences on this offence, let me cite few cases involving very serious aggravations.
    
    1. In State v. Ruben Iroven (2002) N2239, the maximum penalty of 7 years was imposed. That was a case where the prisoner forced his 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 of 7 years.
       

2. In the State v. Tovita Mann (2007) where 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 and inflicted a very serious wound. Injia DCJ (as he then was) sentenced him to 5 years reduced by the pre-trial custodial term. He was ordered to serve the remaining balance of 2 years 11 months 12 days.
   
   3. In The State v. Ben Robert (2009) N3629, the prisoner pleaded guilty to unlawfully doing 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 reduced. There was no suspension on any part of the sentence.
      
   4. In the case of 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 has been saying bad things about her, due to suspicion that she was having an affair with the victim’s husband. His Honour Cannings J sentenced her to 4 years imprisonment none of which was suspended.
      

13. It is clear from the above cases that the courts have been exercising their discretion to impose sentences in terms as well as the prescribed maximum term of 7 years after taking into account the different circumstances of each case with respect to the factors of mitigation and aggravation as they may be.
    
14. I have considered in accused favour on sentence the following mitigating factors;
    1. That he pleaded guilty;
    2. That he expressed remorse to the victim;
    3. That he is a first time offender;
    4. That he surrended to police;
    5. That he paid K5, 600.00 compensation to victim;
    6. That he has been in custody awaiting trial for 1 year 3 months.
       
15. Against the factors in favour of the Accused, the court considered the following aggravating factors;
    1. That a dangerous weapon namely a bush knife was used;
    2. That victim sustained injuries;
    3. That victim has 100% loss of his left eye;
    4. The victim did not expect the attack;
    5. That there was some intention to do harm and;
    6. That the offence is a prevalent offence.
       
16. Going by the trend of sentences imposed in some cases referred to and the particular factors and circumstance of this case, I consider that this is a serious case in that the attack using a dangerous weapon namely a bush knife was vicious. The victim had permanently lost his left eye sight as a result. Accused’s action shows that he was a violent person showing no hesitation in using the bush knife which is a dangerous weapon. The victim is left with a permanent disability. 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.
    
17. I consider that a sentence of 3 years is appropriate. Accordingly I impose a sentence of 3 years. I order a deduction of 1 year 3 months already spent in custody whilst awaiting trial. That will leave the balance of 1 year 9 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