State v Inibo [2018] PGNC 409; N7525 (24 October 2018)

N7525

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1334 OF 2017

THE STATE

V

HOBERT JOE INIBO

Kimbe: Miviri AJ
2018: 20^th & 28^th September 1^st 09^th 17^th 22^nd 23^rd October

CRIMINAL LAW – PRACTICE AND PROCEDURE – GBH S315 CCA – Plea – repeated cuts with bush knife – spear to right arm pit – PSR MAR favourable to prisoner – attack in dwelling house of victim – nephew against uncle – no restraint no respect of – restoration of family ties – serious violent offence – disputes follow process of law – punitive and deterrent sentence.

Facts
Prisoner went into dwelling house of victim, cut him with bush knife and then speared him in the right arm pit and ran away. He intended to cause Grievous Bodily Harm and did that.

Held
Plea of guilty
First offender
Good PSR MAR
Protection of the dwelling house
Deterrent and punitive sentence.

Cases Cited:
Public Prosecutor v Hale [1998] PGSC 26; SC564
Public Prosecutor v Tardrew, [1986] PNGLR 91
The State v Hagei [2005] PGNC 60; N2913
The State v Kairi [2006] PGSC 8; SC831
The State v Kialo [2008] PGNC 290; N5467
The State v Kup [2018] PGNC 366; N7477
The State v Kwapena [1978] PNGLR 316
The State v Nerious Pinda [2012] PGNC 291; N4872
The State v Peter Pendin [2012] PGNC 292; N4541
The State v Philip Piapia [2017] N6763
The State v Simo [2018] PGNC 221; N7312
The State v Steven Tumu [2017] N6768
The State v Tupulit N6185" title="View LawCiteRecord" class="autolink_findcases">[2015] PGNC N6185
The State v Waimba [2016] PGNC 430; N6954

Counsel:

D Kuvi, for the State
B Takua, for the Defendant

SENTENCE

24^th October, 2018

1. MIVIRI AJ: This is the sentence of Hobert Joe Inibo of Woginara, Dagua East Sepik Province for the crime of Grievous Bodily Harm with intent pursuant to Section 315 of the Code.
   

Short facts

2. He pleaded guilty that on the 2^nd of April, 2015 around 8.30pm he went to the dwelling house of the complainant Samuel Saun and family located at Tamba Section 8 block 523. He kicked down the door entered it armed with a bush knife. He used it to cut Samuel Saun on his right shoulder and hand. Complainant was shocked and got up and struggled with the prisoner to stop him into the kitchen and out. The prisoner cut him third time again on the right hand. The wife of Samuel Saun shouted out to prisoner to stop but he didn’t. He got an iron spear and speared him in the right arm pit. The wife shouted at the top of her voice prompting the prisoner to escape. The prisoner did what he did in retaliation over an earlier incident where the victim cut the brother of the prisoner.
   

Charge Grievous Bodily Harm

3. The charge is pursuant to Section 315 of the Criminal Code that, “A person who with intent-
   • (a) .......................
   • (b) to do some grievous bodily harm to any person; or
   • (c) to resist or prevent the lawful arrest or detention of any person

does any of the following is guilty of a crime-

(d) Unlawfully wounding or doing a grievous bodily harm to a person; or

(e) ................ (j)

Penalty: Subject to Section 19, imprisonment for life

4. Prisoner pleaded guilty to the facts above outlining this very serious charge. The sentence appropriate and proportionate was the aggregate of the aggravating and mitigating features canvassed out by the facts above. Part of which will be any apparent or identifiable extenuating circumstances due consideration accorded. The attack was perpetrated at 8.30pm and in the dwelling house of Samuel Saun as he was preparing for bed with his wife and two year old son. The allocutus of the prisoner did not equate as set out below.
   

Allocutus

5. “On 2^nd April, 2015 my wife and I were at my cousin sister’s house Mata Rocky around 7.0 clock in the night. Whilst we were there sitting down and telling stories, her grandmother and little girl were up in the house sleeping. At that time Samuel Saun and his wife Lyn came. He was holding onto a long bush knife and a bright torch which he flashed at us. He swore and at the same time asked where is Bethesda daughter of Mataro as he did he ran up the steps to the house and slapped her with the side of the bush knife and used his legs and hands to hit the child then threw her down to the ground. His wife Lyn Saun went and stood on the neck of the child intending to kill her. My wife went and pushed Lyn got the child and saved her. At that instant the grandmother of the child came down and asked what happened. Paul Saun elder brother of Samuel Saun came and hit the old woman with the handle of the spade injuring her on the nose. I stopped them and said you have already caused serious injuries already. And Samuel Saun swore, “Eat your mother’s vagina and your father’s penis”. I will cut you and kill you. So when he ran to get his gun I cut him before he cut me. I am sorry for what I have done and for the court to hear my case this is my first time. I ask the court for probation and time to be served outside.”
   
6. The deduction is that Prisoner reacted immediately to a provocative scene in which he was present and witnessed the actions of the victim upon family members he was with. He did nothing to save them being assaulted as he describes and foul language used against coupled with threats to injure him. But then he goes armed with a bush knife and a spear for hunting pigs and breaks down the door of the dwelling house of Samuel Saun at night time when Samuel Saun is with his two year old son playing whilst his wife is preparing their bed to sleep. He goes into the house and attacks him in the confines of his house with the bush knife. He persists in swinging and cutting him on the shoulder. He does not give into the calling and shouting of the wife of the victim. Nor does he accede to the fact that the victim is a relative, his uncle. He fights and secures with another cut to the right hand and then finally spears him in the right arm pit. In the record of interview he says the other injuries were caused by a motor vehicle accident the victim involved in. He was not responsible. He only cut once and that he was not drunk or affected by alcohol contrary to the strength of the evidence he has pleaded guilty to.
   
7. The medical evidence from Doctor Jack Marcus of the Acute and emergency Department of the Kimbe Provincial Hospital dated the 22^nd April, 2015 depict that:
   

Samuel was admitted to the surgical ward initially on the 2^nd April 2015 with multiple stab wounds to the right hand, chest and shoulder after he was alleged to have been stabbed and speared by a known adult male. The examination revealed deep bush knife wounds that had reached cut through to the double shoulder bones on his right shoulder at 6cm deep which is 48percent damage, chest at another 6cm deep which is 50percent damage and right hand at 4cm deep causing damage of 45percent. He had the wounds sutured under local anaesthesia consisting of 214 stitches both chronic cut gut and silk braided nylon and was treated with antibiotics and pain killers and eventually discharged on 04^th April, 2015. On review for the removal of the stutures on the 7^th April, 2015 he was noted to be very pale so had haemoglobin done which was low with Hb of 4.7percent which occurred as a result of blood lost from the wounds he received so was readmitted again on the 7^th April, 2015 for anaemia and had blood cross matched and transfused 1 unit of packed cell blood at the acute and Emergency Department and finally discharged from the ward on 10^th April, 2015. Thus he sustained multiple knife and spear wounds to his body with lots of blood loss of about 58 percent of his total body blood volume from the attack.

8. This was a very serious life threatening attack and the victim could have easily lost his life. Hence the Sentence would be in that regard that there was intent to cause grievous bodily harm and that was attained as set out above. Samuel Saun was not prepared and ready to defend himself. That was not the case. He was at peace at home with his child playing with him while his wife was preparing their bed to sleep. There was nothing that had happened as described by the prisoner. If the attack was carried on from where it was initially to where the prisoner attacked the victim the latter would still be with the weapons that he used to attack with still in his possession. That is not the scene here nor is it the case; this is a fresh attack after events of the previous day.
   
9. Which is described by the statement of Mata Rocky that she had gone to wash the dishes at the river on the 1^st April 2015 at about 12 midday, and was returning home when she saw the door to the house of Samuel Saun open and ajar. She went to investigate and saw the prisoner holding things in his hands coming out of the house. He followed her to her house. She removed the laundry dish from her head to the veranda. Where she saw the things that he had stolen from the house of Samuel Saun, these were a packet of rice, a lolly container containing some money, a two cell torch and a live chicken. He told her to cook the rice and the chicken and they all ate it. She cooked as he instructed and then they ate. In the afternoon he got some money from the lolly container and bought homebrewed alcohol “Matuka” and was there drinking it. Samuel Saun suspected that his house was broken into and properties stolen by Besida daughter of this witness. That is why he came over and assaulted her. The prisoner kicked the leg of the witness preventing her from revealing the matter. It was this that led the prisoner on the 2^nd April to go to the house of Samuel Saun and cut him. The offence was committed in this way set out by the evidences of Samuel Saun, his wife Lyn, Brother Paul Saun and Michael Komora, not as portrayed by prisoner.
   
10. It is an attack at the dwelling house of the victim where the prisoner leaves behind a “Matuka bottle” homebrewed alcohol, a hunting spear, and a spear made out of a knife which he had used to cut Samuel with, a torch, and catapult. This is the level of preparation and preparedness in the offence. It was not on the spur of the moment but a well thought out offence. The determination is shown by the injuries sustained set out.
    
11. Like any other person in the blocks as here where oil palm is grown or in the communities or towns or cities like Samuel Saun all must feel safe and secure in their houses and homes. Whether it is made of shanty materials or high class materials all are the abode where one as a human being must rest and dwell. The law must protect with the sentences that are imposed. They should not be susceptible or vulnerable to attacks or violence perpetrated upon them in their own homes and houses. They should not live in fear. Lawlessness perpetrated with aggravated acts of violence as here will not be tolerated by the courts. Here victim was with his two year old son playing with a mobile and the prisoner made entry by breaking down the door to the house, entered and inflicted the injuries. It is therefore very serious which the Supreme Court made very bold in Public Prosecutor v Hale [1998] PGSC 26; SC564 (27 August 1998). Here likened is a crime of violence perpetrated with persistence and vigour undeterred upon the victim unarmed and unsuspecting in his own home enjoying playful moments with his two year old son and wife both of whom were also susceptible and exposed to injury to limb or life in the way that the prisoner acted.
    
12. By the second cut of the bush knife Prisoner had the victim at his mercy but did not conclude. He landed the third injury with the spear in his right arm pit, the victim could have died in his own home. It is no light matter when the presentence report ordered says that prisoner is a first offender has expressed remorse and is prepared to pay compensation and reconcile with the victim who on the other hand has accepted, so that the prisoner is not in jail. Because he has no prior convictions known to the law and accepts that a non custodial term on probation is appropriate and recommended by the presentence and the means assessment reports ordered. It is the duty of the Court to consider and determine and impose not of the victim or anyone. Its discretion is not fettered in any way at all.
    

Issue

13. What then is the appropriate sentence for the prisoner here?
    
14. The maximum sentence drawn is life imprisonment but is that due upon the prisoner here?
    

Submission by Counsel

15. Counsel defending submits prisoner acted to save the life of a young girl a relative who was seriously assaulted by the victim and his actions were justified bearing de facto provocation, victim brought it upon himself. This submission is misconceived without basis of the evidence and the facts to which the prisoner pleaded guilty to as set out above. It is clear that if there was an attack by the victim it could not have been on that day 2^nd April 2015. Because then victim would have been armed and the prisoner would not have persisted without being injured himself in view had he attempted. The facts pleaded to by the prisoner are what happened. Even if contended at the highest it would still be not the case as in Kairi v The State [2006] PGSC 8; SC831 (28 April 2006) or Kwapena v The State [1978] PNGLR 316 because there the prisoner acted in self-defence to save himself, the former with the use of a knife against repeated assaults by the deceased and in the latter use of a knife blade fitted on a pole made into a spear against a gun which was unloaded that the deceased had threatened him with. In both instances the former matter was remitted back for retrial and in the latter conviction was quashed and prisoner acquitted.
    
16. The facts and circumstances do not depict extenuating circumstances as in State v Hagei [2005] PGNC 60; N2913 (21 September 2005) to constitute proper basis to deviate sentence from the ordinary. Nor is it similar to State v Kialo [2008] PGNC 290; N5467 (11 December 2008) 6 years was imposed by this court one for Grievous bodily harm with intent under Section 315 and second for wilful damage. Four (4) years of which was ordered to be served in jail and the remaining 2 years suspended on non-custodial term. Still in this regard is State v Tupulit N6185" title="View LawCiteRecord" class="autolink_findcases">[2015] PGNC N6185 (28 July 2015) where 5 years was imposed. K2500 was paid as compensation, time in custody was deducted and the balance was suspended on a probation order. In my own decision in State v Simo [2018] PGNC 221; N7312 (20 June 2018) 8 years was imposed on a guilty plea to Arson and Grievous bodily harm pursuant to section 319 the lesser offence than the present, 4 years was ordered to be served in jail and the remainder was suspended on a probation order for the same period. The converse was considered in State v Kup [2018] PGNC 366; N7477 (24 September 2018) where 10 years IHL was considered appropriate where the second wife had her foot and wrist amputated by the husband with a sharp bush knife over dispute relating to oil palm. This is within the same scope as in State v Waimba [2016] PGNC 430; N6954 (18 May 2016) where 8 years IHL was imposed upon the prisoner under influence of homebrewed alcohol who cut the face of a policeman investigating a criminal complaint. In so passing 6 to 10 years was the proportionate range drawn out by the circumstances of each case.
    
17. The extreme is State v Peter Pendin [2012] PGNC 292; N4541 (26 March 2012) and State v Nerious Pinda [2012] PGNC 291; N4872 (21 February 2012) where his honour Justice Kawi imposed 16 years IHL. It was a persistent attack perpetrated by the prisoner accompanied by two others all armed with bush knives where the attack was undeterred even by the presence of the wife almost killing the victim. Aggravation clearly outweighed mitigation warranting in both cases in the latter. In the former it is the same where prisoner without any justification cut the head of the victim. The prisoner pursued repeatedly swinging the knife ending with her hand amputated lying on the ground with the plastic she carried.
    
18. Not only have the courts gone as set out above but in appropriate cases warranted by the facts and circumstances imposed other than custodial sentences as in State v Philip Piapia [2017] N6763 (17 May 2017); State v Steven Tumu [2017] N6768 (23 May 2017). These have been mid-range of 3 to 4 years part custodial and part suspension in each case. Warranted by proper material to promote personal deterrence, reformation, rehabilitation entailed with restitution of the victim: Tardrew, Public Prosecutor v [1986] PNGLR 91 (2 April 1986). In the present the facts circumstances do not warrant suspension immediate as aggravation outweighs mitigation. It is proportionate that due time must be served in custody to deter and protect the home of a man as here from violent and aggravated criminal offences such as the present. That the process of law must be followed and adhered to where there are disputes no one takes the law into their own hands to become enforcer, adjudicator and executioner. In my view it would not be disproportionate to impose 10 years given all of the above. Seven (7) years IHL would be spent in custody in jail. Time on remand will be deducted forthwith he will serve the balance in jail.
    
19. By discretion conveyed by section 19 of the Code bearing that prisoner has pleaded guilty with express intent to compensate and reconcile with the victim who has reciprocated the remaining 3 years to be wholly suspended on a Probation order for the same period on conditions as follows:
    
    1. You shall enter into a probation order for 3 years on conditions;
    2. You shall within 48 hours after release from jail report to the Probation Officer;
    3. You shall be resident at Tamba section 8 Block 511 at all times in the course of your probation period.
    4. You shall not leave this place of resident or Kimbe without leave of this court during the course of your probation period;
    5. You shall perform 600 hours of community work at a worksite to be approved by the Probation Office;
       
    6. You shall keep the peace and be of good behaviour bond at all times;
    7. You shall not take liquor or any form of intoxicating substance or drugs during the period of your probation;
    8. You shall attend your local Assemblies of God church Tamba or nearest church every Sunday for fellowship and worship whilst on probation;
    9. You shall undergo counselling from your local Pastor of the Assembly of God church Tamba or nearest church for number of times as may be determined by the counsellor;
    10. You shall within 5 months as of the date of release from Jail make restitution to Samuel Saun in the sum of K2500 in cash and a live pig valued at K1000 with garden food in the value of K300.
    11. The restitution shall be witnessed by your probation officer, the police informant, Peter Robi Community leader Tamba section 8, Ward 7 Councillor Tamba Section 8 Philip Warpen.
    12. The occasion for the reconciliation and compensation payment is to be recorded and a report filed at the National Court registry by the probation officer within 14 days after discharge;
    13. The Probation officer shall file a report on the responses and progress of the probationer every four months, first of which shall be on the fourth month after release from Jail and at any other time or interval as the National Court may order upon application;
    14. In a breach of any of these Probation Orders your Probation shall lapse and you shall be arrested to serve the whole term of your sentence.
        

Ordered Accordingly
__________________________________________________________________Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Prisoner