N7578

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1238 OF 2018

THE STATE

V

THOMAS IRIMA

Bialla: Miviri AJ
2018: 12 & 20 November

CRIMINAL LAW – PRACTICE AND PROCEDURE – GBH S 319 CCA- Plea-Prisoner caused disturbance – victim reacted – quarrel leading to fight – prisoner cut victim with bush knife – nose and face cut – caused grievous injury to nose – prevalent offence – deterrent sentence.

Facts

Prisoner caused disturbance outside house of victim who came out to investigate leading to argument and fight. In the course, the prisoner cut the victim with bush knife on the nose.

Held

Prevalent offence
Guilty plea
Life threatening injury
Strong and deterrent sentence
4 years IHL

Cases Cited: 

Public Prosecutor v Don Hale [1998] PGSC 26; SC 564 
Public Prosecutor v Tardrew, [1986] PNGLR 91 
The State v Hianu [2006] PGNC 75; CR 1767 OF 2005 
The State v Michael Dau [2018] PGNC 407; N7518 
The State v Simo [2018] PGNC 221; N7312 
The State v Waimba [2016] PGNC 430; N6954 

Counsel:

D. Kuvi, for the State
B Takua, for the Defendant
						
SENTENCE
20th November, 2018

1.	MIVIRI AJ:  This is the sentence of Thomas Irima who pleaded guilty that he cut the nose of one Victor Napilua with a bush knife.

Short facts

2.	He had caused some disturbance outside the house of Victor Napilua (victim) on the night at about 10.00pm of 15th September, 2018. It prompted the victim to come out to investigate. As he did there evolved an argument between both leading to a fight, in the course Prisoner drew out a bush knife cutting victim on the nose causing massive bleeding. Victim was rushed to the Bialla hospital but not sustained so referred to Kimbe General Hospital where he was treated leaving a scar with sixty percent disfigurement to his face.

Charge Grievous Bodily Harm

3.	Prisoner was charged and pleaded guilty to unlawfully causing grievous bodily harm pursuant to Section 319 prescribing imprisonment not exceeding seven years as its penalty. It was a life threatening injury because the cut inflicted made breathing difficult threatening survival of the victim unless quickly treated so that breathing was restored. The cut would have drawn bleeding that would no doubt have effected the passage of air into the nostrils cavity to feed the lungs and the body. It would have been very difficult to breathe threatening life of the victim. He was rushed to the Kimbe General hospital from Bialla Hospital to save him. 

Aggravation

4.	He has now survived with a sixty percent disfigurement to his face an ugly scar is visible evident remnant of the attack. Prisoner acted out of proportion although he contends that he was outnumbered and so he ran back to the boys he was with got their knife went back and cut the victim. Running back meant avoiding any danger to his life or limb and to be out of any danger or threat. To then run back with a bush knife and to inflict the injury upon the nose and face of the victim is over and above necessary to preserve oneself. This is borne out by the statement of the victim who was going back after fighting prisoner when attacked. Further four boys who were with the prisoner assisted him and fought off the other person who helped the victim. It meant that the prisoner was not under threat of life or limb when he acted as he did upon the victim. Further it was the prisoner who had instigated the attack because the evidence tendered in the file showed prisoner had thrown a stone at his wife who had sought shelter with the victim and his family in their family house. She avoided and the stone got the roof of the house prompting out the victim. Clearly there was a problem between the prisoner and his wife personal between them for which both needed to settle properly then to spill out into the domain and dwelling of another as here. Prisoner’s wife with his two children were there at the house of the victim. It did not dawn upon him to respect that he could not impose his problem upon another. If the victim was sheltering the wife and the children from the prisoner it may have fumed him. And it could not be controlled given that he was also effected by alcohol voluntary consumed. 

5.	In his record of interview he says the victim and he are married to two sisters and therefore the actions of the victim and wife to shelter his wife and two children. Rather than appreciate them for the assistance he acted as he did. It is serious in view of the fact that he was armed with a bush knife which he used on the victim putting the life of the victim at risk of serious grievous injury.  It was serious because he went into the house of another to commit the offence without respect for that other person’s home and family. The attack was also at night time when the sight of a person is not as far as light drawn and therefore the level of danger to life and limb is high compared. Section 395 (1) (2) housebreaking or burglary makes this point that if the crime is committed in the night the penalty is subject to section 19 imprisonment for life. A house of a man be it a shack in a settlement or a high class mansion in a well groomed area is the home of a human being and must be protected, Public Prosecutor v Don Hale [1998]PGSC 26; SC 564 (27 August 1998). And whereas here a man has risked his own life to put up the family of another here the prisoner, he should be respected and not attacked. The law must protect such a person given the propensity and the prevalence of the crime of domestic violence which was the case in the first place. Prisoner stoned his wife Lilly who sought shelter there. It does not level out as contended on behalf of the prisoner by counsel defending. Further self induced intoxication is not a defence in law nor will it mitigate where there is persistence in the attack as set out here.

Mitigation

6.	Prisoner made early detailed admissions to police in the matter in his record of interview dated the 21st September, 2018. There he said he resorted as he did because the victim with his brothers fought him so he reacted. It was not the first time so he behaved as he did. He admitted that he was not angry at the victim but his wife Lilly who was in the house of the victim. He tried to stone her but missed hitting the house leading.

Antecedents

7.	He was educated to grade 10 at Bialla Secondary School in 2017 and enrolled thereafter at the Kimbe Open Campus to do Matriculation then took up Multi skills training at Lae for three months not completed. There was no record of formal employment. But he was in charge of the family operated Lucas Mill. Originally from Gomu in Bialla where also he resided, He was of the United church married by custom to one Lillian and had two children from that union one 5 years old and the other 2 years old. 

8.	His antecedent report showed a prior conviction for assault in the Bialla District Court for which he was fined K400 and further ordered to compensate the victim at K1000. He was not a first offender. He had pleaded guilty a sign that he accepted that he had committed wrong. That in so doing he was prepared to take the consequences of his actions. 

9.	Presentence report discloses importantly that he lives next to the United Church at Gomu but the church elders confirm that he does not go to church nor engage in activities of the church. Village court clerk one Pearson Gah said he has an attitude problem. And one Michael Taku committe man in the village described him as stubborn. The victim is presently in Rabaul at Nonga Hospital. He wants compensation and also the prisoner to be jailed. In my view these reports made to the probation officer in the preparation of a presentence report can be taken at their face value because that is what they are without any verification. There must be proper basis to take into account and weigh for or against not without. Here prisoner has pleaded guilty and he must be given favour in the sentence accorded. Sentencing flows from a discretion by law not without Tardrew, Public Prosecutor v [1986] PNGLR 91 (2 April 1986).

Issue

10.	What is an appropriate sentence in the case of the prisoner given?

11.	Two Photographs taken of the victim shows the nose is cut at the base bridging between both eyes in a down ward motion and from the side showing cut along the base of the nose downward. In the way it is the nose was cut off from the base leaving breathing competing with blood and would have been very difficult hence referral from Bialla to Kimbe. This is borne out by the medical report under hand of Doctor Lawrence Warangi SSMO Surgery of the Curative Health Services Kimbe General Hospital dated the 24th September 2018. The observation at first instance was that he was mouth bleeding and admitted. In operation he was found that the nasal bridge was cut and there were clots within the left and right nasal cavity. He was discharged on the 19th September 2018. He will have a 60 percent scar disfigurement of his face.

12.	The use of a bush knife in the way that the prisoner effected is not a light matter. It is deliberate calculated and must be stopped by strong serious and stern punishment. This court in State v Hianu [2006] PGNC 75; CR 1767 OF 2005 (25 August 2006) sentenced the prisoner to 4 years IHL for smashing a full bottle of beer on the face of the victim who suffered the permanent loss of his other eye as a result. Two (2) years was imposed in custody and 2 years was suspended on a non-custodial term with conditions for payment of compensation. This was using of a beer bottle as a missile to the face of victim with the result that one eye. Here the nose is 60 percent disfigured and it was a life threatening injury.

13.	In the State v Waimba [2016] PGNC 430; N6954 (18 May 2016) 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. This was more serious because it was an attack on a law enforcing officer cut in the face in the course of duties. Fundamental and underlying is that whether it is a cut to the face or any other part of the body a human being is cut and defaced in the way done. No human being is complete without all body parts functional and in order. So whether it is as 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, 4 years was ordered to be served in jail and the remainder was suspended on a probation order for the same period, or as in State v Michael Dau [2018] PGNC 407; N7518 (17 October 2018) prisoner was attacked in his house by the victim accompanied by two others. He sustained cuts to his body that required treatment at the hospital that brought him back to life. He speared victim in the thigh then cut off his wrist and leg drawing 5 years IHL with the remainder after time in custody deducted suspended on a probation order with conditions following suit. The pain suffering endured by a fellow human being in this way must be sternly punished and a sentence of justice attained.

14.	The range given the facts and circumstances of the present offence would be between 3 to 5 years imprisonment. For there to be suspension of part of the sentence good grounds must be demonstrated to so grant, Tardrew’s (case supra). Here the presentence and means assessment reports do not favour a non custodial term in view of the fact that prisoner is a re-offender and there are serious views against so placing. The fact of the matter is that he has pleaded guilty accepting responsibility for his actions. He had a reason to do what he did and he must be punished for his wrongs but at the same time it must be balanced too that he has taken the first stride to change. The guilty plea is an indication of that fact. Had his wife not gone as she did to the house of the victim it would not have ended in the way that it has here. The wife also must take responsibility and honour vows of marriage for peaceful co existence. But to act in the way he did at the house of another and to inflict the injuries set out here he must be deterred from himself to not ever behave in this way again. 
15.	The sentence proportionate to the gravity of his facts and the offence is 4 years IHL and I so impose that upon the prisoner for the crime of grievous bodily harm pursuant to section 319 of the Code. 2 years will be served in custody in jail.

16.	In the exercise my discretion pursuant to section 19 of the code 2 years IHL will be suspended on his entering into a good behaviour bond on Condition that he enters into a probation order for 2 years on the following Conditions; 
(i)	You shall enter into a probation order for 2 years
 
(ii)	You shall within 48 hours report to the Probation Officer;

(iii)	You shall be resident at Gomu village Bialla at all times in the course of your probation period.

(iv)	You shall not leave this place of resident or Bialla without leave of this court during the course of your probation period;

(v)	You shall perform 600 hours of community work at a worksite to be approved by the by the Probation Office;

(vi)	You shall keep the peace and be of good behaviour at all times;

(vii)	You shall not take liquor or any form of intoxicating substance or drugs during the period of your probation;

(viii)	You shall attend your local Gomu United Church every Sunday for fellowship and worship whilst on probation; 
(ix)	You shall undergo counselling from your local Pastor Mesak Mesori for number of times as may be determined by the counsellor;

(x)	You shall within 5 months as of the date of release from Jail make restitution to Victor Napilua in the sum of K2000 in cash, a pig valued at K600 and garden food valued at K300.

(xi)	The restitution shall be witnessed by your probation officer, the police informant, Pearson Gah Village court Clerk Gomu Michael Taku ward committee and Pastor Mesak Mesori Gomu United Church.

(xii)	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;

(xiii)	The Probation officer shall file a report on the responses and progress of the probationer every five months and at any other time or interval as the National Court may order upon application;

(xiv)	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.

17.      Bail is refunded forthwith.

Ordered accordingly,

Public Prosecutor:  Lawyer for the State	
Public Solicitor   : Lawyer for the Defendant