N7691

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 477 OF 2018

THE STATE

V

PETER LUCAS

Kimbe: Miviri J
2018: 04th December
2019: 13th & 14th February

CRIMINAL LAW – PRACTICE AND PROCEDURE – GBH S 319 CCA– Plea–Bush knife used – Right Elbow– left leg – cut & fracture – no residual injuries – sexual advances by victim to prisoners wife – Brothers – PSR MAR ordered – favourable to prisoner – prevalent offence – deterrent sentence.

Facts

Victim made repeated sexual advances to prisoner’s wife. Prisoner stopped him but he persisted. Prisoner cut him on the right elbow when he tried to stone him on his left leg.

Held

Prevalent offence
Guilty plea
No permanent injuries
Strong and deterrent sentence
4 years IHL

Cases Cited: 

The State v Aihi (No 3) [1982] PNGLR 92
The State v Irowen [2002] PGNC 99; N2239 
The State v Waimba [2016] PGNC 430; N6954 
The State v Philip Piapia [2017] N6763 
The State v Steven Tumu [2017] N6768 
The State v Tupulit [2015] PGNC N6185 
The State v Simo [2018] PGNC 221; N7312 
Tardrew, Public Prosecutor v [1986] PNGLR 91 

Counsel:

J Apo, for the State
B Kari, for the Defendant
		
SENTENCE
14th February, 2019 

1.	MIVIRI J: 	This is the Sentence upon Peter Lucas of Dom, Sinasina, Simbu Province who cut his brother on his right elbow and his left leg causing him Grievous Bodily Harm.

Short facts

2.	On 1st November, 2017 at Galai 2, the Prisoner and his wife were playing cards next to their block. Karl Mex Dibole approached the wife of the prisoner and argued with her and fought her.  He was under the influence of liquor. He picked up a stone with his right hand trying to injure her but the Prisoner struck him with a bush knife fracturing both his bones in his right elbow and left leg. He was taken to the Kimbe General Hospital, treated and has since recovered. The injury was both life threatening and therefore grievous.

3.	The Prisoner was charged with Grievous Bodily Harm pursuant to Section 319 of the Criminal Code. It reads: “A person who unlawfully does grievous bodily harm to another person is guilty of a crime.
Penalty: Imprisonment for a term not exceeding seven years.”

Obviously the maximum is not warranted given the facts and the circumstances but a determinate term of years would be in order given Aihi v The State (No 3) [1982] PNGLR 92 (5 March 1982). It would be a balancing act between the aggravating the mitigating and any extenuating circumstances to arrive at a proportionate and balanced sentence against the prisoner for his conviction.

Aggravation

4.	Grievous bodily harm is defined under section 1 Interpretations as:  “means any bodily injury of such a nature as to endanger or likely to endanger life, or to cause or be likely to cause permanent injury to health;” The medical report of the victim dated the 10th January 2018 written by Doctor Vanessa Anton, Surgical Registrar, Kimbe General Hospital depicts wound at the elbow 7cm long x 4cm wide. There was minimal bleeding and the bone was involved. There was reduced range of movement. It was tender and the sensations were intact. There was compound fracture including the bony tip of the elbow. There was fracture of the left fibula. He was taken to the theatre on the 7th November 2018 for suturing and plaster of the leg. On the 14th November 2017 the stitches were removed and plaster was applied. He was given 6 weeks to review to see if there was healing. There is no further report from the hospital. 

5.	There is no residual injury emanating in both cases. But it was life threatening, a dangerous and offensive weapon was used which is a bush knife. It may have easily killed the victim and could have easily ended up with very serious consequences against the prisoner.

Mitigation

6.	Here there was de facto provocation over victim making sexual advances towards the wife of the prisoner. This is coupled with other indignities and indecencies advanced by him at the wife of the prisoner in his presence set out in question16 of the prisoner’s record of interview conducted on the 3rd February 2018. Suggestions and innuendos by him such as, “I will undo your trousers zipper and all the men here will rape you. I will kill you; you have no family here in Kimbe you are like tadpole in the water”. Making allegations that she was seen by him having sexual intercourse with other men under oil palm trees. Then he picked up a stone which fell because it was large. Then another as he did, the prisoner cut his hands and when he kicked the prisoner cut his leg. Prisoner is not to be squarely blamed for what happened to the victim. 

7.	But he took the law into his own hands to do what he did upon the victim. And this he did so with a bush knife that has left its mark of injuries upon the victim. In his favour there are no residual injuries emanating. He is a first offender who is married with two children. His own parents, father is deceased and the mother is alive. He takes care of her. Both he and victim are brothers’ and steps taken to mediate have not been fruitful given matter is from a family situation. And is a culmination of abuse of alcohol on the part of the victim. Had he not been so intoxicated and had he not acted within reason and good conscience prisoner would not have acted as he did. In a way the prisoner prevented injury potential from the stone picked by the victim intended for his wife. A further matter is due consideration and weight is given material in the Presentence Report and the Means Assessment Reports that have been furnished to court to assist in the sentence upon the prisoner. In particular he is educated to grade 3 and did not continue after being hit by a vehicle. He is self supporting by income from his 2 hectare cocoa and share from 9 hectares oil palm block and gardening. He has good standing and repute in the community evidenced by reputable persons in his community particulars of which are set out in the reports. He has no prior convictions known to the law.

8.	He is 53 years old resident at Galai No.2 Ward 1 Mosa. And is originally from Dom Village, Sinasina District, Simbu Province. The presentence report recommends a non custodial term. It views that the prisoner is not a threat to the safety of the victim or the community. On the other hand the victim has refused cooperation in mediation or to bring finality to the matter at that level. And the prisoner has the means to fulfil any orders for compensation from both reports.

9.	The present is not as was in State v Irowen [2002] PGNC 99; N2239 (23 May 2002)  where this court imposed the maximum penalty of 7 years cumulative under section 319 both wives victims were strip naked by their common husband who accused them of extra marital affair and tortured. He cut them both with a bush knife almost killing them but they survived because they were taken quickly to the hospital by a Pastor but came out with serious residual injuries. In State v Waimba [2016] PGNC 430; N6954 (18 May 2016) the prisoner was under the influence of homebrewed alcohol in Wewak and attacked a policeman the victim who had come out to investigate a criminal complaint where the prisoner was, sustaining serious cuts to his face and eye which became 100 percent dysfunctional despite extensive medical treatment to correct.

10.	Where there is demonstrated by clear evidence to mend family or relationship and as here there is means to ensure compliance of compensation orders this court has gone ahead to impose sentence giving effect: State v Philip Piapia [2017] N6763 (17 May 2017); see also State v Steven Tumu [2017] N6768 (23 May 2017). The sentence has been in the mid-range of 3 to 4 years part custodial and part suspended in each case. 

11.	This is not as serious as the case of State v Tupulit [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. Or even comparably near as in State v Simo [2018] PGNC 221; N7312 (20 June 2018) where 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. All these cases are not strictly the offence under section 315 or 319 whichever is the case alone, but accompanied by another criminal offence. 

12.	But the facts and circumstances have been such that even in the face of this there is room by evidence for suspension which is often set and followed as in Tardrew, Public Prosecutor v [1986] PNGLR 91 (2 April 1986). Here what has been placed warrant and would be proportionate to give effect to suspend the sentence because there is material to promote personal deterrence, reformation, and rehabilitation of the offender. That the suspension will promote repayment or restitution. Here both are brothers it is proportionate to give ground for this relationship to be mended.

13.	It would therefore be appropriate to sentence the prisoner given to 4 years IHL. That further under section 19 of the Code taking account of all set out above the 4 years be wholly suspended on a Probation order for the same period. The formal orders of the court are:

(i)	You are sentenced to 4 years IHL for the crime of Grievous Bodily Harm.

(ii)	That sentence is fully suspended on a 4 years Probation order on conditions as follows;

(a)	You shall enter into a probation order for 4 years ;
(b)	You shall within 48 hours report to the Probation Officer;
(c)	You shall be resident at Galai 2 Section 19 Block 1607 ward 1 Mosa LLG at all times in the course of your probation period.
(d)	You shall not leave this place of resident or Kimbe without leave of this court during the course of your probation period;
(e)	You shall perform 600 hours of community work at a worksite to be approved by the Probation Office;
(f)	You shall keep the peace and be of good behaviour at all times;
(g)	You shall not take liquor or any form of intoxicating substance or drugs during the period of your probation;
(h)	You shall attend your local Nazarene Church Galai every Sunday for fellowship and worship whilst on probation; 
(i)	You shall undergo counselling from your local Pastor Mathew Joseph for number of times as may be determined by the counsellor;
(j)	You shall within 5 months or by14th July 2019 make restitution to your brother Karlmex Dibole in the sum of K1000 in cash and a live pig valued at K600 with garden food in the value of K300.
(k)	The restitution shall be witnessed by your probation officer, the police informant Philip Kuri, Alphonse Warku, Galai village Court Circuit peace officer, Pastor Mathew Joseph Nazarene Church Galai, and Songi Salapan area Chairman Community of oil Palm issues.
(l)	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 on Monday the 15th July 2019;
(m)	The Probation officer shall file a report on the responses and progress of the probationer every four months, and at any other time or interval as the National Court may order upon application;
(n)	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 now suspended.

(iii)	Bail Money is ordered to be refunded forthwith

Bail is refunded forthwith.

Ordered Accordingly
__________________________________________________________________Public Prosecutor:  Lawyer for the State	
Public Solicitor   : Lawyer for the Defendant