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State v Hesi (No 2) [2007] PGNC 102; N3232 (14 November 2007)

N3232

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1441 OF 2006

THE STATE

V

BOMAI HESI (NO. 2)
Prisoner

Goroka: Davani. J
2007: 8, 9, 13 & 14 November

SENTENCE - grievous bodily harm - use of 2 bush knives - amputation of thumb and cut on head - cut on palm of hand - 3 years appropriate.

SENTENCE - means assessment report - pre sentence report - reports recommend probation - court not bound to follow recommendations.

Accused was assaulted in a fight and lost consciousness. When he regained consciousness, he grabbed 2 bush knives and went to the house where he thought those who assaulted him were. His intention was to fight then using the knives. Whilst in the house, he swung the knives menacingly and dangerously in front of him and at the back. He cut the victim and 2 others. The victim sustained deep lacerations to her head, her left thumb was amputated, a deep laceration down to her wrist, severe bleeding and loss of blood and multiple minor bodily wounds.

Held

(1) The aggravating factor being the viciousness of the attack upon the victim, an unsuspecting victim is best described as reckless, uncaring, careless, hot-headed and irresponsible, to be weighed together with the terror and pain suffering undergone by the victim and probably still undergoing.

(2) Sentencing by the Courts varies into each case is dependent very much on the evidence before the Court. A non-custodial sentence is not warranted under the circumstances.

(3) Prisoner sentenced to 3 years imprisonment, reduced by time in custody on remand, of 3 months and to serve the reduced term of 2 years and 9 months.

Cases Cited

Simon Kama v The State (2004) SC740
The State v Vincent Nawa (2004) N2710
State v Daniel Kansua CR 295 of 2005
State v Bertrand Hianu (2006) CR 1767 of 2005
State v Nichol Baimako, Daikos Kiwa, Eros Arunopa and Christopher Konopa CR 549 of 2006
State v Julie Taupe Kuri CR 6 of 2006

Counsel
T. Ohuma, for the Accused
C. Sambua, for the State

SENTENCE

14 November, 2007

1. DAVANI. J: After a trial, Bomai Hesi (the ‘prisoner’) was found guilty of Grievous Bodily Harm (‘GBH’), a charge laid under s. 319 of the Criminal code Act (‘CCA’). The prisoner raised the Defence of Accident under s. 24 of the CCA but the State negated the Defence, hence the finding of guilt.

2. On allocatus, the prisoner said the following;

1. That he was drinking at a club when a couple of young boys picked a fight on him. He said because they hit him, he went looking for them and that’s when he got into trouble.
   
2. He is married with 2 children who are in school. His parents and grandparents are still alive and he takes care of them. That he is a villager and this is his first time to come to court.
   
3. He asks for the courts mercy. He said he will pay compensation if ordered to do so.
   
4. He apologized to the victim and said he did not think this would happen. He asked the court for probation.
   

Means Assessment Report (‘MAR’) and Pre-Sentence Report (‘PSR’)

3. On request by Defence Counsel, the court ordered the production of a MAR and PSR.

4. The PSR spoke highly of the prisoner. Several people from his village, including a Village Court magistrate were interviewed, who all affirmed and re-affirmed that the prisoner was a person of good character and supported the prisoners call for a non-custodial sentence. He did not have a police record and was not a man of means, being a villager.

5. The victim was also interviewed for her views. She emphasised that she still recalls the vicious attack upon her by the prisoner. The scars from her wounds always reminds her of the attack upon her. She believes that the offender should be imprisoned because his intention was to kill her but she is lucky to be alive.

6. The PSR recommends a non-custodial sentence with conditions.

7. The MAR states that the prisoner is able to pay compensation of K1,500.00 and a live pig worth K1,000.00 and to do so within 3 months. Members of his community have contributed cash monies to a total of K1,350.00.

Analysis of evidence and the law

8. The evidence at trial is that the prisoner was menacingly swinging his bush knives in a house full of people, when he cut the victim. No doubt, the State would have charged him for attempted murder but instead charged him with the lesser offence of Grievous Bodily Harm.

9. What approach should the court take in sentencing? In Simon Kama v The State (2004) SC 740, the Supreme Court said at pg. 22;

"...we suggest that following establishment of the guilt of an accused, either on a plea or after a trial, the court approach sentence with a serious consideration of the maximum prescribed penalty first. Then allow the offender to make out a case for a lesser sentence. An offender could easily do that by pointing out the factors in his mitigation with the appropriate evidence where evidence is required. Once the offender is able to do that, only then should the court consider the factors for and against the imposition of the maximum penalty".

10. In this case, the prisoner has pointed out that this is his first offence and that he does not have any prior convictions. Against that is the viciousness of his attack upon an innocent, unsuspecting victim, which has now left her scarred and disabled for life. His attack upon the victim can be best described as reckless, careless, uncaring, hot-headed and irresponsible. And these must be weighed together with the terror and the pain and suffering the victim has undergone and probably still undergoing.

11. To determine a just sentence, I have had recourse to the following decided cases for assistance;

1. State v Nichol Baimako, Daikos Kiwa, Eros Arunopa and Christopher Konopa CR 549 of 2006 dated 2006 (Kainantu).

On a guilty plea to GBH, the prisoners pleaded guilty to having armed themselves with a shotgun, bush knives and bows and arrows. They attacked the victim because they suspected he committed sorcery on their deceased relative. The victim sustained multiple lacerations to his head, shoulder and chest including an amputated first left finger at the distal phalangeal joint.

The Court sentenced them to 5 years each in hard labour.

2. State v Julie Taupe Kuri CR 6 of 2006 dated March 2006 (Kundiawa).

On a guilty plea to GBH, the prisoner pleaded guilty to having attacked the victim with a bush knife causing serious wounds to her body after suspecting the victim (her husband) of having an affair with another woman.

She was sentenced to 7 years in hard labour.

3. State v Daniel Kansua CR 295 of 2005. (Vanimo).

The matter proceeded to trial on an attempted murder charge. The evidence was that the accused and others went to the accuseds home to resolve differences over ownership to land. This resulted in an argument where accused and others chopped vanilla plants, toilet house and other tree crops. The victim attacked the accuseds father, the accused retaliated and attacked the victim.

The accused was found guilty of GBH and sentenced to 5 years in hard labour.

4. The State v Vincent Nawa (2004) N2710

The accused pleaded guilty to having attacked the victim with a bush knife whilst he held her to the ground. He swung the knife at her head whilst she was in that position. She lifted her hands to ward off the blow which amputated her 3 fingers.

He was sentenced to 5 years in hard labour.

5. State v Bertrand Hianu (2006) CR 1767 of 2005, 25th August, 2006. (Buka).

Prisoner pleaded guilty to GBH, for smashing a bottle of beer in the victim’s face, causing permanent loss of sight to one eye.

He was sentenced for 4 years and 2 years of that sentence was suspended on conditions.

12. In this case, the matter proceeded to trial. The victim now suffers permanent injuries and scarring which she will bear for the rest of her life. The attack upon her was uncalled for and unprovoked. Sentencing by the Courts, as demonstrated by the few decided cases, vary with each case, and of course is dependent very much on the evidence before the court.

13. The court had to run a trial to determine the prisoner’s guilt. As a reasonable minded person, he ought to know that his actions would result in injuries being sustained or even death. Fortunately, in this case, there were no fatalities.

14. This case is similar to State v Daniel Kansua (supra) and State v Vincent Nawa (supra). Non-custodial sentence is not warranted under the circumstances. The prisoner must serve time.

15. This court notes the maximum for GBH to be 7 years. This court will impose 3 years, with no conditions attached, the sentence being a reflection of what I said in my decision on sentence where I said that the prisoner "... was criminally negligent and acted with such a reckless disregard for the lives and safety of others as to make his or her conduct deeming of punishment". (pg. 6).
16. The prisoner was in custody for 3 months prior to being released on bail. This will be applied towards reduction of sentence. The prisoner shall now serve the reduced term of 2 years and 9 months in hard labour.

17. Cash bail of K400.00 (K200.00 District Court Bail and K200.00 National Court Bail) shall be refunded to the prisoner upon production of receipts.

_____________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner