N3117

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 316 OF 2003

THE STATE

V

TAMUMEI LAWRENCE
KOLOATA JAMES
AND TOBIA THOMAS

Kokopo: Lay
2006: 22 November
2007: 8 February

CRIMINAL LAW – Criminal Code s.315 – grievous bodily harm with intent – sentence – guilty plea –serious injuries-left upper arm cut through to bone, cut to left shoulder joint, cut to right upper chest, cut to right forearm and elbow joint-compensation paid promptly-first offenders-sentence 6 years IHL.

Facts

The victim had been gardening and the offenders and their friends attacked him without provocation. The victim suffered serious knife wounds. His left upper arm was cut through to the bone, the back of the left shoulder involving the shoulder joint was cut, there were cuts to the posterior upper right chest and the right forearm involving the elbow. There was a prompt compensation payment.

Held

1.	Grievous bodily harm with intent to do grievous bodily harm is a serious crime requiring an immediate custodial sentence;

2.	The injuries inflicted were very serious and life threatening;

3.	The appropriate sentence was one of 6 years in hard labour.

Cases Cited

Public Prosecutor .Keveky [1977] PNGLR 111
Public Prosecutor V. Kerua [1985] PNGLR 85
State v So'on Taroh (2004) N2675
State v Sambrai (2005) N2886

Counsel:
R. Auka, for the State
M. Painap, for the offenders

8 February, 2007 

1. LAY, J: On the 12 October 2002 at Ratongor Village, Emmanuel Mulei, his wife and child were at their garden to collect food. They had been working in their garden and were sitting on a trunk of a tree when they heard people shouting. Emmanuel went to see who they were and was chased by the offenders who caught up with him. Tamumei Lawrence cut Emmanuel on the left hand with a knife then Tamumei Lawrence and Tobia Thomas attacked him with sticks and stones and he received other cuts and bled heavily. The offenders then with their other friends ran away. The nearby villagers came to Emmanuel’s assistance and he was taken to hospital.

2. On 22 November, 2006 Tamumei Lawrence and Tobia Thomas pleaded guilty and were convicted of doing grievous bodily harm with intent to do grievous bodily harm contrary to the provisions of Criminal Code s.315(b). Koloata James pleaded not guilty and his trial was adjourned to another date.

3. On his allocutus Tamumei Lawrence said "I will not deny everything is true. On the 18th of the same month, we gave compensation to the person we assaulted K600.00 cash and 300 fathoms shell money. We paid, we shook hands with the family of the victim. I will not hide anything I will talk straight on everything I did. I say sorry to the others I did this thing to them, sorry to the court. This is my first time to come to court since I was a young man. I ask mercy and for the court to give me probation.

4. On his allocutus Tobias Thomas said this thing came about, it is true. We straightened it at home. We paid K600.00 cash and 300 fathoms shell money. We shook hands with the victim. I say sorry to the court, this is my first time to do this. I ask the mercy of the court to give me probation.

5. Counsel for the offenders submitted that Tamumei Lawrence was from Kumburi village, Gloucester, West New Britain Province. He is residing at Ratongor, married with one child. He is a Roman Catholic. He completed grade 6 in 1976, his formal employment consist of working with Shao Trading from 1991-1992 and Tropical Mart for six months in the year 2000. He was arrested in October 2002 and was on bail until the 13th of October 2005.

6.	In respect of Tobia Thomas, Counsel submitted that he was 20 years old, single, has three brothers and three sisters. He is the third in a family of seven. He is a Roman Catholic, his parents are alive. He has been educated to grade eight, then went to Rabaul Business School in 2002. He has had no formal employment. He was on bail until 25 October 2005. He has been in custody 1 year, 1 month and 9 days.

7.	In mitigation counsel submitted that there was a plea, they were first offenders, cooperated with the police and the court and a compensation payment was paid within five days after the event to restore relations.

8.	Counsel submitted that the period in custody was sufficient for the offence and that the balance of sentence imposed should be suspended.

9.	The medical report tendered with the depositions, dated 26 November 2002, reads as follows:

"This gentleman was admitted to Nonga on the evening of 12/10/02 with alleged knife wounds to the

I	left upper arm through to the bone;
II	Posterior aspect of the left shoulder involving the shoulder joint;
III	the posterior right upper chest over the right scapula and the upper.
IV right forearm involving the right elbow joint.

The injury sustained were very serious and almost fatal even though he received medical assistance. Blood loss was extensive and he suffered complications that may be permanent.

He has undergone several operations; the wounds have not completely healed and remains hospitalised at this point in time. He will remain hospitalised for some times yet. And this is only a preliminary report."

10. The maximum penalty for doing grievous bodily harm with intent to do grievous bodily harm contrary to Section 315 of the Criminal Code is life imprisonment.

11. There are not many reported cases of sentencing under section 315. An older decision of the Supreme Court is Public Prosecutor v Keveky [1977] PNGLR 111. The offender cut the first husband of his wife three times with a bush knife and later struck his cousin sister with a heavy battery cable attached to which was a large bolt, causing a fractured skull. On appeal a sentence of three years was substituted for the trial judge's sentence of 15 months.

12. In the case of Public Prosecutor V. Kerua [1985] PNGLR 85 the offender beat the victim about the head, body and legs with coffee sticks. The victim's head was cut and he fell unconscious. Four years in hard labour was substituted for the trial judge's sentence.

13. In the case of State v So'on Taroh (2004) N2675 (Kandakasi J.) the offender cut the victim's hands three times with a bush knife. There was no residual disability. Eight years in hard labour was imposed.

14. In State v Sambrai (2005) N2886 (Sawong J) the offender cut the victim on the back of the head with a bush knife inflicting a serious injury which caused the victim to fall unconscious. A sentence of two years imprisonment was imposed.

15. In this case I take into account in mitigation, that you are first offenders, and that a meaningful payment of compensation was promptly made and that you saved the court's time by your plea of guilty.

16. The aggravating factor is the seriousness of the injuries sustained by the victim. As the examining doctor reported, those injuries might easily have been fatal. They caused complications which required several operations. At the time of writing the medical report on the victim, he had already been in hospital six weeks and was expected to remain some time after that.

17. The court cannot treat lightly serious attacks which intentionally caused grievous bodily harm. They are far too prevalent and, call for an immediate custodial sentence, as Sawong J. observed in The state V. Sambrai (supra). I certainly cannot accept the submission of counsel for the offenders that the time already spent in custody of little over one year is sufficient.

18. In all the circumstances of this case, I consider that the appropriate sentence is one of six years in hard labour. Having waited two months for a pre-sentence report, none is available. There is therefore no basis on which I can consider suspension of a part of the sentence. Tamumei Lawrence and Tobia Thomas are each sentenced to six years in hard labour less time spent in pre-trial custody.

__________________________________

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