N4028

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1076 OF 2007

THE STATE

V

TOVITA MANN

Waigani: Injia, CJ
2009: 23rd April

CRIMINAL LAW – particular offence – unlawfully causing grevious bodily harm – mitigating and aggravating factors considered – five (5) years imprisonment imposed less time spent in pre-trial custody – criminal Code s.319 and s.19

Cases Cited:

Acting Public Prosecutor v Nitak Mangilonde Taganis [1982] PNGLR 299
The State v Redford Bubura (2004) N2577.
State v Reuben Irowen (2002) N2239

Counsel:

Mr Miviri, for the State
Mr Norum, for the Accused

23rd April, 2009

1. INJIA, CJ: The accused was committed to stand trial by the District Court at Kerema on 18th October 2007. On 25th March 2009, he pleaded guilty to an indictment containing one count of unlawfully causing grievous bodily harm under s 319 of the Criminal Code. 

2. The maximum punishment for this crime is 7 years imprisonment. The Court has a general discretion to impose a lower sentence with or without other forms of punishment enumerated in s 19 of the Criminal Code. 

3. The short facts are that in the afternoon of 6th June, 2006 at Moveave village, Gulf Province, the accused attacked the victim one Miai Hoape and cut him with a bushknife. The reason for the attack was that he had a dispute with the victim in which the victim said he would kill the accused. He cut the victim in fear of his own life: see Record of Interview answers to questions No. 11 & 12. The accused cut the victim twice. At that time the victim was holding a baby in his arms when the accused chased him and cut him: see answers to questions 16-18 of Record of Interview. The bushknife landed on the victim’s right shoulder and inflicted a deep and extensive wound measuring 20cm x 8cm x 6cm: see Medical Report of Dr John Pesh dated 27th December 2006. He lost a lot of blood and was rushed to Malalaua Health Centre for medical attention. However the facilities there were no adequate to treat his condition. On 7th June, he was referred to Port Moresby General Hospital where he received emergency treatment for 24 hours and was discharged after treatment and his condition stabilized. His subsequent recovery was steady. Dr Pesh in his medical report stated that the victim "is expected to make steady recovery, but the offender be held responsible for a near murder." 

4. After attacking the victim, the accused escaped to Port Moresby but he was arrested by police on 10th May 2007 upon receiving a complaint from the victim’s brother: see par 5 of Mr Kolowe’s written submissions filed in Court on 25th March 2009. 

5. The accused is a mature person and now aged 29 and single at the time of the offence. At the time of the offence he would have been aged 26. He is the second born son in the family. He is a member of the United Church and has completed Primary School education. He is a man of prior good character and has no prior convictions against him. He has pleaded guilty to his first offence and saved the Court’s time. He also freely admitted the offence to police and cooperated with them in their investigations on the crime. He expressed genuine remorse in Court. All these are mitigating factors which were part of his counsel’s submissions on sentence. In determining the appropriate penalty, I take them into account in his favour.

6. I also take into account in his favour that he attacked the deceased for a reason. There was some provocation in a non-legal sense on the victim’s part. There was also no serious pre-planning over time involved. The victim made the statement against the accused a few hours earlier on the same day. This is an extenuating circumstance which reduces the gravity of the offence in a small way. 

7. Against these mitigating factors, I take into account the aggravating factors as follows: The attack was vicious and repeated. It was carried out when the victim was not expecting the attack. At the critical time he was nursing his baby and the accused sprang upon him and chased him around and cut him twice with no regard for the safety of the child in the victim’s arms. This is a shocking attack. The accused exhibited strong criminal behaviour which should be equally visited with a strong punitive and deterrent sentence. 

8. A life-threatening injury was inflicted. If it had not been for quick action by the village people in seeking medical attention, the victim could have died from loss of blood. It is only fortunate that the victim is not left with any significant disability.

9. His counsel has brought to my attention a number of National Court decisions on sentence in which sentences ranging from 2 years to the maximum of 7 years have been imposed for s 319 offences. Of interest is The State v Redford Bubura (2004) N2577. That is a case in which the accused speared the victim in the abdomen area which nearly killed the victim. The victim required surgical attention to attend the spear wound. State v Reuben Irowen (2002) N 2239.The victim fully recovered from the wound. There is no mention in the judgment as to whether there was any lasting permanent injury in terms of percentage as to efficient use of that part of the body. The other case in which the maximum punishment was imposed is State v Reuben Irowen (2002) N 2239. In that case the accused fought with his two wives and attacked both of them and inflicted multiple injuries on their shoulder, arms and fingers. One of them recovered from her injuries and sustained no lasting permanent injury but the other one sustained 25% loss of function to her shoulder. The accused was jointly sentenced in respect of both victims. I am not aware if these sentences were appealed against and what the decision, if any the appeal Court was. I am also not aware of any post-Independence Supreme Court decision which sets the sentencing tariff for grievous bodily harm cases which would assist me in determining the sentence in the present case.

10. Counsel for the accused distinguished the facts of this case from the two cases discussed above and submits the maximum sentence should not be imposed. Instead he suggested a head sentence of 4 years imprisonment, then reduce it by 2 years for the mitigating factors and after deducting the period of 2 years and 18 days for pre-trial custody, "the court (should use its discretion to suspend the ultimate sentence, and the accused be given a non-custodial sentence but with strict condition."

11. If this submission were accepted, the accused would be sentenced to the rising of the Court because the pre-trial custody exceeds the balance of the sentence remaining after the head sentence is reduced by 2 years. In the end suspension of the ultimate sentence is an anomaly.

12. In my view the proper approach is not to arrive at some conservative head sentence below the maximum sentence prescribed for the offence and then work your way down by deducting a specific sentence for individual or a number of mitigating factors taken collectively. As stated by Kidu CJ in Acting Public Prosecutor v Nitak Mangilonde Taganis [1982] PNGLR 299:-

"The allowance of a specific period for payment of compensation is a novel one. In sentencing the general practice is to consider all mitigating factors in arriving at an appropriate sentence. Although emphasis is sometimes given to certain mitigating factors no actual period is allowed for any particular one. There is no legislation on the matter nor are there precedents for it.

"However, as a matter of good commonsense it is undesirable that a specified period be deducted from an appropriate sentence for any offence. The fact that a person has no prior conviction is usually taken into account as a mitigating factor. So are factors such as plea of guilty, youth, and so forth. None of these, however, commands the deduction from an appropriate sentence a specific period."

13. In the present case I am of the view that a sentence of five years imprisonment is appropriate and I impose the same. From this sentence, I deduct pre-trial custody period. He will serve the remaining balance of two (2) years 11 months and 12 days. There are no special reasons justifying suspension of a part of the balance of the sentence.

__________________________________________
Jim Wala Tamate, Acting Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Accused