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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR. NO. 1291 OF 2006
BETWEEN:
THE STATE
AND:
SAM PIAPIN
Prisoner
Mt Hagen: David, J.
2009: 4, 12 & 18 February
CRIMINAL LAW – sentence – grievous bodily harm – prisoner and victim neighbours – dispute over land - victim assaulted with spade – left hand injured – ring finger severed – guilty plea – sentence of 3 years – part of sentence suspended – ss.19 and 319 Criminal Code.
Cases cited:
The State v. Rose Yapriha (1997) N1741
The State v Kopiwan Pupuni (1998) N1709
The State v. Apa Kuman (2000) N2047
The State v. Darius Taulo (2000) N2034
The State v. Nickson Pari (No.2) (2001) N2033
The State v. Henry Idab (2001) N2172
The State v. Albina Sinowi (2001) N2175
The State v. Kenny Reuben Irowen (2002) N2239
The State v. Lucas Huliahwere (2003) N2544
The State v. Redford Bubura (2004) N2577
The State v. Lucas Amos Vail (2003) N2473
The State v. Amos Kiap (2003) N2452
The State v Patrick Kimat (2005) N2947
The State v. Namba Mako, Unreported Judgment,
16 October 2007, CR. No.48 of 2007, David, J
The State v. John Komep, Unreported Judgment,
13 November 2007, CR. No.300 of 2006, David, J
Counsel:
Mr J. Waine, for the State
Mr C. Kos, for the Prisoner
SENTENCE
18 February, 2009
1. DAVID, J: INTRODUCTION: The Prisoner pleaded guilty to one (1) count of unlawfully causing grievous bodily harm to one Veronica Wapai (the victim) on 15 May 2006 contrary to s.319 of the Criminal Code (the Code). The Court accepted the Prisoner's guilty plea and convicted him of the charge.
INDICTMENT
2. The indictment was preferred as follows:-
SAM PIAPIN of Laiagam, Enga Province stands charged that on 15 May 2006 at Mt. Hagen in Papua New Guinea, he unlawfully did grievous bodily harm to Veronica Wapai.
BRIEF FACTS
3. The brief facts presented by the State and to which the Prisoner pleaded are these.
4. The Prisoner and the victim were living at Tarangau settlement in Mt. Hagen. They were close neighbours. On 15 May 2006 at about 5.00am, the Prisoner was digging the soil and trespassing onto the boundary of the victim. The victim woke up and approached him telling him to stop as he was trespassing on her land. An argument developed when the Accused said that he would take over the victim's land.
5. At the time, the Prisoner had a spade and swung it at the victim. In order to protect herself, the victim put her arms up, but because the spade was swung with so much force, it hit the victim's left arm in particular the ring finger which got severed and amputated. The Prisoner swung at the victim twice resulting in the victim suffering injuries.
6. What the Prisoner did was unlawful.
7. This led to the Prisoner's arrest.
THE LAW
8. Section 319 of the Criminal Code creates the offence and prescribes the penalty. The Prisoner could be imprisoned for up to seven (7) years, subject to the exercise of the Court's discretion under s.19 of the Code. I set out the relevant provision as follows:
319. Grievous bodily harm.
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.
9. The offence is prevalent and sentences that have been imposed vary. I will refer to some of them where the prisoners have entered guilty pleas in determining the appropriate sentence to impose in this instance.
10. In The State v. Apa Kuman (2000) N2047, the Prisoner, a young, first time offender, after raping the Victim, cut her across her stomach to prevent her from screaming for help. That caused extensive damage to the Victim's left and right lobes which bled profusely into the abdomen. She was admitted to a hospital where further bleeding was stopped and her life saved. The Court imposed a sentence of three (3) years imprisonment.
11. In The State v. Nickson Pari (No.2) (2001) N2033, the Prisoner, a male aged eighteen (18) years, armed with a home made gun shot the Victim causing injury to his left arm after the Prisoner and his accomplices failed in their plan to hold up and steal from a group of people who were playing cards. The Victim was taken to the hospital where he received medical attention and eventually recovered.
12. The Prisoner was sentenced to four (4) years imprisonment in hard labour less seven (7) months for the time spent in custody. Two (2) years of the term was suspended with strict conditions including the Prisoner entering into a recognizance to be of good behaviour for two (2) years and to return to his village after serving one (1) year and five (5) months in gaol.
13. In The State v. Darius Taulo (2001) N2034, the Prisoner had a history of beating up his wife who was the Victim over a number of years prior to being charged and those beatings were very serious and near death experiences.
14. The Prisoner was sentenced to three (3) years imprisonment in hard labour, however the whole of the sentence was suspended with strict conditions including the Prisoner entering into a recognizance with a surety of K500.00 to be of good behaviour for the suspended period, abstain from alcohol consumption, abstain from assaulting his wife in any way and render free community service to a designated public institution.
15. The Court considered that a non custodial sentence was appropriate because the Prisoner was a first time offender, pleaded guilty, expressed genuine remorse and had already paid compensation, was willing to pay further compensation in accordance with his wife's custom, it was in the best interest of the children of the marriage, the Victim preferred compensation supported by a pre-sentence report, the Prisoner was not a danger to society and the society would help to rehabilitate him.
16. In The State v. Lucas Huliahwere (2003) N2544, the Prisoner had a history of beating up the Victim who was his second wife. On this particular occasion, the Prisoner hit the Victim with a piece of timber on her left arm three (3) times and then hit her head causing her to fall to the ground in pain. While the Victim was on the ground, the Prisoner then stood on a part of the Victim's left arm with one of his feet, held her by the wrist of her left arm with his two (2) hands and gave it a tug which resulted in a fracture of her forearm. She underwent surgery for an intramedullary rod to be inserted and the broken arm was in a cast for six (6) weeks.
17. The Court imposed a sentence of five (5) years imprisonment in had labour less time spent in custody.
18. In The State v. Redford Bubura (2004) N2577, the Prisoner speared the Victim who was his cousin through the abdomen and the spear exited from the other side of his body. The incident arose as a result of a land dispute. This caused the bowel to protrude through the wounds with massive loss of blood. The Victim was taken to the hospital where he underwent an emergency operation to repair and clean the bowel. His recovery after the first operation was not good so it necessitated a further operation.
19. The Court considered the case to be of the worst type and imposed the maximum prescribed sentence of seven (7) years imprisonment in hard labour less time spent in custody.
20. In The State v. Anton Vail (2003) N2473, the Prisoner and the Victim who was his wife were invited to attend a dance at the Hamamas Hotel in Rabaul which they accepted. However, because there was a feast at a nearby village being held at about the same time, the Prisoner attended the feast and the Victim attended the dance alone. The Prisoner returned from the feast in the wee hours of the morning and started questioning the Victim if she danced at the said Hotel. When she admitted that she did after assisting with collecting gate-takings, the Prisoner became furious and assaulted her. The Prisoner initially punched the Victim and then got a piece of wood with which he hit the Victim on her right forearm causing it to fracture. A medical examination was conducted following the assault which revealed that there was blood on the right ear with a laceration on the wall of the ear canal, x-ray confirmed the fracture of the right forearm and there were facial injuries including a painful left jaw. The Victim was treated for those injuries and her right forearm was kept in a cast for six (6) weeks.
21. The Prisoner was sentenced to three (3) years imprisonment in hard labour, however the whole of the term was suspended on condition that the Prisoner paid Six Hundred Kina (K600.00) as compensation to the Victim within fourteen (14) days and the Prisoner entering into his recognizance to keep the peace and be of good behaviour for three (3) years.
22. In The State v. Amos Kiap (2003) N2452, the Prisoner had a long history of violence towards the Victim who was his wife and members of her immediate family since marrying the Victim. He regularly appeared before the Village Court as a result of such attacks. On this particular occasion, he attacked the Victim from her back with a sharp instrument as she was proceeding towards the Supa Value Store in Mt Hagen after finishing work at a local bank causing deep cuts to her head and she fell to the ground unconscious. The Victim was rushed to the Mt Hagen General Hospital where she received medical attention. The Victim's Medical Report showed that she sustained multiple wounds to her head which were caused by stone and knife and that she lost about 200 mls of blood. The Victim left the matrimonial home with three (3) children of the marriage due to his brutality.
23. The Prisoner was sentenced to six (6) years imprisonment in hard labour less time spent in custody. However, the whole of the balance of the term was suspended with strict conditions.
24. Two (2) of the factors that the Court considered in imposing such a sentence was the Prisoner's long history of violence against the Victim and her relatives as well as that the Victim would not receive any redress at all for the suffering she endured at the hands of the Prisoner by his incarceration.
25. In The State v. Namba Mako, Unreported Judgment, 16 October 2007, CR. No.48 of 2007, David, J the Prisoner was the father of the victim. They had an argument over a piece of land which developed into a fight. Initially both were armed with bush knives, but the victim was disarmed by somebody. After the victim was disarmed, the Prisoner attacked and cut the victim first on his head. The Prisoner then swung his bush knife again and when the victim tried to fend it off with his left hand, it was cut off from the wrist, a permanent disability.
26. I sentenced the Prisoner to five (5) years imprisonment in hard labour less one (1) year and six (6) weeks for the time spent in pre-trial custody leaving a balance of three (3) years and forty six (46) weeks to be served. I suspended the balance of the entire sentence with strict conditions.
27. Among other considerations which the Court took into account in determining sentence were; the Prisoner's guilty plea; the victim was the Prisoner's son; the victim took from the Prisoner pigs and cash worth K4,100.00 while he was in custody which amount was deducted from the sum of K5,000.00 ordered to be paid as compensation; and the Prisoner was an elderly person aged 55 years.
28. In The State v. John Komep, Unreported Judgment, 13 November 2007, CR. 300 of 2006 the Prisoner and the victim were paternal cousins whose fathers were brothers. There was a dispute over a piece of family land over which both claimed an interest. The dispute went for mediation and both of them attended the hearing. The decision was against the Prisoner. Aggrieved by the decision, the Prisoner pulled out a bush knife and attacked the victim causing injury to his left hand in which the little, ring and middle fingers were amputated.
29. I sentenced the Prisoner to five (5) years imprisonment in hard labour less time spent in pre-trial custody of three (3) months and three (3) weeks leaving a balance of four (4) years, eight (8) months and one (1) week to be served (the balance of the term). I suspended four (4) years of the balance of the term with strict conditions.
30. Among other considerations which the Court took into account in determining sentence were; the Prisoner's guilty plea; the victim was the Prisoner's cousin; the Prisoner was an elderly person aged 54 years; there was de-facto provocation arising from the dispute over family land; the gravity and permanency of the injury to the victim's left hand; and the Prisoner attempted to pay compensation.
THE PRESENT CASE
Antecedents
31. The prisoner has no prior convictions.
Allocatus
32. On allocatus, the Prisoner gave his account of the events leading up to him inflicting injury upon the victim. He then went on to say that; he had nothing against the victim; since the incident he has had no argument with the victim while residing at the same locality and was sorry for what he did.
Means Assessment Report dated 12 February 2009
33. The report was compiled by Martin Tongamp, Probation Officer attached with the Probation Service in Mt.Hagen. Information was sourced from the Prisoner and his wife, the Prisoner's eldest sister, Ruth Piapin, Timothy Yama who is the Tarangau Village Court Chairman and the victim.
34. It is reported that the Prisoner who is a former reserve police constable with the Royal Papua New Guinea Constabulary is unemployed and lives with his wife and a male child at the Tarangau settlement. He has a house there. He was with the Constabulary for 2 years and left after being terminated. His extended family members also reside at Tarangau. He is originally from Niugu village, Laiagam District in the Enga Province and educated up to Grade 6. He does not have any substantive means of income or assets to personally meet any compensation order. However, despite his financial incapacity, he proposes to pay compensation to the victim in cash and kind to a value not exceeding K2,000.00 within a period of 12 months with the assistance of his immediate and extended family members and the community. This he states will bring reconciliation to the damaged relationship he has had with the victim who has never been an enemy to him. The victim accepts the proposal. Family members and the community leaders have assured the Prisoner to support him pay the compensation.
35. It is recommended that a sentence of 2 years be imposed to be served on probation under the supervision of the Probation Service and that the amount and period of payment of the compensation be as proposed by the Prisoner and accepted by the victim.
Pre – Sentence Report dated 12 February 2009
36. This report was also compiled by Martin Tongamp of the Probation Service in Mt. Hagen. Except for the Prisoner's wife, information was sourced from the same people from whose information the Means Assessment Report was compiled. Information was also sourced from the police. The recommendation is similar to the Means Assessment Report.
Submissions on behalf of the Prisoner
37. Mr. Kos of counsel for the Prisoner submitted that mitigating factors to be taken into in favour of the Prisoner were; he was a first time offender with no priors; he pleaded guilty; he expressed remorse; there was provocation in the non-legal sense; and he cooperated with the police in their overall investigation.
38. Counsel further submitted that the only aggravating factor against the Prisoner was him swinging the spade at the victim resulting in the amputation of her left ring finger. However, he said if there were other aggravating factors present, they were minor.
39. As to penalty, Mr. Kos submitted that while the prescribed penalty was 7 years, the Court had an extensive discretion under s.19 of the Code to impose an appropriate sentence that befitted the crime. Counsel referred the Court to a number of cases to assist it arrive at an appropriate sentence. They are The State v. Kopiwan Pupuni (1998) N1709, The State v. Rose Yapriha (1997) N1741, The State v. Henry Idab (2001) N2172, The State v. Albina Sinowi (2001) N2175, The State v. Kenny Reuben Irowen (2002) N2239 and The State v. Patrick Kimat (2005) N2947. I briefly discuss the cases below.
40. In The State v. Kopiwan Pupuni (1998) N1709, the Prisoner unlawfully assaulted a mother and her daughter with a bush knife. The Prisoner was the mother's co-wife. The mother suffered multiple wounds when she was struck twice on her head fracturing her skull and lacerations to her hands and was hospitalised for 14 days. The daughter was struck on her left leg and neck. Another pending charge of causing grievous bodily harm to the daughter was taken into account. The Court considered in the Prisoner's favour, her guilty plea, she was first offender and compensation was paid. The Prisoner was sentenced to 2 years in light labour.
41. In The State v. Rose Yapriha (1997) N1741, a wife unlawfully assaulted a co-wife with a bush knife, inflicting a 6 cm incise wound cutting superficial blood vessels, tendon and bone. They were living together in one (1) house, but their relationship was never a harmonious one. They had fights previously and at one time the victim also stabbed the Prisoner. A sentence of 18 months in light labour was imposed which was suspended on the condition that the Prisoner entered into her own recognizance without surety to keep the peace especially towards the victim and be of good behaviour for 12 months.
42. In The State v. Henry Idab (2001) N2172, the Prisoner together with his brothers were armed with bush knives and stones and attacked the Victim and others who were alleged to have verbally abused their mother near a river. The Victim was a village peace officer at the time. The Victim suffered serious injuries to both his hands resulting in an estimated 85% permanent disability.
43. The Court considered the case to be of the worst type given the nature of the injuries suffered by the Victim, that it was a gang attack and that the Victim was a village peace officer. The Court imposed a sentence of five (5) years imprisonment in hard labour less time spent in custody and suspended (2) years with strict conditions.
44. In The State v Albina Sinowi (2001) N2175, the Prisoner pleaded guilty to one count of unlawfully assaulting a co-wife under s.340 of the Code. The victim was the second wife of their common husband. The prescribed maximum penalty is imprisonment for a term not exceeding 3 years.
45. This was a case where the victim would leave her 5 children including a baby with the Prisoner following an argument with the husband. On each occasion she left no food for the children. In her absence, the Prisoner took on the responsibility of feeding the children and family including nursing the baby. The husband failed to stop the victim from such conduct. Upon the victim's return from her village after the third occasion, the Prisoner hit the victim once with a piece of iron on her left arm. That caused a fracture to the victim's left ulna.
46. The factors taken into account in favour of the Prisoner when imposing a 6 months suspended sentence were; the Prisoner's guilty plea; the Prisoner was a first time offender; customary compensation of K1000.00 was paid to the victim; the Prisoner expressed genuine remorse; and since the commission of the offence, the victim and Prisoner were living together in one house without any difficulty.
47. In The State v. Kenny Reuben Irowen (2002) N2239, the Prisoner pleaded guilty to two (2) charges of causing grievous bodily harm to two (2) of his three (3) wives by severely assaulting them with a bush knife after forcing them to strip naked. One received a deep cut on her left shoulder resulting in twenty five percent (25%) permanent loss of function of her left shoulder. The other received several cuts to her legs and her left ring and little fingers. The Court considered the case to be of the worst type and imposed the maximum prescribed penalty of seven (7) years imprisonment in hard labour for each of the two (2) charges to be served cumulatively.
48. In The State v. Patrick Kimat (2005) N2947, the Prisoner was with his in-law consuming alcohol. The victim was drunk and would not listen to the Prisoner so the Prisoner cut the victim on his forehead with a bush knife causing a fracture of the frontal bone. It was single blow. At the time of sentencing; the Prisoner was living together with the victim in one house; they shared meals together; and there was no problem between them. The Prisoner was sentenced to 12 months imprisonment in hard labour, less time spent in pre trial custody which was wholly suspended with strict conditions applying.
49. Counsel questioned whether the Prisoner deserved to receive the maximum penalty. He argued that the circumstances of the present case did not warrant that. He specifically drew the Court's attention to Kopiwan Pupuni and Rose Yapriha to argue that while they were cases involving multiple injuries, the prisoners received sentences of 2 years and 18 months respectively both in light labour. By comparison he said the only injury suffered by the victim in the present case was the severance of her left ring finger, but asked the Court to note that there was no medical report to confirm the nature and extent of the injury and the prognosis about recovery or healing. Counsel said that his client was prepared to go by the recommendations contained in the Means Assessment Report and the Pre-Sentence Report, but further remarked that a sentence of 12 months to be wholly suspended with conditions was preferable.
Submissions on behalf of the State
50. Mr. Waine of counsel for the State submitted that this was a serious case where the victim had suffered a permanent injury by the severance of her left ring finger although not life threatening. He said this injury affected the victim's functional ability to the use of her left hand.
51. At the request of counsel, I ordered a Means Assessment Report and a Pre-sentence Report to be prepared and furnished to the Court. Counsel submitted that the reports confirmed that the Prisoner was financially incapable of meeting any compensation order, but the suggestion that the community assist the Prisoner to pay compensation was unacceptable as it would imply that the community was approving the Prisoner's unlawful act. However, counsel further submitted that if the Court were minded to make a compensation order, he had instructions to suggest that it should be paid within 5 to 6 months.
52. As to whether the Court should accept the expression of remorse by the Prisoner as genuine, he said it was not. The reason being that since the incident, some 2 years and 8 months have passed, but the Prisoner has failed to do anything tangible to suggest he was sorry for his action.
53. Counsel suggested that the circumstances of this case warranted a sentence of 3 years which could be suspended if compensation were paid to the victim.
GENERAL REMARKS
54. There is evidence that the Prisoner and the victim had a dispute some weeks before this incident which led to the Prisoner pulling the grass off from the victim's kunai-thatched house. The dispute was brought to the Village Court and certain orders for compensation were made for each party to pay the other. They did not honour the orders. The written statements of Omanio Peter, Samuel Pinda and the victim suggest that that dispute was over the victim's land. The Prisoner on the other hand states in his Record of Interview conducted on 18 May 2006 and on allocatus that the dispute was in fact in relation to an iron bar or structure of a trailer he had at his premises that went missing in his absence on 5 April 2006 and he blamed the victim for that. He said he was assaulted by the victim and her relatives with sticks, stones and bush knives when he enquired about the missing property. I accept in the Prisoner's favour that there was provocation in the non-legal sense.
55. It is not clear from the depositions how old the victim was at the time of the incident. It is clear however that she is an adult female living at the Tarangau settlement in Mt. Hagen. The Prisoner also resides at the Tarangau settlement. There is also evidence that; the Prisoner and the victim are neighbours; that a dispute arose between the Prisoner and the victim on 15 May 2006 at around 5.00am when the Prisoner was digging the land along the boundary; and that the Prisoner assaulted the victim with a spade resulting in the severance of the victim's left ring finger. The photographs taken by Constable Rita Upaiga of the CID, Mt. Hagen clearly show that the victim's left ring finger was indeed severed. The use of the spade and the severity of the injury are aggravating.
56. Apart from the photographs, there is no medical report to confirm the true extent of the disability in the victim's left hand or that the victim also suffered other lacerations on her left arm. The claim by the victim that she was cut twice by the Prisoner with a bush knife which is denied by the Prisoner is not supported by the statements of Omanio Peter or Samuel Pinda.
57. I am sure and have no doubt at all that the injury sustained which is permanent has greatly affected the way the victim now lives her life such as the embarrassment of having a deformed left hand and the impairment it has caused in unable to utilise the left hand fully in activities requiring the use of all fingers on her left hand.
58. As to compensation, the Court has given considerable thought as to whether this is a case where I should make a compensation order within the parameters of the Criminal Code (Compensation) Act 1991. I caution myself in the light of the recommendations in both reports provided by the Probation Service; that the Prisoner does not have the financial capacity to pay compensation; and the serious nature of the injury suffered by the victim. While there appears to be support by family members and the community to assist the Prisoner in meeting any compensation order the Court might consider granting, I agree with Mr. Waine that the community should not be seen to be condoning or approving the unlawful action of the Prisoner by contributing towards payment of compensation. An offender is the one if found guilty that is subject to punishment and not the innocent family members or community. An offender should not escape punishment because extended family members and the community are willing and able to gather together the compensation payment. The extended family members and the community are unnecessarily burdened. This must be put to a stop. In fact, the scheme of the Criminal Code (Compensation) Act 1991, in my view, is that a compensation order should only be made where the offender has the means to pay. In the present case, the Prisoner personally lacks the financial capacity to meet any compensation order. I will therefore refuse to make an order for compensation in the circumstances.
59. I also accept in favour of the Prisoner that he pleaded guilty; he is a first time offender with no prior convictions; and that he cooperated with the police to some extent in their overall investigations.
60. I do not accept the expression of remorse by the Prisoner as genuine. I accept the argument advanced by Mr. Waine on this point instead.
61. I have been tempted to consider the fact that the Prisoner is a former reservist with the Constabulary who would have appreciated the law better than an ordinary citizen and the incident occurred when the Village Court was involved in trying to settle the first dispute as aggravating, but I will not as parties have not raised the issue.
CONCLUSION AND SENTENCE
62. I do not think this case falls in the serious or worst category for this crime compared to Kenny Reuben Irowen, Henry Idab, Nickson Pari (No.2), Lucas Huliahwere, Redford Bubura, Amos Kiap, Namba Mako and John Komep. The cases of Kopiwan Pupuni and Rose Yapriha were decided more than ten (10) years ago and outdated. The crime is prevalent and therefore sentences are on the increase.
63. Having taken into account all the factors for and against the Prisoner, the law including the comparative sentences and the prevalence of the offence, I think a sentence of three (3) years is appropriate in the circumstances of this case to be served in hard labour at the Baisu gaol.
64. From the head sentence, the time spent in pre-trial custody of two (2) months, two (2) weeks and two (2) days shall be deducted leaving a balance of two (2) years, nine (9) months, one (1) week and five (5) days (the balance of the term) to be served.
65. However, in the exercise of the Court's discretion under s.19 of the Code, I will suspend two (2) years of the balance of the term upon the following conditions:-
f. That the Prisoner shall not change his residential address at the Tarangau settlement, Mt. Hagen during the period of suspension.
g. The Prisoner shall for the purpose of the Probation Act allow a probation officer to enter his home during reasonable hours.
h. That the Prisoner shall not leave the Western Highlands Province without the permission of this Court during the period of suspension.
In the event that any one of the conditions is not complied with, the Prisoner will be arrested and sent to gaol at Baisu to serve the balance of the term which I have suspended.
66. I sentence the Prisoner accordingly. I also order that an appropriate warrant be issued forthwith to give effect to this sentence.
________________________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Prisoner
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