N4817

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 350 OF 2012

THE STATE

V

HILARY LEMIA

Kokopo: Lenalia, J.
2012: 5th, 11th & 13th September

CRIMINAL LAW – Charge – Grievous bodily harm – Guilty plea – Sentence – Criminal Code s.319

CRIMINAL LAW – Particular offence – Grievous bodily harm – Victim cut on the body with a bush-knife – Injuries sustained in the course of trying to run away from his attackers with prisoner – Single clean cut to victim's right hand – Injuries three deep cuts on right side of the head – Deep cut on the face – Scaring deformity and complete facial nerve loss – Multiple permanent disabilities. 

CRIMINAL LAW – Guilty plea – First time offender – Prevalence of offence – No compensation paid – Pre-sentence report filed – Custodial sentence appropriate – Sentence of 4 years imposed to be fully suspended. 

Cases cited

Rex Lialu-v-The State [1990] PNGLR 487
The State v Kopiwan Pupuni (20.4.98)
The State v Rueben Trowen (24.5.02) N2239
The State v Toparan Walangur (2004) Cr.No.1760 of 2003
The State v Vincent Naiwa (22.6.04) N2710.
The State v Patrick Kimat (24.4.05) N2947
The State v Peter Mideliu (24.7.08) unreported judgment Cr.No.302/08
The State v Penningson Vube (30.3.09) unreported judgment Cr.No.1123/07

Counsel

Mrs. Cherake, for the State
Mr. G. Kerker, for the Accused

September 13th 2012

1.	LENALIA J: The prisoner pleaded guilty to one count of unlawfully causing grievous bodily harm to one Joe Punja, an offence contrary to s. 319 of the Criminal Code.

Brief Facts

2.	Prior to 10th of February 2011 at Warongoi, the prisoner had been searching for his wife Leonie for a number of days. His wife had escaped from the matrimonial home for safety and sought refuge in the victim's house. This is because, the prisoner had sought Leonie to hurt her with a bush-knife as the couple had had marital problems for some time. 

3.	The victim of this case Joe Punja tells the story of how Leonie ran away from their house to his house because the prisoner was searching for her at the time of the search holding a bushknife. The prisoner had told Otto Maen, Henry Tesa and his wife that, because the victim had hidden his wife (prisoner's), if he found the victim he would cut him with his bush-knife. 

4.	So on the evening of the above date, (10.2.11) the prisoner took a number of friends with him to look for his wife at Joe's house. The victim was not in his house but as he was returning, the prisoner's brother asked Joe where the prisoner's wife was. The victim was frank and admitted that she was in his house.

5.	As they walked down together, they met up with the prisoner who took his bush-knife and started to cut the victim. Even David, the brother of the prisoner encouraged the prisoner by shouting "kilim em, kilim em" in English, kill him, kill him.

6.	The clinical report revealed the following injuries:

•	Head, 3 deep cuts on the right side,
•	Face, 1 deep cut on the left side of the face.

7.	On the medical opinion, by the doctor, the injuries revealed that the victim Joe Punja would suffer permanent disability and functional losses with:

1.	Cosmetic facial and other tissue scaring deformity.
2.	Left complete facial nerve function loss leading to paralysis of the left side of the face.
3.	Left forearm dystrophy with musculocutaneus functional loss, and 
4.	Permanent left ulna bone mulunion (X-ray No.S. 683).

8.	The doctor commented that the victim will suffer permanent disability and functional losses on the affected region on the victim's body.

Addresses on Sentence

9.	When asked if he wanted to tell the court anything prior to his lawyer addressing the court on sentence, the prisoner said, he is sorry for what he did to the victim.

10.	Mr. Kerker of counsel for the prisoner submitted on the following mitigations:

•	Prisoner's guilty plea,
•	His co-operation with the policemen who investigated this case.
•	His client could have raised the defence of provocation as the victim had committed adultery with his wife,
•	The prisoner's remorse,
•	First time offender,

11.	Counsel made submission on case law authorities and submitted for a lenient sentence be imposed on his client. 

12.	Mrs. Cherake replied by saying that this case was one of those cases where vicious attacks have been made on victims and this was one of them. She asked the court to sentence the prisoner to an appropriate sentence.

Application of the Law

13.	The accused is charged with an offence for which he could be sentenced to a term of seven (7) years. Section 319 of the Criminal Code provides:

"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."

14.	I would like to thank the Community Correction Officer of this Province for the two well prepared reports. The pre-sentence report contains all the family background information of the prisoner. The reports endorse the fact that the offence committed is very serious, but the writer says that the accused acted the way he acted because he was provoked by the victim hiding his wife for sometime.

15.	I have read the pre-sentence report and the means-assessment report. Two men commented on the offence committed b y the prisoner. First David Parek a community leader for Floodway Community in Sinivit LLG, Pomio District. David revealed to the writer of the reports that, he knew of the problem faced by the prisoner and his wife. He said, the prisoner's wife had been hiding for nine (9) days and when the prisoner learnt from someone that his wife may be hiding in the victim's place, he went down to find out. On their way down, they met the victim and the prisoner cut the victim using a bush-knife. 

16.	I also appreciate comments by Maen Otto. He is the village court magistrate. He learnt of the prisoner's problem earlier and tried to assist by telling the accused not to take any action. The prisoner openly told Otto that he was to cut the victim with his bush-knife if his wife had been committing adultery. 

17.	The offence of grievous bodily harm carries a maximum sentence of 7 years. The maximum sentence is always reserved for the worst cases. An example of such a 'worst case' was The State v. Kerry Reuben Trowen (2002) N2239 where (Kandakasi J) imposed the maximum penalty. In that case the Defendant forced his two wives to strip naked before him. He inflicted severe permanent injuries to both women by using a bush knife. In fear for their lives the pair fled naked out of their house. 

18.	In The State v Vincent Naiwa (22.6.04) N2710, the same Judge imposed a sentence of 5 years on the offender who pleaded guilty to one count of doing grievous bodily harm to his sister in law. The prisoner in that case broke the door of his own house at night. When his wife saw this, she enquired with the prisoner who had broken the door to their family house. He swore at his wife and her sister. He cut his wife with the bush knife. She luckily avoided it and the prisoner approached his sister-in-law and swung the same bush knife at her. She ducked to avoid the blow but put up her hand to protect her. The knife cut her finger completely amputating it. 

19.	Examples of less serious cases where sentences less than 5 years have been imposed include cases such as The State v Patrick Kimat (24.4.05) N2947, a case in Lorengau where Lay, J imposed 12 months imprisonment but suspended the sentence fully on conditions. In that case at Kubalia settlement in Lorengau, Manus Province an argument arose between the prisoner and his in-law who was living with him. The prisoner got a bush knife and cut Pongo Felix (his brother-in-law) on the head causing harm grievous to his body. 

20.	In The State v Toparan Walangur (2004) unreported judgment Cr.No.1760 of 2003 a case in Kokopo, East New Britain Province where Lay, J; imposed a sentence of four (4) years. Since the prisoner had spent more than a half of the imprisonment term awaiting custody, the balance was suspended. 

21.	In another case before this court, the case of The State v Penningso Vube (30.3.09) unreported judgment Cr.No.1123 of 2007, the prisoner was sentenced to 2 years imprisonment which was fully suspended. In that case on 24th April 2007, between the hours of 3am and 4am, the victim was waiting on the side of the road at his village at Nanuk for the company vehicle to pick him up for work at Kokopo town. While waiting, the prisoner approached him with a small bush knife and swung it at him twice leaving him with a laceration on the left shoulder and a fractured left arm. The prisoner was sentenced to 2 years imprisonment which was fully suspended.

22.	The case of The State v Peter Mideliu (24.7.08) unreported judgment Cr.No.302 of 2008 before me was even more serious than the present one. In that case, the prisoner approached the victim from his back and administered three axe cuts on the victim's body. There was one cut on his right hand and two on the left hand shoulder. The doctor's findings reported lacerations on the left and right shoulders and the left elbow was also cut. Other persons in that group also inflicted certain injuries on the victim's body. He was sentenced to 4 years. The sentence was fully suspended with a set of probation orders.

23.	Other cases with less serious nature with injuries closer to those suffered by the victim in the present case was in The state v Rose Yahriha (16.12.97) N1741 where a wife attacked a co-wife with a bush knife. She inflicted a 6cm wound on the body of the victim where she cut superficial blood vessel, tendon and bone. She sentenced her to 18 months in light labour. The sentence was fully suspended and she was ordered to enter into a recognizance to keep the peace and be of good behaviour bond. 

24.	In The State v Kopiwan Pupuni (20.4.98) N1709 a case before me in Wabag, where a co-wife unlawfully assaulted her co-wife who was already a mother and her daughter. The mother was struck twice on her head fracturing her skull and hands. She was hospitalized for almost three weeks. Her daughter was also hurt on her leg and neck. A pending charge of grievous bodily harm was considered. It was a guilty plea and she was a first offender and compensation had been paid. She was sentenced to 2 years in light labour.

25	The court has considered all addresses by the prisoner in allocutus. I consider the terms of the pre-sentence and means assessment reports. I also consider counsels' addresses on sentence and addresses on the sentencing trends so far taken by Judges of the National Court. The fact that the offence committed by the three prisoners is serious does not mean the maximum penalty can be automatically imposed. Each case depends on its own factual circumstances: Rex Lialu-v-The State [1990] PNGLR 487.

26.	The offence of grievous bodily harm carries the maximum sentence of 7 years. The case before this court is though serious, the victim should be made to bear some blame, because he may have committed adultery with the first prisoner's wife. There is a saying, 'he, who comes to court, must do so with clean hands'. The prisoner's wife was away from the matrimonial home for nine days according to the village elder Mr. David Parek. What did she do in the victim's house? 

27.	Did the victim commit adultery with her because, he slept in one room while the prisoner's wife slept in the other. It is obsured for a man's wife to sleep in a room with a man without anything happening at night. Only ghosts or spirits can look through thick darkness and see what happens in a situation like what occurred to the victim and the prisoner's wife. 

28.	It is a criminal practice in this jurisdiction that, the maximum penalty is always reserved for the worst type cases: Ure Hane-v-The State [1984] PNGLR 105. What is the worse type case depends on its own facts and circumstances.

29.	Having considered all mitigations and aggravations, it leaves me with one factor to consider and that is both the prisoner and the victim were at fault. On the part of the prisoner, there is no evidence that you had reported to village elders such as village magistrates or councilors about the suspected adultery between the victim and your wife. 

30.	Under the Adultery and Enticement Act, you could sue the victim for enticing your wife under s. 5 of the Act and under s.12, you could sue the victim for adultery. In both cases, you could claim K500.00 for enticement and if there was adultery involved, you could claim K1,000.00 compensation. 

31.	On the part of the victim, you should know well that on the night the prisoner's wife came to you, and asked if you could accommodate her, it was wrong in law to sleep with another man's woman. The victim knew this and yet he chose to sleep with the prisoner's wife well knowing the consequences of what should occur if someone found out that he had slept with the prisoner's wife in his house.

32.	Having addressed what I have said, I consider that a suspended sentence should be imposed. I consider a sentence of four (4)years imprisonment should be appropriate. 

33.	The court imposes that sentence on the prisoner but after having considered the factual background history of how the offence occurred, I fully suspend the sentence on the following conditions:

1.	The sentence of (4) years be fully suspended and you shall keep the peace for the period of two (2) years.

2.	The court orders the prisoner to pay K500.00 to the victim. Such compensation shall be payable within three days.

3.	Part of their bail monies shall be converted toward that payment. 
_______________________________________________________________

The Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Accused