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State v Olombol [2014] PGNC 130; N5748 (9 September 2014)

N5748

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO. 772 OF 2011

THE STATE

V

PETER OLOMBOL

Mendi: Kassman, J
2014: 4th, 11th & 12th June & 9th September

CRIMINAL LAW – Grievous Bodily Harm – Sentence – plea of guilty – piece of firewood used in assault – no premeditation – no prior conviction – sentence of one year wholly suspended on conditions – good behavior for twelve months and compensation of five hundred kina for injuries, pain and suffering

Legislation cited

Criminal Code c.262 Sections 19 (1)(a)(b)(d)(f) and (6) and 319
Criminal Law (Compensation) Act 1991

Cases cited

Goli Golu v. The State [1979] PNGLR 653
State v Veronica Mandili Kulia (2010)
State v. Vincent Naiwa (Unreported) 2004 N2710
State v. John Vagi (Unreported) N3543
State v Janeth Andrew (Unreported) CR 833 of 2013
State –v- Francis Kurufher (2008) N3364
State - v –Martin Konos (2010) N4157
The State v. Wapuri [1994] PNGLR 271

Counsel

Sheila Luben, for the State
Cecilia Koek, for the Accused

DECISION ON SENTENCE

9th September, 2014

1. Peter Olombol, who is also commonly known as Peter Lu or Lu Olombol ("Olombol"), pleaded guilty to a charge with one count of causing grievous bodily harm to Philip Talu ("Talu") on 15 April 2011.
   
2. The brief facts presented by the State to which Olombol pleaded guilty are:
   

"On Friday the 15th of April 2011 at about 8:30 am the victim Philip Talu was at his residence at Water Supply. He walked out onto the main road and met the accused at the Tubiri/Water Supply Junction. The accused was armed with a piece of firewood. The accused confronted the victim and swung the firewood aiming at his head. The victim lifted his left arm to block the firewood. The second time the accused swung the firewood and hit the victim on the right side of his face. The blows resulted in the victim sustaining a broken arm and a cut to the face. He was assisted by two men, Simon Sale and Jack Pii to Mendi Police Station and then to Mendi General Hospital. It is alleged that by his actions the accused caused grievous bodily harm to the victim Philip Talu. The charge is laid pursuant to section 319 Criminal Code."

3. Olombol and Talu are both from Tari and are related but the exact nature of their relationship was not disclosed. They both live together in a house in Mendi town. The pre-sentence report provides helpful background. A year or so prior to the incident, Talu borrowed cash of One Hundred Kina from Olombol and promised to repay the debt a week later but the debt remained outstanding. Olombol's son was quite ill and the doctors had advised Olombol that he could die soon. Olombol returned to the house to prepare a meal for his son and wife who were both in hospital. On his way to the house, he bought firewood and when he arrived at the house he informed Talu of the news and the likelihood he would need some money to help transport his son's body to Tari for burial. Talu responded insensitively by saying he had no money and that he was not responsible for the illness suffered by Olombol's son. This angered Olombol who then struck Talu with the piece of firewood.
   
4. In allocutus, Olombol said "I have done the wrong already. I fought the victim and I want to take this time to apologise to him. I have done the wrong so I say sorry to this court and I also ask God to have mercy on me."
   
5. The State relied on the statements and all documents from the committal court file which were tendered without objection. These comprised the copies of the police Information laid 4th August 2011 and summary of facts, undated statement of Philip Talu, Medical Report of Dr Joseph Birisi, Mendi General Hospital dated 19th April 2011, a photograph of Talu with his left hand in a cast, a medical report receipt dated 19th April 2011 receipt # 4049 for K50.00 and A &E fee of K10.00 dated 15/4/2011, handwritten record of Interview in Pidgin and the typed English translation of the record of Interview dated 24th May, 2011, sworn statements of Simon Sale dated 20th April 2011 and Jack Pii dated 20th April 2011.
   
6. Olombol's lawyer relied on a number of documents. In the affidavit sworn by Olombol, he confirms he is also known as Peter Olombo and Peter Lu and he is the person charged with the assault on Talu. There is also an affidavit sworn by James Wena Kolip who says he has been a pastor with the Jehova Witness Church in Mendi for many years and he has known Olombol for four years as a "faithful, dedicated and good person within our congregation and community". Ms Koek also relied on the Pre-Sentence Report and her written submissions filed 11 June 2014.
   
7. The Supreme Court said in Goli Golu v. The State [1979] PNGLR 653 that the maximum penalty should be reserved for the worst type of cases in terms of the facts and circumstances leading up to, during and following the crime.
   
8. This court may also suspend part of or the entire sentence with or without conditions. This is authorised under Section 19 of the Criminal Code. This section of the Criminal Code provides among others, a shorter term may be imposed [subsection (1)(a)], a fine not exceeding K2,000.00 in addition to, or instead of, imprisonment may be imposed [subsection (1)(b)], a good behavior bond in addition to, or instead of, imprisonment may be imposed [subsection (1)(d)], the offender can be discharged and the sentence postponed [subsection (1)(f)] or a part of or all of the sentence can be suspended subject to conditions [subsection (6)].
   
9. Section 319 states the penalty for the offence of grievous bodily harm is imprisonment for a term not exceeding seven years.
   
10. Olombol was arrested and charged on 20 April 2011. Whether he was detained and later released on police bail is not clear. District Court depositions state court bail was set at two hundred kina (K200) and that was later converted to National Court bail.
    

Olombol's personal particulars and background

11. Olombol is fifty two (52) years old and comes from Toaipa Village in the Tari District of the Hela Province. He has no formal education. He has two wives and seven children the oldest being twenty two years old and the youngest is still an infant. His two wives are also not formally educated. Together they survive on gardening and subsistence living with informal market activities including the collection and sale of empty drink cans. He says he is able to pay compensation to the victim Talu with the help of relatives.
    

Aggravating factors

12. Olombol used a piece of firewood that he was holding when returning to the house to prepare a meal for his son and wife who were in the hospital. The victim Talu raised his left arm blocking the blow from the piece of firewood that Olombol had swung at the head of Talu. The medical report confirmed Talu sustained a compound fracture to his ulna bone in his left arm and multiple soft tissue injuries to his face and left forearm. His injuries were treated and he was discharged. Talu has not complained of any permanent injury as a result of the assault.
    
13. It is arguable more serious consequences would have resulted if Talu did not instinctively raise his arm. Assaults occasioning grievous bodily harm are prevalent. I agree with counsel for the State that Olombol has made no serious attempt at reconciliation with Talu. I also do not believe Olombol was remorseful for his actions despite his statement in allocutus where he was merely pleading for mercy from this court.
    

Mitigating factors

14. Olombol pleaded guilty saving the court and the prosecution and their witnesses time and expense in running a full trial. Olombol has never committed any offence, this being his first charge for a criminal offence. There was no evidence of premeditation on the part of Olombol. In the record of interview, Olombol admitted committing the offence and said he wanted to apologise to the victim.
    

Comparative cases

15. Counsel for Olombol referred to two judgments of this Court. In The State v Veronica Mandili Kulia (2010), the accused was found guilty of a charge of grievous bodily harm. She used a bush knife to threaten her husband in a domestic argument. At that time he was also armed with a bush knife. He sustained fractures to his fingers from the bush knife held by the accused. She was a first time offender, a good citizen and strong Christian. A sentence of one (1) year imprisonment was imposed with time spent in custody deducted and the balance wholly suspended on conditions. In the Veronica Mandili Kulia case, I referred to two cases. In State v. Vincent Naiwa (Unreported) 2004 N2710, the accused pleaded guilty to a charge of grievous bodily harm to his sister in-law. The accused was a first time offender as in this case but the circumstances of the attack are not similar as the assault was unprovoked and was vicious resulting in complete amputation a finger and seriously injured two other fingers on her left hand after the victim raised her left hand to block or fend off a bush knife swung by the Defendant towards the victim's head. The court also found the use of bush knives in assaults was prevalent even in disputes among members of the family. A sentence of five years imprisonment was imposed. In State v. John Vagi (Unreported) N3543 the accused pleaded guilty to doing grievous bodily harm to another man by slashing his forehead with a bush knife. There was a history of disputes and physical fights between the two and their families. In mitigation, the court considered the defendant surrendered and cooperated with police, he pleaded guilty, expressed some remorse and had good family and community support. The court also considered aggravating circumstances such as the use of a dangerous and lethal weapon, multiple cuts inflicted on the victim, the attack was planned, no apology, compensation or reconciliation, the assault could have resulted in a fatality and the victim suffered permanent injuries. A sentence of four years imprisonment was imposed.
    
16. In The State v Janeth Andrew, a judgment I delivered in Tari on 4 April 2014, the offender pleaded guilty to the charge of grievous bodily harm to her husband. Janeth had been a victim of constant abuse and violence at the hands of her husband. One such argument led to a violent confrontation between them. In the course of the argument, Janeth picked up a piece of timber which was a footing to a bed and she struck her husband fracturing his left forearm. He had lifted his arm to stop the blow aimed at his head which had potentially more serious consequences. The injury healed with no residual or permanent scarring or disability. The couple had five children ages five to sixteen. Following the incident, Janeth had taken full responsibility for the children. She had no prior criminal record and was a very good law abiding citizen and committed Christian. A sentence of one year imprisonment was imposed which was wholly suspended on condition that she be of good behavior for six months and her bail money of five hundred kina to be refunded and donated to her church congregation for community service activities.
    
17. Counsel for the State referred to two cases. I was not provided with copies of the judgments and repeat what counsel stated in her submissions. In State –v- Francis Kurufher (2008) N3364 the prisoner struck a young man in the back with a coconut palm frond. The victim sustained a broken rib. The prisoner was a first time offender. He was sentenced to 3 years imprisonment. The sentence was wholly suspended with conditions. In State - v –Martin Konos (2010) N4157 the offender pleaded guilty to unlawfully doing grievous bodily harm to his nephew by attacking him with a piece of timber, fracturing his knee and inflicting many other superficial injuries by multiple blows. Cannings J sentenced the prisoner to 3 years. The sentence was fully suspended with strict conditions.
    
18. I am also aware of the case of The State v. Wapuri [1994] PNGLR 271, the accused pleaded guilty to a charge of grievous bodily harm. The accused struck the face of wife of his cousin using a motor vehicle handbrake cable. This assault left the victim with 90% loss of vision in her left eye. The court imposed a sentence of eighteen months, deducted 5 months spent waiting for his trial and suspended the balance of the term and placed the accused on good behavior bond for twelve months. In addition, the court after considering a means assessment report and evidence of custom and compensation payments made in the area at that time ordered, as authorized under the Criminal Law (Compensation) Act 1991, the Defendant pay compensation to the victim of Five Hundred Kina (K500) cash five pigs valued at Eight Hundred Kina (K800). In default of payment, the accused was liable to two months imprisonment.
    

Sentence

19. Counsel for both Olombol and The State agree that this is an appropriate case for the imposition of a suspended sentence. I agree. The sentence imposed is one (1) year which is wholly suspended on the condition that Olombol be of good behavior for a period of twelve (12) months from today. I also order that Olombol compensate the victim Talu an amount of money for the injuries and pain sustained as a result of the assault. I set the amount of compensation at Five Hundred Kina (K500). This can be paid from Olombol's bail money of Two Hundred Kina (K200.00) which is refunded. As to the balance of Three Hundred Kina (K300), Two Hundred Kina (K200) is set off for the loan Talu obtained from Olombol along with interest as agreed. That leaves One Hundred Kina (K100) which must be paid by Olombol to Talu within one (1) month from the date of this order.
    
20. The orders of the court are:
    
    1. A sentence of one year imprisonment is imposed.
       
    2. That one year sentence is wholly suspended on condition that;
       
       1. Olombol will be of good behaviour for twelve (12) months from the date of this order;
          
       2. Olombol will pay compensation to Talu of Five Hundred Kina (K500).
          
       3. Olombol's bail monies of K200 shall be refunded.
          
       4. Olombol's bail money of Two Hundred Kina (K200.00) shall be paid by Olombol to Talu. As to the balance of the compensation payable of Three Hundred Kina (K300), Two Hundred Kina (K200) is set off for the loan Talu obtained from Olombol along with interest. That leaves One Hundred Kina (K100) which must be paid by Olombol to Talu within one (1) month from the date of this order.
          
    100. If Olombol breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained to serve the rest of his sentence in custody.
         

Judgment accordingly
______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused