N5587

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE IN TARI]

CR NO. 185 OF 2013

THE STATE

-v-

PEIAS PANGI

Tari: Kassman, J
2014: 14, 15 & 16 April

CRIMINAL LAW – Sentence – Criminal Code Section 322(1)(a) – Unlawful wounding – bush knife to the head while victim asleep and lying face down - plea of guilty – first offence – sentence of two years and six months – time in custody deducted – balance of one year and one and half months wholly suspended on conditions - community service and good behavior bond

Legislation cited

Sections 322(1)(a) Criminal Code Act 
Sections 19(1)(a), (1)(b), (1)(d), (1)(f), and (6) Criminal Code Act

Cases cited

Maima v. Sma [1972] PNGLR 49
State v Lekis (2007) NPGNC 214; NJ029
State v Patrick Kimat (2005) N2947
The State v. Maria Ako CR No. 834 of 2013 
The State v Rubert Kassman [2004] N2682
The State v Marshall Western Pangih [2004] N2676

Counsel

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

DECISION ON SENTENCE

1.	KASSMAN J: Introduction: Peias Pangi pleaded guilty to the charge of unlawful wounding. This is the decision on sentence.

2. The brief facts on which Peias Pangi was indicted on 14 April 2014, and which he conceded as being true, are:

"On the night of the 6th of December 2012, the accused Peias Pangi and the victim Allan John were asleep in the mens house in Halongali Village. Two other men namely Soti Ekelda and Hame Ipako, these two men were also asleep in the same mens' house. The victim was sleeping lying down between the accused and Soti Ekelda. The state alleges that at about 3am the accused woke from his sleep got his bush knife and swang it at the victim Allan John who was still asleep. The state alleges that the bush knife landed on Allan John's head resulting in the victim sustaining a cut to his head. The State alleges the attack on the victim took the victim by surprise. The victim cried out in pain and his cries woke the other two men. The two men that is Soti Ekelda and Hame Ipako assisted the victim to the hospital. The State further alleges that by his actions the accused Peias Pangi unlawfully wounded the victim Allan John. The charge is laid pursuant to Section 322(1)(a) of the Criminal Code."

2.	The charge is laid pursuant to section 322(1)(a) of the Criminal Code for one count of unlawful wounding. 

Allocutus

3.	In allocutus, Peias Pangi said in Pidgin language which was translated to English as:

"I want to say sorry to the victim. I do not have any hatred feelings against the victim but I just want to say sorry. That's all."

This was a very short statement. Throughout proceedings, he had his head down and he spoke in a very quiet tone. 

Antecedents

4.	The offender has no prior convictions.

Relevant Law

5.	Section 322(1)(a) of the Criminal Code Act provides "A person who unlawfully wounds another person is guilty of a misdemeanor." The prescribed penalty is "Imprisonment for a term not exceeding three years".

6.	The maximum penalty is imprisonment for a term not exceeding three years. "The general principle is that the maximum punishment should be awarded only in the worst cases." Maima v. Sma [1972] PNGLR 49.

7.	The Court has considerable discretion whether to impose the maximum penalty or a lesser sentence and this power is provided 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)].

8.	Submissions on sentence were heard and are summarized as follows:

Submissions by Defence Counsel (written and oral)

9.	Counsel handed up written submissions. Relevant personal particulars presented are as follows. Peias Pangi is 38 years old and is from Halongali Village in the Tari District of the Hela Province. He was educated to grade four level only and has never been formally employed. He grew up in Port Moresby where he was raised by his uncle. He is single and has no children. He is a member of the Christian Bible Church. It is submitted he was peaceful and law abiding citizen until he committed this offence. Peias Pangi was a national sportsman. He attended Canberra Sports Institute for two years and he says he was an active member of the PNG Sports Federation from 1996 to 2000. He represented the country as a weightlifter at the Oceania Games in 1997 where he won a gold medal. By 1999, he was ranked 7th in the world. He says he has never been employed formally but has survived doing odd jobs including working as a security guard and in the informal sector doing street sales. This information was provided to his lawyer who presented it in a written submission. To carry weight, such evidence must be put in a sworn affidavit and supporting affidavits from independent and credible witnesses should be filed. Counsel for the State did not object so these particulars are taken as unopposed statements.

10.	The following are factors submitted in mitigation. Peias Pangi pleaded guilty on presentation of the indictment and the brief facts thus saving the victim the trauma of having to relieve the ordeal in open court. This plea also avoided time that would have been spent on a full trial so substantial time and expense was saved for both the court and the lawyers who traveled to Tari on circuit. This is his first offence. 

11.	He was remorseful and he co-operated with police from the day of the incident which was the day he was arrested. In his record of interview conducted the following day, he admitted to police that he cut the victim with a bush knife. On arraignment he admitted all that was submitted in the State' brief facts to the indictment stated above. In allocutus, he apologized to the victim and his family. He could not explain his serious and wrongful actions and made no serious excuse for this unfortunate incident.

12.	This was not a planned attack. He acted alone and struck the victim just once. 

13.	It is conceded, a dangerous weapon was used and there was serious violence involved that resulted in injuries to the victim. Counsel also submitted there was no medical report tendered. As such there is no accurate and independent description of the injuries sustained by the victim and neither is there evidence of any continuing disability as a result of the injury. This was not refuted.

14.	Counsel submitted a sentence of one year and five month imprisonment be imposed but wholly suspended on the basis that the time spent in custody be seen as sufficient punishment and that he be of good behavior. 

Submissions by State Counsel

15.	Counsel for the State made oral submissions saying this is a very serious offence as the offender used a bush knife to the head of the victim, an attack with potentially fatal consequences. It was a cowardly attack as the victim was asleep and lying facing down. The offence is prevalent in the county so the penalty must serve as a deterrence to the offender and to the public generally. No compensation has been paid but it is conceded the offender did co-operate with police and admitted this serious assault and made no serious excuse for his wrongful conduct. Counsel submitted the time spent in custody awaiting trial of one year four months is adequate punishment. 

Comparable Cases

16.	Counsel for Peias Pangi referred to State v Lekis (2007) NPGNC 214; NJ029. I have not read the judgment. Counsel submits that, in that case, the offender pleaded guilty to a charge of unlawful wounding. The offence arose in a domestic setting where a man had a dispute with his sister and his father in a public place. He swang his bush knife at his sister cutting her on the head. He pleaded guilty to the charge of unlawful wounding. Considering the mitigating facts and even though no compensation was paid to the victim, the Court sentenced the offender to 30 months imprisonment. The presentence period was deducted and the balance of the sentence was fully suspended on conditions.

17.	Counsel for the State referred to State v Patrick Kimat (2005) N2947. This is a judgment of Justice Lay delivered in Lorengau. The offender pleaded guilty on one count of grievous bodily harm, an offence under section 319 of the Criminal Code. In an argument, the offender got a bush knife and cut his brother in-law on the head causing a laceration of 6cm, 0.5cm wide and 0.5cm deep and leaving a chip to the frontal bone. The offender was married with three children and that was his first offence. There was reconciliation although the circumstances were sketchy. The maximum penalty in grievous bodily harm is seven years. This assault involved a single blow to the head which the medical report described as "a mild head injury", four stitches and hospitalized for forty eight hours. A sentence of twelve months imprisonment was imposed which was wholly suspended on conditions of good behavior for two years. In that period, the offender was barred from consuming any intoxicating substance, he was order to be at his residence between 8pm and 6am and not to go within 100 meters of wife's residence unless invited by her. He was also ordered to perform community service of six hours one day per week. Time in custody awaiting trial was deducted.

18.	In a judgment I delivered in Mendi on 23 October 2013 in CR No. 834 of 2013 The State v. Maria Ako, the offender pleaded guilty to a charge of unlawful wounding. That was her first offence and she had an impeccable character and reputation with a distinguished career as a health professional. There was no serious premeditation and there was immediate remorse and co-operation with police. I imposed a sentence of two years imprisonment which was wholly suspended as she was a single mother taking care of her four young children. She was place on a good behavior bond for one year and to perform an extra three hours per week of unpaid work at the Mendi General Hospital. She was barred from leaving the province for one year and ordered not to consume alcohol in that period. In my judgment, I also referred to two judgments of the National Court delivered by His Honour Justice Kandakasi and from the year 2004 where both offenders pleaded guilty to charges of unlawful wounding.

19.	In a case heard in Wewak in The State v Rubert Kassman [2004] N2682 the young offender was with two boys at a roadside at their village when the victim in a vehicle stopped nearby and the driver under the influence of alcohol engaged in an argument with the offender and his friends. As the victim attacked one of the boys, the offender stepped in to stop the fight. The victim then threw a bottle of beer at the offender who the retaliated grabbing a bush knife from his house and he struck the victim in his neck or neurological injury sustained by the victim. The head sentence was set at three years. Two years was deducted after finding the offender had no prior conviction, compensation was paid by the offender's mother to the victim and the offender pleaded guilty. After deducting time spent in remand awaiting trial, the balance of seven months and twenty days was suspended on conditions including the offender be of good behavior and perform community service for the term of the suspended sentence.

20.	In a case heard in Lorengau in The State v Marshall Western Pangih [2004] N2676 the offender was 28 years old man who was married with one child. While clearing an area in his village to plant vanilla, he was attacked by the victim, a fellow villager, who was holding a bush knife and time pole with a sharp edge. The victim raised issue with ownership of the land that the offender was clearing. The offender escaped from the victim's attack and the victim then turned on the offender's dog cutting it with the bush knife. He also cut down some of the offender's vanilla plants. In retaliation, the offender armed himself with his fishing gun and shot him with the spear penetrating the victim's right elbow and his right lateral abdominal wall. The victim was hospitalized and recovered without any residual disability. As deterrence, a sentence of two years imprisonment was imposed. On account of the guilty plea, this being the offender's first offence and the offender being prepared to pay compensation to the victim, the sentence was wholly suspended on conditions including the offender be of good behavior and perform community service for the term of the suspended sentence.

Consideration of the arguments 

21.	Both counsel did speak with the victim who was present in court when the indictment was presented. The victim showed both counsel the large scar on the back of his head which he says was the place where the bush knife struck his head and he said the wound required ten stitches. From observation by both counsel, they estimated the length of the scar was five centimeters (5cm). He also said he had been hospitalized for four weeks. I am satisfied this was a serious cut to the head of the victim which was potentially life threatening if not for the victim being rushed to the hospital immediately after the incident and fortunately the victim was given prompt and appropriate medical attention and care. 

22.	I accept all the mitigating circumstances that have been raised by counsel for the offender. I also note counsel for the State did not take any serious issue with the submissions of counsel for the offender and I also agree the mitigating factors far outweigh the aggravating factors. These are all well canvassed above and I will not repeat them.

23.	The use of a bush knife in an attack to the head is life threatening. Only exceptional mitigating circumstances and factors would warrant a non-custodial sentence. It is agreed that the use of dangerous weapons like bush knives is still prevalent in violent confrontations in this country. As deterrence to the offender and the community from committing similar offences and also as a means of recognizing the seriousness of this conduct, the courts must attach strict conditions where a term of imprisonment is to be suspended. 

24.	The penalty imposed is a sentence of two years and six months imprisonment. Time in custody awaiting trial is deducted. On account of the many mitigating circumstances and factors as discussed above, it is also appropriate that the balance of the sentence be wholly suspended on conditions that the offender is of good behaviour for one year and the offender must perform community service for a period of six months from the date of this decision.

25.	The formal orders of the Court are:

a.	A sentence of two years and six months imprisonment is imposed.

b.	The time in custody awaiting trial from the date of his arrest and detention on 6 December 2012 to today 16 April 2014 is a period of one year four and a half months. That period is deducted from the sentence of two years and six months imprisonment. That leaves the balance of the sentence at one year and one and a half months.

c.	The balance of the sentence of one year and one and a half months is wholly suspended on conditions that:

i.	Peias Pangi will be of good behaviour for one year from the date of this order; and

ii.	For six months from today, Peias Pangi will perform community service in:

1.	Cleaning of facilities and the grounds three days a week (Tuesday, Wednesday and Thursday) six hours daily 
2.	Unpaid
3.	At the CIS Hawa, Tari in Hela Province
4.	Under the direction of the Commanding Officer at the CIS Hawa or his nominee and with the assistance of the Tari Police Station Commander or his nominee. 

iii.	For the duration of one year

1.	Peias Pangi will not leave the Hela Province, except with the leave of the Court
2.	Peias Pangi will not consume alcohol
3.	Peias Pangi will report to the Crimes Officer, National Court, Tari on the first Friday of every month between 8am and 9am.
4.	Peias Pangi must have a satisfactory probation report submitted by the Community Based Corrections Officer to the Crimes Officer, National Court every three months.

d.	The Commanding Officer at the CIS Hawa and the Tari Police Station Commander are directed to provide all necessary assistance to the Community Based Corrections Officer in the conduct and supervision of community service and with reports to the National Court as described above.

e.	If Peias Pangi 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