N5863

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 225 OF 2012

THE STATE

V

NIPA HOMOLPI

Mendi: Kassman, J
2014: 4th June, 20th October
2015: 11th February

CRIMINAL LAW – Grievous Bodily Harm – Sentence – plea of guilty – knife used in assault – offender not principal attacker – no premeditation – no prior conviction – sentence of three years wholly suspended on conditions – good behavior for twelve months – offender pay a fine of One Thousand Kina and pay victim compensation of Five Hundred Kina.

Legislation cited

Criminal Code Sections 315(b) (d) and 19
Criminal Law (Compensation) Act 1991

Cases cited

Goli Golu v. The State [1979] PNGLR 653
State v Taroh (2004) N2675 
State v Lawrence (2007) N3117
State v Susure (1999) PNNC 58
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

SENTENCE

11th February, 2015 

1.	KASSMAN J; The accused pleaded guilty to, and was convicted of, the charge of intending to do grievous bodily harm to James Soh ("Soh") on 15th July 2011. 

2.	The brief facts presented by the State to which Nipa Homolpi pleaded guilty are "On the 15th day of July 2011 at about 1pm there was a Village Court sitting in Mendi town near the Mendi Police Station. The victim James Soh was the Village Court Clerk. As the hearing was about to start, the accused stood up and punched the victim in his face. The victim fell down. Whilst on the ground the accused stabbed him with a knife in the left back chest. Other people also assaulted the victim by kicking him as he lay on the ground. Two other persons were also seen striking the victim with knives. Police arrived at the scene and took the victim to the Mendi General Hospital. The victim sustained serious injuries from the assault. The injuries would have been fatal had it not been for the quick medical intervention. It is alleged that the accused intended to do grievous bodily harm to the victim and did do him grievous bodily harm. The charge is laid pursuant to section 315(b) (d) Criminal Code."

3.	Section 315(b)(d) of the Criminal Code provides "A person who, with intent, - (b) to do some grievous bodily harm to any person … does any one of the following things is guilty of a crime – (d) unlawfully wounding or doing a grievous bodily harm to a person. … Penalty: Subject to Section 19, imprisonment for life."

4.	In allocutus, Homolpi said "I am sorry to this honorable court for I have done the wrong. And am also sorry for the father above for what I have done. Secondly I have done wrong already so my case is with my lawyer. Thirdly, I know that I have done wrong so I ask this court to have mercy on me. Fourthly, I would like to apologize to the victim. That's all my case is with my lawyer".

5.	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.

6.	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)].

7.	The State relied on statements and documents from the police brief which were tendered without objection. These comprised the copies of the police Information dated 29th August 2011 and Summary of Facts, sworn statements of James Soh, Nelson Nu, Dominic Warep and Kenneth Mambo all dated 31st October 2011, Medical Report of Dr Nolpi Tawang, Mendi General Hospital dated 09th August 2011, and typed Record of Interview (pidgin and english translations) dated 15th December 2011. Counsel for the State also relied on a written submission filed 2 September 2014.

8.	Homolpi's lawyer relied on a written submission filed 15 September 2014 and Affidavit of David Hep filed 20 October 2014. Attached to the submission was a copy of a letter dated 16 June 2014 from a Pastor Lucas Siwi who described himself as a pastor with the Christian Apostolic Fellowship Church and described Homolpi as a good Christian and "… was once a Pastor, Pastoring our local church and he was a good shepherd, but he was backsliding due to some internal problem, so however he is still a God fearing man." 

9.	David Hep swears he is the Coordinator for Law & Order in the Mendi Munhiu Area and that on 13 November 2013, he witnessed the compensation ceremony where Honolpi paid Soh cash of Five Thousand One Hundred Kina (K5, 100) and thirteen live pigs. That ceremony took place in public at Sopa Mesa Village, Lai Valley LLG and was witnessed by family and tribesmen of Homolpi and Soh and members of the public and other leaders including Nehap Sowal, Karinz LLG Chairman. This was not disputed by the State and it is assumed this compensation payment was accepted by Soh and his tribesmen. 

10.	The Police Record of Interview and Probation Service Pre Sentence Report disclose some background to this matter which is relevant for two reasons. Firstly, this information demonstrates that there were serious issues between Homolpi and Soh and their respective tribes when Soh was attacked which gave rise to the charge against Homolpi. Soh was accused of fathering a child from a woman who was married to Homolpi's brother. It was claimed the woman fell pregnant while living away from her husband and when she returned some months later, her husband fell seriously ill. He was taken to Mendi General Hospital, Kunjip Hospital and Port Moresby General Hospital but died some time later after failing to recover from some illness. Homolpi then took it upon himself to deal with Soh and the adulterous affair with the wife of Homolpi's brother. Tribesmen of the woman were also called in and in the process of protracted sittings of the Village Court, Soh's tribe and the tribe of the woman were directed to make compensation payments to Homolpi's tribe. The woman's tribe complied but Soh denied responsibility and refused to be held accountable. This caused great tension and frustration that eventually lead to the incident the subject of this proceeding. Secondly, there is evidence that Homolpi did not stab and attack Soh although he was present in the Village Court when the attack took place however Homolpi has taken responsibility for the incident and assault on Soh by taking full blame as he was the person who instigated and pursued the investigations and village court proceedings into the adulterous affair involving Soh.

Homolpi's personal particulars and background

11.	Homolpi is an elderly man is reported to be fifty six years old. He is married with one wife and six children; the eldest is 20 years old and the youngest 6 years old. Five of the children are still at school ranging from elementary, primary and high school. All are dependent on Homolpi for their upkeep, care and protection. Homolpi and his wife are typical villagers dependent on gardening of vegetables for consumption and marketing for their upkeep. I observed Homolpi to be an honest and law abiding and elderly citizen. He did not come across as an aggressive or ferocious man. This was consistent with statements that he is a good Christian and is a respectful person. I have no doubt Homolpi did the "honorable" thing by taking responsibility for the assault and attack on Soh for the sole reason that the actual attackers, Homolpi's tribesmen, were in attendance at the village court proceedings which were instigated by Homolpi.

Aggravating factors

12.	A knife was used in the attack on Soh by Homolpi and a group of his tribesmen who were also armed with knives and did attack and cut Soh. This is confirmed in the medical report. Soh has not complained of any permanent injury as a result of the assault. It is arguable more serious consequences would have resulted if Soh was not rushed for emergency medical treatment at the Mendi General Hospital. Assaults occasioning grievous bodily harm are prevalent. 

Mitigating factors

13.	Homolpi pleaded guilty saving the court and the prosecution and their witness's time and expense in running a full trial. Homolpi has never committed any offence, this being his first charge for a criminal offence. There was no evidence of premeditation on the part of Homolpi, although," he admitted to being in possession of a knife. 

14.	It is said that everyone turns up at sittings of the village court with a weapon for their own defence in the event there is an attack by the opposing tribe. Despite that observation, such conduct must not be tolerated if society is to see positive change and respect for the rule of law and the court room is no venue for violence and unruly conduct particularly for any person to have possession of a dangerous weapon. 

Comparative cases

15.	Counsel for the State referred to two cases which I have read and which were summarized by counsel and I repeat that here. In State v Taroh (2004) N2675 the prisoner was convicted after a trial on the charge of causing grievous bodily harm contrary to section 315 of the Criminal Code. The prisoner cut the victim three times on both of his hands. He used a bush knife and intended to cause the victim grievous bodily harm. The dispute was over land and arose because the prisoner and his side wanted to bring a timber company onto the victim's land. The Court considered that the victim had recovered without any residual disability. The prisoner was a first time offender. A sentence of 8 years was imposed. The sentence was imposed to serve as punishment to the prisoner as well as act as both personal and general deterrence.

16.	In State v Lawrence (2007) N3117 the victim had been gardening and the offenders and their friends attacked him without provocation. The victim suffered serious knife wounds. His left upper arm was cut through to the bone, the back of the left shoulder involving the shoulder joint was cut, and there were cuts to the posterior upper right chest and the right forearm involving the elbow. There was a prompt compensation payment. It was held that grievous bodily harm with intent is serious crime requiring an immediate custodial sentence. The injuries inflicted were very serious and life threatening. The offenders were sentenced to 6 years imprisonment.

17.	Counsel for Homolpi referred to State v Susure (1999) PNNC 58. Susure pleaded guilty to a charge under section 315(6) that he, with intent, did grievous bodily harm to his victim. Susure and the victim were friends. Both had a social drink of beer on the bank of a river a short distance from Susure's home. After finishing their drinks, they both left for their respective homes. Susure needed to light his cigarette so he returned to the river bank to use the fire at that location. While Susre was away, the victim stealthily entered Susure's house and tried to rape Susure's wife and a struggle ensued. Susure returned to hear the commotion and pursued the victim with armed with an axe. Susure and the victim physically assaulted the victim at first without using the axe and the fight was stopped by others who intervened. As they awaited the arrival of police, verbal exchanges ensued and Susure attacked the victim with his axe cutting the victim twice on his head and nose. The court said "Whilst I accept that the prisoner initially did not resort to his axe that was in his hand but only after he was provoked by the victim while waiting for the police, there was o need for him to use is axe. The victim was unharmed and it seems he was not even fighting back. It would seem that the victim realized his fault. The prisoner need not have used the axe. … The prisoner is a first offender, aged 37 years old, marked with two wives and has four children. He had limited primary education to Grade 6. He lived mostly subsistent lifestyle in the village. I take all these matters into account apart from the prisoner's plea of guilty, his cooperation with the police and his contrition." The Court sentenced Susure to three years imprisonment but ordered Susure serve one year and I suspended the remaining two years on condition Susure compensate the victim with one thousand kina (K1,000) cash, one cow and some garden food.

18.	I have also considered some judgments which I have considered previously and some which I have delivered. 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.

19.	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. 

20.	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. 

21.	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 and five pigs valued at Eight Hundred Kina (K800). In default of payment, the accused was liable to two months imprisonment. 

Sentence

22.	I set the head sentence at three years imprisonment.

23.	I agree with Counsel for Homolpi that the sentence be wholly suspended with strict conditions that Homolpi pay a fine of One Thousand Kina (K1, 000) and be of good behavior for a period of twelve (12) months from today. I also order that Homolpi compensate the victim Soh with 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) which must be paid by Homolpi to Soh within three (3) months from the date of this order. 

24.	The orders of the court are:

a.	A sentence of three years imprisonment is imposed.

b.	That three year sentence is wholly suspended on condition that;

i.	Homolpi will be of good behaviour for twelve (12) months from the date of this order; 

ii.	Homolpi will pay a fine of One Thousand Kina (K1, 000), which shall be paid by the conversion of his bail money (K500) and cash surety (K250) from each guarantor.

iii.	Homolpi will pay compensation to Soh of Five Hundred Kina (K500) within three (3) months from the date of this order.

c.	If Homolpi breaches any one or more of the above conditions, he shall be brought before the National Court to show case 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