N6356
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 670 OF 2015
CR No. 671 OF 2015
 
STATE 

V

NANDEX WEPO

Mendi: Ipang, J
2016:  7, 12 &14 July

CRIMINAL LAW – Sentence – Criminal Code Act, Chapter 262 – Section 319 – Offender assaulted his wife with his fists, teeth bites – and also using a bush knife cut his brother in-law’s left hand – Plea of guilty – compensation paid.

CRIMINAL LAW – Practice & Procedure – Sentence – maximum penalty reserved for worst type of cases– in the cases of grievous bodily harm caused is serious – taking into account mitigating and aggravating factors – a part non-custodial and custodial sentence be imposed. 

Cases cited:
Goli Golu-v-State [1979] PNGLR 635
State-v-Alua Lumbiria (Unreported) April, 2014
State-v-Ambe Tu [2008] PGNC 37; N3306
State-v-David Pulkun (2014) PGNC 69; N5603
State-v-Jumbugu (2012) PGNC 36; N4627
State-v-Kerry Reuben Irowen (2002) N2239
State-v-Neiman (2013) PGNC 8; N4957
State-v-Veronica Mandili Kulia (2010)
State-v-Waigama [2007] PGNC 80; N3188
Taiba Maima-v-Sma [1971-72] PNGLR 49

Counsel:
Ms. S. Luben, for the State
Ms. C. Koek, for the Offender

DECISION ON SENTENCE
14th July, 2016

1.	   	IPANG J:  This is the decision on sentence for the Offender Nandex Wepo of Mugumapu village, Ialibu, Southern Highlands Province who had pleaded guilty to two (2) counts of causing grievous bodily harm (GBH) contrary to section 319 of the Criminal Code Act, chapter 262. 

2.	   The two (2) counts on which the Offender was indicted are as follows;

Count 1:	NANDEX WEPO of MUGUMAPU, IALIBU, SOUTHERN HIGHLANDS PROVINCE stands charged that he on the 21st day of November 2014 at Mugumapu village in Papua New Guinea did grievous bodily harm to Shelly Paselo.

Count 2:	NANDEX WEPO of MUGUMAPU, IALIBU, SOUTHERN HIGHLANDS PROVINCE stands charged that he on the 21st day of November 2014 at Mugumapu village in Papua New Guinea did grievous bodily harm to Kaloa Paselo.

	  3.	 The brief facts in relation to Count one (1) and Count two (2) are as     follow;

		Count One (1):
The Offender is the husband of the victim Shelly Paselo. On the 20th November, 2014, the Offender and his wife had an argument. The argument erupted into a fight in which the Offender assaulted his wife from 20 November to the morning of 21 November. The Offender hit his wife with its fists, sticks, biting her on several parts of her body. The assault took place from the evening of 20 November till the next day 21 November at Mugumapu village. As a result the victim sustained injuries to her body which included teeth bites to her shoulder, legs and breasts. The victim also sustained a broken arm.

Count Two (2):
In the morning of 21st November the victim’s relatives heard of victim been assaulted, surrounded the Offender and victim’s house. The Offender broke out of the house, had an axe in his possession which he swung at everyone who was there. Someone in the crowd blocks the axe and the handle of the axe got broken. The Offender than grabbed a bush knife and swung it at the crowd. The bush knife landed on the victim Kaloa Paselo’s left hand. The victim sustained injury to his left hand in between his fingers the pointer and tall-man through to his wrist.

    The Antecedent Report

4. 	 The antecedent report records no prior convictions as such the Offender is a first time Offender. 

     Allocutus

5.	 In allocutus, the Offender said sorry to the complainants, his wife and Kaloa, say sorry to God and Court. He asked for Court to have mercy on him.

The Pre-Sentence Report (PSR)

    6. 	   The Court ordered Pre –Sentence Report revealed;

	     The Offender, Mr. Nandex Wepo comes from Mungumapu village in the Kewabi LLG of Ialibu/Pangia District, Southern Highlands Province. He was born there and has lived there most of his lifetime. Before this offence was committed he lived in his four (4) room Kunai house with his wife Sally, his mother in-law and two (2) other family members making a total of five (5) occupants. After his detention term he plans to return to live there after doing some renovations. The Offender stated that since his arrest for the crime, he has remained in remand at Bui-Iebi CIS. He clarified that Mungumapu village and the surrounding areas are generally peaceful and crimes of this type only occur once in a while. 

	According to the Offender, both of his parents are still alive but are not living together anymore because they have been both remarried to different spouses. Both of them are from Mungumapu village. They had four (4) children, three (3) males and one (1) female and the Offender is the first born. Being the first child, the Offender stated that he helped his father to raise his siblings. He said that his father is a leader of the Lutheran Church in their local Yalo Parish and because of that, his upbringing was church oriented where his father was concerned about discipline and good behaviour, cared and raised them up well. He also stated that he still maintains the good relationship with his father and siblings and they are still very supportive of each other. They reacted with concern when he committed this offence and went ahead to pay compensation to the complainants in his absence (in remand). They also desired to bail him out but they did not have enough money to do so at that time. He stated to be married to the female victim Sally for four (4) years but they have not had any children. He mentioned that despite of this offence, their marriage was generally happy. The usual and minor issues and arguments that occurred were mainly concerning marital obligations and personal behaviours towards each other, in-laws and relatives. 

1. The Offender is to pay some form of compensation, the amount to be determine by this Court, to the second victim Kaloa Paselo who sustained a permanent 80% loss of usefulness to his left pointer finger or that the financial loss of K7, 0134.00 for the Offender is to be taken as sufficient compensation towards the victim’s injured finger and

2. The Offender is to undertake Community Work at Ialibu Hospital under the direct supervision of the Officer in charge of the Hospital, facilitated by the Probation Officer, for a period of 5 hours per week, on Mondays, for the duration of six (6) months or one (1) year and

3. The Offender is to be placed on Good Behaviour Bond for one (1) year and

	4. Any other orders that the Court considers fit to impose.   

7.    Offender’s Personal Particulars
	Ms. Koek submitted the following to be the personal particulars for the Offender;

	1. The Offender is 28 years old and comes from Mungumapu village in the Ialibu District, Southern Highlands Province.

	2. The Offender is the first born out of four (4) children. Both of his parents are still alive but they are of old age.

	3. The Offender is a member of the Lutheran Church and he was a peaceful and law abiding citizen until the time of the offence.   

	4. The Offender had been educated up to Grade (1) level and not formally educated. However, the Offender is a self-thought self-employed, he can manufacture soap and laundry detergent however; he is a simple villager also depending on garden. 

	5. The Offender is married to the victim with one (1) adopted child who is now three (3) years.

	6. The Offender has paid compensation to both victims. His wife and the brother in law. Two (2) pigs valued at K2, 200.00 and K1, 000.00 in cash which was shared amongst both victims as they are brother and sister. 

8.    Mitigating Factors
		
•	pleaded guilty
	
•	first time Offender

•	expressed genuine remorse

•	only one who attacked the victims

•	co-operated with the police and made early admissions

•	compensation paid

9. 	Aggravating Factors

•	it was a crime of violence

•	the offence of grievous bodily harm is serious and prevalent

•	two (2) offences committed on two (2) victims on same day 

•	continuous assault on victim Shelly Paselo from evening of 20         November to morning of 21 November with use of teeth, fists and         sticks

•	victim Shelly sustained broken arm 

•	dangerous weapon a bush knife used on victim Kaloa Paselo.

•	victim Kaloa received injury to his left hand

    Submission by Defence

10.     Ms. Koek submitted that this case, the offence was committed with the use of dangerous weapon; a bush knife was used to slice the left hand in –between the pointer and middle finger which has now caused the 80% loss of the pointer finger and to the second victim she sustained a broken arm and scares to her body. We submit that they are not the worst type of grievous bodily harm. However, we submit that the Court must look at the mitigating factors and the circumstance of the case, as this is not a worst type case. This is also a defector provocation in the non-legal sense. 

11. 	   Koek relied on the case of State-v-Neiman (2013) PGNC 8; N4957 by His Honour Justice Cannings. The facts of this case are as follows, the offender Neiman Dua plead guilty to unlawfully doing grievous bodily harm to his wife, Margaret Dua and has been convicted of that offence under section 319 of the criminal code. The incident occurred at Murunas in the north coast area of Madang Province on the morning of Saturday 28 April 2012. The offender was at that time employed by the cocoa and coconut Constitute, he and his wife and family were living in the vicinity. He had been returning on a ship from Wewak to Madang and rang his wife and told her to meet him at the wharf in town. She did as she was told and met him at the wharf and they then boarded a PMV bound for Murunas. On the way in the moving vehicle he questioned her over an alleged affair she was having with another man and threatened her with a bush knife and scissors. She was frightened and on her arrival in Murunas, she attempted to run away from him but he chased and attacked her with the bush knife, inflicting two separate wounds, the most serious of which almost severed her left arm. She was rescued by passers-by and the police arrived soon after the attack and apprehended the attacker. She had permanent disability of both arms. The offender was sentenced to five years imprisonment, however, he had cooperated with police and had paid compensation, and therefore the rest of the sentence was wholly suspended.

12. 	    Further, she relied on the case of State-v-Jumbugu (2012) PGNC 36; N4627. The brief facts of this case are as follows. On the 13th of March 2011, the offender was at his house at Buvussi Oil Palm Settlement with other family members, when the victim and her husband confronted the offender following an attack on their son being attacked at the offender’s place. The victim’s husband argued with the offender while she stood by in apparent support and encouragement of her husband’s abusive altercation with the offender. Fazed by the confrontation, the offender chased after the victim. And when she tripped and fell, offender attacked her with a busk knife, cutting three fingers on the right hand. He was sentenced to four (4) years imprisonment. However, there was no evidence that the offender is a violent person who was likely to reoffend. Therefore a sentence both useful to the offender and the community was awarded. The four (4) years sentence was suspended and offender was placed on probation orders. 

13. 	    She also referred to the case of, State-v-Veronica Mandili Kulia (2010), in that case, the offender pleaded not guilty to the charge of grievous bodily harm following a trial. The offence arose out of a domestic setting as well in which the offender complained that her husband the victim was having marital affairs with other women. There was the use of bush knife held by the victim and offender (husband and wife respectively) threatening each other. During the struggle, the victim sustained injuries on his right hand included fractures to his metacarpal bones 3rd and 4th digits and there was disfigurement to the middle fingers which clearly was a permanent injury. However, the Court considered that she was a first time offender, she was a good citizen with high standing Christian principles and she had paid some compensation to the victim. A sentence of one year was imposed, time spent in custody was deducted and the balance of the sentence was wholly suspended with conditions. 

14. 	    She submitted that when we compare the above cases with the present case at hand, one would note that this case is similar in the instance that a dangerous weapon namely a bush knife was used to commit the offence. The victim sustained permanent injury to the pointer finger. However, this Honourable Court must also take into account that the Offender is a first time offender; compensation had been paid to show that he is truly sorry for committing the offence; he had been a responsible citizen prior to the incident and that there is now peace between the victim, who is his wife and brother in-law. 

               15.	    She said that your Honour must consider all factors mentioned in the prisoner’s personal detail and the mitigating factors in this submission as the mitigating factors outweighs the aggravating factors. 

16. 	    Koek recommended for a head sentence of two (2) years each for both counts be imposed. From this four (4) years, time spent in custody be deducted and the rest to be wholly suspended with conditions.

  Submission by State

17.       Ms. Luben for the State submitted that the Court must consider each case on its own set of facts and circumstances surrounding the case. Both mitigating factors and aggravating factors need to be taken into account in determining the appropriate sentence. There are several cases of grievous bodily harm (s.319 Code) which have come before the Courts. Sentences have ranged from suspended sentences to custodial terms. 

18.       In the case of State-v-Kerry Reuben Irowen (2002) N2239 Kandakasi J. imposed the maximum penalty. 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. One of them sustained a deep cut to the left shoulder and a completely severed bone of the top of the joint. This resulted in 25% disability. The other requires steel wiring in her right big toe. She also sustained complete loss of her left little and right fingers. There was a prior history of severe attacks on one of the wives resulting in hospitalisation. There was no evidence of any compensation or defendant changing his habit. There was also no expression of remorse. The defendant had pleaded guilty to two charges of grievous bodily harm and was a first time offender. It was held that the offence was a worst case of grievous bodily harm and warranted the maximum penalty. The defendant was sentenced to seven (7) years imprisonment on each count to be served cumulatively.

19.	      In State-v-Waigama [2007] PGNC 80; N3188 the offender, a middle aged woman stabbed another woman with a knife after a history of bad feelings between them. The accused claimed the victim had been saying bad things about her, due to suspicions was having an affair with the victim’s husband. The Court (Cannings J) held that the starting point for sentencing for grievous bodily harm is 42 months or 3 years 6 months. Mitigating factors were that it was a single blow, only one attacker, co-operated with police, pleaded guilty, remorseful and ongoing dispute. Aggravating factors were offender solely responsible, dangerous weapon used, no accident, unprovoked attack, the victim was able-bodied, vicious assault, did not give herself up, no compensation or reconciliation, not a first offender and not a youthful offender. The Court sentenced the offender to four (4) years imprisonment. One week was deducted for time spent in custody. No part of the sentence was suspended. 

20.	       In Ambe Tu [2008] PGNC 37; N3306 the accused was the husband of the victim. The victim had run away leaving the husband with the children. She was having an affair with another man. The accused cut the victim several times on her body. There were multiple cuts to the victim’s body including hands, back, neck and shoulder area. Both hands were cut with complete amputation of the left thumb and right inner-wrist area separating the tendons, nerves and ulna artery. Injuries were life threatening. The victim was left with serious disability in the use of both her hands. This was a guilty plea and offender was a first time offender. There was no compensation, offence prevalent and no pre-sentence report. The Court (Kandakasi J) stated a custodial sentence was appropriate in this case. Offender was sentenced to four (4) years imprisonment.  

21.  	In State-v-David Pulkun (2014) PGNC 69; N5603 a case dealt with in May 2014 in Wewak by Geita AJ the accused was the husband of the victim. He had threatened the victim resulting in her spending the night at an aunt’s house. The next day the accused sent her two daughters to fetch their mother saying he would not assault her. The victim went back to the family home. That evening the accused assaulted her in the kitchen. He used a knife to cut her on her left foot completely severing all 5 toes. The Court took into account his guilty plea, first time offender, expression of remorse and reconciliation made. He was sentenced to 4 years and 6 months imprisonment. Six (6) months in pre-trial custody was deducted. Two (2) years will be suspended upon the payment of K2, 000.00 to the victim within three (3) months. He was to serve two (2) years imprisonment. 

22. 	     In State-v-Alua Lumbiria (CR /14) Unreported Judgement on --- April 2014 in Tari by Kassman J. the victim was an innocent two year old child. She had no part in the argument or fight. Both mother and child were at home when the prisoner came home drunk. He had armed himself with a bush knife before assaulting his wife. This was a pre-meditated attack on the wife. He assaulted his wife even though she had the child (victim) in her arms. He swung his bush knife which cut the child on her left hand. The victim’s left hand had four fingers that is the thumb up to the ring finger and a portion of the palm, completely chopped off. The victim sustained a permanent disability. This was a clear demonstration of his total disregard for the safety of others’ lives, let alone his own daughter. There was no genuine remorse shown by this prisoner. He was sentenced to five (5) years imprisonment. One (1) year is deducted on account of mitigating factors. One (1) year and seventy-six (76) days was deducted for time spent in custody. 

23.	     Luben submitted that the use of bush knives to commit such offences is all too common in the community. The Court must send out a strong message that the use of violence to resolve disputes will not be tolerated. People resorting to violence to resolve disputes in the family are a concern and must be discouraged with stiffer penalties. The sentence imposed must reflect the seriousness and gravity of this offence. She submitted that the aggravating factors far outweigh the mitigating factors. A custodial term is warranted in this case. We submit a head sentence of 4 years be imposed for each count. The sentence is to be served concurrently. The only term to be deducted is the time spent in pre-trial custody. 

Court’s Analysis

24.      The offences of grievous bodily harm as described in this case are indeed very serious. The first victim Shelly is the wife of the Offender and has suffered severe beatings from the Offender with the use of Offender’s fists and sticks. Also the Offender used his teeth to bite Shelly. The victim Shelly also suffered a broken arm. As for the victim Kaloa Paselo he suffered permanent injury to his left hand when the Offender cut him with a bush knife. The victim Kaloa is the brother-in law of the Offender. 

25.	The sentences which have been handed down in the past by the National Courts revealed sentences ranging from non-custodial to custodial sentences. I have taken note of the respective submission by both Counsels, the antecedent report, allocutus, Pre-Sentence Report and the compensation paid plus considering the seriousness of the offences committed and am convinced the appropriate sentence to be part custodial and non custodial.

26.  	I sentenced the Offender to four (4) years imprisonment for the first (1st) Count (CR. No. 670 of 2015) and also sentenced the Offender to four (4) years for the second (2nd) Count (CR. No.671 of 2015). Offender will serve the sentence concurrently. Which means the Offender will only serve four (4) years. I deduct one (1) year, 8 months for the Pre-Sentence period spent in custody. This will leave the Offender to serve two (2) years, 04 months. Taking into account the Offender’s plea of guilty and compensation paid, I suspend One (1) year. This will leave the Offender to serve One (1) year, 04 months imprisonment. 

  Sentenced accordingly,

   _______________________________________________
  Public Prosecutor: Lawyer for the State
  Public Solicitor: Lawyer for the Offender