N7312

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 383 OF 2005

THE STATE

V

EMMANUEL SIMO

Kimbe: Miviri AJ
2018: 08th 20th June

CRIMINAL LAW – PRACTICE AND PROCEDURE – GBH S319 CCA – Plea – left arm cut off – tribal conflict – PSR MAR favourable to prisoner – residual injuries – punitive and deterrent sentence – cumulative.
CRIMINAL LAW – PRACTICE AND PROCEDURE – Arson S436 CCA – Plea–canteen – dwelling house – PSR MAR favourable to prisoner – tribal conflict –punitive and deterrent sentence – concurrent.
Facts
Prisoner swang a bush knife aimed at the head of the victim who lifted up both hands to defend himself but was cut on both hands and the head. Left hand was completely cut off.
Prisoner with others broke into the canteen and the dwelling house of the victim and set it on fire destroying it as a result.

Held
Plea of guilty
Continued breaches of law
Strong punitive and deterrent sentence.
Cumulative and concurrent sentence

Cases: 
Public Prosecutor v Kerua [1985] PNGLR 85 
The State v Irowen [2002] PGNC 99; N2239 
The State v Kongian [2007] PGSC 45; SC928 
The State v Mase [1991] PNGLR 88 
The State v Philip Piapia [2017] N6763 
The State v Steven Tumu [2017] N6768 

Counsel:

L Jack, for the State	
D. Kari, for the Defendant
						SENTENCE
20th June, 2018 
1.	MIVIRI AJ: This is the sentence of a man who cut off the left hand of another because of a tribal conflict emanating from land dispute. Then went and broke into and entered and set alit the canteen and dwelling house of another destroying it.

Short facts

2.	The Prisoner came from the back of the victim Sylvester Kui Gala on the 7th December 2004 at Rovu, Talasea armed with a bush knife that he swung aiming at his head. Victim lifted both his hands to defend himself from the bush knife. But he was cut on both his hands and head. His left hand was cut off completely. He was taken to the hospital where he was treated. He is now without part of his left hand.

3.	The prisoner further accompanied others to the canteen and dwelling house of Richard Moni on the 8th December 2004. They broke into it and set it on fire. Then they went into the dwelling house and also set it on fire. Both were completely burnt down by the fire that they set.

Charge Grievous Bodily Harm
4.	The first charge was laid pursuant to section 315 of the Criminal Code that states:

 “A person who with intent-
(a)	…………………..
(b)	to do some grievous bodily harm to any person; or
(c)	to resist or prevent the lawful arrest or detention of any person
does any of the following is guilty of a crime-
(d) Unlawfully wounding or doing a grievous bodily harm to a person; or
(e)……………. (j)

Penalty: Subject to section 19, imprisonment for life

5.	The second was laid pursuant to s436 of Arson:
 “A person who wilfully and unlawfully set fire-(a) a structure whether complete or not; or
(b)	a vessel whether complete or not;
(c)	a stack of cultivated vegetable produce; or
(d)	a stack of mineral or vegetable fuel; or
(d)	a mine, or the workings, fittings or appliances of a mine; or
(e)	an aircraft or motor vehicle,
Is guilty of an offence.

Penalty: subject to section 19 imprisonment for life.”

6.	Both were distinct and separate criminal offences committed over time and date and in law draw sentences individually for their commission quite apart of each other. Effectively both were cumulative to each other Public Prosecutor v Kerua [1985] PNGLR 85 and Mase v The State [1991] PNGLR 88 where the Supreme Court made the following in deciding whether sentences should be cumulative or concurrent the court should be guided by the following principles;

(i)	Where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent;
(ii)	Where the offences are different in character, or in relation to different victims the sentences should normally be cumulative;
(iii)	When a court has arrived at an appropriate sentence and decided the total sentence to see if it is just and appropriate. If it is not it must vary one or more of the sentences to get a just total. 

7.	The grievous bodily harm is not a transaction together with the arson. The former offence was committed on the 7th December 2004 and the latter the next day 8th December 2004. Both are committed upon different victims at different time and date. By this application both would be cumulative not concurrent. But the arson would be concurrent to each other as they are part of the same transaction on the same day at the same place upon the same victim. So effectively sentence for arson of the canteen would be concurrent to that of the dwelling house. Victim states that K7000 worth of properties were destroyed as a result. This is not verified independently and so the benefit is accorded to the prisoner. In Kongian v The State [2007] PGSC 45; SC928 (3 September 2007) there were four convictions of arson each of which were held to be disproportionate by the Supreme Court and substituted for 5 years from the original 13 and 15 years. Yes they were cumulative but when considered in the light of totality, they were disproportionate to the gravity of the offence. The appeal was allowed in respect of the sentences.

8.	That is good law applied to the facts of the present case. It means that the sentence of the court in the light of the guilty plea is 5 years IHL for the first Count or arson and the second count of arson is 5 years IHL. But is made concurrent because they arise from the same set of facts or transaction. It means that the sentence for Arson is 5 years IHL. I am mindful of parity of sentences imposed on offenders of 7 years not verified by court record and judgement. I will therefore treat the prisoner on his own and given his facts and circumstances I determine that a fair proportionate and just sentence would be 5 years IHL for the first count of arson and the second count respectively. They are of the same transaction and would be concurrent and therefore an effective term of 5 years IHL will be imposed upon him for the arson.

9.	This was a very honest plea of guilty entered to by the Prisoner to grievous bodily harm and then the two counts of arson even though in the record of interview he did not make any admissions to the charges. All were very serious offences known to criminal law and he accepted liability in law without raising any defence either of provocation or self defence or otherwise. It was reflective on his part of acceptance of a wrong made and evidence to change for the better. Adherence and compliance with the law was better than defiance.

Antecedents

10.	He is 33 years old man from Dami, Talasea, West New Britain Province married with 3 children. And is educated to grade 3 at Namova Primary School. He was a villager with no previous record of conviction known and is well spoken off by his village court Magistrate Martin Bailey and Ward 10 member in the Talasea Local Level Government Ben Kuvie. He has taken the initiative confirmed by the probation report to make an initial payment of K500 to the victim Sylvester Kiu Gala. And would be in a position to make further payments deriving net of K800 from his coconut and cocoa and oil Palm. Which are one hectare oil Palm, two hectares coconut block and two hectares cocoa block and five hectare land listed.

Allocutus

11.	Here he confirmed that he was assaulted and sustained injuries as a result of the crime that he had committed. He showed scars on his back which were inflicted on him as pay back by the relatives of the victims. It was clear he suffered as a result depicted by the level of scaring on his back and body. They were serious and depicted that he also suffered and the medical report attached to the presentence report annexure “B” particulars set out below confirms this. In my view it would be imposing upon him where he has been made to suffer outside of the law. It would be injustice to him considering that he almost lost his own life evidenced by the medical report which I set out under. To give him what is due in law without regard to this fact would be disproportionate in my view to the sentence imposed. I take due consideration and determine it as a factor in the sentence to be imposed upon the prisoner. It would be in my view in his favour. That is not to say that taking the law into one’s own hand must be encouraged and will be discounted. Justice must be done in consideration of all facts before the court including sentence that is meted out at the end as here.

Aggravation 

12.	He acted unlawfully and could have easily murdered the victim had the bush knife got the head and brain of the victim. For it to cut off the left hand the right hand and the head the force was extensive. And aimed at the head and delivered in that manner was calculated to give serious injuries. And that was what happened here. The victim was an unarmed person. The extent of injuries is depicted by medical report dated the 21st December 2004 under hand of Doctor Lawrence Pulai as follows, “...he lost his left hand, sustained tendon injuries to the right hand and lost a significant amount of blood. He was admitted the same day to the hospital and repair/ suturing of the wounds/tendons was done. He also required two (2) bags of blood for transfusion. He was discharged on the 17/12/04.” It is clear that this was a result of a land dispute which has been set out by the Presentence report before me labelled as annexure “C” of proceedings of local land court. Land in dispute was awarded to the prisoner and his group prompting the dispute leading to this offence.

Issue

13.	What is the appropriate sentence for the prisoner here?
14.	Should the sentence be cumulative or concurrent?

Appropriate Sentence

15.	Section 315 grievous bodily harm with intent prescribes life years imprisonment as the maximum penalty. The offence is very prevalent. There appears to be no deterrence despite the stiff sentences that have been imposed. The offence constitutes the element of grievous bodily harm with intent usually associated with murder. That is life threatening injury or where permanent injury is left as a result of the offence. The present victim is without his left arm. He is a disabled person by the actions of the prisoner. He will serve his prison term and live on in life with his pair of hands complete but not the victim. Medical evidence by affidavit dated the 7th January 2005 under hand of Doctor Lawrence Pulai confirms this.  In State v Irowen [2002] PGNC 99; N2239 this court imposed the maximum penalty of 7 years cumulative under section 319 where both wives were cut with a bush knife almost killing them but they survived because they were taken quickly to the hospital but came out with serious residual injuries. It is the same here. Had the victim not lifted both his hands he would not have survived. But it is serious here in view of section 315 prescribing life years as maximum.

16.	Where there is demonstrated by clear evidence to mend family or relationship and there is means to ensure compliance of compensation orders this court has gone ahead to impose sentence giving effect: State v Philip Piapia [2017] N6763; see also State v Steven Tumu [2017] N6768. The sentence has been in the mid-range of 3 to 4 years part custodial and part suspension in each case. 

17.	In the present case there has been demonstrated by the presentence and means assessment reports and the facts and circumstances of the case which I set out above. And it would be disproportionate to consider otherwise then to follow suit because like cases should be treated alike. Due regard must also be paid to the fact that what is just and proportionate is depended on each case by its facts and circumstances and the sentence is swayed accordingly. Here I am assisted by the medical report submitted as part of the presentence report annexure “B” dated the 19th October 2017 under hand of Doctor J Nuli Surgeon headed Haemothorax From Gunshot wound showing and corroborating the prisoners assertion that he was shot with a gun by the relatives of the victim and he was admitted to the hospital for it. This report confirms his admission into the surgical team on the 10th June 2005 and discharge on the 18th June 2005. He was presented with a gunshot wound to his chest. Chest X-ray showed massive right haemothorax. His chest was subject to drain of fluid within and he recovered and was discharged 8 days later. In itself it was an attempted murder or grievous bodily harm with intent and therefore must be seriously considered alongside the sentence of the prisoner here.

18.	Here I determine that the just and proportionate sentence given all set out above is 3 years IHL and I so impose that upon the prisoner for the crime of grievous bodily harm committed upon Sylvester Kiu Gala.

19.	That sentence is cumulative to the sentence of 5 years imposed for arson which is gives a total head sentence of 8 years IHL upon the prisoner for both offences. 

20.	Further in the exercise of my discretion pursuant to section 19 of the Code in consideration of all facts set out above, I order that 4 years of the 8 years will be served in custody. Time in custody will be deducted forthwith.

21.	Further in the exercise of my discretion under section 19 of the Code in the light of all the facts set out above I order that the remaining 4 years of that sentence to be wholly suspended on a Probation order for the same period on conditions as follows:
(i)	You shall enter into a probation order for 4 years on conditions;
(ii)	You shall within 48 hours report to the Probation Officer;
(iii)	You shall be resident at Dami village Ward 10 Talasia Local Level Government at all times in the course of your probation period.

(iv)	You shall not leave this place of resident or Kimbe without leave of this court during the course of your probation period;
(v)	You shall perform 600 hours of community work at a worksite to be approved by the by the Probation Office;
(vi)	You shall keep the peace and be of good behaviour at all times;
(vii)	You shall not take liquor or any form of intoxicating substance or drugs during the period of your probation;
(viii)	You shall attend your local Catholic Church every Sunday for Mass and worship whilst on probation; 
(ix)	You shall undergo counselling from your local Parish Priest for number of times as may be determined by the counsellor;

(x)	You shall within 5 months as of the date of release from Jail make restitution to Sylvestor Kui Gala in the sum of K 2000.cash and 100 param Rea shell money and a live pig valued at K600.

(xi)	The restitution shall be witnessed by your probation officer, the police informant, Parish Priest and Ben Kuvie Ward 10 Member and Martin Bailey Village Magistrate.

(xii)	The Probation Officer shall file a report on the responses and progress of the probationer every six months and at any other time or interval as the National Court may order upon application;

(xiii)	In a breach of any of these Probation Orders your Probation shall lapse and you shall be arrested to serve the whole term of your sentence.
Sentenced Accordingly
__________________________________________________________________Public Prosecutor:  Lawyer for the State	
Public Solicitor   : Lawyer for the Defendant