N9790

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1233 OF 2021

THE STATE

V

VICTOR SIWI

Madang: Miviri J
2022: 18th & 19th July

CRIMINAL LAW – PRACTICE AND PROCEDURE – GBH S315 CCA – Plea – Victim in Aid of Daughter Assaulted by Prisoner – Hit With Iron Rod On Head & Facial Area – Permanent Injury – Intent to Cause GBH – Violence Over & above Necessary – Cumulative or Concurrent Sentence – Earlier Sentence for Murder of Wife Assaulted after this Victim Husband – Totality – Law Into Own Hands – Prevalent Offence – Plea – First Offender – Expression of Remorse – Deterrent Sentence.
Facts
Accused armed with a 1-meter iron rod hit the victim on the head and facial area. He was admitted to the hospital. 

Held
Plea of guilty
First offender
Law into own hands
residual injuries
8 years IHL.

Cases Cited: 
Acting Public Prosecutor v Haha [1981] PNGLR 205 
Kerua and Kerua, Public Prosecutor v [1985] PNGLR 85
Kalabus v The State [1988-89] PNGLR 193 
Aubuku v The State [1987] PNGLR 267
Setep v The State [2001] PGSC 14; SC666
Maima v State [2016] PGSC 19; SC1504 
Public Prosecutor v Hale [1998] PGSC 26; SC564 
Bomal v Independent State of Papua New Guinea [2020] PGSC 115; SC2025 
State v Tasion [2013] PGNC 176; N5393
State v Pendin [2012] PGNC 292; N4541
State v Makapu [2017] PGNC 118; N6761
State v Arua Maraga Hariki [2003] PGNC 140; N2332 
State v Ben Simakot Simbu (No.2) [2004] N2548.
 State v Gregory Kiapkot, Martin Bigit, Tobung Paraide, Peter Taul, Bothia Agena [2011] PGNC 314; N4241 
State v Lombei [2017] PGNC 280.

Counsel:

D. Ambuk, for the State	
N. Katosingkalara, for the Defendant

SENTENCE

19th July, 2022

1.	MIVIRI J: This is the sentence of Victor Siwi of Maringe, Wosera Gawi, East Sepik Province who was charged with intent to cause grievous bodily harm and did cause grievous bodily harm upon victim his father-in-law pursuant to section 315 of the Code.

2.	The allegation on arraignment were that on the 08th day of November 2020, sometimes between 12.00noon and 2.00pm, the Accused and his wife Esilta Winjat had an argument during which Victor Siwi assaulted his wife. She sought refuge in the parent’s house just a few meters away. However, Accused pursued her armed with a piece of iron rod about a meter long. As She approached Esilta Winjat called out to her father the victim to assist stop the Accused from beating her any further. The father Joel Winjat rushed to her aid when Victor the Accused swung the iron rod right on his face followed by a punch to the face thus causing him to fall unconscious. He was assisted to Modilon General Hospital where he was admitted and kept under observation for two days after having suffered scalp wounds. Accused intended to cause grievous bodily harm to Joel Winjat when he swung the iron rod at his face causing grievous bodily harm contravening section 315 of the Criminal Code Act.

3.	That section is in the following terms:

“Acts Intended to Cause Grievous Bodily Harm or Prevent Apprehension. A person who, with intent–
(a) to maim, disfigure, or disable any person; or
(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 things is guilty of a crime:–
(d) unlawfully wounding or doing a grievous bodily harm to a person;
(e) unlawfully attempting to strike a person with a projectile;
(f) unlawfully causing an explosive substance to explode;
(g) sending or delivering an explosive substance or other dangerous or noxious thing to a person;
(h) causing any substance or thing referred to in Paragraph (g) to be taken or received by a person;
(i) puts a corrosive fluid or destructive or explosive substance in any place;
(j) unlawfully casts or throws a fluid or substance referred to in Paragraph (i) at or on a person, or otherwise applies any such fluid or substance to the person of a person.
Penalty: Subject to Section 19, imprisonment for life.

4.	Prisoner pleaded guilty confirming his admissions to police. Which was confirmed when the file was tendered. He appreciated the gravity of his actions and that he had carried on the assault of his wife into her parents, his in-laws. He had the following to say on Allocutus:

“I say sorry to what I did to my father-in-law. My family has also been affected and have not slept well. I say sorry for taking up the court’s time. I say sorry to God for what I did. I ask the mercy of the Court give me time enough to serve so that I can serve and come out. I say sorry to the Court.”

 The words of the section clearly depict that it is one of the most serious offences after attempted murder. Because like that offence, manslaughter, murder and wilful murder, it also entails life imprisonment as its maximum sentence. And what is described within clearly unfolds seriousness so the facts must depict for the charge to fall under it as is the case here. To plead guilty as the prisoner has done here is indeed acceptance of that fact by him. Therefore, in my view it is not a light matter of unlawful wounding under section 322 to come out with the maximum of three years imprisonment. Or let alone section 319 maximum of seven years imprisonment. Hence submission by counsel that it is three (3) years misses the point of the demarcation of these various offences. It cannot be three years just off the cuff like that. Here is victim who has spent two days under observation because of a grievous intent put into action by the prisoner with an iron rod to a venerable part of the body the head. It is therefore a serious offence before attempted murder. And it will draw its own sentence.

5.	It was in his favour that he had pleaded guilty to the offence. It showed that he had taken responsibility for his actions. And in so doing he had saved the court time to hear a trial and for the State to have to call witnesses to make its case out against him. He was commended and it would be reflected in the time that was given in his sentence. 

6.	But it was a determined persisted attack not rounded off barricaded by the walls of where he lived with his wife but extended out to his father-in-law in the latter’s dwelling without restraint. It was a serious assault as he had used an iron about a meter long that he had used to assault the victim on his face and head. The hit caused him to be unconscious and he was taken to the hospital with scalp wounds and was kept in observation for two days. Because the medical report dated the 03rd December 2020 under hand of Senior Health Extension Officer Accident and Emergency Israel Lebani of the Madang Provincial Health Authority showed that Joel Winjat was rushed to the hospital with nausea and vomiting. And he was unconscious for some minutes. And was bleeding from a scalp wound. He appeared distressed and drown. He was monitored for two days before being discharged. The conclusion was that he had a head injury and physical bodily harm plus brutality as a result of physical attack. And that he may need further medical reviews in future to access his neurological status and his health well-being. 

7.	It was an assault to the head and may have easily led to his death at the hands of the Prisoner. That is why the initial committal was for attempted murder, there was intent to kill, but downgraded on a plea bargaining. Especially when the weapon used was an iron rod. It was by grace that he survived despite that fact. But the assault was aggravated in that the victim had sustained the injury to save his daughter, wife of the prisoner. She was being assaulted by the prisoner and sought refuge in the house of her parents about 15 meters from her house with husband the prisoner. Thinking that because she was now in the house of her parents Prisoner would subside. He did not he came armed with the meter long iron rod that he used to assault her with. The victim father of wife of prisoner went in to stop him but was hit on the head twice with it. He became unconscious as a result. This drew the mother who was also hit on the head with that iron rod and died as a result. It is in this respect very serious because prisoner does not respect that he is in the house of his in-laws. He does not respect that they are the parents of his wife. He has brutally assaulted the father leaving him unconscious. Just because he has come to stop him from continuing to assault his daughter.

8.	There was no respect that these persons were responsible for the upbringing of the person who became his wife. Who was responsible for bringing into the world his child now left because he was incarcerated. There was no heed to Papua New Guinea custom, that in-laws whether father, mother, brother, or sister must be respected. He paid no heed motivating at speed to the commission of the offence. There is no justification for the assault and the intent to cause grievous bodily harm, and resultant grievous bodily harm. He was intent to stop him from further assaulting his daughter, prisoners wife. It really did not need to go the length it went. Its prevalence and the ease with which it is committed in the homes and everywhere must be stopped. And the court has a duty to lay down in bold this fact in the sentences it passes upon the prisoner. He must be educated that violence has no place in family life, especially in a marriage.

9.	What started as a dispute argument and a fight within a husband and wife has escalated to envelope the parents who live next door. The father victim who has shown natural human reactions to save his child has paved way for a very serious and life-threatening assault. His injury will be sentenced quite a part and separate because he is a separate victim. His life must be protected. In law he has rights and obligations not secondary to another. What is due his wife is due her and not depended that just dues have been served her. Therefore, he must get a discount given that fact. The Constitution gives rights to every men, women and child without distinction. Hence in my view it is likened in protection of the law. It in my view comes down because a family member has been served what is due in law. Yes, it is in the course of the same actions. On the same day, at the same time, but the persons are both different within law in particular the Constitution. Each is a human being under the Constitution who has a right to life seen by section 35 of the Constitution. Ones rights to life is not subservient, or inferior to the other. And therefore, the sentence here will reflect that fact due to the victim, not discounted by his wife’s death. Persons who take it upon themselves without fear of the law to go on a rampage and commit a serious of offences without heed and respect for the rule of law, lives of fellow human beings do not deserve leniency. Life is lived only once and all human beings by the adoption of the Constitution of Christianity as our religion creating all in the image of God. Hence the will of the offender is not supreme to all others. He must be accorded his proper lawful place in society. He is equal with all and will not be an anarchy or a wolf among sheep.

10.	Here therefore I do not buy into whether the offence draws concurrent sentence given. In this regard I take due account of the case of Acting Public Prosecutor v Haha [1981] PNGLR 205 in particular the principles of cumulative and concurrent sentences. Which is illuminated in this way, “Where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent. Where the offences are different in character, or in relation to different victims, the sentences should normally be cumulative. When a court has arrived at appropriate sentences and decided whether they should be concurrent or cumulative, it must then look at the total sentence to see if it is just and appropriate. If it is not, it must vary one or more sentences to get a just total,” Kerua and Kerua, Public Prosecutor v [1985] PGSC 8; [1985] PNGLR 85 (1 April 1985). This is not a transaction in accounts or book keeping, or a theory at school, or a textbook written rhetoric, but the life of a human being who has become less by the actions of the prisoner. The latter has taken personal ownership of what he has set out to do upon the victim. And has not stopped, so should he be treated like a human and the victim differently? That in my view is a wrong application of law with respect. Particularly in the light of the serious and prevailing facts here. 

11.	Repeat offenders do not draw mercy Kalabus v The State [1988-89] PNGLR 193 and where the offence is compounded by serious aggravating features as is the case here the sentence will reflect that fact upon the offender, Aubuku v The State [1987] PNGLR 267. Each is a different offence committed upon a different victim and therefore the sentence will be accorded in that order. One is not depended on the other for its survival and operation. He will be accorded what section 315 calls upon his actions no more no less by the facts set out here. It is a conviction that has been recorded later in time and therefore will be accorded as it is by that fact. Even totality must not be abused to deny protection due all by the Constitution Setep v The State [2001] PGSC 14; SC666 (18 May 2001). It must be just and proportionate to the circumstances and facts called by the offence Maima v State [2016] PGSC 19; SC1504 (27 April 2016). The sentence imposed must stop violence within the family as is the case here. It must protect those who are within the dwelling house as in the case of an armed robbery on a dwelling house with strong deterrent and punitive sentences to reflect the sanctity of the dwelling house. In this respect it is my view that the views of the Supreme Court in ensuing protection of the dwelling house from violence must be emphasised, “We first of all find that the trial judge erred in considering the appropriate tariff to start with in considering the appropriate sentence.  Gimble’s case suggests starting with 7 years but the trial judge started even lower than that.  We find that with the prevalence of violent crime involving the use of guns  the ranges of sentences recommended in Gimble’ case are having no effect and are no longer relevant.  Gimble’s case was decided in 1989 and crimes of violence have definitely increased with the use of guns being more prevalent and the community is calling for heavier punishments as a deterrence.  We feel that the starting point to an appropriate sentence involving the robbery of homeowners at night with the use of firearms to threaten victims should be 10 years, ”Public Prosecutor v Hale [1998] PGSC 26; SC564 (27 August 1998). 

12.	Here relevantly because the prisoner has taken the violence in his house into the house of the victim injuring him grievously with that intent, the views of the Supreme Court is relevant and applicable here. That view was expressed in August 1998 crimes of violence have not desisted nor have they subsided despite. This is an offence committed 08th November 2020 depicting that crimes of violence are committed with determination and persistence. The rule of law must be strengthened with stiff strong and punitive sentences to reflect that violent crimes have no place in society.

13.	In Bomal v Independent State of Papua New Guinea [2020] PGSC 115; SC2025 (2 November 2020) the Supreme Court confirmed 7 years imprisonment upon a policeman who had hit the victim with his gun butt on his head. He was charged and convicted of the same offence as the present case, with intent to caused grievous bodily harm upon the civilian. The Supreme Court remarked that the offence could have drawn 10 years imprisonment as it was a policeman who had abused his authority in assaulting the victim. But it would not disturb the sentence imposed as first instance because it was not excessive given. It confirmed that sentence. And in yet another case involving a policeman who had aimed and shot the victim in the head with the police issued weapon the court sentenced him to 14 years imprisonment on a guilty plea to with intent to cause grievous bodily harm did cause grievous bodily harm. As a result of the injury inflicted the victim became wheelchair bound. He became a disabled person forfeiting his education he could not complete his education. The facts that gave rise were that he was drinking what appeared to be alcohol mixed with coke in a can. The prisoner got it and emptied the contents onto the head of the victim. And then attempted to take him into custody in the police vehicle marked out. But the victim pushed him away. The prisoner fired the rifle he had into the air. The victim than ran prompting the prisoner to aim at his head and to shoot him in the head injuring him grievously: State v Tasion [2013] PGNC 176; N5393 (23 August 2013) 12 years imprisonment in hard labour was imposed by this court upon the prisoner there.

14.	This is no use of a rifle but an iron rod that has been used in similar also on the head of the victim who has regained not like the victim of the gun who is now a disabled confined to wheelchair. In State v Pendin [2012] PGNC 292; N4541 (26 March 2012) prisoner amputated the forearm of the victim from her hand. He persisted chasing her until he amputated her hand off. The Court observed that the knife was swung with such savagery and ferocity that it cut the victim just below her right forearm elbow joint. This savage and ferocious blow cut off her arm severing the hand from the limb completely. The severed hand and the plastic which she was carrying containing her family shopping fell onto the ground. The Court imposed 16 years imprisonment with hard labour there for the offence of with intent to cause grievous bodily harm caused grievous bodily harm contrary to section 315 (b) (d) as here.

15.	Given all what is the appropriate sentence for the prisoner here?

16.	The maximum penalty for the offence is subject to section 19 imprisonment for life. That would be in the extreme set of facts and circumstances. It is clear this is not the extreme case but it is a very serious offence because its facts set out above show persistence determination serious breach of the rule of law. He paid no heed that the family is the basic unit of society that must be protected. Before the community, street, or province and country will be in order.

17.	It is in my view a much more serious case than the case presented in Kimbe of State v Makapu [2017] PGNC 118; N6761 (19 May 2017), that was a single victim. He chose the destiny that has now landed him here. He is no uneducated person. He has secondary school education from Tusbab Secondary School. That is reflective of his intellectual capabilities and which if he had resorted to, he would not be standing today to receive sentence.

18.	Multiple victims have seen very serious sentences-imposed State v Arua Maraga Hariki [2003] PGNC 140; N2332 (3 February 2003) which is a case of wilful murder. But it stresses the point of multiple victims where the court has sentenced to reflect the gravity. Here the offence of murder has been accounted for with its sentence dished the prisoner. He is coming to be sentenced for the offence of intent to cause grievous bodily harm and of causing grievous bodily harm pursuant to section 315 (b) (d) of the Act. But the totality of his sentence will be relevant as this offence also arose there. I will not make the sentence concurrent for the reasons I set out above. But I will consider totality as applicable for the reasons I set out above. Because the common trend that this court has seen out where the offence is grave State v Ben Simakot Simbu (No.2) [2004] N2548, and also State v Gregory Kiapkot, Martin Bigit, Tobung Paraide, Peter Taul, Bothia Agena [2011] PGNC 314; N4241 (4 April 2011) is reflected out in the sentences meted out. These are cases of wilful murder but this is a case of Grievous bodily harm with intent to cause grievous body harm and sustaining. The maximum penalty now amended of is equivalent to wilful murder, life imprisonment. It is therefore relevant to consider these cases as applicable here. Even though the victims survived now and are not dead. Here there is very strong will to give that injury not confined within their marital home but extended out into the home of the parents.

19.	Sentences that accord must accommodate that the rule of law is supreme, no men is above the law. And that will be the reflected in the sentence that is meted out to the prisoner now. The facts of the present case are not the same as in State v Lombei [2017] PGNC 280; N6995 (10 October 2017) that was argument over betel nut and sago that culminated into violence where the prisoner cut off the hand of the victim including other parts of the body. They were relatives and there was payment of compensation so that part of the sentences were suspended and the principle was accorded 8 years imprisonment with part suspended. His co prisoners were sentenced to 12 months suspended on condition for payment of compensation.

20.	Weighing both sides of the equilibrium the balance is in favour of an aggregate term of 14 years imprisonment for intent to cause grievous bodily harm and grievous bodily harm caused is appropriate as it is a crime of violence, and as voiced in Aubuku (supra) where there are aggravation that increases the sentence. Therefore, it would be not erroneous to take account of serious aggravation that would increase the sentence due an offender. Some of which are highlighted here which need not be repeated.

21.	Further I take due account of the case of Acting Public Prosecutor v Haha supra and Kerua and Kerua, Public Prosecutor (supra) emphasis on Totality in the sentence due the prisoner. And in the discretion here relating that will be accorded a reduction of 6 years imprisonment from the head sentence of 14 years leaving 8 years imprisonment IHL for the crime of with intent to cause grievous bodily harm and did cause grievous bodily harm upon Joel Winlat. Because he is serving 16 years for murder that arose with this crime now sentenced. Hence the exercise of the principles of totality to reduce 6 years and the balance to be served cumulative with the sentence of murder now serving.

22.	The sentence of the court for the conviction pursuant to section 315 (b) (d) of the Code is 8 years IHL cumulative to the sentence for murder already serving. 

Ordered Accordingly.
_________________________________________________________________
Public Prosecutor:  Lawyer for the State	
Public Solicitor   : Lawyer for the Defendant