N10794
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 451 OF 2024

THE STATE

V

CHARLES DANIEL

Kokopo: Miviri J
2024: 06th & 07th May

CRIMINAL LAW – PRACTICE AND PROCEDURE – Unlawful Wounding Section 322 (1)(a) CCA – Plea – Victim Attempted to Shoot His Sister with Catapult Twice – First Missed Second Attempt prompting Prisoners Reaction – Cut on Right Lower Hip with Bush knife – No PSR MAR – Prevalent Offence – no residual injuries – suspended sentence with conditions.

Facts

The prisoner cut victim on right lower hip to stop him shooting his sister with a catapult. 

Held

Plea of guilty
First offender
No residual injuries
Suspended sentence conditions for compensation.

Cases Cited: 
Aihi v The State (No 3) [1982] PNGLR 92 
Kwapena v The State [1978] PNGLR 316
Angitai v The State [1983] PNGLR 185
State v Pingjong [2023] PGNC 436; N10580 
Lawrence Simbe vs. The State [1994] PNGLR 38
Kumbamong v State [2008] PGSC 51; SC1017 
Simon Kama v The State (2004) SC740
State v Hagei [2005] PGNC 60; N2913 
State v Esther Maramundi [2021] N9307
State v Sekin [2006] PGNC 74; N4479 
State v Tupi [2012] PGNC 338; N5192 
Public Prosecutor v Hale [1998] PGSC 26; SC564
Tardrew, Public Prosecutor [1986] PNGLR 91 
Yalibakut v State [2006] PGSC 27; SC890 
State v Kara [2012] PGNC 19; N4663

Counsel:
J. Sausoruo & L Rangan, for the State
J. Huekwahin, for the Defendant

SENTENCE

07th May 2024

1.	MIVIRI J: This is the sentence after a guilty plea by a next-door neighbour who tried to stop the victim from continuing to assault his sister with a catapult. He cut him with a bush knife sustaining injury to the lower hip.

2.	He was arraigned that he on the 07th of July 2023 between 7.00pm and 8.00pm the accused with his wife and his brothers, namely Joe and Ezekiel Daniel were at Nenmutka block, Pomio at their house when drawn out from there by loud noises of cooking utensils and other items that were broken/damaged at the house of Joesphine a next-door neighbour. Together they went to inspect and upon arrival saw the victim one, Noel Baldaza brother of Joesphine in possession of a bush knife.  This is a peculiar case because the defendant had gone drawn to the house of the victim and sister one Joesphine by loud noises of utensils and personal properties and items within destroyed by the victim. He stops the victim from shooting his sister with a catapult by cutting him in the hip with a bush knife. He is charged with unlawfully wounding the victim pursuant to section 322 (1) (a) of the Code.

3.	Which section is in the following terms: - WOUNDING AND SIMILAR ACTS. 
(1) A person who–
(a) unlawfully wounds another person; or
(b) unlawfully, and with intent to injure or annoy any person, causes any poison or other noxious thing to be administered to, or to be taken by, any person,
is guilty of a misdemeanour.
Penalty: Imprisonment for a term not exceeding three years.”

4.	He is liable to be imprisoned for a term not exceeding three years imprisonment. Which is the maximum sentence for that offence. It will not be automatic that he will be sentenced to three years imprisonment. Because it is judicial discretion that is exercised in accordance and is a balancing act between the aggravating mitigating and any extenuating circumstance to arrive at a just and proportionate penalty against the prisoner in each case: Aihi v The State (No 3) [1982] PNGLR 92. His own facts and circumstances will draw out his sentence. 

5.	Firstly, in his favour is the fact that he has pleaded guilty confirming the admissions in the record of interview conducted with police on the 26th July 2023. He accepts responsibility for his actions corroborated by the medical report issued of the 07th July 2023 by the Warangoi Rural Hospital. It depicts a diagnosis of bush knife wound to physical Assault. It is sutured under local anaesthesia with antibiotics and pain killer administered leaving no permanent injuries to the right-side hips which is lacerated 6 cm in length 5 cm deep bleeding with no bones injured. That is in his favour because permanent injuries will draw a heavier sentence.

6.	He is a first offender aged 20 years old originally from Viviran village, Gazelle District East New Britain Province. He is married to Rose Vincent with no children from that union. Both live at Nenmutka block, Pomio, East New Britain. His guilty plea is genuine expressing remorse for his actions against the victim. But he did not behave as he did for immediate criminal cause. He was concerned about the safety of the intended victim of his victim. In a way he is similar to Kwapena v The State [1978] PNGLR 316. He acted to save the life of another. There was lawful justification for the way that he acted. He should not be penalized further for that action that he took. It may have ended in injuries to the assailant. But it was all worth it given what the victim was doing to the victim Joesphine, prior to his intervention. Analogous is Angitai v The State [1983] PNGLR 185. His actions were provoked by the injuries that were suffered and culminating into further injuries stopped by his actions.

7.	There are no serious and lingering medical complications because of the use of that bush knife on the victim. Here there is justification because his intent was to stop the victim from inflicting further harm upon Josephine. It is not the same situation as in State v Pingjong [2023] PGNC 436; N10580 (23 November 2023) where 1-year IHL was imposed but suspended on a probation order for the same period with conditions for payment of compensation. That was drunken situation and victim and assailant at logger heads over a conversation that had turned violent as a result. It was a guilty plea as is the case here. The proximity of the relationships must be allowed to come back on normalcy adherence to the rule of law. In this regard I hold that the maximum sentence is reserved for the worst case of unlawful wounding Avia Aihi (supra). And the sentence must be proportionate to the facts and circumstances of the case: Lawrence Simbe vs. The State [1994] PNGLR 38; Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008); Simon Kama v The State (2004) SC740. These are homicide cases, but the principles set out there are applicable here comparably, because this is unlawful wounding a component of those offences.

8.	I do not have a presentence report before me. But I consider that his facts warrant that sentence is at the lower end of the scale given he was prompted to act as he did given the facts that I have set out above, including the law relevant. He has extenuating circumstances in my view that warrant sentence at the lower end: State v Hagei [2005] PGNC 60; N2913 (21 September 2005). In State v Esther Maramundi [2021] N9307(24 November 2021) 2 years imprisonment was imposed upon the prisoner who had pleaded guilty to stabbing her co wife with a knife. She was ordered to pay compensation as a condition of that suspension. Similarly in State v Sekin [2006] PGNC 74; N4479 (25 August 2006), the prisoner after arguing with his sister burn her house down and then stabbed her in the arm, the court suspended the remaining period of the 2 years suspended after his service in jail. That was more serious because of the related offence of arson which drew 4 years IHL there. It is not the same here comparably. In State v Tupi [2012] PGNC 338; N5192 (12 December 2012) the court wholly suspended the 12 months on probation where the prisoner had stabbed the victim with a knife in the temporal region. He was also charged with the same offence as here.

9.	He must account for his wrong sanction prescribed by the legislature, the will of the People, here three (3) years imprisonment. My prerogative is not to rewrite the sentence, but to apply it as it is prescribed and sanctioned. I have no material nor evidence warranting suspension of the sentence: Public Prosecutor v Hale [1998] PGSC 26; SC564 (27 August 1998). But suspension of sentence occurs because the facts circumstances warrant that the offender will make amends and fit back into society. Because "suspension of sentence pursuant to section 19 (6) of the criminal code is, or maybe appropriate in three broad categories. The categories are not exhaustive (1) where suspension will promote the personal deterrence, reformation, or rehabilitation of the offender; (2) Where suspension will promote the repayment or restitution of the Stolen money or goods; (3) Where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of his bad physical or health,” Public Prosecutor v Bruce Tardrew [1986] PGSC 10 [1986] PNGLR 91 (2 April 1986). 

10.	There is no presentence report as basis, but this is an offence between neighbour’s who are close depicted by the actions of the offender viewing the victim’s sister Joesphine for whom he acted. He must be given his benefit of the guilty plea he has entered Yalibakut v State [2006] PGSC 27; SC890 (27 April 2006). And comparably even in more serious offences up from the present of grievous bodily harm alternatives to imprisonment has been considered where the facts depict. In State v Kara [2012] PGNC 19; N4663 (10 May 2012) 4 years was imposed for grievous bodily harm to the eye. It was superficial and not permanent injury to the eye and compensation was paid even before matter came to court. The court suspended wholly the four years IHL and on condition for the payment of compensation. Here is unlawfully wounding by a neighbour to save another. He is educated to primary School level has no account of further education and employment posed. The aggregate is that penalty must fit the crime taking reformation and restoring lives between the parties for and against given all.

11.	I determine that the just and proportionate sentence given all set out above is 12 months IHL and I so impose that upon the prisoner Charles Daniel for the crime of unlawful wounding committed upon Noel Baldaza contrary to section 322 (1) of the Criminal Code on the 07th July 2023 at Nengmutka Block Sinivit LLG. His information laid in Court on the matter initially is dated 10th August 2023. He was granted bail on the 06th September 2023 evidenced by order to release a detainee of that date on file. That is almost a month in custody. Then, a Bench Warrant is issued dated 06th November 2023. Which is executed on the 29th March 2024 evidenced by the Committal worksheet of that date. I order that time spent on remand will be two months one week in view of the time of arrest on the bench warrant added with previous remand before bail will be deducted forthwith. He will serve the balance of nine (9) months three (3) weeks on suspension on entering into a good behaviour bond for 12 months.

12.	Further in the exercise of my discretion under section 19 (6) of the Criminal Code, in the light of all set out above, I order that sentence to be wholly suspended on a 12-month good behaviour bone on conditions as follows:

(i)	You shall enter into good behaviour bond for 12 months on conditions;

(ii)	You shall all not take liquor or any form of intoxicating substance or drugs during the period of the good behaviour bond;

(iii)	You shall within 3 months as of the date of this order make restitution to Noel Baldaza in the sum of K 400.00. cash and a live pig valued at K300.00 with garden food valued at K 100. 00.

(iv)	The restitution shall be witnessed by the police informant, and a Community leader from that area and immediate family of both prisoner and victim. 

(v)	The Police Informant shall file a report on the discharge of the Condition of good behaviour bond by 07th August 2024. 

(vi)	In a breach of any of conditions of the good behaviour bond your good behaviour bond shall lapse and you shall be arrested to serve the nine (9) months three (3) weeks IHL now suspended.
Ordered Accordingly.
__________________________________________________________________
Public Prosecutor:  Lawyer for the State	
Public Solicitor   : Lawyer for the Defendant