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State v Denbong [2024] PGNC 296; N10966 (15 August 2024)

N10966

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 108 OF 2024

THE STATE

V

LAZARUS DENBONG

Waigani: Miviri J
2024 : 06^th & 15^th August

CRIMINAL LAW – PRACTICE AND PROCEDURE – Unlawful Wounding Section 322 (1)(a) CCA – Plea – Prisoner Cut First Victim with Bush Knife When She Tried to Stop Him – Cut Second Male Victim Brushing Aside Security Guards – Over Victims Engaging in Adultery – No Lawful Justification for Attack – No Residual Injuries – Offensive Use of Weapon – 2 years concurrent.

Facts
Accused cut the female victim with a bush knife when she tried to stop him from cutting the male victim with that bush knife. Slipped out of the defence of a security guard and cut the male victim, over allegation of adultery

Held
Plea of guilty
First offender
Two offences
No Residual injuries
2 years IHL on first count
2 years IHL on second count
To be served concurrently
2 years IHL
6 months suspended on 12 months GBB
18 months IHL in jail
Time on remand deducted forthwith
Balance to be served in jail.

Cases Cited:
Yalibakut v The State [2006] PGSC 27; SC890
Tardrew, Public Prosecutor [1986] PNGLR 91
State v Esther Maramundi [2021] N9307
State v Sekin [2006] PGNC 74; N4479
State v Tupi [2012] PGNC 338; N5192
State v Kara [2012] PGNC 19; N4663
State v Gendi [2015] PGNC 258; N6149
State v Ben [2022] PGNC 180; N9623
Marangi v The State [2002] PGSC 15; SC702
State v Er [1998] PGNC 78; N1749
Simbe v The State [1994] PNGLR 38
Kerua and Kerua, Public Prosecutor v [1985] PNGLR 85

Counsel:
S. Patatie & C. Langtry, for the State
K. Watakapura, for the Defendant

SENTENCE

15^th August 2024

1. MIVIRI J: Lazarus Denbong of Kambot village, Angoram District, East Sepik Province pleaded guilty to unlawfully cutting Greg Michael Konjib and Damaris Ainga with bush knife.
   
2. On the 04^th July 2023 around 5.30pm to 6.00pm after dinner at Wok Restaurant Gordons, Damaris Ainga and Greg Michael Konjib walked towards the carpark. Greg Michael Konjib walked ahead followed by Damaris Ainga. Accused Lazarus Denbong was waiting for them at the carpark armed with a bush knife. Before opening the car door Greg heard someone approaching him, when he turned, he saw the Accused charging towards him with a tramontina bush knife. Damaris tried to stop the accused, but he pushed her aside, swung the bush knife at her cutting her on her left hand on the wrist. He then advanced towards Greg with the bush knife, a security guard Rex Sonowai grabbed the accused, but he managed to swing the bush knife at Greg cutting him on his left shoulder blade. Rex and the other security guards managed to stop the accused and escorted him to the police Station. But he escaped running towards the Unagi Oval. The Complainants went to the Port Moresby International Hospital for treatment. Matter was reported to the Police and the accused was arrested and charged with the offence.
   
3. Accused did not have any lawful justification for causing the wound to the Complainants. His actions contravened Section 322 (1) (a) of the Criminal Code.
   
4. 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.”

5. Accused admitted the offence to police when questioned in a record of interview and maintained in the committal court confirming all upon presentation of the Indictment. He is liable to imprisonment for the conviction under the section set out above to 3 years imprisonment. That would draw if this were the worst offence of unlawful wounding. Given its facts and circumstances, it is not the worst case of unlawful wounding. But it is very serious attack with a bush knife upon two unsuspecting victims who are seriously injured, but not grievously. It would draw a determinate term of years not the maximum of three years.
   
6. Because he details in the record of interview accepted by the complainants his reason for the attack. He deliberately waited for the complainants because the female victim was his wife for three years. Both were not married in law but lived together. Which fact is affirmed by Damaris Ainga and Greg Michael Konjib that prisoner was an ex-boyfriend of Damaris Ainga. That he used to fight with the male victim Greg Michael Konjib because he used to have affair with his wife, the female victim Damaris Ainga. He specifically sets out very clear in there that he was armed with the bush knife because he wanted to slash him with it. As warnings issued Greg Michael Konjib did not pay off in him not seeing his wife. Hence the attack. That is human reaction and explains the way that he set out to attack the victims.
   
7. Bearing in mind that he is grade 12 graduate having graduated from Brandi high School and at the time of the offence was doing Business and Public Policy at University of Papua New Guinea. A first-time offender, what he did was a crime of passion because of that emotional tied with Damaris Ainga. He would not have acted as he did without that fact. And his repeated cuts inflicted firstly upon Damaris Ainga and then upon Greg Michael Konjib is serious. Because it is repeated attacks upon two different persons at that time. Both of whom must be protected by the law in an appropriate sentence proportionate to the gravity of the offence. Each is therefore an offence of its own drawing an appropriate sentence due. But the totality must not be such that injustice is apparent given. Particularly mindful that the maximum sentence under that provision is 3 years imprisonment. And any sentence in my view cumulative must not exceed that maximum. Here I consider that the prisoner must be entitled to some leniency in that he has maintained all alone that he was wrong to do what he did. I particularly consider this aspect in the light of Yalibakut v The State [2006] PGSC 27; SC890 (27 April 2006). He will be accorded that benefit in the sentence due. But I am sentencing on the basis of two convictions of section 322 (1) of the Code.
   
8. I consider it serious and aggravating to attack with a dangerous weapon, a bush knife in a public frequented area. No doubt he is incensed by the fact that she was with him previous in a relationship of close emotional stance. That drove him to see upon seeing her with Greg Michael Konjib bringing out what he did to both of them. In his favour is the fact that medical report dated the 04^th July 2023 from Pacific International Hospital by Doctor Shyam Mohan Subbiah does not show permanent injury remaining because of the attack. There is no medical report relating to the victim Greg Michael Konjib to confirm the extent of injuries. The sentence will reflect this fact.
   
9. But it is seriously against him that he resorted to taking the law into his own hands and attacked two victims. He is an educated person reacted as he did because he asserts that Greg Michael Konjib did not heed his warnings for the way he enticed and behaved intimately with Damaris Ainga. This is not a situation where she is tied to him in Matrimony in law. That would be a different setting with the sentence following. He has pleaded guilty to a very serious offence. He does not appear to be a bad person evident by his reasons for the way he behaved. To plead guilty as here is to take responsibility for the wrongs he committed. And to take amend to remedy and to change for the better. He is entitled to leniency given. He is 28 years old at the time of the offence and is well educated given that he has come out of grade 12 and now doing public policy at University of PNG. He is intelligent given. And was very remorseful for the way he broke the law and inflicted the injuries upon the victims. Damaris Ainga would not have been injured but she stood up for Greg Michael Konjib and sustained the injuries given.
   
10. Given these facts it would not be wrong, nor would it be erroneous exercise of judicial discretion to impose a term and to have it suspended on conditions. Suspension of sentence on probation is not condoning the offence because the facts circumstances set out above do not warrant immediate incarceration comparably with the extent of the injuries received. There are facts circumstances illuminated that portray that the offender will make amends and fit back into society: Tardrew, Public Prosecutor [1986] PNGLR 91. Punishment is meted out because of the seriousness of the offence and the breach of the rule of law. It is therefore important to set in bold that fact. But it is not to the extent that the reasons setting the offence in motion are not ignored because there is a balance between proportioning for and against to arrive. In this regard a presentence report has been prepared and had been filed now which I have considered out in the determination of this sentence.
    
11. Coupled with this background this Court has dealt with this offence by the imposition of 2 years imprisonment with suspension accompanying on condition that the prisoner pay within 2 months K 3000. 00 compensation to the victim in State v Esther Maramundi [2021] N9307(24 November 2021). She was a co wife and stabbed the victim co wife because she was not getting attention from the common husband. Based on presentence report file that sentence was pronounced. Similarly, in Buka State v Sekin [2006] PGNC 74; N4479 (25 August 2006), the prisoner after arguing with his sister burnt her house down, and then stabbed her in the arm, the court suspended the remaining period of the 2 years 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.
    
12. 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. This would in my view be likened to the present except for the location of the wound. Even in more serious offences 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.
    
13. Of relevance given the facts here would be State v Gendi [2015] PGNC 258; N6149 (10 December 2015) first wife hit with iron rod breaking her hand drawing 2 years part suspended. And also State v Ben [2022] PGNC 180; N9623 (10 May 2022) left eye stabbed with a knife over allegation of extra marital affair with husband of prisoner, 2 years IHL suspended on a good behaviour bond with conditions. That cannot be done here because the presentence report does not disclose that the prisoner has means to settle any conditions that may be imposed. Particularly towards reconciling with payment of compensation and the like. He is unemployed does not a means to source to discharge any orders pertaining. The presentence report does not extend with material to sway.
    
14. This is an offence that has potential to culminate as in Marangi v The State [2002] PGSC 15; SC702 (8 November 2002) and State v Er [1998] PGNC 78; N1749 (31 July 1998). It is not far off from the steps set out in Simbe v The State [1994] PNGLR 38. Women men not tied down by matrimony in law either by the process of the custom, or the Marriage Act have no obligations in law against their partner as is the case here. She is free to choose who it is that she wants as her partner. Like wise he has freedom to chose as he does who is his partner. And to resort as here in a public place must see stiff and deterrent sentences against those who offend. The courts must discourage and deter this behaviour because of the serious offences of homicide that are there depicted by cases before this court set out above. Here it would have been more serious and long term in custody if it was a trial. Here is a guilty plea by a first offender who is reasonably educated. No doubt he will settle in life after time in prison. He must be accorded that opportunity. He is a 29-year-old first offender originally from Kambot Angoram, East Sepik Province resident at Manu here in Port Moresby. A single man.
    
15. I consider that the sentences will be concurrently served as both were committed at the same time upon both victims at the same place. I make these determinations bearing in mind the law settled in Kerua and Kerua, Public Prosecutor v [1985] PNGLR 85. They are both not separated by time or date. They are committed there together one after the other by the prisoner. I consider that two years imprisonment in Hard labour is warranted given. And I so impose that upon the prisoner for count one (1) and also two (2) of the unlawful wounding of both Greg Michael Konjib and Damaris Ainga. Both sentences will be served concurrently. Effectively that is two (2) years imprisonment in hard Labour.
    
16. But because he has pleaded guilty and is a first offender, 6 months of that 2 years will be suspended on a 1-year good behaviour bond. He will serve 18 months IHL in jail forthwith. Time on remand will be deducted forthwith.
    

Ordered Accordingly.
__________________________________________________________________
Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant