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State v Wiramas [2008] PGNC 209; N3456 (4 September 2008)

N3456

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 609 OF 2008

THE STATE

V

WILSON WIRAMAS

Kavieng: Paliau, AJ
2008: 14, 18 August
2008: 4 September

CRIMINAL LAW – Sentence – Grievous Bodily Harm – Charge of – Not Guilty Plea – Criminal Code s. 319.

Cases cited:

The State v. Lester Marus Norbert CR 523 of 2003
The State v. Ala Ali David CR 489 of 2008
The State v. Mathias Betai CR 496 of 2008
The State v. Kenny Reuben Irowen (2006) N2239
The State v. Henry Idap (2006) N2172
The State v. Toparan Walangur (2006)
The State v. David Saun N2192
The State v. Patrick Kimat N2947

Counsels:

Mr. Rangan, for the State
Mr. Siminji, for the Accused

4 September, 2008

1. PALIAU, AJ: The prisoner pleaded not guilty to one count of Grievous Bodily Harm. The matter went for trial and he was found guilty and convicted of the offence as charged.

2. The incident happened on the 9th January, 2008 at Lakurumau village, New Ireland Province at 10:00 am in the morning. The victim Peter Togamat was in the bush cutting grass when the accused swung the spike at the victim. The victim put up his left arm to block off the spike. The spike landed on his arm. The arm became swollen and after medical examination and x-ray conducted, the left forearm was fractured. The spike is a sharp pointed iron rod used for picking oil palm fruit.

3. The issue that I am to determine is what is the appropriate penalty to be imposed on the prisoner?

Antecedent Report

4. The accused has no prior convictions.

Allocutus

5. The accused stated that he is married with 6 children. His wife died in 1997. Due to his old age, he pleaded for leniency and any sentence to be imposed be fully suspended. The accused did not express remorse.

Pre-Sentence Report

6. No pre-sentence report was provided by the Community Based Corrections Services.

Submission by Defence Counsel

7. Mr. Siminji submitted that the accused is 65 years old and married with 6 children. His children are all adults. His wife passed away in 1997. He has three (3) brothers and three (3) sisters and are still alive and he is the second born in the family. He attends United Church. He was educated up to Grade 7 and a Builder by trade.

8. Mr. Siminji also submitted that the prisoner is a first time offender. That the prisoner did this trouble because he was provoked by the victim therefore the de facto provocation must be taken into consideration. The land the victim was clearing was in dispute and the prisoner’s brother had obtained a preventive order preventing the victim from entering the land. The prisoner was provoked by this behaviour.

9. Mr. Siminji further informed the Court that he had no instructions that the prisoner can pay compensation. There is also no pre-sentence or means assessment report to assist the Court as well. He however urged the Court to consider Section 19 of the Criminal Code and lower range of imprisonment be imposed and be suspended and make appropriate orders for compensation payments.

10. The prisoner is an old man and has two brothers who is able to assist him pay any compensation that is ordered.

Submissions by the State

11. The aggravating factors are that the prisoner used an offensive weapon to strike the victim. The victim’s arm fractured. He had no excuse in law. If the victim was in breach of the preventive order, the prisoner should have referred the matter to the Village Court for remedial action to take place. The prisoner chose otherwise to his detriment. However, he agreed that a non-custodial sentence be imposed with stringent conditions.

12. If there was to be any compensation ordered to be paid, the amount to be paid should be K5, 000.00 or less and not above K5, 000.00. This is in line with Section 5(3)(b) of the Criminal Law (Compensation) Act 1991.

The Law

13. Section 319 of the Criminal Code provides:

"310. Grievous Bodily Harm.

A person who unlawfully does grievous bodily harm to another person is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years."

14. I have taken into account the statements by the accused when allocutus was administered and the mitigating factors put forward on behalf of the accused.

15. I have also taken into account the aggravating factors raised by and on behalf of the State. Mr. Rangan cited the case of The State v. Lester Marus Norbert CR 523 of 2003. This judgment was delivered on 11th January 2007 by Lenalia, J. In that case the prisoner hit the victim, a woman with a piece of timber on her head and when she was about to hit the floor, he hit her a second time on her right hand. She suffered a fractured radius on the mid-shaft on her right arm. A 2 year imprisonment term was imposed on the prisoner. This was wholly suspended but stringent conditions were imposed.

16. In the Lester Marus case (supra), 5 cases were taken into account by His Honour before the prisoner was penalized. They are The State v. Kerry Ruben Irowen N2239; The State v. Henry Idap N2172 and The State v. Toparan Walangur (2006) (Judgments by Lay J., 22nd June 2006). In these cases the prisoner in the first case was sentenced to 7 years, which is the maximum. In the next two cases the prisoners were sentenced to lesser prison terms.

17. On the other end, in the cases of The State v. David Saun N2192 and The State v. Patrick Kimat N2947, the sentences of 3 years and 12 months were wholly suspended.

18. I will also refer to two cases in Buka namely The State v. Ala Ali David, CR No. 489 of 2008, 15th May 2008 and The State v. Mathias Betai, CR 494 of 2008, 15th May 2008. In these two cases I imposed 2 years 8 months and 2 years 6 months respectively and the prison terms were wholly suspended with stringent conditions.

19. Although there was no pre-sentence and means assessment report, it was submitted by Mr. Siminji that the prisoner’s two brothers are willing to assist the prisoner pay for any compensation that is ordered by the Court.

20. By virtue of Section 5(3)(b) of the Criminal Law (Compensation) Act 1991, only K5, 000.00 and below can be ordered by the Court either in cash or their value in goods and services.

21. I will impose a non-custodial sentence with stringent conditions. And I will also include compensation as a condition to assist the prisoner’s relatives and the victim’s relatives to come to some form of reconciliation. This is also to assist them mediate amongst themselves in relation to their land dispute.

22. The prisoner is sentenced to 3 years imprisonment. The sentence is wholly suspended with the following conditions:

(1) He shall enter into his own recognizance and keep peace and be of good behaviour for 1 year commencing today (4th September, 2008);

(2) He shall perform 50 hours (3 months) of light community work, to be organized and supervised by the Community Based Corrections Officer in Kavieng;

(3) The District Officer at Lakurumau shall arrange placement for him to perform his community work order;

(4) He shall pay the sum of K1, 000.00 to the victim within 2 months from today’s date (4th September 2008). The prisoner’s bail of K 100.00 shall be converted into payment of compensation;

(5) On the date of paying the compensation to the victim, he shall reconcile and settle the matter in the presence of both his line and the victim’s line. The presence of the leaders of the community, the District Officer and the Provincial Police Commander or his delegate shall also be required at the reconciliation meeting;

(6) The District Officer or the Provincial Police Commander shall produce to the National Court or the District Court at Kavieng a statement that conditions four (4) and five (5) have been complied with;

(7) The Community Based Corrections Services in Kavieng shall supervise and monitor that the above conditions are complied with;

(8) If you breach any of the conditions in (1), (2), (4) and (5) above, you shall be brought before the National Court to show cause why you should not be detained in custody to serve the rest of the sentence.

Sentence

23. WILSON WIRAMAS, having been convicted of the crime of Grievous Bodily Harm, is sentenced to:

Length of Sentence imposed - 3 years

Pre-Sentence period deducted - Nil

Resultant length of Sentence to be served - 3 years

Amount of Sentence suspended - 3 years

Time to be served in custody - Nil

Sentenced accordingly,

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused