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State v Membup [2008] PGNC 229; N3679 (5 November 2008)

N3679

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1135 OF 2008

BETWEEN:

THE STATE

AND:

PAUL MEMBUP

Lihir: Gavara-Nanu, J

2008: 5th November

CIMINAL LAW – Sentence- Plea of guilty - Grievous bodily harm – Criminal Code Act, Chapter No. 262; s. 319 - Victim assaulted first by the accused, then with a friend after the victim was already seriously injured and defenceless following the assault by the accused – Accused refusing to stop assaulting the victim after being ordered to do so by guards.

CRIMINAL LAW – Sentence – Grievous bodily harm - Criminal Code Act, Chapter No. 262; s.319 - Maximum penalty of 7 years imprisonment – Victim attacked with a snooker stick – Victim sustaining broken elbow – Victim undergoing operation – Pins inserted in the elbow – Permanent injury – Victim needing further medical treatment – Victim’s ability to do heavy manual work permanently affected – Sentence of 5 years imprisonment IHL – Further fined K300.00

Cases cited:

The State v. Kopiwan Pupuni N1709
The State v. Nicholas Pari (No. 2) N2033
The State v. Peter Erne N1939

Counsel:

S. Kesno, for the State
O. Oeveka, for the Accused

1. GAVARA-NANU J: The accused pleaded guilty to unlawfully doing grievous bodily harm to one Peter Kan Kam on 27 December, 2007, at Londolovit in Lihir Island contrary to s. 319 of the Criminal Code Act, Chapter No.262.

2. This offence carries the maximum penalty of seven years imprisonment.

3. The brief facts are as follows; on 27 December, 2007, at about 10.00pm, the accused was driving a motor vehicle along a road in Camp. No.2 at Lihir Island mine township (Londolovit). The victim who was standing on the side of the road tried to wave the accused down so that he could get on the vehicle the accused was driving. When the accused did not stop, the victim swore at him once. The accused upon hearing the victim swear, stopped and reversed the vehicle towards the victim; got off the vehicle and started assaulting the victim with a snooker stick and punching and kicking him, causing the victim to fall to the ground. The accused then drove off and went and got a friend, they both returned to the victim, the accused joined by his friend further assaulted the victim. They kicked and punched the victim again knocking him down to the ground. They continued to kick and punch the victim as he was lying on the ground.

4. The victim sustained a compound fracture in his right elbow when he was hit with a snooker stick by the accused in the first assault, as a result the victim was hospitalized at the Londolovit Health Center. He was later transferred to Vunapope General Hospital in Kokopo where he went through a major operation in which pins were inserted in his elbow.

5. The victim says in his statement that when the accused and his friend attacked him, the mine’s security guards who were on duty at that time ordered them to stop but they did not stop. The victim was rescued later by the guards.

6. There are two Medical Reports on the victim’s injury, one is dated 28 February, 2008, and the other is dated 16 June, 2008. The first report states that the injury to the elbow was healing well but the second report which is the latest, states that the injury has become infected and the victim will need further treatment.

7. The accused has told the Court that he is willing to compensate the victim but the victim has refused the offer. He told the Court that the injury is causing him pain and he still cannot have the full use of his right hand. He said the injury also restricts him in his work as a Boiler Maker with Lihir gold mine. He told the Court that he will be traveling to Port Moresby soon for further medical treatment at the Port Moresby General Hospital.

8. It is noted that the accused was convicted by the Lihir District Court in 2002 for malicious damage and was ordered to pay K1, 800.00 for damages he caused.

9. The defence submitted that a term of imprisonment between 3 to 5 years would be an appropriate punishment for the accused.

10. The accused is now 47 years old. He has attained Gr.10 level of education. He has been employed in a number of jobs in the past.

11. The fact that the accused refused to stop assaulting the victim the second time with his friend when the security guards ordered them to stop after the victim had already sustained a serious injury to his right elbow when he was first attacked by the accused with a snooker stick is a serious aggravating factor. The victim has suffered a permanent injury and it is seriously incapacitating him in his work, the injury will no doubt affect his ability to do heavy manual work for the rest of his life.

12. The accused has offered to compensate the victim, but because the victim has refused the offer, it is pointless for the Court to order compensation. The accused’s plea to pay compensation to the victim as part of his penalty is also refused.

13. The accused has claimed that he assaulted the victim because the victim provoked him by swearing at him. There is no dispute that the victim did swear at the accused, but the extent of the assault and the manner in which it was carried out; firstly, by the accused alone which included breaking the victim’s right elbow with a snooker stick; then, with his friend when they both kicked and punched him, in my opinion went far beyond any reasonable proportion to the degree of provocation that may have been offered by the victim’s single swear word.

14. The seriousness and the gravity of the offence plainly calls for a punitive custodial sentence. The injury to the elbow also quite clearly indicates the type of force used by the accused when he assaulted the victim with a snooker stick.

15. I refer to a number of cases as a guide in determining the punishment for the accused. The first case is The State v. Kopiwan Pupuni, N1709. In that case the accused, a female pleaded guilty to unlawfully doing grievous bodily harm to the victim. The accused delivered several knife blows to the body of the victim including the neck. The victim was later hospitalized with multiple wounds including the fracture of the skull. The accused and the victim, a female, were married to the same man and it was alleged by the accused that the victim was responsible for the burning down of her house. The accused paid K1, 800.00 and 38 live pigs to the victim as compensation. The accused was sentenced to 2 years imprisonment in light labour. The offence took place in 1997.

16. In The State v. Peter Erne, N1939, the accused pleaded guilty to unlawfully doing grievous bodily harm to another. The victim suffered multiple stab wounds. The reason for the attack was that the accused suspected that the victim had earlier fought a friend of his (accused). The victim was knocked unconscious. The accused was not the actual perpetrator of the crime. He was charged under s. 7 of the Criminal Code Act, Chapter No. 262 for aiding and abetting those who actually perpetrated the crime. The victim was hospitalized for 10 days at the Angau General Hospital in Lae. The accused had no formal education, he was married with children. He was sentenced to 2 years imprisonment in hard labour.

17. In The State v. Nicholas Pari (No.2), N2033, the accused pleaded guilty to unlawfully doing grievous bodily harm to another. The accused who was a 18 year old boy shot the victim with a homemade gun. The victim recovered in the hospital, he was paid K600.00 compensation. The accused was sentenced to 4 years imprisonment in hard labour.

18. The accused has a reasonable standard of education and he has been in a number of gainful employments in the past. He has expressed remorse for his crime and as I alluded to earlier, offered to compensate the victim, which the victim has refused.

19. I am of the opinion that, given the circumstances of the case, the accused should have felt obligated to compensate the victim or at least offered to compensate the victim before coming to Court. Such an upbeat attitude or action would add weight and credibility to his plea for leniency and his expression of remorse.

20. The victim is now permanently disabled and will not have the full use of his right hand for the rest of his life. It is seriously affecting him in his work. As a young man, to suffer such serious physical disability must make him feel robbed of his right to enjoy normal activities in life which every young person enjoys doing, like playing sports and other activities, such as gardening and going fishing.

21. The type of assault mounted on the victim was clearly not warranted because the victim only said a single swear word to the accused and was not armed and was defenceless. Any reasonable person in his position with good apprehension of the law would have at least exhibited some restraint.

22. The accused as I alluded to earlier has a prior conviction for wilful and malicious damage. This is a relevant matter to take into account on sentence because in my view, it is indicative of his violent disposition. The other aggravating factor is that the incident happened in the middle of the mine township in front of the mine’s security guards who also tried in vain to stop him from assaulting the victim. Furthermore, after he had already seriously injured the victim, he went and got his friend and they both further assaulted the victim. The combined attack on the victim by the accused and his friend when he was already severely injured and was lying helpless on the ground also aggravates the offence. I do not believe a single swear word by the victim could justify such serious assault on him.

23. The seriousness and the gravity of this offence should not just be measured by the type of injury caused to the victim but also by the manner or the way in which the offence was committed. For instance, the offence was committed in front of the mine’s security guards and when the guards told him to stop, he refused to stop. The security guards were carrying out their lawful duties to maintain law and order in the community, thus they had the right and the authority to order the accused to stop assaulting the victim, but he defied their orders. He also went and got a friend to join him in attacking the victim further after he had already seriously injured him. These factors further aggravate the offence, which must in my view attract a penalty that is closer to the prescribed maximum penalty. Such penalty should also have an element of deterrence.

23. In imposing the sentence I am about to impose, the accused’s prior conviction for wilful and malicious damage also has a bearing on my mind.

24. In the circumstances, I sentence the accused to 5 years imprisonment in hard labour. He is also fined K300.00 and for this, his K300.00 cash bail is forfeited to the State.

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