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State v Manima [2012] PGNC 311; N5366 (20 June 2012)

N5366

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR No. 721 OF 2011

BETWEEN:

THE STATE

AND:

STANLEY MANIMA

Madang: Gavara-Nanu J.
2012: 06 & 20 June

CRIMINAL LAW- PRACTICE & PROCEDURE– Criminal Code Act, Chapter No. 262 s. 319 – Unlawfully doing grievous bodily harm – Plea of guilty – Victim the aggressor and initiator of the fight – Victim under influence of liquor – Victim armed with a bush knife – Accused takes refuge in his house – Attempts by the victim to force his way into the accused's house – Accused having genuine fear for his life – Accused an elderly man - 2 years imprisonment fully suspended with conditions.

Cases cited:

The State –v- Kenny Ruben Iroven N2239
The State v. Eddie John Naopa N2411
The State –v- Peter Erne N1939

Counsel:

N. Lipai, for the State
G. Peu, for the Accused

20th June, 2012

1. GAVARA-NANU J: On 6 June, 2012, the accused pleased guilty to a charge that he on 29 August, 2010, in Madang unlawfully did grievous bodily harm to one Max Bopan contrary to s. 319 of the Criminal Code Act, Chapter 262.

2. This offence carries the maximum penalty of seven years imprisonment. The facts giving rise to this offence are as follows; on 29 August, 2010, between 8.00pm and 9.00pm the accused was sitting on the verandah of his house with his wife at Yaul Camp outside Madang town when the victim Max Bopan walked past them. At that time the victim was very drunk and was being assisted back to his house by two friends. As the victim walked past the accused's house he told the accused with threatening voice that he would come back and see them. The accused and his wife asked the victim what he would see them about. The victim was angered by the comments. He went to his house which was not far from the victim house, got a bush knife and returned to the accused and his wife. When they saw the victim approaching, the accused and his wife went into their house. According to the victim's deposition, when he returned to the accused and his wife, he banged the bush knife menacingly on the verandah of the accused's house and charged at the accused. The accused who had already ran into his house, fearing for his life got a grass knife opened the door of his house slightly and swung the grass knife at the victim cutting the victim on his left hand. As the victim held on the door the accused swung the grass knife again this time cutting the victim on the head. The victim was rushed to the hospital by some relatives where he was treated for his wounds. The victim subsequently underwent surgery on his left wrist. There is evidence that when the accused and his wife directed their comments at the victim, they also made reference to a civil summons they previously served on the victim. This was one thing that angered the victim. The remarks the victim, the accused and his wife made to each other immediately before the fight were therefore not the only reason for the fight between them. A past incident between them which appears to be the subject of the civil summons served on the victim also contributed to the fight.

4. The accused has made a Confessional Statement. According to the Statement and the Record of Interview, the victim also cut the side of the wall and the door of the accused's house with his bush knife before trying to open the door three times. That was when the accused cut the victim with a grass knife. In the Confessional Statement the accused says he was also cut by the victim's uncle with a knife after the fight with the victim.

5. The Confessional Statement was made on 8 August, 2010, and the Record of Interview was conducted on 2 March, 2011. The accused's description in the Record of Interview of how he cut the victim is consistent with what he said in his Confessional Statement. The Confessional Statement was made only two months after the incident whereas the Record of Interview was conducted about six months after the incident. Clearly the story in the Confessional Statement was given when the fight was still very much fresh in his mind. I therefore accept that the Confessional Statement and the Record of Interview give accurate account of what happened in the fight.

6. In the Record of Interview the accused told the police that he cut the victim because the victim was drunk and was armed with a bush knife. He said if he did not cut the victim the victim would have either killed him and his wife or his small son who was asleep in the house. He said he attacked the victim in defence of himself and his family. He said, he was fearful for his life. He told the police in the Record of Interview that he felt that his family was in great danger because the accused was also very angry and aggressive.

7. There is undisputed evidence that just before the exchange of words between the accused, his wife and the victim, the victim was involved in a fight with another man not far from the accused's house. The victim was very drunk at that time and he was still in that condition when he was assisted to his house. The victim also pointed his finger at the accused and his wife and threatened them that he would go and see them. After the accused's wife made comments to the victim about the civil summons against him, the victim also told the accused's wife that she was going to be "next". This remark also provoked the accused, who then asked the victim what he meant by his wife being the "next". That was when the victim went and got a bush knife from his house and ran back to the accused and threatened the accused.

8. The accused says the victim is a nephew of his and has offered to compensate him for his injuries.

9. The medical report shows that the victim suffered a serious injury on his left wrist which involved damage to the bone, tendons and nerves. The wounds were sutured two days after the fight at the hospital. Unfortunately, the injury is now permanent and the victim will need periodical reviews. The injury has also resulted in a significant disability to the victim.

10. The accused is an elderly man, he is in his late 50s. He is married with a large family. He is casually employed and is on labourer's wage. He has expressed remorse. He is a first time offender. His plea of guilty is a significant mitigating factor because it has saved time and expenses for the State in not having to prove its case. The Pre-Sentence and the Means Assessment Reports have been submitted at the request of the defence counsel. However, the reports do not contain the victim's views because he is in Goroka. The Court has not been told whether the victim will return to Madang. In the Means Assessment Report, the accused repeated his desire to compensate the victim. The reports however show that he has no means. The accused has indicated that he may be able to find K800.00, if given time.

11. I have decided against ordering compensation because I do not think the accused will be able to comply with such orders given that he has no means.

12. What then is the appropriate punishment for the accused? There is no dispute that the victim was the one who initiated the fight and was the aggressor. He was much younger than the accused. In deciding the penalty for the accused I think the other pertinent question I have to address is whether the actions of the accused were justified.

13. A quick survey of sentences imposed in this type of cases shows that they range from fully suspended sentences with conditions to seven years imprisonment, which is the maximum penalty in worst type of cases, including guilty pleas. For instance in The State –v- Kenny Ruben Iroven N2239, the accused who pleaded guilty to unlawfully doing grievous bodily harm to his two wives was given the maximum penalty of seven years imprisonment. The accused in that case caused serious injuries to the victims with a bush knife and the victims were kept in confinement, thus denying their liberty for a long period of time. In The State v. Eddie John Naopa N2411, the accused pleaded guilty to unlawfully causing grievous bodily harm when he struck the victim on one eye with a sling shot. The accused was sentenced to five years imprisonment which was fully suspended with conditions. In The State –v- Peter Erne N1939, the accused pleaded guilty to unlawfully doing grievous bodily harm, for inflicting multiple knife wounds on a victim in a fight. The accused was sentenced to two years imprisonment which was fully suspended with conditions, one of the conditions was a good behaviour bond for two years.

14. In this case, I find that the accused had a genuine fear that the victim might at least cause serious harm to him and his family. I have come to this view because the victim was already drunk and was armed with a bush knife. The victim also tried to forcefully enter the accused's house to attack the accused and his wife. Before that, the victim hit the walls and the door of the accused's house with the bush knife. He then menacingly hit the verandah of the house with the bush knife. Before charging at the accused and his wife, the accused also had a fight with another man. Given those circumstances, I have no doubt that the accused did have a genuine fear for his own life and his family.

15. As I alluded to earlier, the victim was the initiator of the fight and was the aggressor. The victim must therefore carry much of the blame for his crime. The degree of blameworthiness for the fight which led to the victim sustaining injuries lies more on the victim than the accused.

16. In the circumstances, I sentence the accused to two years imprisonment. I will suspend the period in full and place the accused on good behavior bond for three years from today.

17. Accused is also fined K200.00 for which, his cash bail of K200.00 is forfeited to the State.

_______________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused