N8399

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR N0. 722 OF 2013

THE STATE

-v-

JUNIOR AREWES MAZAKMAT

Kavieng: Gavara-Nanu J
2013: 8th, 13th & 16th August

CRIMINAL LAW – Grievous bodily harm – Criminal Code; s. 319 – Plea of guilty – Accused under the influence of intoxicating drug – Attack on innocent person – Attack with a dangerous weapon, namely a grass knife – Left hand completely severed from the wrist – The victim left handed – Victim also cut on the left leg – Attempt to cut the neck – A worst case – Maximum penalty appropriate – Factors to consider in deciding whether the case is of a worst type.  

Cases Cited:

Avia Aihi v. The State (No.3) [1982] PNGLR 92
Goli Golu v. The State [1979] PNGLR 653
Kesino Apo v. The State [1988] PNGLR 182
The State v. Ambe Tu (2008) N3306
The State v. Amos Kiap (2003) N2452
The State v. Forokahe Yamugara (2004) N2764 
The State v. Jonathan Sokai (2002) N2334
The Stae v. Larsen Talian (2003) N2382
The State v. Lucas Huliawere (2004) N2544
The State v. Kenny Reuben Irowen (2002) N2239
The State v. Tovita Mann (2009) N4028

Counsel:

S. Luben, for the State
M. Mumure, for the Accused   
16th August, 2013

1.	GAVARA-NANU J: On 8th August, 2013, the accused pleaded guilty to a charge that he on 22 January, 2013, at Munawai village, in Central New Ireland, unlawfully did grievous bodily harm to one Johnson Malamba (the victim) contrary to s. 319 of the Criminal Code.

2.	The brief background facts of the case are these. On 22 January, 2013, the accused and the victim were at their Munawai village along Buluminski Highway in the East Coast of Central New Ireland.  The accused and the victim are first cousins. Between 5 and 6 in the afternoon, the accused went to the victim who was sitting in front of his house preparing vegetables for family dinner.  The accused confronted the victim and ask him about a break, enter and stealing in his (accused) sister’s house.  The accused also asked the victim about the things belonging to his sister which were stolen in the break-in.  When the victim denied any knowledge about the break-in and the stolen goods, the accused suddenly pulled out a grass knife which he concealed under his shirt and attacked the victim.  The accused swung the grass knife at the victim’s neck but the victim raised his left hand to block the grass knife and the grass knife connected with the victim’s left wrist, the hand was severed completely from the wrist, only the skin was holding it.  The victim was rushed to Kavieng General Hospital, where his left wrist was amputated.  He was hospitalized for one week.  

3.	The victim is left-handed and is now seriously handicapped because he has totally lost the use of his left hand.  It is very difficult for him to make gardens, go fishing and do other manual work he used to do before the incident. The victim is in the prime of his life, he is in his mid-30s.  He is married with several children of school age.

4.	The accused is 26 years old and single.  He reached Grade 10 at Manggai High School in New Ireland Province in 2004.  He is a first-time offender.  I think his guilty plea was inevitable because there is overwhelming evidence against him.  He also admitted the offence freely in record of interview.  Mr. Mumure, of counsel for the accused told the Court that accused is willing to pay K1,000.00 cash in compensation.  Mr. Mumure also told the Court that the accused is also willing to build a permanent house for the victim with a toilet, install a water tank and plant one hectare of oil palm as part of his punishment.  Apparently, these things have also been requested by the victim as part of his compensation.  The accused and his father have both signed a statement of intent to that effect.

5.	Mr. Mumure cited a number of cases which are similar to this case as guides for the Court in deciding the punishment for the accused.  Relying on these cases Mr. Mumure submitted that the accused should be sentenced to 3 years which should either be partly or fully suspended with conditions.  Ms. Luben of counsel for the State agreed.

6.	Because of the seriousness of the offence and the offer made by the accused to compensate the victim, the Court ordered the Probation Officer to prepare Means Assessment and Pre-Sentence reports on the accused.  The Report was submitted on 13 August, 2013.  The verbal submissions were made by counsel on the same day.

7.	The accused and the victim were both interviewed for the Pre-Sentence report. In the interview the accused confirmed what Mr Mumure told the Court about the things he has offered to do for the victim, if given the chance by the Court.  The victim on the other hand told the Probation Officer that he wanted the accused imprisoned for his crime.  He said the accused would have chopped his neck off had he not protected himself with his left hand.  He does not want to reconcile with the accused at this stage.  However, the victim has also said he wants the accused to build him a permanent house with toilet and a water tank and plant one hectare of oil palm for him.

8.	The accused himself does not have the means to do what he offered to do for the victim but he is relying on his family, especially his father to assist him.

9.	It is convenient to look at the types of sentences imposed in similar cases as a guide for the Court in determining an appropriate sentence for the accused.  

10.	In The State –v- Ambe Tu (2008) N3306, the accused attacked his wife who eloped with another man.  The woman was attacked with a bush knife, apart from severing her left wrist with a bush knife the victim was cut in other parts of her body.  The victim suffered serious wounds on both hands.  The injuries were life threatening.  The Court found that there was provocation in a non-legal sense.  No Pre-Sentence report was prepared for the Court.  The victim was also cut on the back and neck, the left thumb was also severed completely. The accused was sentenced to 4 years imprisonment.  

11.	In The State –v- Reuben Irowen (2002) N2239, the prisoner stripped his two wives naked and attacked them with a bush knife causing serious bodily harm to them, they also suffered severe blood loss. The victims were kept in a container.  They later escaped thus saving themselves from further harm.  The prisoner was charged with two counts of grievous bodily harm he was given the prescribed maximum penalty of 7 years imprisonment for each count, the sentences were ordered to be served cumulatively.  The prisoner had the habit of beating his wives.  The victims were regularly subjected to inhuman treatment. The prisoner pleaded guilty. He had no prior conviction.  

12.	In The State –v- Lucas Huliawere (2004) N2544, the prisoner called his wife who was sick and sleeping.  When the wife did not go quickly to him. When she eventually did, the prisoner suddenly attacked her from the back hitting her hand with a piece of timber three times.  The victim was in great pain and cried out.  The prisoner hit her again on the head causing her to bleed.  The victim fell to the ground.  The prisoner sat on the victim while she was on the ground.  The prisoner was given the head sentence of 5 years imprisonment less custody period. The prisoner ended up serving just a bit over 4 years imprisonment. 

13.	In The State –v- Amos Kiap (2003) N2452, the prisoner had a history of violence against his wife.  He regularly appeared before a Village Court for beating his wife.  He attacked his wife in public after work in Mt. Hagen with a knife and stones.  The victim suffered severe wounds to her head and body.  She was unconscious and was taken to Mt. Hagen General Hospital.  She lost 200 millilitres of blood from the wounds.  The prisoner was sentenced to 6 years imprisonment less custody period.  The balance of the term was fully suspended with conditions.  

14.	In The State –v- Larsen Talian (2003) N2382, the prisoner was convicted after a week’s trial for unlawfully doing grievous bodily harm. The accused attacked the victim with a bush knife on the left wrist.  The victim was hospitalised.  The victim could no longer have the full use of his hand due to the injury.  The victim was severely disabled.  The prisoner was sentenced to 6 years imprisonment, which was suspended in full, the prisoner was ordered to pay K5,000.00 compensation.  The prisoner expressed remorse.  

15.	In The State –v- Tovita Mann (2009) N4028, the accused attacked the victim with a bush knife.  The victim was cut twice. The incident happened in Kerema. The victim was taken to the local hospital but because his condition was serious, he had to be taken to Port Moresby General Hospital where he made steady but slow recovery.  The prisoner was subsequently arrested and charged with unlawfully doing grievous bodily harm.  He pleaded guilty.  He was sentenced to 5 years imprisonment less custody period. 

16.	Having regard to the sentences ordered in the cases cited above and the principles applied in these cases, I note that in this case, unlike in the cases cited, there was no form of provocation at all, not even provocation in the non-legal sense.  There is evidence that the accused was heavily intoxicated either under alcohol or some form of drug.  The injuries suffered by the victim were very serious, one of which resulted in the left wrist being completely severed. An attempt was also made to cut the victim’s neck but the attempt failed when the victim managed to avoid the blow. The victim fell unconscious due to heavy blood loss.  

17.	One Bobby Bulumaris who saw the attack says in his deposition that the accused returned to the victim after injuring him badly and tried to stab him on his neck but the victim moved and the grass knife missed the neck and pieced through the wall of the house.  He says the accused’s eyes were very red and accused appeared to have consumed drug because he did not care about what he was doing.  He says he was scared so he moved away from the victim after trying to help him, when another person arrived at the scene, they told the accused to leave the victim because he had already been badly injured.  The medical report indicates that the victim lost 100% use of his left arm.

18.	It is settled law that the maximum penalty is to be reserved for the worst case.  What is a worst case cannot be defined with any scientific precision: Avia Aihi –v- The State (No. 3) [1982] PNGLR 92 and Goli Golu –v- The State [1979] PNGLR 653 at 663. However, whether a case is of a worst type can be determined against a number of factors, these include the seriousness and the gravity of the offence, the interests of the community, circumstances in which the offence was committed, the aggravating factors, extenuating and mitigating factors which would mitigate the offence.  See the State –v- Jonathan Sopai (2002) N2334; The State –v- Forokahe Yanugara (2004) N2764. The latter two may include the youthfulness of the accused, whether he is a first-time offender, whether he has expressed remorse from a contrite heart, any compensation already paid, whether he is suffering from any incapacitating illness and so on. As to the aggravating factors, one has to look at how and why the offence was committed, weapon used, whether he is a repeat offender and so on. 

19.	It is a settled law that self-induced intoxication either by alcohol or drug is not a defence nor is it a mitigating factor: Kesino Apo –v- The State [1988] PNGLR 182.  In Avia Aihi –v- The State (supra) Kearney DCJ, emphasised the general principle that sentence must be proportionate to the offence committed.   See also Goli Golu –v- The State [1979] PNGLR 653.

20.	So, the question is: Is this a worst type of grievous bodily harm under s.319? And what is the appropriate punishment for the accused? 

23.	I had a closer look at the record of interview and found nothing that the accused said there can provide any explanation for the attack which was totally unprovoked. The victim was also totally innocent.  There was no justification for the attack. The accused was deliberately armed with a dangerous weapon.  It was a surprise attack on the victim because it was concealed.  The victim was defenceless.  There was an element of premeditation and clear intention to cause serious bodily harm. This is clear to me from the sudden attack on the victim with a lethal weapon and the attempt to cut the neck. The offence was committed with a degree of determination because he tried to attack the victim twice and there was a deliberate disregard for the victim’s right to life. This is because the aim was to cut the neck which is a very vulnerable part of the body. 

24.	The amputation of the wrist has permanently altered the victim’s way of life and it will affect him in a big way both physically and psychologically for the rest of his life.  

25.	I have for the reasons given come to a conclusion that the case is a worst type of grievous bodily harm.  It must therefore attract the maximum penalty of 7 years imprisonment. I find that the aggravating factors far outweigh the mitigating factors. The injury suffered is so serious that any mitigating factors in my view fade into insignificance and they cannot assist the accused to mitigate the sentence. 

26.	The punishment given must reflect the seriousness and the gravity of the offence. The sentence must also be of a kind that would adequately account for the needs of the victim. Thus in my endeavour to strike the balance between these two fundamental competing issues, I have decided that the sentence of 7 years imprisonment should be fully suspended and the conditions for such suspension be comprised of what the accused has offered to do for the victim and what the victim has asked for viz; the accused to build a permanent house with a toilet and a water tank and plant one hectare of oil palm for the victim. 

27.	I know that on the one hand the victim does not want to reconcile with the accused and has asked that accused be imprisoned for two years, but on the other hand I also bear in mind that the victim has also asked for the things the accused wants to do for him. The obvious dilemma is that if the accused is imprisoned, he will not be able to do the things the victim has asked for, the result of which is the victim will miss out on the things he has asked for. Thus, in my firm view, the fair solution to this dilemma is that the accused should be given a fully suspended sentence so that he can do and provide the things the victim has asked for. If he does not do these things and therefore not fulfil the conditions of his suspended sentence then, he will be arrested and ordered to serve the suspended term of imprisonment.

28.	In the circumstance the sentence is as follows:

	1.	The accused is sentenced to 7 years imprisonment in hard labour.

	2.	This sentence is fully suspended on the following conditions:

	 	(a)	the accused is to build a new house with a new toilet 			and a new water tank.
		(b)	 the accused will clear and plant one hectare of oil 				palm for the victim.
	   			These two things must be done within 2 years from 				today.  In other words, they must be completed by 16th 				August 2015.
		(c)	The accused is to pay K1,300.00 cash compensation to 			the victim. For this, the accused’s K300.00 cash bail 			will 	be paid to the victim as part of K1,300.00.  The 			payment is to be made on Friday 20th September 2013 			under the supervision of the Kavieng National Court 			Assistant Registrar, Mr. Ben Kepas, Kavieng District 			Court Clerk and the Probation Officer, Mr. Fabian 				Walut.  The payment is to be made at the Kavieng 				National Court Registry between 9:00 am and 12:00 			pm.  The accused is also ordered to immediately pay 			K1,000.00 into Kavieng District Court Trust Account. 			This money will be held in trust until Friday 20th 				September 2013, when it will be paid together with 			the K300. 00, hence K1,300.00 to the victim.
		(d)	The accused is put on good behaviour bond for 4 years 			from today.
   
3.	The Probation Officer Mr. Walut is to submit monthly reports to my Associate on the compliance or otherwise of these orders by the accused, starting from Friday 27th September 2013.  The last of such monthly reports is to be submitted to my Associate by Friday 29th August 2014.

4.	I should state that the Court’s power to order compensation is limited to K5,000.00 either in cash or kind or both pursuant to s. 5 of the Criminal Compensation Act 1991.  However, since the accused and the victim have already agreed on the terms of compensation the Court simply endorses what they have agreed on.  Hopefully, this will help restore their relationship which has been strained by this incident.

5.	The Probation Officer Mr. Walut will have all the power and authority to visit the parties especially the accused in his village at any time between 8 am and 12 pm on any day of the week when necessary, to ensure compliance of these orders by the accused.

6.	In the event of a failure by the accused to comply with any one or all of these orders, the accused will be brought before the Court and will be further dealt with according to law. 

29.      Orders accordingly.

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