Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Beret [2016] PGNC 382; N6620 (22 August 2016)

N6620

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.1273 OF 2015

THE STATE

V

TOMANANE BERET

Kokopo:Lenalia, J.
2016: 27^th,July, 8^th 9^th12^th& 22^ndAugust

CRIMINAL LAW– Wounding & similar acts – Guilty plea – Sentence – Matters for consideration – Criminal Code s.322, Ch. No. 262

CRIMINAL LAW – Wounding and similar acts– Use of offensive weapon against un-armed victim – One of those worse type cases – Victim son of the blood brother of the offender – Custodial penalty appropriate – Sentence to one (1) year six (6) months appropriate.

Cases cited:
The State v Jacklyne Lubiale (2014) N5779
The State v Mathias Martin (3.7.07) Cr. No. 659 of 2007
The State v Nick Tupi (12.12.2012) N5192
The State v Noah Tangiama &Or (11.9.2008) Cr. No. 1672 of 2005
The State v Philip Lekis (2007) N5029
The State v Rubert Kassman (21.6.04) N2684

Counsel:
Mr. L. Rangan, for the State
Ms. J. Ainui, for the Accused

22^nd August, 2016

1. LENALIA J: Tomanane Beret pleaded guilty to one count of unlawfully wounding one, Kamu Rupen at Navunaram village, Gazelle District, E. N. B. Province. The offence occurred on 5^th April 2015.
   
2. This is an offence under s.322 of the Criminal Code. The maximum penalty for this offence is three years imprisonment. This Section states:
   

“322. 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 misdemeanor.

Penalty: Imprisonment for a term not exceeding three years.”

Agreed Facts

3. The facts to which the prisoner pleaded guilty are that, on 5^th August 2015 at Navunaram village, between 9 and 10pm, the victim Kamu Rupen was having dinner with his friends Willie Garana and Melkie John. While they were eating, the offender’s son Eliuda Tomanane armed himself with a sward came up to them. Eliuda questioned the victim about an earlier assault which the victim committed against Eliuda.
   
4. While they were arguing, the offender joined them and threatened Melkie John with that sward and sent him to bring his (offender’s) brother, Benson Beret from Martina Mutuaina’s yard. Eliuda and Benson started to assault the victim. The prisoner took that sward from Eliuda and stabbed the victim on the right cheek penetrating right through to the victim’s gum on the mouth to the teeth.
   
   5. The victim was taken to Napapar Health Centre where H. E. Officer Ms. Florence Wanawa on that Health Centre as well as the Admission Officer for Nonga Base Hospital examined him. She found the following injuries

“The wound on the cheek penetrated through the cheek, lower right side jaw and into the floor of the mouth just under the tongue and at the base of the teeth. The alignment of the jaw dropped or had deformed disabling the normal function of the jaw and the teeth that is to open and close completely.”

Addresses on Sentence

6. On his allocutus, the prisoner said, sorry for what he did to the victim who is one of their family children. He asked the court to consider he had previously paid compensation of K400.00 to the victim and his family. He asked the court to consider further compensation if he is ordered to. He said sorry to the Court, he said, this is his first time appearance in court. He asked for leniency.
   
   7. Ms. Ainui asked the court to consider the following mitigations:
      
      • ➢ The prisoner’s guilty plea,
      • ➢ He is the first time offender,
      • ➢ He is 52 years of age,
      • ➢ He is married with three children.
        
8. Counsel asked the Court to consider the victim’s family call for compensation because the victim is the prisoner’s father’s blood brother. Counsel referred to the pre-sentence report and referred to comments of those contacted. Counsel asked for leniency.
   
9. For the prosecution Mr. Rangan submitted that the offence committed was serious and the offender should be adequately punished for the offence he committed. Counsel read the part of the medical report and said, the injury was inflicted through the lower right side jaw and into the floor of the mouth just under the tongue right to the base of the teeth was so serious. Counsel submitted that like in other GBH cases this Court has dealt with where compensations has been ordered, on the instant case, the court should consider compensation of 400 Tolai shell money plus additional cash.
   

Applicable Law

10. The maximum penalty for the offence of unlawful wounding under s.322 of the Criminal Code is an imprisonment term of not more than three (3) years. The court has discretion to sentence an offender to a term lower than the prescribed maximum. (See s.19 of the Criminal Code).
    
11. Sentences for wounding and similar acts and or grievous bodily harm cases vary from case to case depending on the merits of each case. In State v Mathias Martin (3.7.07) Cr. No. 659 of 2007, the accused was convicted on his plea to a charge of wounding and similar act under s.322(1) (a)of the Code. He was sentenced by this court to a term of 18 months imprisonment in hard labour. The sentence was fully suspended on condition to comply with a set of probation orders under supervision of the Probation Officer.
    
12. In State v Noah Tangiama and Paraide Tangiama (11.9.2008) Cr. No. 1672 of 2005, it was a case of wounding and similar acts under s.322(1) (a)of the Criminal Code. They were sentenced to 2 years imprisonment. The sentences were fully suspended with conditions and the court ordered the first accused to pay K500.00 cash and the second accused was ordered to pay K400.00 and 20 fathoms of Tolai shell money compensation to the victim.
    
13. In The State v Joe Sekin (2006) N4479, the offender was sentence to 2 years for arson and 2 years for unlawful wounding. The total sentences were fully suspended with conditions. In The State v Nick Tupi (2012) N5192 was a similar offence, the offender was sentenced to 12 months fully suspended.
    
14. I consider the term of the pre-sentence report. Only the victim was contacted for his comments. I agree with Mr. Rangan’s submission that, this case was a serious case. Using an offensive weapon against the unarmed victim was and is serious. If the offender decided to solve the problem between his son and his cousin brother why use the sword? Such action was not and is not reflective of dispute resolution within the communities and family units.
    
15. The offender is an elderly person. He should lead younger generations into amicable settlements of dispute within the community and the family circle. Instead, he resorted to violence by use of offensive weapon being a sword and used it against his blood brother’s son. The victim was contacted. He expressed concern that, he is no longer interested in payment of compensation and he lives it up to the court to consider what penalty the court should impose.
    
16. I consider that, this is an appropriate case for a custodial penalty to be imposed and an order for further compensation. He has already paid K400.00 before coming to court. The prisoner is sentenced to a term of one (1) year imprisonment. The time spent in custody shall be deducted. He shall serve the balance. After serving the balance, he shall pay 400 standard fathoms of Tolai shell money to the victim.

17. These payments shall be paid within three months. Sentenced accordingly.

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