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State v Gior [2017] PGNC 256; N6945 (18 August 2017)

N6945

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 279 OF 2017

THE STATE

V

SIMON GIOR

Kundiawa: Salika DCJ
2017: 18^th August

CRIMINAL LAW – Practice and Procedure – charge of grievous bodily harm – s.19 of Criminal Code Act [ charge of serious offence sentenced to 5 years imprisonment.

Case Cited:
The State v. Dua [2013] N4957
The State v. Konos [2010] N4157
The State v. Ludwina Wangum (2009) N3188
The State v. Wonot [2014] N5522
The State v. Tamurei Lawrence & others (2006) N311

Counsel:

Ms. Roalakona, for the State
Mr .M Yawip, for the Prisoner

SENTENCE

18^th August, 2017

1. SALIKA DCJ, INTRODUCTION: Simon Gior pleaded guilty to one count of unlawfully doing grievous body harm to Lyn Appa. The charge was laid under S.319 of the Criminal Code Act. Grievous bodily harm means serious physical injury deliberately inflicted on someone. This accused Simon Gior admitted he deliberately caused serious physical injury to Lyn Appa.
   

FACTS

2. Simon Gior was married to the victim, Lyn Apa. Due to some marital issues, the victim left Simon and went to live with her parents. On 24^th April 2015 at about 10 am at Taiyadumo village, Lyn had gone to the kaukau garden. While she was there cleaning around the garden, Simon approached her from behind and swung a bush knife at her and cut her on her left leg injuring her. She shouted for help and a woman nearby came to her assistance. Lyn was taken to the Kerowagi Health Centre where she received treatment to her leg and where she was diagnosed to have suffered compound left fibula fracture and the foot extensors with the Achilles’ tendon cut. The State says that when the accused swung the bush knife at the victim and cut her on her left leg causing her injuries he unlawfully did grievous bodily harm thereby contravening section 319 of the Criminal Code Act.
   

ISSUE

3. Having pleaded guilty of the charge the Court will have to determine the appropriate sentence to impose on him.
   

THE LAW

4. Section 319 says that a person who unlawfully does grievous bodily harm to another person is guilty of a crime.
   

Penalty: imprisonment for a term not exceeding 7 years.

PRINCIPLES OF SENTENCING

5. The following factors should be considered in arriving at an appropriate sentence.
   • (a) was the assault multiple or single?

- in this case there was only one wound and so I assume there was only a single blow.

(b) apart from the injury on the left leg, where there other injuries?

- No other injuries.

(c) was a weapon used?

- yes a bush knife was used.

(d) was there a pre-existing condition?

- factor not applicable here, No.

(e) was the assault not a vicious one?

- the single assault was vicious.

CASE PRECEDENTS

6. Counsel for the state usefully referred me to the following cases:-
   
   • (i) The State v. Dua [2013] PGNC 175; N4957
     

The offender attacked his wife with a bush knife, severing her left arm and inflicting other injuries on her, as he was angry with her for having an extra-marital affair. He pleaded guilty to unlawfully doing grievous bodily harm and the victim expressed the desire that he not be imprisoned as she depended on him to support her and their four children.

The Court considered the mitigating factors to be moderate amount of de-facto provocation; cooperated with police, already paid compensation and willing to pay more, pleaded guilty, expressed remorse, victim’s desire to see him given suspended sentence, no prior convictions.

The aggravating factors include: use of lethal weapon; planned and sustained attack; multiple injuries to vulnerable parts of the body; victim’s permanent disability. A sentence of 5 years was imposed, fully suspended due to favourable pre-sentence report and victim’s attitude.

(ii) The State v. Wonot [2014] PGNC N5522

The offender pleaded guilty to the charge of grievous bodily harm pursuant to s.319 of the Criminal Code Act. The facts in this case was that the offender had suspected his wife of committing adultery and assaulted her with an iron rod and also placed a burning firewood on her body . The court sentenced the offender to 4 years imprisonment. No part of the sentence was suspended.

(iii) The State v. Konos [2010] PGNC 179; N4157

The offender pleaded guilty to unlawfully doing grievous bodily harm to his nephew by attacking him with a piece of timber fracturing his knee and inflicting many other superficial injuries and multiple blows. The court stated that the appropriate starting point in GBH cases is 3 and half years. A sentence of 3 years was imposed which was fully suspended in view of a favourable pre-sentence report subject to conditions including part-payment of compensation and participation in a reconciliation ceremony with the victim.

7. The medical report in this case says the victim in this case was very lucky that she was taken just in time to the health centre which stopped the bleeding and saved her life. Any more longer she would have died due to loss of blood. This court must not treat lightly vicious attackers who deliberately cause grievous bodily harm. Grievous bodily harm cases are too prevalent and call for immediate custodial term (see The State v. Tamurei Lawrence & others (2006) N311.
   
8. The victim received a deep wound and the tibia extension tendon and the big achilles tendons were cut and she underwent a big operation which led to the healing of the tendons. She still requires physiotherapy and specialist medical care.
   

PERSONAL PARTICULARS

9. The prisoner is about 33 years old, from Gagulg Village, Kerowagi in the Simbu Province. He was married to the victim but whether any reconciliation has occurred is another matter. He was educated to Grade 10 and attended Kundiawa Technical School. He has no children.
   

MITIGATING FACTORS

10. The following are mitigating factors:-
    
    • (a) he is a first time offender.
    • (b) he pleaded guilty to charge.
      

AGGRAVATING FACTORS.

11. Following are the aggravating factors:-
    

(a) he used a bush knife to cut the victim.
(b) he caused big damage to victim.
(c) he deliberately cut her.
(d) there was planning to do what he did.

SENTENCE

12. The prisoner reasoned in his own heart *and mind to do what he did. He sets out deliberately to hurt Lyn and hurt her he did. Our people must resolved their grievances in a civilised way. Take the matter to the village court or to village elders and leaders to help resolve the problems. We have mechanisms in place in the villages to sort out our problems. We must those processed and institutions. The Courts are part of that process. Report matters to police to help resolve your disputes.
    
13. In this case the prisoner took the law into his own hands and now he is in Court. He is going to pay for the very serious crime. Accordingly, considering all the mitigating factors and aggravating factors and that this offence is a very prevalent offence. This Court must send out a message that such offences will be met with sternness. I sentence Simon Gior to 5 years imprisonment with hard labour. He has been in custody one year one month. Those are taken off. The balance he will serve is 3 years 11 months imprisonment in hard labour.
    

Sentenced accordingly.

_______________________________________________________________

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