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State v Kutumano [2017] PGNC 50; N6673 (16 February 2017)

N6673

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1483 OF 2010

BETWEEN

THE STATE

V

ANTON KUTUMANO

Offender

Mendi: Ipang, J

2016: 16^th & 17^th October

2017: 16^th February

CRIMINAL LAW – Sentence - Criminal Code Act – Sections 340 (1) – Unlawful assault causing grievous bodily harm and section 355 (a) Deprivation of liberty – offences committed as a result of suspicion that the victim performed sorcery on the prisoner’s brother causing his death.

Cases cited:
State v. Sinowi (2001) N2175
Statev. Sabuin (2006) PGNC 149; N3163
State v. Samson (2007) PGNC 198;

Counsel:
S. Luben, for the State
C. Koek, for the Prisoner

DECISION ON SENTENCE

16^th February, 2017

1. IPANG J: This is the decision on the sentence for the prisoner Anton Kutumano from Sisibia No. 1 village in the Nipa-Kutubu District of the Southern Highlands Province, who had pleaded guilty to one (1) count of assault occasioning grievous bodily harm contrary to section 340 (1) of the Criminal Code Act, chapter 262 and one (1) count of deprivation of liberty contrary to section 355 (a) of the Criminal Code Act, chapter 262. State had also invoked Sections 7 & 8 of the Code.

2. The brief facts upon which the prisoner pleaded guilty to, on the 11^th of October, 2016 are as follows; on the 12^th of March, 2010 between 6am and 7am a group of men from Sisibia No. 1 held up the driver of a white Toyota Land cruiser, Ten Seater Registration No. LAS 822 at Sisibia No. 1 village and took the said vehicle to Kaipu Village. They left the vehicle on the main road at Kaipu Village, walked over one Kiudobo Hiane’s house which is few distance from the main road. They approached Hiane’s house, they went inside the house, pulled and dragged him out of the house. These men claimed that Kiudobo Hiane had killed their Late brother by performing sorcery on him. From Hiane’s house back to the main road, they assaulted him by kicking him with their boots and punched him on various parts of his body. They put him on the parked vehicle and drove back to their Sisibia No. 1 village. At Sisibia No. 1 village, the relatives of the deceased person continuously questioned him. The victim Hiane denied any knowledge of the cause of their brother’s death. They kept the victim at Sisibia No. 1 village until police intervened and rescued the victim in the afternoon. The police took the victim back to his Kaipu village. The next day some men went to the victim’s area burnt down his house and destroyed his gardens. The victim was with his relatives when this happened. The prisoner Anton Kutumano was amongst the group of men who assaulted and took the victim to their Sisibia No. 1 village. The victim Hiane committed suicide on the 14^th of March, 2010 which was two (2) days after the incident.

Penalty

3. The offences which the prisoner was charged with reads;

340. Assaults occasioning bodily harm

(1) A person who unlawfully assaults another and by doing so does him bodily harm is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three (3) years.

355. Deprivation of liberty

A person who unlawfully –

(a) Confines or detains another in any place against his will;

is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three (3) years.

4. Both offences attract a maximum penalty of three (3) years imprisonment. It is the sentencing practice that maximum sentence is usually reserved for the worse types of cases.

5. The issue before the Court is to determine, “whether the circumstances of this case warrant imposition of the maximum penalty which is three (3) years on both counts or a lesser term of years. In order to do that, there are several factors that I have to take them in to account.

Antecedent Report

6. The prisoner has no prior convictions recorded against him.

Allocutus

7. The prisoner said sorry to God for what he has done. He expressed remorse to this Court, to the lawyers and the relatives of the deceased person. He asked this Court to have mercy on him.

Prisoner’s Personal Particulars

8. The following are the prisoner’s personal particulars as submitted by the Defence Counsel Ms. C. Koek.

(1) He is 23 years old

(2) The prisoner married with one (1) child

(3) He is the second born out of five (5) children from his parents

(4) The prisoner’s parents are of old age

(5) He is a member of the Evangelical Church of Papua New Guinea

(6) He was educated up to grade 7 level

(7) He was helper to a Local Company namely Makai Landowner Company

9. Ms. Koek for the offender recommended for the first count, the offender be sentenced to six (6) months imprisonment and that the sentence be wholly suspended on the basis that there was no degree of participation by the offender and that the offender is a first time offender. Also in relation to the second count of deprivation of liberty under section 355 (a) of the Code, Ms. Koek also submitted for a wholly suspended sentence.

10. Ms. Luben for the State submitted the presence of aggravating features in the crime committed. She said there was a group attack. The victim, the deceased was an elderly man and the offender is a young person. The victim sustained bruises and fractured ribs. Luben submitted for the first count, the offender be sentenced to two (2) years imprisonment and for the second count the offender be also sentenced to two (2) years imprisonment. Then the Court takes into account the one transaction rule and have the sentences be served concurrently.

Case Precedents

11. In State –v- Sinowi (2001) N2175 there was a fight between the two (2) wives. The offender is the first wife and the victim is the second wife. The offender hit the victim with a piece of rod on the victim’s head. The offender was charged contrary to section 340 of the Code. The Court took into account the mitigating factors and sentenced the offender to six (6) years and wholly suspended the sentence.

12. In State-v- Sabwin (2006) PGNC194; N3163, the three (3) pleaded guilty to committing an offence under section 340 of the Code. The Court considered 18 months as the starting point. The Court considered the degree of participation and imposed a suspended sentence. In State-v- Samson (2007) PGNC198. The offender was charged of several counts including deprivation of liberty. The Court took into account the assault was not an aggravated assault and gave a suspended sentence.

13. The offender was arrested in 2010 and was in custody for two (2) years, nine (9) months and one (1) week when he escaped. A Bench Warrant was issued and he was re-arrested and was detained on the 2^nd of November, 2013. From the time of the re-arrest, he was in custody for ten (10) months. So in total the offender is in custody for three (3) years, seven (7) months and one (1) week.

14. I have taken into account of all that have been submitted. In both counts State had invoked sections 7 & 8 of the Code. The offender pleaded guilty to both counts however, the degree of participation of the offender remains unclear. The victim in this case committed suicide two (2) days later.

15. I consider after taking all the factors into account the following sentence for the offender; for the first count on the offence of unlawful assault causing grievous bodily harm (s.340 (1) CCA) for the sentence 18 months. I also consider custodial sentence of 18 months for the second count. Total of 36 months. Taking into account the time spent in custody which is 3 years, 07 months and one (1) week. I wholly suspend the 36 months and placed the offender on two (2) years good behaviour bond with conditions;

1. To keep peace and be of good behaviour;

2. Not to take any forms of alcohol drinks;

3. Not to mix with his peer group;

4. To attend regular church service.

______________________________________________________________

Public Prosecutor : Lawyer for the State

Public Solicitor : Lawyer for the Offender