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State v Mark [2018] PGNC 408; N7519 (15 October 2018)

N7519


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR No. 1734 OF 2016


THE STATE


V


AMOS MARK


Kimbe: Miviri AJ
2018: 25 September, 1, 08, 11 & 15 October


CRIMINAL LAW – PRACTICE AND PROCEDURE – GBH S 319 CCA– Plea–Bush knife attack – revenge over earlier attack by victim – permanent injuries two fingers – neighbours – PSR MAR ordered – favourable to prisoner – prevalent offence – deterrent sentence.

Facts
Prisoner cut victim on his left arm with a bush knife when he lifted to stop the blow that prisoner had delivered. He now has two fingers which cannot be moved.


Held
Prevalent offence
Guilty plea
Two fingers permanently injured
Strong and deterrent sentence
4 years IHL


Cases Cited:
Tardrew, Public Prosecutor v [1986] PNGLR 91
The State v Aihi (No 3) [1982] PNGLR 92
The State v Irowen [2002] PGNC 99; N2239
The State v Kialo [2008] PGNC 290; N5467
The State v Pendin [2012] PGNC 292; N4541
The State v Philip Piapia [2017] N6763


The State v Steven Tumu [2017] N6768
The State v Tupulit N6185" title="View LawCiteRecord" class="autolink_findcases">[2015] PGNC N6185
The State v Simo [2018] PGNC 221; N7312
The State v Waimba [2016] PGNC 430; N6954


Counsel:


D Kuvi, for the State
B Takua, for the Defendant

SENTENCE

15th October, 2018

  1. MIVIRI AJ: This is the sentence upon Amos Mark of Pililo village Kandrian who pleaded guilty that he on the 22nd April 2016 at Tamba Oil Palm Settlement unlawfully cut Tovi Anton with a bush knife on his left arm severing tendons leaving his two fingers to that hand not working.

Short facts


  1. Tovi Anton was accompanied by two others and they were returning back home to Mosa. They had consumed some alcohol and were cheerful and as they passed the prisoner he lifted up the bush knife he had and swang at Tovi Anton who lifted his left hand to defend himself, but sustained a cut on his left arm. Two fingers of that hand no longer work after undergoing treatment at the hospital. Prisoner attacked in retaliation over an earlier incident by the victim.
  2. He was charged with grievous bodily harm pursuant to section 319 of the Code. It read, “A person who unlawfully does grievous bodily harm to another person is guilty of a crime.

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


Aggravation


  1. Grievous bodily harm is defined under section 1 Interpretations as, “means any bodily injury of such a nature as to endanger or likely to endanger life, or to cause or be likely to cause permanent injury to health;” Medical evidence by doctor George Pariwa Consultant Physician dated the 25th May 2016 of Tovi Anton reads he was assaulted and chopped on his left arm. This occurred on the 22nd April 2016 at 7.0’clock and he lost excessive amount of blood and felt dizziness and fainting episodes. He lost approximately 500-700mls of blood. Currently he is not able to move two of his fingers due to complete laceration of the tendons of this finger. He had 8 sutures to the laceration and was commenced on Amoxicillin 500mg oral 8 hourly panadol 500mg oral 6 hourly for 10 days.
  2. There is permanent injury that the two fingers cannot move as they used to previously before the crime was committed. This satisfies the elements of the offence and the plea is firm there are no issues in law apparent or identifiable to set it aside. At committal 28th October 2016 in his section 96 statement prisoner recounted that, “I did not do this for nothing. I did it because there is a reason for doing it. This man Anton did assault me and I sustained a serious damage on my face. My face swollen and inside my eye balls were all red. I did not go to the hospital to get medical report. He and his clansmen said they were to say sorry to me. I did not do anything wrong to him and he assaulted me. He did not say sorry. I was going to the hospital to receive treatment for the injuries I had sustained. At that time I met him in the middle of the road. I asked him when are you going to say sorry to me. He swore at me and asked; bai yu wokim wanem? When he said this, I lifted the bush knife I was holding to slap his back side only. He turned and blocked it and the knife cut him.”
  3. This is consistent and more in line with everyday living for a person to act as did. And these are also the same he advances in his record of interview dated the 21st September 2016. He admits the offence when he is initially charged by police in the Information dated the 20th July 2016. The guilty plea is not of recent but initially when he was taken into the hands of the law. He will be accorded that benefit in the sentence that is passed upon him for the offence.
  4. The maximum sentence it draws is 7 years imprisonment. That will be attracted in a worst case, Aihi v The State (No 3) [1982] PNGLR 92 (5 March 1982). The present is not as was in State v Irowen [2002] PGNC 99; N2239 (23 May 2002) where this court imposed the maximum penalty of 7 years cumulative under section 319 both wive victims were strip naked by their common husband who accused them of extra marital affair and tortured. He cut them both with a bush knife almost killing them but they survived because they were taken quickly to the hospital by a Pastor but came out with serious residual injuries. In State v Waimba [2016] PGNC 430; N6954 (18 May 2016) the prisoner was under the influence of homebrewed alcohol in Wewak and attacked a policeman the victim who had come out to investigate a criminal complaint where the prisoner was, sustaining serious cuts to his face and eye which became 100 percent dysfunctional despite extensive medical treatment to correct.
  5. Here there was de facto provocation over an earlier incident set out above prompting the prisoner to react as he did. Clearly the way he took to settle the matter was not right. A wrong will never ever be corrected with another wrong. As happened here it landed the prisoner in court with grave consequences that were facing him. The life of the victim was threatened by the injury that he received with a bush knife wielded and swung by the Prisoner without any second thoughts of the consequences befalling as here. It could have easily led to more serious offences know to law against the prisoner. But the victim is surviving with two fingers not functional.

Mitigation


  1. The prisoner is 23 years old single originally from Pililo Island Kandrian West New Britain Province. He is educated to grade 8 at Tamba Primary School in 2015 and did not go higher his father withdrew him from Poinini Technical Secondary because of the offence. He is a first offender resident at Tamba Section 2 Block 416 with his parents. He is the fourth out of eleven siblings.
  2. Community leaders such as Tobias Malisa village Court Magistrate Tamba section Block 446, Steven Bais Catechist of the Tamba Catholic Church says that the prisoner’s family are regular church goers. Both he and the former tried to organize reconciliation but to no avail as the victim was never available. It follows that any orders for restitution compensation will not materialize. Either the victim is no longer where he is and has moved on in life. Hence there would be no threat to peace order and lawfulness in the Community. Sentence must be proportionate to the gravity of the offence not without. Where there is demonstrated by clear evidence to mend family or relationship and as here there is means to ensure compliance of compensation orders this court has gone ahead to impose sentence giving effect, State v Philip Piapia [2017] N6763 (17 May 2017); see also State v Steven Tumu [2017] N6768 (23 May 2017). The sentence has been in the mid-range of 3 to 4 years part custodial and part suspension in each case.
  3. The facts and circumstances proportionate here are not likened to State v Pendin [2012] PGNC 292; N4541 (26 March 2012) where the prisoner pleaded guilty to one count of doing grievous bodily harm contrary to section 315. He was initially charged with attempted murder on committal reduced on plea bargaining. He attacked and cut the victim with a bush knife that he had concealed under his shirt for no apparent reason then chased her and repeatedly swang the bush knife as they were running, in fear she raised her hand to protect her head he had initially cut, he cut off her left hand completely with the plastic she was carrying still attached to the fingers. The court described, the knife was swung with such savagery and ferocity leaving her with complete amputation of the forearm below the right elbow with bleeding vessels, 10cm x 2cm deep wound to the scalp, 10x4cm wound to the right posterior shoulder, and 4 x 15cm deep wound to the thoracic lumber area at the back. Sixteen (16) years IHL was passed as the sentence appropriate.
  4. This is not as serious as the case of State v Kialo [2008] PGNC 290; N5467 (11 December 2008) where 6 years was imposed by this court for two convictions one for Grievous bodily harm with intent under Section 315 and secondly for wilful damage. Four (4) years was ordered to be served in jail and 2 years suspended on non-custodial term. Nor would it be on same or similar as in State v Tupulit N6185" title="View LawCiteRecord" class="autolink_findcases">[2015] PGNC N6185 (28 July 2015) where 5 years was imposed K2500 was paid as compensation, time in custody was deducted and the balance was suspended on a probation order. Or even comparably near as in State v Simo [2018] PGNC 221; N7312 (20 June 2018) where 8 years was imposed on a guilty plea to Arson and Grievous bodily harm pursuant to section 319, where 4 years was ordered to be served in jail and the remainder was suspended on a probation order for the same period. All these cases are not strictly the offence under section 315 or 319 whichever is the case alone, but accompanied by another criminal offence.
  5. But the facts and circumstances have been such that even in the face of this there is room by evidence for suspension which is often set and followed as in Tardrew, Public Prosecutor v [1986] PNGLR 91 (2 April 1986). Here what has been placed warrant and would be proportionate to give effect to suspend the sentence because there is material to promote personal deterrence, reformation and rehabilitation of the offender. That the suspension will promote repayment or restitution. Here that is unlikely with the victim not found by the probation office pursuant to the orders made. And imprisonment will be disproportionate given the facts and circumstances set out above.
  6. It would therefore be appropriate to sentence the prisoner given to 4 years IHL. That further under section 19 of the Code taking account of all set out above the 4 years be wholly suspended on a Probation order for the same period on conditions as follows:

Ordered Accordingly,
__________________________________________________________________Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant

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