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State v Soso [2022] PGNC 177; N9621 (6 May 2022)

N9621

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 663 OF 2021

THE STATE

V

PIMOI SOSO

Goroka: Miviri J
2022: 11^th April, 6^th May

CRIMINAL LAW – PRACTICE AND PROCEDURE – GBH S319 CCA–Plea- Severing four fingers right Hand – Dominant Right Hand Disabled – PSR MAR ordered Favourable – Compensation Paid – Victim Additional Compensation demanded – K5000 Minimum Criminal Compensation Act – Prevalent Offence – Stern & Deterrent Sentence.

Facts
Prisoner cut off the four fingers on the right hand of the victim over a family dispute. She is now disabled.

Held
Plea of guilty
First offender
Able finger victim now disabled in dominant hand.
Prevalent offence
Strong Deterrent Sentence.

Cases Cited:
The Queen v Pum [1974] PNGLR 103
The State v Irowen [2002] PGNC 99; N2239
State v Konos [2010] PGNC 179; N4157
State v Robert [2009] PGNC 42; N3629
The State v Philip Piapia (2017) N6763
Tardrew, Public Prosecutor v [1986] PNGLR 91
The State v Ogi Songe [2017] N6759
The State v Taroh [2004] PGNC 104; N2675
The State v Susure [1999] PGNC 58; N1880
Yalibakut v State [2006] PGSC 27; SC890

Counsel:

K. Umpake, for the State
G. Apa, for the Defendant

SENTENCE

06^th May, 2022

1. MIVIRI J: This is the sentence of Pimoi Soso of Daulo Top, Daulo District Eastern Highlands Province who pleaded guilty to cutting off four fingers on the right hand of one Mary Philip contrary to 319 of the Criminal Code.
   
2. On the 1^st of February 2020 at Daulo Top, Daulo between 12.00 midday and 1.00pm Mary Philip and her husband went to the Accused’s parents house regarding a matter involving him which had been settled earlier. The Accused was there. And whilst discussing the Accused became angry and swung his bush knife at the victim cutting her in the right hand on the four fingers severing them as a result. She is now disable and without the use of the right hand. She is dependent on her husband.
   
3. Prisoner was indicted with Grievous bodily harm pursuant section to 319 of the criminal code that, “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.”

4. Victim lost her four fingers from her right hand and is now a disabled person for life. Prisoner persisted even when the victim had fallen down avoiding the bush knife the first time. She could not defend herself in that position and was venerable to the prisoner who persisted to the injury resulting. It is not a light matter from a trained community schoolteacher, who teaches children in school what is life and how to live. To understand what life is about and what are necessary in life. He is a college educated person and it would appear that that education did not deter his conduct that day. He is fortunate that the charge is under section 319 drawing sentence of a maximum of seven years imprisonment.
   
5. Comparably Section 315 is very serious there is intention to cause grievous bodily harm and that intention is fulfilled as here by the prisoner. In the present Section 319, there is no intention but the result is grievous bodily harm is caused. That is evident from the penalty provision in the former life imprisonment is maximum, whereas in the latter it is seven years maximum. Its seriousness can be seen with Section 304 Attempted Murder where the maximum penalty is life imprisonment as with this Section 315. It reinforces the right to life under Section 35 of the Constitution that whether it is an attempt to murder or as here intention to cause grievous bodily harm and causing that as a result here, imprisonment is maximum of life years. The same as in murder or manslaughter. Thus, it is not a light matter where a wrist and foot are amputated, or as here, four fingers of the right hand are severed. Without the fingers she is an abnormal human being. She cannot grab and is denied that capability which is necessary for life. Every human being is with that necessary for self-provision in life to sustain life. Without which as she has voiced in the presentence report, she is supported by her husband who confirms that fact. And as she has pointed out, many look at her as it is an uncommon sight amongst all. She no doubt suffers that stigma and would be there in her life.
   
6. The availability of the bush knife as a tool and its use for evil as here is rampant and prevalent. Whether an armed robbery, or grievous bodily harm, or attempted murder, or any of the offences of homicide the bush knife is there and its uses has seriously grievously defied the law. Unlike a gun it is unlicenced waiting to exert death or maim a recipient as here. This sentence will take account of that fact and will reflect that the courts will not tolerate complete defiance of Section 35 right to life. Nor of persons who resort to violence as is the prisoner without hindsight of their actions. A plea of guilty is genuine if actions derive from it without the hand of the Court to call to order by the defendant. And that is the case of the prisoner here.
   
7. In his record of interview conducted on the 03^rd March 2020, the prisoner explained that She Mary Philip had bad feelings against him because her elder son named Kanange Philip we exchanged shoes. And the prisoners mother went and argued with the victim who was his aunty. And he stopped them not to argue as they were family. But the victim told him to leave the place and that he does not belong there. And she has three sons who will occupy the space he is on. She said this three times prompting him to act as he did. But it was not excused in law because she was defenceless and a relative. The presentence and means assessment reports dated the 05^th May 2022, detail that Mary or alias Beri Philip the victim and her husband Philip Pilimura confirm that victim is unable to make gardens wash clothes and is now dependent on the husband.
   
8. Both confirm the payment of K2000.00 plus two (2) live pigs valued at K1000. But want more compensation in the light of the fact prayed set out above. That is restricted in view of the Criminal Compensation Act section 5 (3) (b) to K5000.00 whether in goods cash or kind. As it is K2000 plus the two pigs at K1000.00 is K4000.00 that has been paid already. Anything further must not exceed K5000.00. It means only K1000.00 will be given in addition. And it must also be considered that the defendant has spent 8 months in custody on remand awaiting. He was remanded since the 03^rd March 2020 and released on Bail on the 12^th November 2020. Any further period in custody would be disproportionate given he has pleaded guilty. And taken the first step to wrong the right followed into court with his admissions. This in my view show genuine attempt to make right a wrong. And sentencing must take account of that fact.
   
9. It is clearly attempt to reconcile and restitution of what has been wronged. Her four fingers will not grow back again after the compensation paid. Because it is very genuine and human fact that no amount of money will replace the four fingers on her right hand. That is her dominant hand, it is evident from the dependence now on the husband for her life. It is a very prevalent offence which has left the victim without four fingers of her right hand. She uttered words in a domestic argument between relatives that led to a very serious wrong. Wrong must be corrected with a right not by another wrong as here. Prisoner was educated community School teacher and, on that basis, would have been acquainted that there were processes, means to dispose settle disputes. He resorted to illegal and unlawful self help. He must be educated and any others similar to follow the rule of law.
   
10. He is 29 years old resident at Daulo Top, Daulo district and is of the Baptist church. He is married with a four-year son in elementary school, a three-year-old son at home, together with a daughter who is a year old and a six-month-old baby. He is a teacher teaching at Amaira Primary School in the Obura Wanenara District Eastern Highlands Province. He is a first offender.
    
11. In allocutus He stated, “this is my first time and I want to say sorry to the court for holding its time in my case. I say sorry to my mother, my small mother. I say sorry to my community for what I did. I bought a shoe to give to her son to graduate at Asaroka grade 12. I gave my Mrs shoe to him. His did not fit him. His mother saw it not one. Mother went down to make peace with but she came and provoked calling witchcraft and scratched me on the face when I tried to solve the matter. She did that first, time second time, and third time I pushed her over and by mistake I cut her hand and finger.”
    
12. The sentence will derive from the facts on arraignment and the charge laid, Yalibakut v State [2006] PGSC 27; SC890 (27 April 2006). At the pinnacle it is not on par comparably as in Pum v The Queen [1974] PNGLR 103 five appellants appealed against their sentences. Four were convicted of attempted murder and received eleven years four months’ imprisonment with hard labour and Kerua to ten years four months’ imprisonment with hard labour for with intent to cause grievous bodily harm, did cause grievous bodily harm. They had acted in revenge against a bulldozer operator who had presumably killed one of their relative. They were stopped but persisted with iron bars and stones even when two policemen tried to stop them. They stopped when they thought the victim was dead. A brave bus driver joined the two policemen and saved the victim.
    
13. That is grave and a lot more serious than the present offence, but State v Taroh [2004] PGNC 104; N2675 (13 September 2004) would be a lot similar to the present case, where bush knife was used upon the victim cutting his hand three times. The court imposed 8 years imprisonment. He recovered. Here victim has lost the use of four fingers of the right hand. She is now by the presentence report depended on her husband. Her survival on her own has been reduced drastically by the missing four fingers on her right hand. Presumably that is her dominant hand. She has asked for more compensation despite his payment upfront particulars set out above. In State v Susure [1999] PGNC 58; N1880 (17 June 1999) compensation was ordered, where both victim and prisoner where friends. and the matter arose because victim had gone into the bedroom of the prisoner and wife and sought to have sexual intercourse with her after both were together drinking, and prisoner had gone because he wanted to light his smoke. In his absence victim went into his bedroom with his wife and infant were and attempted to have sexual intercourse with her. She resisted called drawing the prisoner armed with an axe who argued with the victim. He uttered words that incensed the prisoner, who reacted with two swings of the axe cutting him on the head and nose. The court imposed three years ordering one year in jail, two years were suspended on the condition that compensation be paid of K1000 in cash, a cow and garden food. That was with intent to cause grievous bodily harm pursuant to section 315 of the criminal Code, which isn’t the case here.
    
14. These are comparably excerpts of decisions that have emanated from section 315 of the code, more serious than the present of section 319, which calls the maximum sentence of seven years imprisonment. It is worth noting that the element of grievous bodily harm is usually associated with murder charge, and in that regard is a very serious offence. Because if death had resulted the charge would have been murder. It is not light matter given the seriousness set out above. It is not light for family members or close-knit members as sentences have in like circumstances fallen at mid-range of 3 to 4 years suspended with conditions for compensation reformation and rehabilitation of the prisoner. The use of a weapon has a propensity to immediately threatened life or limb as is the case here. This court has opted for the maximum sentence of seven years under this provision where life-threatening injuries were seen out in State v Irowen [2002] PGNC 99; N2239 (23 May 2002). It was made cumulative where both wives were cut with a bush knife almost killing them, but they survived because they were taken quickly to the hospital but came out with serious residual injuries. That is the extreme which isn’t the case here. Like any other person by the law this court has a duty to protect all persons.
    
15. Where a nephew attacked an uncle with a bush knife cutting him causing a life-threatening injury this court imposed 3 years IHL part custodial and part noncustodial with conditions for payment of compensation State v Ogi Songe [2017] N6759 (27^th May 2017). Where there is demonstrated by clear evidence to mend family or relationship and there are 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). The sentence has been in the mid-range of 3 to 4 years part custodial and part suspension in each case. That consistency flows in State v Konos [2010] PGNC 179; N4157 (12 November 2010) and State v Robert [2009] PGNC 42; N3629 (19 May 2009).
    
16. The aggregate here is that the just and proportionate sentence given all set out above is 3 years IHL. And I so impose that upon the prisoner for the crime of causing grievous bodily harm committed upon Mary Philip. I deduct the 8 months that he has served on remand since the 03^rd March 2020 up to 12^th November 2020 when he came out on bail from the head sentence. The balance is 2 years 4 months in hard labour. That will be suspended in the exercise of my discretion pursuant to

section 19 (6) of the criminal Code taking account of Tardrew, Public Prosecutor v [1986] PNGLR 91 and evidenced by the views of Bafung Kimoey, councillor for ward 1 Korepa village Lower Asaro Daulo District, I consider that a suspension of that sentence is in order. This is an offence that is out of character to the prisoner. Because he is a quiet and humble person in the community by this witness. And he has no prior criminal record, or like behaviour. And he also has a very young family who will suffer his provision if incarcerated. Including that the want of the victim for compensation rather than a jail, these warrant suspension to accord.

17. Given these in the exercise of my discretion pursuant to section 19 (6) of the Criminal Code Act, I hereby suspend 2 years 4 months on Probation Order for the same period of 2 year 4 months on the following Conditions:

(i) You shall enter into a probation order for 2 years 4 months on conditions.

(ii) You shall within 48 hours report to the Probation Officer.

(iii) You shall be resident at Amaira Primary School at all times in the course of your probation period.

(iv) You shall not leave this place of resident or Goroka without leave of this court during the course of your probation period.

(v) You shall pay K1000.00 in cash within a 14 days from today expiring Thursday 26^th May 2022 to Mary Philip witnessed by your Probation Officer and Councillor Bafung Kimoey, councillor for ward 1 Korepa village Lower Asaro Daulo District receipt of payment to be filed in Court.

(vi) You shall keep the peace and be of good behaviour at all times.

(vii) You shall not take liquor or any form of intoxicating substance or drugs during the period of your probation.

(viii) You shall attend your local Baptist Church every Sunday for worship whilst on probation.

(ix) The Probation Officer shall file a report on the responses and progress of the probationer every five months starting 06^th October 2022, and at any other time or interval as the National Court may order upon application.

(x) The first report by the Probation officer shall be filed Thursday 06^th October 2022 in the Goroka National Court.

(xi) In a breach of any of these Probation Orders your Probation shall lapse and you shall be arrested to serve the whole term of your sentence now suspended in jail.

Ordered Accordingly.

Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant