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State v Nipere [2023] PGNC 270; N10427 (4 August 2023)

N10427


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR NO. 781 & 783 OF 2023


THE STATE


V


BENSON NIPERE & ROBINSON SIWAKE


Aitape: Miviri J
2023: 04th August


CRIMINAL LAW – PRACTICE AND PROCEDURE – Assault occasioning bodily harm S340 – Plea – No Reason Justifying Attack – offence committed in Public Place – residual injuries – first offender – Protection of the law – Deterrent Sentence.

Facts
Accused accompanied another and assaulted the victim with a bush knife cutting him causing serious bodily harm. He now carries residual injuries.


Held
No reason justified to attack.
Protection of law
Encouraged the main assailant.
First offender
12 months IHL.
6 months in custody.
6 months suspended on 6 months GBB on conditions.


Cases Cited:
Gimble v State [1988-89] PNGLR 271


Counsel:


D. Mark for the State
P. Moses, for the Defendant

SENTENCE

04th August 2023

  1. MIVIRI J: Benson Nipere and Robinson Siwake of Arop, Aitape are both charged that they on the 28th day of September 2022 at Aitape unlawfully assaulted Richard Meros and thereby caused him bodily harm.
  2. The charge was pursuant to section 340 assaults occasioning bodily harm with maximum penalty of 3 years imprisonment.
  3. The facts on arraignment were that on the 28th September 2022 at about 7.30am the two Accused with another Penias Nipere approached the victim Richard Meros at the Aitape Market. He was looking for fish to buy in the market. Penias Nipere came from the back and cut him with the bush knife on his right calf muscle. As he did Richard Meros faced him and tried to wrestle off the bush knife. He held the blade and Penias Nipere the handle and both wrestled in the process Richard Meros suffered cuts to the palm of his hand and fingers. He let it go, and Penias Nipere swung it aimed at his neck, but Richard Meros lifted his right hand in defence and received a deep cut to it. He ran for his life but fell onto the ground unconscious. He was later taken to the Raiho District Hospital where he was treated and discharged. The State invoked section 7 of the Criminal Code as both defendants aided and abetted the offence by the main accused.
  4. The state did not offer any evidence against Benson Nipere, and he was found not guilty acquitted and discharged. In respect of the accused Robinson Siwake, he pleaded guilty, and the tender of the file confirmed his guilty plea. He called out to the main accused to kill the victim. And he also used a piece of wood to hit the victim with it on his head felling him to the ground. He was an active participant to the offence. And these were confirmed by the witnesses immediately at the scene at the time of the attack. It was a broad daylight attack at a public area, the market where the victim was intent on buying fish for his family when attacked. On trial it would have been beyond doubt as to the role of the prisoner. He pleaded guilty saving the court time in running a trial.
  5. He was appearing from remand having been in custody since the 2nd February 2023. So, at the time of trial would have been in custody for six (6) months two (2) days which no doubt had some bearing on him. He was 45 years old and an elementary School teacher who had 23 years of teaching. He was a married man with two grown children and two young children in school for whom he was primarily responsible for. As they were in high and primary School. He did not have any prior conviction known to the law.
  6. The offences were committed for whatever reason it is not known as there is nothing in the evidence that was tendered by the State. The defence did not highlight and so it could not be concluded as to the reason for the attack in broad day at a public frequented area, the market. But it was a group attack, and the victim was outnumbered. He was unarmed and tried unsuccessfully to disarm the main assailant during which he suffered cuts to his palm. And the medical evidence by the Health Extension Officer one Aliti Pouru dated the 29th March 2023 details out the extent of the injuries received by the victim, Richard Meros. There was multiple lacerations to the right arm, right lower limbs, Left arm the wrist. He went onto say that there was permanent disability expected, there was numbness right hand and lower limb.
  7. The three-photograph taken of the injuries showed a deep cut to the lower right leg, the back of the palm, and the right hand. Clearly all very serious injuries not warranted given that there were no reasons disclosed as to the reason to attack the victim. And an attack in a public frequented area. It was clear the victim did not expect that he would be attacked in that manner. But he put a fight that saved his own life from the inevitable.
  8. The guilty plea saved a trial, but the evidence was overwhelming, and the role of the prisoner was that he called out, kill him, and used a piece of wood to hit the victim on his head befalling him in the process. It was a group attack and clearly not warranted in the way it was carried out. He is a first offender but like him all persons must be protected. If there is a dispute or grievance the law provides avenues that this can be settled amicably in compliance without what happened here. The prisoner really has no excuse he is an elementary teacher who has taught for 23 years. That would have enlightened him to follow the law and not to breach as he did here. People in public areas do not expect that they will be attacked in this manner. The law must be observed by all let alone the prisoner an elementary school teacher. He is matured man with children and ought to know what is right and what is wrong.
  9. The sentence here is intended to protect and deter others who had similar inclinations and to ensure that the rule of law is observed in the public by all. It was a group attack and there were multiple injuries that emanated, but in favour of the prisoner he pleaded guilty expressing remorse. He is equally to blame for the injuries that the victim suffered: Gimble v State [1988-89] PNGLR 271. That is, it will be not the case that the court will not consider specifically and differentiate whether a particular prisoner held the gun, a bar, or a knife and held up the victims but that all played an active part in the commission of the crime and therefore all are equally to blame for the outcome of the crime. That is the case here the prisoner was present and actively participated in the assault occasioning bodily harm upon the victim. He is equally to blame and will be sentenced for that role.
  10. The prisoner is sentenced to 12 months IHL for the crime of assault occasioning bodily Harm contrary to section 340 (1) of the Criminal Code Act committed against Richard Meros on the 28th September 2022 here in Aitape. Six months will be deducted from that head sentence. The remaining six (6) months will be suspended on a good behaviour Bond on conditions, that he pays K 1000 to the Richard Meros within 21 days upon release which would expire on Friday 1st September 2023. He will produce a receipt of the payment to the Court by Monday 04th September 2023 of that fact for the suspension to be settled. Should he fail, he will be arrested to serve the six (6) months now suspended forthwith.
  11. The formal orders of the Court are:

Orders Accordingly

__________________________________________________________________Public Prosecutor: Lawyers for the State

Public Solicitor : Lawyers for the Defendant

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