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State v Pingjong [2023] PGNC 436; N10580 (23 November 2023)

N10580

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR NO. 2121 OF 2023


THE STATE


V


TITUS PINGJONG


Vanimo: Miviri J
2023 : 20th & 23rd November


CRIMINAL LAW – PRACTICE AND PROCEDURE – Unlawful Wounding Section 322 (1)(a) CCA – Plea – Prisoner & Victim Drinking Alcohol – Verbal Exchanges Infuriated Prisoner – Bush knife Cut Victim – No Lawful Justification for Attack – No Residual Injuries – Offensive Use of Weapon – 1 year suspended on Probation Order.


Facts
Accused cut the victim with a bush knife after he made derogatory remarks about the Accused.


Held
Plea of guilty
First offender
No Residual injuries
1 years IHL wholly suspended on Probation.


Cases Cited:
Tardrew, Public Prosecutor [1986] PNGLR 91
State v Esther Maramundi [2021] N9307
State v Sekin [2006] PGNC 74; N4479
State v Tupi [2012] PGNC 338; N5192
State v Kara [2012] PGNC 19; N4663


Counsel:
F. Popeu, for the State
O. Himore, for the Defendant


SENTENCE


23rd November 2023


  1. MIVIRI J: This is the sentence of Titus Pingjong who pleaded guilty to cutting the complainant with a bush knife on the shoulder.
  2. On the 19th March 2023, between 2.00am and 3.00am Titus Pingjong, the Accused was at the premises of Freddy Kakukra, the complainant at the Forestry Compound Vanimo. The complainant with two of his workmates were on the veranda of the house drinking alcohol and telling stories, whilst Accused with another person were standing near their vehicle parked alongside and were also drinking liquor. The complainant was a policeman, and he was talking, the Accused said something demeaning about the Police. It did not go down well with the complainant who responded. And the accused was not happy with his response. So, after a little while he took a bush knife from his vehicle walked up the steps to the veranda and swung it at the complainant. Who tried to avoid it but received a cut to the back of his left shoulder that needed urgent medical attention and treatment. The medical report showed that the complainant received a wound measuring 15cm in length and 5cm deep. Accused did not have any lawful justification for causing the wound to the Complainant.
  3. His action breached Section to 322 (1) (a) of the Criminal Code that read:

WOUNDING AND SIMILAR ACTS.

(1) A person who–

(a) unlawfully wounds another person; or
(b) unlawfully, and with intent to injure or annoy any person, causes any poison or other noxious thing to be administered to, or to be taken by, any person,

is guilty of a misdemeanour.

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


  1. The prisoner pleaded guilty to the Indictment confirming his admission made to police in the record of interview conducted with police on 09th June 2023. He explained that he reacted as he did not in surprise to the complainant, but that the complainant swore at him, so he went up to the veranda where he was and pointed the knife at him. As it was brand new and heavy it cut the complainant on the back. Be that as it maybe, the fact of the matter was that it was a very deep and long cut across the left back shoulder measuring 15cm x 0.5cm deep. It was clearly a very serious cut viewed by the two photographs taken. It exposed the underlying tissue, and it could not have been a poke but more of a swing. Again, swift medical attention saved this life otherwise it would have gone bad for the prisoner.
  2. Both complainant and prisoner were affected by alcohol at the relevant time. The actions of the prisoner were disproportionate because there was no need to resort to a bush knife to do what he did. What happened almost terminated the life of the complainant. But the medical report says otherwise. The prisoner is a first -time offender resident at Pewi corner settlement Vanimo. He is a 31-year-old married man self-employed and a first offender, who has admitted his wrong. He is educated up to Don Bosco Secondary School with qualifications in Poli Tech, Tourism and Hospitality Management. He was employed previously with King Fisher Lodge, National Catering Service, Madang Resort Hotel, West Sepik Provincial Health Authority. This is record that shows that he has been a productive member of society. And it is clearly out of character in the way that he has acted on this day. His good character can be made out in the way that he has cooperated with Police in his record of interview, now confirmed by his guilty plea in court. It is overt that he has of his own volition taken responsibility for his actions and is prepared to face the consequences of that action.
  3. And this is the view maintained in the presentence report that has been filed today 23rd November 2023. It recommends probation on condition that he compensate the complainant. In my view that is in order having viewed the views of the complainant, who asks for the maximum amount of K5000. That is not viable in view of the fact that he was affected by alcohol, and he also contributed to the way the offence endured to his detriment. Therefore, the sum would come out after all are weighed out. I consider in this regard the views of the father of the complainant with reservation as the discussion of the report is tailored to sentence. It is an after thought not as it unfolded so would not take the matter to any level against. And the action of the prisoner is out of character by the views expressed by John Kino I take due account of in the determination of an appropriate sentence.
  4. What is clear between both complainant and prisoner is that they were affected by the consumption of alcohol which has had a material play in the way they have acted here. Alcohol has clouded sound reasoning leading to the offence. But it is a use of an offensive weapon unlawfully on another human being which has injured him. It is fortunate that there are no serious and lingering aftereffects, or residual injuries upon the victim complainant. This is a first offender who has pleaded guilty and deserves leniency given all I set out above. Life must continue and relationship must be mended to bring the parties back. It is not in my view a case warranting a straight-out custodial term per se. A first offender with the learning and the background that the prisoner portrays must be allowed leave to make good what he has committed against the complainant. The facts and circumstances here speak of what is set out under section 19 of the Code. Here is a case more of retribution but not to the extent to crush a first offender who has admitted his wrong.
  5. Here it would not be wrong, nor would it be erroneous exercise of judicial discretion to impose a term and to have it suspended on conditions. Suspension of sentence on probation is not condoning the offence because the facts circumstances set out above do not warrant immediate incarceration comparably with the extent of the injuries received. There are facts and circumstances illuminated that portray that the offender will make amends and fit back into society: Tardrew, Public Prosecutor [1986] PNGLR 91. Punishment is meted out because of the seriousness of the offence and the breach of the rule of law. It is therefore important to set in bold that fact. But it is not to the extent that the reasons setting the offence in motion are not ignored because there is a balance between and proportioning for and against to arrive. In this regard a presentence report has been prepared and had been filed now which I have considered out in the determination of this sentence.
  6. Coupled with this background this Court has dealt with this offence by the imposition of 2 years imprisonment with suspension accompanying on condition that the prisoner pay within 2 months K3000. 00 compensation to the victim in State v Esther Maramundi [2021] N9307(24 November 2021). She was a co wife and stabbed the victim co wife because she was not getting attention from the common husband. Based on presentence report filed that sentence was pronounced. Similarly, in Buka State v Sekin [2006] PGNC 74; N4479 (25 August 2006), the prisoner after arguing with his sister burnt her house down, and then stabbed her in the arm, the court suspended the remaining period of the 2 years after his service in jail. That was more serious because of the related offence of arson which drew 4 years IHL there. It is not the same here comparably.
  7. In State v Tupi [2012] PGNC 338; N5192 (12 December 2012) the court wholly suspended the 12 months on probation where the prisoner had stabbed the victim with a knife in the temporal region. He was also charged with the same offence as here. This would in my view be likened to the present except for the location of the wound. Even in more serious offences grievous bodily harm alternatives to imprisonment has been considered where the facts depict. In State v Kara [2012] PGNC 19; N4663 (10 May 2012) 4 years was imposed for grievous bodily harm to the eye. It was superficial and not permanent injury to the eye and compensation was paid even before matter came to court. The court suspended wholly the four years IHL and on condition for the payment of compensation.
  8. Here given all set out above the aggregate is that pursuant to section 19 of the Criminal Code, I order that sentence of 1 year is wholly suspended on a 1-year probation order on conditions as follows:

Ordered Accordingly.
__________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor : Lawyers for the Defendant

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