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State v Pinda [2012] PGNC 291; N4872 (21 February 2012)

N4872

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1337 OF 2009

THE STATE

V

NERIOUS PINDA

Kimbe: Kawi J
2012: 21st February

CRIMINAL LAW – sentence - plea of guilty to one charge of unlawful grievous bodily harm –amputation of arm below elbow with bushknife – unprovoked assault - mitigating and aggravating factors considered – sentence of 16 years appropriate – s315 (b) (d) of Criminal Code Act

Facts:

The Prisoner (Nerious Pinda) of Pangalu village Talasea District pleaded guilty on arraignment to an indictment charging with one count of unlawfully doing grievous harm with intent to one Stanis Reme contrary to section 315 (b) (d) of the Criminal Code. In sentencing the prisoner;

Held:

1. The aggravating factors significantly tip the scale in their favour. The mitigating factors have been rendered and watered down significantly.

2. The prisoner is sentenced to 16 years in hard labour less time spent in pre trial custody

Counsel:

Mr. F. Popeu, for the State
Mr. P. Mokae, for the prisoner

26th February 2012

1. KAWI J: INTRODUCTION: Nerious Pinda of Pangalu village Talasea District pleaded guilty on arraignment to an indictment charging with one count of unlawfully doing grievous harm with intent to one Stanis Reme contrary to section 315 (b) (d) of the Criminal Code.

2. FACTS

2. The facts to which he pleaded guilty are s follows: On the 19th October 2011 the accused and two of his friends were at the main road near their village of Pangalu in Talasea. They had armed themselves with bush knives. Sometime later between 2:00 pm and 3:00 pm the complainant/victim Stanis Reme and his wife got off from a pmv truck near the spot where Nerious and is two friends were. Upon seeing Stanis Reme and his wife, Nerious Pinda and his two friends approached them. When Nerious Pinda and his two friends approached Stanis Reme and his wife, the latter two began running away from them. Nerious Pinda and his two friends chased them and finally caught up with them and set up upon Stanis Reme, who tried to submit and surrender himself by putting both his arms up to indicate his surrender. The prisoner proceeded to attack him despite his surrender. He swung his sharpened long bush knife at him with such savagery and ferocity and vicious force that it cut and completely severed and amputated his left arm just below his elbow joint. Apart from being amputated Stanis Reme also received other knife cuts to his body resulting in him receiving other cuts and lacerations on his bicep muscles.

3. The State further alleged that the prisoner had no lawful excuse or justification to intentionally cause grievous bodily harm to Stanis Reme whose left hand is now completely severed and amputated.

3. THE LAW

4. In perpetrating this grievous bodily harm with intent the prisoner Nerious Pinda breached Section 315 (b) and (d). This provision is relevantly stated in this terms:

S315. Acts Intended To Cause Grievous Bodily Harm Or Prevent Apprehension.

A person who with intent –

(a)........

(b) to do some grievous bodily harm to any person or

(c) .........

Does any of the following things is guilty of a crime. –

(d) Unlawfully wounding or doing a grievous bodily harm to a person or.........

Penalty: Subject to section 19, imprisonment for life.

5. In my view both sections 315 and 319 deal with the offence of causing grievous bodily harm to another person. Off these two provisions, 315 creates a very serious offence as it involves a deliberate intention to cause grievous bodily harm to the body of another person. The penalty regime for both these offences create very different penalties. The penalty regime for section 315 is imprisonment for life subject to the sentencing discretion vested in the court by section 19 of the Criminal Code. Under section 319 the penalty is imprisonment for a term not exceeding 7 years.

6. Going by the penalty regimes in my view a more serious offence is created by section 315 than compared to the penalty imposed under section 319.

4. SENTENCING TARRIF

7. In determining an appropriate sentence, I must in general, start with a consideration of the penalty, prescribed by the relevant statute itself. In that regard I must start with the penalty imposed by section 315. The maximum penalty prescribed by section 315, is subject to section 19, imprisonment for life.

8. In the case of The State -v-Yale Sambrai (2005) N2886, the accused had armed himself with a bush knife and attacked the victim. The victim who is the brother in law of the accused had earlier been asked by the accused to go to the forest to cut some posts for a new house the accused was building. The victim did not do what he was requested to do and instead joined his friends to go and watch a game of soccer. The accused followed him to the soccer field came up from the rear and attacked him with his sharp bush knife when he was sitting down and watching the soccer game. He swung the bush knife with such savagery and ferocity that it cut the victim on the head rendering him fully unconscious. The victim was taken to the hospital and treated. He was admitted for observations and further treatment and spent some time in hospital before being finally released. On a plea of guilty to a charge under section 315(a) and (c), Sawong J sentenced him to two years in hard labour. In sentencing him Sawong J made these comments which is on point:

" To my mind the penalty prescribed indicates that Parliament considered this offence this offence to be serious, that it has prescribed the maximum sentence of life servitude. The maximum penalty is prescribed because the crime involves deliberate intention to cause someone grievous bodily. Because of these in my view, unless there are exceptional circumstances such as a very young offender (below 18 Years) or a very old person or the like, the crime should attract an immediate custodial sentence in the first place. This is a crime of violence with deliberate intention to cause some one serious bodily injury."

9. In the case of The State –v- Tamumei Lawrence & others (2007) N3117, the victim and his family were working in their garden when he was attacked by the accused and his gang. The attack was not provoked by the victim nor his family. The accused Tamumei Lawrence cut and slashed the victim on his left hand leaving a deep wound causing him to lose a lot of blood. He was further attacked with sticks and stones and he was inflicted with many other deep cuts and lacerations and abrasions to his body and he bled heavily from this wounds. They were charged under section 315 and they all pleaded guilty. Lay J sentenced each of them to six (6 years) imprisonment to be served in hard labour.

10. In The State-v- So-on Taroh (2004) N2675 an accused person pleaded guilty to a charge under section 315. Kandakasi J noted that the accused had cut the victim's hands three times (3 X) using a very sharp bush knife from which the victim lost a lot of blood. There were no residual disabilities noted. Kandakasi J sentenced the accused to eight years imprisonment in hard labour.

5. MITIGATING AND AGGRAVATING FACTORS

11. In computing an appropriate sentence, I consider that the following mitigating factors operate for the accused.

(a) the accused is first offender,

(b) He pleaded guilty in the first instance.

(c) He is married with two children.

(d) Along with his wife he is a subsistence farmer and manage their coconut plantation as well as a plantation of oil palm.

12. Operating against the accused are the following:

(a) A lethal weapon, a sharp bush knife which was sharpened on one side was used to inflict the bodily injuries.

(b) The bush knife was swung with such savagery and ferocity that it cut off and completely severed t he victim's left arm just above

the left elbow joint.

(c) The victim Stanley Reme is now permanently disfigured for the rest of his life with the use of only one hand.

(d)The victim is unable to do manual jobs, such as working in his garden or assisting his wife do house hold chores.

13. When I balance both these factors out against each other, I find that the aggravating factors significantly tip the scale in their favour. The mitigating factors have been rendered and watered down significantly.

14. But this does not mean that I will immediately categorize this case as belonging to the worst case category. Taking into account all evidence in this case, I will not categorize this case as falling in the worst case category. I will classify this case as a very serious assault aggravated by the ferocious bodily injuries inflicted upon the victim at the hands of the prisoner. For these reasons a very strong punitive and deterrent custodial sentence will be imposed upon the perpetrator.

15. During the administration of the allocutus the prisoner apologized to the victim for his criminal actions and begged the Court for mercy and leniency when computing a sentence for him. But I cannot readily accept the apologies and any acts of contrition on face value offered in court. Saying sorry to the victim and contrition expressed in court without undertaking any tangible efforts to accompany such apologies and contrition, such as paying compensation to the victim will truly demonstrate how genuine the prisoner is. No form of compensation was ever paid by the perpetrator to the victim here. I consider this dereliction here as a serious aggravating factors, which will go against the prisoner.

16. In The State –v- Peter Pending CR 1054 of 2005, a case which was heard and determined in Lae on the 21st March 2012, I made this comment which I respectfully adopt:

"I find that this was a cold blooded spiteful, and barbaric attack on an innocent, and harmless unsuspecting female victim. Whilst the rehabilitation of a prisoner is important in criminal sentencing, such objectives of rehabilitation and reformation of offenders such as this prisoner must not be allowed to obscure the consideration of deterrence and the protection of the public from the commission of heinous crimes. In my view, this case calls for a more hefty and punitive custodial punishment to be imposed.

On this basis, I will not follow the punishment imposed by Sawong, J in Yale Sambrai (N 2886) and Lay, J in Tamumei Lawrence (N3117).

In their respectful submissions both Counsels agreed that a sentence in the range of 6 – 8 years is warranted. Having looked at the whole evidence, and the truly horrific injuries suffered by the young girl, I am of the view that a more stiffer penalty, should be imposed to serve as a deterrent to offenders and other would be offenders. In my view, the Courts should now impose higher sentences for intentionally doing grievous bodily harm on others especially bodily injuries which maim or permanently disfigures the body of another person.

17. Such approach is intended to show offenders and would be offenders that the courts would not tolerate such criminal behavior from its citizens.

18. Guided by these considerations, I will therefore impose a head sentence of 16 years in hard labour. The time spent in custody awaiting trial will be deducted. The punishment will be served by the prisoner in hard labour and who will be incarcerated at the Lakiemata Jail outside of Kimbe town in hard labour.

____________________________---

Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Prisoner