Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Kiap [2015] PGNC 201; N6102 (8 October 2015)

N6102

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No.374 of 2015
CR No.375 of 2015

BETWEEN:

THE STATE

AND:

BRIAN DELGA KIAP & JEFFREY KOP
Offenders

Mt. Hagen: David, J
2015: 6 & 21 August, 8 October

CRIMINAL LAW – sentence – doing grievous bodily harm, with intent to do grievous bodily harm – one count - plea of guilty - Criminal Code, Section 315.

The offenders attacked the male victim with bush knives and inflicted multiple life-threatening injuries to him including serious cuts and fractures to the victim's right ankle inclusive of the lower tibia and head. The victim was hospitalised for more than two months as a result. They pleaded guilty to doing grievous bodily harm with intent to do grievous bodily harm and were convicted. The victim refused to accept any compensation from the offenders and expressed the desire that they be imprisoned.

Held:

1. Mitigating factors are; they are first offenders; they saved the Court's time by their pleas of guilty; they expressed genuine remorse; this was an incident in which there was a moderate amount of de facto provocation offered by the victim; this was an isolated incident; each offender inflicted a cut on the victim; the victim is a relative; until the offence, the offenders had previous good records; and the offenders attempted to pay compensation to mend and restore relationships, but was rejected by the victim.
   
2. Aggravating factors are; use of dangerous and lethal weapons; the victim sustained serious life-threatening multiple injuries to vulnerable parts of his body including serious cuts and fractures to the victim's right ankle including lower end of tibia and head; permanent injury to the right ankle; it was a vicious attack; the offenders acted in the company of each other; the victim was attacked at his home; the offenders caused damage to his house by breaking down the door to gain entry; both are not youthful offenders, not unsophisticated and reasonably educated to have moral consciences which should tell them what was right and wrong; and the offence was prevalent. Being a pastor was an additional factor held against Brian Delga Kiap.
   
3. Sentences of seven years imprisonment in hard labour were imposed, partly suspended on terms.
   

Cases cited:

Avia Aihi v The State (No 3) [1982] PNGLR 92
Edmund Gima and Siune Arnold v The State (2003) SC730
Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
Public Prosecutor v Don Hale (1998) SC564
Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91
Richard Liri v The State (2007) SC883
The State v So'on Taroh (2004) N2675
The State v Steven Moni (2006) PGNC 109; CR 293-297 of 2004, a judgment delivered by Cannings J at Kimbe on 19 December 2006
The State v Tamumei Lawrence (2007) N3117
The State v Peter Pepa (2010) N4146
Ure Hane v the State [1984] PNGLR 105

Counsel:

Joe Kesan, for the State
Robert Bellie, for the Offenders

SENTENCE

8 October, 2015

1. DAVID, J: The offenders, Brian Delga Kiap and Jeffery Kop pleaded guilty to doing grievous bodily harm with intent to do grievous bodily harm to the victim, Peter Ulg and both were convicted under Section 315(b) and (d) of the Criminal Code.

2. The incident occurred at Kuia village, Mt. Hagen in the Western Highlands Province on 26 July 2014 at about 7:00 o'clock in the morning. The two offenders, whilst in the company of another accomplice, all armed themselves with bush knives and proceeded to the victim's house to settle a land dispute matter that they had with the victim's family. When the victim saw the offenders and their accomplice coming to his house, he went inside the house and locked the door. Realising that the victim had locked them out, the offenders and their accomplice proceeded onto the veranda of the house, broke down the door and entered the house. The victim reacted by running out and grabbing one of the offenders in an attempt to protect himself, but it was too late as they chopped him on his head with a bush knife they had. They then chopped him on his right leg at the ankle and nearly chopped it off. The victim collapsed and fell onto the veranda with blood sprinkling out through the cuts on his body. The offenders and their accomplice then escaped. The victim was rushed to the hospital and his life was saved. At the time the two offenders and their accomplice chopped the victim, they were acting together and assisting each other and therefore caught by Section 7 of the Code and they intended to cause some grievous bodily harm to the victim.
   

3. The Medical Report produced by Dr. Jacob Painui of the Mt. Hagen Provincial Hospital dated 10 November 2014 reports that the victim presented himself at the hospital on 26 July 2014 for treatment after he was assaulted. It was reported that the victim sustained cuts to his right ankle and head and was bleeding. There was a deep wound on the head measuring 7 cm in length and the skull was fractured. The injured leg was cut across the anterior aspect of the ankle and the wound was very deep. The lower end of the tibia was completely cut or fractured. Most of the tendons at the anterior aspect of the leg/ankle were also cut or severed and the sensory nerves and blood vessels were also cut. The fracture to his injured leg was reduced and fixed with a K-wire (pin). The tendons were repaired. The leg wound became infected later and appropriately managed. The knee on the injured leg and ankle joints were very stiff and it was concluded that the ankle joint stiffness was most likely to be permanent and the knee joint stiffness may improve with physiotherapy. The skull wound was cleaned and closed.

4. None of the offenders has a prior conviction.

5. On his allocutus, Brian Delga Kiap said sorry to God, the Court and the victim. He was married with four children. He said the incident arose after his mother was assaulted by the victim who is his eldest brother's first born son on Saturday, 26 July 2014. His mother was assaulted by the victim and her teeth were broken when she went to visit the victim's father who was sick at the time. He said he was a first time offender appearing in Court for the first time and pleaded for mercy.

6. On his allocutus, Jeffery Kop admitted the offence and said sorry to the Court. He said he had been away in his mother's village for 13 years and on his return, he built a house for himself. He was residing with his uncle Brian Delga Kiap when on 23 July 2014, the victim assaulted him when he cut his hand. The incident occurred because the victim assaulted his grandmother causing her teeth to be broken when she went to visit the victim's father on Saturday, 26 July 2014. He said he was a first time offender appearing in Court for the first time and pleaded for mercy.

7. Pre-sentence reports were compiled and filed by the Probation Service, Mt. Hagen Branch which I ordered to be done at the request of each offender. I commend Ms. Lilly Songoa, Probation Officer for the reports. I have considered the reports. Both offenders propose to pay moderate amounts of compensation. The victim will not accept compensation due to the gravity of injuries inflicted on him and has expressed the desire that custodial sentences be imposed. Both reports recommend custodial sentences.

8. Brian Delga Kiap is 37 years old. He is from Kuia village, Mt. Hagen and resides there. He is married and has four children. Two of the children go to school. His parents are alive. He is the second born in a family of two. The other sibling is a sister. He completed Grade 10 at the Togoba High School in 1999. He later attended the Kim Pawa Bible College and graduated with a Pastoral Certificate. He is a serving pastor with the Papua New Guinea Christian Fellowship Church. His health is sound. He is a poultry farmer, but raises pigs as well. He does not have serious financial issues and he is content with what he has. He was arrested on 27 August 2014 and charged for a count of attempted murder. He was admitted to cash bail of K300.00 seven days later. He was committed to stand trial in the National Court on 16 February 2015.

9. Jeffery Kop is 20 years old and is single. He is from Kuia village, Mt. Hagen and resides there. His parents are alive. He is the fourth born in a family of five comprising three males and two females. He completed Grade 8 at the Wurup Primary School in 2013. He is currently doing Year 1 motor mechanic course at the Rebiamul Vocational Centre, Mt. Hagen. He is a baptised member of the Four Square Gospel Church. His health is sound. He is not financially strong and is dependent on his parents. He was arrested on 27 August 2014 and charged for a count of attempted murder. He was admitted to cash bail of K300.00 seven days later. He was committed to stand trial in the National Court on 16 February 2015.

10. In mitigation, Mr Bellie for the offenders submitted that this was a plea, they were first offenders, this was an incident in which there was de facto provocation, and each offender cut the victim once.

11. Counsel submitted that a sentence of six years imprisonment was appropriate.

12. In aggravation, Mr Kesan for the prosecution highlighted that apart from the offence being prevalent, the use of a bush knife which is a dangerous and lethal weapon and the nature and gravity of the injuries sustained by the victim which were life threatening made this a serious case.

13. He suggested that a head sentence of between six to seven years imprisonment was appropriate. Suspension of any part of the sentence was at the discretion of the Court counsel submitted.

14. I take into account in mitigation that; they are first offenders; they saved the Court's time by their pleas of guilty; they expressed genuine remorse; this was an incident in which there was a moderate amount of de facto provocation offered by the victim; this was an isolated incident; each offender inflicted a cut on the victim; the victim is a relative; until the offence, the offenders had previous good records; and the offenders attempted to pay compensation to mend and restore relationships, but was rejected by the victim.

15. I find no additional factor that will further mitigate the offence.

16. The aggravating factors common to both offenders are; use of dangerous and lethal weapons; the victim sustained serious life-threatening multiple injuries to vulnerable parts of his body including serious cuts and fractures to the victim's right ankle including lower end of tibia and head; permanent injury to the right ankle; it was a vicious attack; the offenders acted in the company of each other and aided and abetted each other; the victim was attacked at his home; the offenders caused damage to his house by breaking down the door to gain entry; both are not youthful offenders, not unsophisticated and reasonably educated to have moral consciences which should tell them what was right and wrong; and the offence was prevalent.

17. I also take against Brian Delga Kiap, the fact of him being a pastor. His conduct was unbecoming of a servant of God and brought into serious disrepute the work of hardworking pastors, ministers, missionaries and church workers of all descriptions in spreading the Gospel of Christ not only in his Papua New Guinea Christian Fellowship Church but in Christendom throughout this country and worldwide.

18. I have considered the following comparable sentences.

19. In The State v So'on Taroh (2004) N2675, the offender cut the victim's hands three times with a bush knife, an incident arising from a land dispute. The victim received appropriate medical treatment and recovered without any serious residual disability. On a conviction after a trial to a charge of doing grievous bodily harm with intent and the prisoner being a first offender, the Court imposed a custodial sentence of eight years imprisonment in hard labour less time already spent in custody.

20. In The State v Steven Moni (2006) PGNC 109; CR 293-297 of 2004, a judgment delivered by Cannings J at Kimbe on 19 December 2006, five male offenders attacked two men using bush knives and other weapons. They were charged for two counts; one for doing grievous bodily harm, with intent to do so, contrary to Sections 315(b) and (d) Code; and the other for unlawful wounding contrary to Section 322(1)(a) of the Code. One of the victims suffered multiple knife wounds and a broken hand and had an arm chopped off in the incident although not by the offenders before the court; and the other suffered a knife wound to his left arm. On pleas of guilty, the court imposed sentences according to degrees of involvement for each offence. For the charge of doing grievous bodily harm, with intent to do so, sentences ranged from three to four years. For the charge of unlawful wounding, sentences ranged from three months to one year.

21. In The State v Tamumei Lawrence (2007) N3117, the offender, Tamumei Lawrence cut the victim on his left upper arm with a knife then he and the other offender, Tobia Thomas attacked the victim with sticks and stones. The victim received other cuts as well. He bled heavily. The cut on the left arm went through to the bone. Other cuts were inflicted on the left shoulder, right upper chest and the right fore arm involving the elbow joint as well. He was admitted to the hospital. Those injuries were life threatening and because of complications caused by the injuries, the victim had to undergo a number of operations. On guilty pleas to a charge of doing grievous bodily harm with intent, being first offenders and that compensation was promptly paid by each of them, the offenders were each given a custodial sentence of six years imprisonment in hard labour less time already spent in custody.

22. In The State v Peter Pepa (2010) N4146, the offender confronted the victim and had an argument over some roofing iron which the offender claimed were taken by the victim from his house. The offender swung his bush knife at the victim a number of times and cut him on the left side of his face, right arm and right leg. The victim lost a lot of blood and fell to the ground unconscious. He was rushed to the hospital and received medical treatment. On a plea of guilty to a charge of doing grievous bodily harm with intent, I imposed a sentence of six years imprisonment in hard labour. Three years were suspended on terms.

23. These comparable sentences are sufficient for this purpose.

24. What is the appropriate sentence for the offender?

25. The maximum penalty for the offence of doing grievous bodily harm with intent to do grievous bodily harm under Section 315 of the Code is subject to Section 19, imprisonment for life.

26. Applying the principle of proportionality, i.e., a man must be given the sentence befitting his crime, the maximum penalty is reserved for the worst examples of doing grievous bodily harm with intent to do grievous bodily harm cases: see Goli Golu v The State [1979] PNGLR 653, Avia Aihi v The State (No 3) [1982] PNGLR 92 and Ure Hane v the State [1984] PNGLR 105.

27. The use of a bush knife in the commission of any offence, is an extremely serious matter. Serious multiple injuries were inflicted by the offenders in the company of each other and aiding and abetting each other upon vulnerable parts of the victim's body and the injury to the injured ankle is permanent according to the medical report. Fortunately for the victim, the attack was not fatal. The offenders are also fortunate because if the attack were fatal, they would have been charged with a more serious homicide offence.
28. In the present case, the number of factors of mitigation is on par with the factors of aggravation with regard to each offender. The weight I attach to the aggravating factors actually outweigh those in mitigation however. It is my view that whilst this is a serious case, it does not fall within the worst category of doing grievous bodily harm with intent to do grievous bodily harm cases to warrant the imposition of the maximum penalty.

29 The facts to which the offenders pleaded do not demonstrate with any certainty the degree of involvement of each offender although the defence submitted that each offender inflicted a cut each. I therefore see no reason to impose different head sentences for each offender in that regard. The additional aggravating factor held against Brian Delga Kiap, for being a pastor is subsumed by the overall gravity of the offence. So I think the question of parity or disparity of sentence should not apply as a result.

30. In all the peculiar circumstances of the present case (Lawrence Simbe v The State [1994] PNGLR 38) applying the principle of proportionality, I propose to impose a sentence of seven years imprisonment in hard labour for purposes of personal and general deterrence, which I now do.

31. I will, in accordance with the Criminal Justice (Sentences) Act 1986, deduct seven days from the head sentences for the short time both offenders spent in custody before being granted bail.

32. Each offender will serve the balance of their head sentences of 3 years, 11 months and 3 weeks (the remaining term) at the Baisu Correctional Institution.

33. Should I suspend the whole or any part of the remaining term? The Supreme Court has held that there can be no suspension of sentence without the support of a pre-sentence report: Public Prosecutor v Don Hale (1998) SC564; Edmund Gima and Siune Arnold v The State (2003) SC730; Richard Liri v The State (2007) SC883. Suspension of sentence is discretionary and must be exercised upon a proper basis.

34. As I have adverted to already, the pre-sentence reports recommend custodial sentences for each prisoner. I have given careful consideration as to whether I should give the offenders custodial sentences in view of the unfavourable pre-sentence reports. I have also given careful consideration as to whether a wholly or partly suspended sentence would be appropriate. I must state here that the recommendations made in a pre-sentence report are not binding on this Court as to treat them otherwise would amount to a fetter of the Court's sentencing discretion. It is therefore my view that given the gravity of the offence demonstrated by the presence in the present case of serious aggravating factors and attaching weight that is reasonable to the mitigating factors, I think an immediate custodial sentence would be appropriate. I will however suspend 3 years of the remaining term for each prisoner as I am of the view that it will promote the personal deterrence, reformation or rehabilitation of the offenders: Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91. Upon the offenders' release from custody; they shall enter into their own recognizances to keep the peace and be of good behaviour for a period of 3 years. In addition, I will also order; that the offenders pay a fine of K300.00 each and such fine will be paid from the bail monies which are now converted for that purpose; and that they hall not leave the Western Highlands Province without the written approval of the Court during the period of suspension. In the event that any one of these conditions is not complied with, the offender in default will be arrested and sent to gaol at Baisu to serve the period of three years which I have suspended.

35. A warrant shall issue in the above terms forthwith.

Sentenced accordingly,

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offenders