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State v Lopulopu [2016] PGNC 198; N6393 (15 June 2016)

N6393

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 45 OF 2016

THE STATE

-v-

AUGUSTINE LOPULOPU

(Defendant)

Kavieng: Kangwia J.

2016: 25^th May And

15^th June

CRIMINAL LAW – Sentence - Grievous Bodily Harm under s 319 CCA – Bush knife attack on defenseless, unsuspecting victim – serious bodily injury sustained to lower jaw area - Prevalence of offence - Custodial sentence warranted despite a first time offender who pleaded guilty

Cases Cited:
The State -v- Brian Wadada (CR 885 of 2013, Unreported Judgment dated 21^st May 2015)
The State –v- FhryleAliu CR 1233 of 20014-Unreported Judgment of 17 September 2014)
The State –v- LudwinaWaguma (2007) N3818
The State –v- Peni (2008) N3541
The State –v- PolinPochalouLopai [1988-89] PNGLR 48
The State –v- Wagi(2008) N3543

Counsel:

R. Luman, for the State.

A. Tunuma, for the Prisoner.

15^th June, 2016

1. KANGWIA J: Augustine Lopulopu appears as a prisoner for Sentence. He was convicted on his guilty plea to one count of causing Grievous Bodily Harm (GBH hereon) to Richmond Terry on Simberi Island in the early hours of 28 November 2015. The charge was laid under s 319 of the Criminal Code Act (CCA hereon).
   

2. The facts not disputed were that the accused went to where the victim was sleeping and cut him once in the jaw area with a bush knife and ran away.

3. The prisoner is married with one child. He was educated to Grade 8. His parents are alive. He has been in custody for 7 months.

4. On his allocutus, the prisoner apologized and said; “I’ have committed a wrong. I ask for leniency with probation order to settle the matter under custom. It is my first time in Court. I did it because the victim swore at me in front of my mother and sister”.

5. On his behalf, Mr. Tunuma submitted that a suspended sentence of 3-4 years was appropriate. It was submitted that; the prisoner pleaded Guilty early; he co-operated with police; there was defacto provocation and that the prisoner was willing to pay compensation.

6. Mr. Tunuma referred the Court as guides to the case of the State –v- Peni (2008) N3541 where the prisoner who pleaded Guilty to a bush knife attack was sentenced to 4 years; the State –v- Wagi(2008) N3543 where the prisoner who pleaded Guilty to another bush knife attack was sentenced to 4 years and the State –v- LudwinaWaguma (2007) N3818 where the prisoner stabbed the victim was sentenced to 4 years.

7. A Pre-Sentence Report was also requested.

8. Mr. Luman for the State submitted that there was an element of pre planning present. Attack was in the early hours of the morning and inside the victim’s house while the victim was fast asleep. Had the victim’s neck been cut it was suggested, death would have ensued. The aggravating factors overall outweighed the mitigating factors and it called for a high sentence.

9. The Court was referred to its decision in the case of The State –v- FhryeAliu (CR 1233 of 2014 - Unreported Judgment of 17 September 2014) where an intoxicated person attacked the victim who sustained serious eye and facial injury was given a suspended sentence of 5 years because the victim preferred compensation to settle medical costs. The current matter it was submitted was more serious in nature than the FhryleAliu’s case and acustodial sentence was appropriate.

10. This was a serious case of Grievous Bodily Harm done to an innocent unsuspecting and defenseless person who became a victim. The charge should have been laid under s. 315 of the Criminal Code Act as there was present an element of pre-planning associated with an intention to cause GBH. Its seriousness is reflected in the enormity of the injury on the victim’s lower jaw area. The use of a bush knife to attack a sleeping person in the victim’s own house and in the early hours of the morning reflected involvement of a willed and pre-planned attack.

11. The extent of injury sustained as described in the medical report showed;

(1) A 1x6cm deep laceration under the lower lip area;
(2) Fracture dislocation of all lower incisors (x4) and canine (2) teeth at the neck regions with surrounding gum area bruised and inflamed. The victim was recommended to see the Dentist for further management.

12. The present case is not one of those rare cases that this Court has dealt with in the New Ireland Province. In what is presumably a peaceful province attacks occasioned on others with bush knives and other lethal weapons is prevalent.

13. In respect of the prevalence of GBH offences under s 319 of the Criminal Code, which I might add is the cousin offence to the offence of GBH with intent under s 315 of the Criminal Code, I said in the case of The State -v- Brian Wadada (CR 885 of 2013, Unreported Judgment dated 21^st May 2015) as follows;

“This is a case where the prisoner committed GBH on another, an offence that is prevalent. The use of an offensive weapon to cause GBH is a common feature of GBH in this country. It may not be long before this Country is inundated with maimed or disfigured persons from attacks with weapons without a second thought.”

14. That observation was made in a case in Popondetta where the offender cut his maternal uncle on the face with a brush-cutter used in oil palm. The offender was given a suspended sentence upon the insistence of the maternal uncle presumably burdened by customary and family obligations who preferred the two years spent in custody awaiting trial and sentence as sufficient for his nephew.

15. A lot of decisions involving suspended sentences arise out of preferences by the victims. I have said in a number of decisions that the preference of a victim of an offence needs to be factored into any decision by the Courts basically for the reason that a victim is the most affected person. There are exceptions though where victims are minors or have disabilities that may not be in a suitable position to make informed presentations or decisions as to preference of a suitable sentence through the Pre-Sentence Report.

16. In the present case the factors operating in the prisoner’s favor are that he pleaded guilty as a first time offender and expressed remorse. There is some element of defacto provocation present in circumstances where the victim swore at the prisoner in the presence of his mother and sister in the daytime. However, the mitigating factors are rendered a nugatory given the nature and circumstances under which the offence was committed and the extent of permanent injury caused to the victim.

17. The prevalence of the offence demands deterrent sentences. The message must be sent that wanton attacks with lethal weapons will be met with strong resistance by the Court under the law.

18. The prisoner in his allocutus asked the Court to suspend any sentence it might impose for him to pay compensation to the victim instead. Compensation seems to be anticipated of the Courts for offences such as the present case. No effective deterrence can be achieved with compensation orders for very serious offences.

19. The message must also be sent that offenders who display no restraint to attack others with lethal weapons must not expect leniency with compensation orders. A serious criminal offence must be met with stern penalties out of the prescribed penalty as a demonstration of the Court’s abhorrence and disgust for such attacks on fellow human beings.

20. In the case of The State –v- PolinPochalouLopai [1988-89] PNGLR 48 His Honour, Bredmeyer, J. while discussing sentencing principles in manslaughter cases said;

“Every form of punishment takes into account the intention behind the act or omission and the consequences, both the seriousness of the intention and the seriousness of the consequence. . . with consequence the more serious the consequence, the greater the punishment”

21. I adopt that summation to the present case and hold that a higher custodial sentence than those referred to in the cases cited by both counsels was appropriate. The consequences of the offence in the present case were serious with the permanent injuries sustained by the victim. He will require dental and related treatment in future.

22. The prescribed penalty for the offence under s. 319 CCA is imprisonment for a term not exceeding 7 years. I am of the view that the prescribed penalty should be increased to 10 years or more given the prevalence of the offence and to have some consistency with the prescribed penalty under s. 315 of the CCA which prescribes life imprisonment.

23. This case in my view is not an appropriate case for a Pre-Sentence Report and Means Assessment Report to be directed hence the request by the Defence for a Pre-Sentence Report is declined.

24. I take into account the principle of law that the maximum prescribed penalty should be reserved for the worst type of each offence. The Court is not barred from imposing the prescribed maximum penalty where the circumstances warranted it. The present case in my view falls into the most serious category of GBH. This case would also in my view fall under the category of an attempted murder case. It deserves the maximum prescribed penalty under s 319 of the CCA.

25. I therefore sentence the prisoner to 7 years imprisonment from the 7 years maximum prescribed penalty under s 319 of the CCA. From the 7 years sentence the time in custody awaiting trial and sentence shall be deducted and the prisoner shall serve the balance at CS Kavieng.

26. Formal Orders;

1. The Prisoner is sentenced to seven (7) years imprisonment.

2. The period of time spent in custody awaiting trial and sentence shall be ټ deducted.

3. The prisoner shall serve the balance at CS Kavieng.

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Office of the Public Prosecutor : Lawyer for the State
Offr>Office of the Public Solicitor: Lawyer for the Prisoner