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

State v Hurupa [2016] PGNC 275; N6480 (30 August 2016)

N6480

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 150 OF 2016

THE STATE

V

ZADOK HURUPA
Popondetta: Auka, AJ
2016: 19^th & 22^nd July & 30^st August

CRIMINAL LAW – Sentence –Particular offence – Plea of guilty – Unlawful wounding – Mitigating and Aggravating factors considered – two (2) years imprisonment – Wholly suspended sentence – Criminal Code, s.322 and s.19
Case Cited:

Goli Golu – The State [1979] PNGLR 653
The State v. Aine Petrus (2011) N4257
The State v. Dominic Ken (2016) N6345
The State v. Joseph Pingin (2001) N2169
The State v. Kila Neko Unreported Judgement dated 23^rd August, 2006
The State v. Mario Ako [2013] N5405
The State v. Rubert Kassman (2004) N2682

Counsel:
Ms Babra Gore, for the State

Mr. E Yavisa, for the Accused

DECISION FOR SENTENCE

30^th August, 2016
1. AUKA AJ: The accused pleaded guilty to one count of Unlawful wounding pursuant to s.322 of the Criminal Code Act.

2. The brief facts of the case were that on 11^th July, 2015 between the hours of 7:00 pm and 8:00 pm the accused was part of a group of four (4) men who were walking along the road near Irigi block at the out sketch of Popondetta town. It happened that the victim was part of another group who were also walking on the same road and both groups met on the way. The accused and his group members were under the influence of alcohol at that time.
The accused having seen the victim holding a mobile phone with light which he was using at that time, demanded for the mobile phone. However the victim refused to give it away. And so the accused who was armed with a bush knife at that time swung the bush knife at the victim and landed on his right hand wrist and as a result the victim received a knife wound. The victim was taken to the hospital and appropriately treated and later discharged.

3. A Medical Report by Community Health Worker Lavina Muntadi dated 11^th July, 2015 show and confirms that the victim received a deep knife wound on his right hand wrist and bleeding heavily and there was numbness on his right hand. The wound was measured as 3x2 cm. The victim was appropriately treated.

4. I had the privilege of hearing the accused and both Ms. Gore for the state and Mr. Yavisa for the accused on their respective addresses on sentence.

5. On her statement on allocatus the accused said sorry to the Court and to the family of the victim. He said he is a married man with eight (8) children, two of whom are attending Primary School whilst two are attending Elementary School. He said he has a Oil Palm block. He said that he will accept the punishment imposed on him. Finally he asked the court to have mercy on him.

6. On the request of Mr. Yavisa of Counsel for the accused, the court directed the Probation Officer to prepare and file a Pre-Sentence report and directed the matter return on 20^th July, 2016 at 1:30pm. I’m now in possession of that report. I have perused it and in my view it is in favour of the accused in that it shows that the accused is a person of good character as stated by Pastor Silas Ribe in the report. Also the report provided that the accused is capable of paying compensation and is a good candidate for Probation.

7. In relation to the accuseds personal particulars, Mr. Yavisa submitted that the accused is 39 years old from Ahore village in Oro Province. He is married with 8 children and resides at his village. He attended school and completed grade 10 at St. Mary’s High School. He attends Revival Church. He owns a Oil Palm block and it assists him financially. He was in custody for six (6) months before released on bail.

8. Mr. Yavisa submitted and urged the Court to consider in accuseds favour the following factors on sentence;

1. That accused pleaded guilty and saved Court’s time;
2. That he is a first time offender;
3. That he is a person of good character;
4. That he expressed remorse to the Court and to the victim;
5. That he is prepared to pay compensation to the victim in the form of K2,000. 00 in cash as per the Probation Report;
6. That he spent six (6) months in Custody before released on bail;
   

9. Mr. Yavisa referred the Court to the National Court case of The State v. Mario Ako (2013) N5405. In that case the accused pleaded guilty to a charge of Unlawful Wounding and sentenced to 2 years. The sentence was wholly suspended with condition. This is a case where the accused broke into the house of the victim and fought with the victim. In the course of the fight, the accused stabbed the victim on the left thigh. The victim received a stab wound to his left thigh as a result and was admitted to the hospital.

10. Mr. Yavisa submitted that the present case is not as serious as Ako’s case and urged the Court to impose a non-custodial sentence.

11. Ms. Gore of counsel for the state submitted and urge the court to consider a suspended sentence with conditions including payment of compensation. She referred the court to the National Court cases of The State v. David Tiki (2007) N5030 and The State v. Jethro Passingan Boas (2014) N5778. I have refused to consider and apply these two (2) cases in the present case because the two cases involved offenders being charged with Unlawful assault under s.355 of the Criminal Code. The maximum penalty for that offence is one year imprisonment. The present case involves a charge of Unlawful Wounding under s.322 with the maximum penalty set at three (3) years imprisonment.

12. The offence of Unlawful Wounding under s.322 is a misdemeanour and is punishable by an imprisonment term of 3 years.

13. On authority of Goli Golu v. The State [1979] PNGLR 653, the maximum penalty should be reserved for the worst type case of Unlawful Wounding. In my view the accused case is not a worst type of case.

14. The trend of sentencing on Unlawful Wounding cases depends entirely on the facts and circumstances of each case I refer to the following cases for purposes of comparing the type of sentences imposed on Unlawful Wounding cases:

1. In the case of The State v. Joseph Pingin (2001) N2169, the accused pleaded guilty to one Count of Unlawful Wounding of the victim. This is a case where the accused approached the accused and told him to stop calling his brother a Sorcerer in public. That resulted in a fight. That fight was stopped and the accused went away to his house. However, some minutes later the accused came out of his house with a bush knife and cut the victim on his right shoulder and he fell to the ground. The victim was taken to Boram Hospital and was appropriately treated and later discharged. The accused upon his plea of guilty was sentenced to a head sentence of 3 years, and of the 3 years, accused was ordered to serve 1 year less pre-trial custodial term. Further ordered that the balance of 2 years suspended with condition including payment of K5,000. 00 as compensation to the victim with 6 months from the date of sentence.
   
2. In the case of The State v. Rubert Kassman (2004) N2682. The accused pleaded guilty to a count of Unlawful Wounding and was sentenced to a head sentence of 3 years. Two (2) years was deducted as compensation was paid and the accused did not have prior conviction. After deducting the pre-trial custodial term, the remaining term of 7 months 20 days was suspended on condition including the accused be of good behaviour and perform community service for the term of the suspended sentence.
   
3. In the case of CR 855 of 2006, The State v. Kila Neko, Unreported Judgement dated 23^rd August, 2006, the accused pleaded guilty to one Count of Unlawfully wounding the victim Michael Simox. The accused during an argument with the victim used a pocket knife and stabbed the victim on his neck region. He was taken to St. Mary’s Hospital where he was appropriately treated and later discharged. He was sentence to 2 years imprisonment. The sentence was fully suspended on condition that the accused shall enter into a recognizance to keep the peace for 2 years.
   
4. In the case of The State v. AinePetrus (2011) N4257, the accused pleaded guilty to Unlawful wounding the first wife of her husband by stabbing her left breast and on the left shoulder with a small knife. The victim was on the ground at the time having been felled by the husband, who assaulted her first. A sentence of 2 years imprisonment was imposed. The pre-sentence period in custody of one week was deducted and one year of the sentence was suspended.
   
5. In the case of The State v. Mario Ako (supra), the accused pleaded guilty to the charge of Unlawful Wounding and was sentenced to 2 years wholly suspended with conditions. This is a case where the accused went to victim’s house in the vehicle and bumped the gate to the premises down. The accused entered the victim’s house and fought with the victim. In the course of the fight, the accused stabbed the victim with a small knife on his left thigh. The victim received a stab wound to his left thigh as a result and was admitted to the hospital.
   
6. In the case of The State v. Dominic Ken (2016) N6345, the accused pleaded guilty to Unlawful Wounding and was sentenced to 2 years wholly suspended on conditions that he enter into a recognizance to keep the peace for 2 years and that he pay K500.00 compensation to the victim within 2 months from date of sentences. In this case the accused was under the influence of alcohol and at the material time was with his wife and their child. An argument occurred and during the argument the accused picked up a stone about the size of a folded fist and threw it at his wife. However, the stone missed her and instead hit the infant victim on her forehead and caused a deep wound. Victim was rushed to the hospital and was treated and later discharged.
   

17. In considering the appropriate sentence, I consider the following factors in favour of the Accused:

1. That he pleaded guilty and saved Court’s time;
2. That he is a first time offender;
3. That he is a person of good character;
4. That he expressed remorse to the Court and to the victim;
5. That he has raised his intention to pay compensation to the victim in the form of K2, 000. 00 in cash.
6. That he had spent six (6) months in custody before released on bail.
   

18. Against the factors in favour of the accused, the court considered the following aggravating factors;

1. That he did not hesitate in using the dangerous weapon namely a bush knife;
2. There was some intention to harm;
3. That use of dangerous weapon like bush knife is very prevalent;
4. The offence of Unlawful Wounding is a very prevalent offence.
   

19. Going by the trend of sentences imposed in some of the cases referred to and the particular factors and circumstances of the present case, I consider that a sentence of 2 years imprisonment appropriate. Accordingly I impose a sentence of 2 years imprisonment less pre-trial custodial term of 6 months. The remaining term is fully suspended on conditions that he shall enter into his own recognizance to keep the peace for 2 years.

20. The second condition is that the accused shall pay compensation in the form of K2, 000.00 to the victim payable within three months from the date of sentence.

21. The accused bail money of K1000.00 shall be converted towards the payment of compensation.

Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Accused