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State v Piapia [2017] PGNC 156; N6763 (17 May 2017)

N6763


PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR NO 1099 OF 2014


THE STATE

V

PHILIP PIAPIA
Kimbe: Miviri AJ
2017 :11thApril 12th 17th May


CRIMINAL LAW - Plea- GBH 319 CCA –bush knife attack- 85% permanent damage left arm -- dispute compensation order village court-probation report –applicability 50 year old men-stiff penalty defiance of village court order-respect for law order-no effort to compensate-custodial-non custodial sentence.

Cases cited:

Ala Peter Utieng v. The State (2000) SCRA 15 of 2000

Peter Naibiri and Kutoi Soti Apia v. The State (1978) SC137

State v Hianu [2006] N4482

State v Idab [2001] N2172

State v Naiwa [2004] N2710

State v. Raphael Kimba Aki (No.2) (2001) N2082

The State v. Henry Mapi (1998) N1936

The State v. Joe Foe Leslie Leslie (1996) N1496

The State v. Pablito P Miguel (2002) N2338

Counsel:
A. Bray, for the State
B. Popeu, for the Defendant

DECISION ON SENTENCE

17th May, 2017

  1. MIVIRI AJ: On the 15th March 2014 at Kavui section 1 you Philip Piapia of Suwabukum, Maprik East Sepik Province unlawfully did grievous bodily Harm upon George Kalim contrary to Section 319 of the Criminal Code.

Brief Facts on arraignment


2. The following was recounted that on 15th March 2014 George Kalim was walking along the road. When he came upon the block of the defendant an argument developed between the both of them. The accused was armed with a grass knife. He chased George Kalim with it. George ran attempting to escape from the defendant. He tried to pick up a stone to throw at the defendant to stop him but fell onto the ground. The defendant came upon him and swung the grass knife at his head and George Kalim tried to defend his head and raised his left arm which was cut by the defendant. He suffered cuts to his left palm, elbow, forearm and wrist. He was rushed to the Kimbe General Hospital where he was treated. He now has lost 85 percent permanent damage to the left hand.

319. GRIEVOUS BODILY HARM.

A person who unlawfully does grievous bodily harm to another person is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

  1. You pleaded guilty to the indictment and the facts alleged. I read the depositions that were tendered and confirmed the plea of grievous bodily harm pursuant to section 319 of the Criminal Code particulars which are set out above.
  2. You were charged for attempted murder. Information at committal and the notice of committal dated the 27th August 2014 shows that you were committed to stand trial for attempted murder pursuant to section 304 of the Criminal Code. When you were committed to stand trial you stated in your section 96 statement, “It is true I committed this offence. I did not do it on my own will but there was a reason behind it. I am happy to go to court to consider my background that is my family. As I have eight children I have three oil palm blocks. All children are small so I ask the court to consider this”
  3. You admitted the wrong there and then at the first opportunity before a court and have followed through here. Realization has set in that ignorance of law by scheme or make will not solve problems in life. The word was there and will be there even when we are gone. The truth will always be there and no one will escape the truth. The law is not by man but by divineness. At the time that you committed the crime you did not heed the truth. You are pleading to be treated favourably yet do not disclose the reason behind it. You want the court to consider your background and your family including that you have 8 children who are small. Life is made up of the persons that are with us and around us.
  4. This is one of the most prevalent offences in this Province West New Britain. In this week alone I have had to deal with almost 15 cases involving the use of bush knives with grievous results upon the victim predominately with residual injuries after the best medical hands here at the Kimbe General Hospital. This is a drain on the logistics resources manpower of the hospital caused by individuals like you. The hospital should be using its resources, time, energy and manpower for genuine cases of illness and not violence as is the case here. There are also cases of murder and wilful murder that are also before this court here in Kimbe alone which are the end result of the use of bush knives upon the deceased. There is not a week that goes by without a committal to this court of this offence of Grievous Bodily Harm as perpetrated here with Bush knives. The minimum in a week as I have noted here and which I have had to deal with before my court are almost 10 to 15 in a week. It is therefore a very serious matter which must be addressed and reflected in the sentence that I impose upon your case. The deterrent effect to you and others similar must be stressed in the sentence that is passed upon here.
  5. You did not act with mercy when the victim was helpless and in no danger to you after he fell in the attempt to try to stop your advance with a stone. He was at your mercy in making you heed what he said but there was no mercy on him. It is not same for you now to plea for mercy upon invoking the facts of your family and of the 8 small children of yours.

Alloctus

  1. “Yes I want to say wrong I did it is true I say sorry to court, I have eight children give me probation I did wrong I say sorry I do not want problem so I want compensate him”
  2. Here again you reiterate the welfare and wellbeing of your children when you committed the offence against George Kalim. It is late on the eve of your sentence to plea that you should be given probation because of them. To be effective in your favour it is always wise to follow what the Holy Bible says to make good with whom you have wronged as it will tell against you if you do not do so. Do not wait for the court but to take it upon yourself in your own way to settle as if it comes to court it will be in your favour.
  3. Indeed I note what the Supreme Court in Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000 said is relevant. In that case, the Court observed that “an offender should consider his background first before committing any offence. Implicit in that is the fact that, it is a little too late to talk about an offender’s personal background including the needs of his family concerns once he is proven guilty according to law. His background and concerns should have little or no weight against the need to impose a sentence or punishment that best befits an offence he has committed in the particular circumstances in which the offence was committed.”
  4. I consider that what the supreme court said in Allan Peter Utieng (supra) is relevant here and applies and I am bound sitting as a National Court and I take that into account in considering that what the defendant has stated on allocutus does not effect the sentence that is due and should be passed upon the defendant given his facts and circumstances of the offence.
  5. In a number of National Court decisions for example, State v. Raphael Kimba Aki (No.2) (28/03/01) N2082, the Court said:

“Following this line of authorities and the reasoning behind them, your plea for leniency to avoid suffering to you family has no place. If at all, that plea has little or no weight in determining an appropriate sentence for you." That is what the court said and held in a similar situation as here where it was urged on the defendant’s behalf that his family situation be considered for sentence. The State v. Pablito P Miguel (06/12/02) N2338 ; The State v. Henry Mapi (03/07/98) N1936


Presentence Report Application


  1. In accordance with your allocutus, your lawyer submitted that a probation report and a means assessment report be prepared by the probation service furnished to the court for an appropriate sentence to be considered thereafter. The state conceded and I ordered that a probation report together with a means assessment report be furnished to the court in accordance with section 13 and 25 of the Probation Act. Your case was adjourned for two weeks to allow for the production and filing of both reports into court. Today that report is ready before the court and both counsel have addressed the court on sentence covering the report for and against for the courts consideration for an appropriate sentence.

Means Assessment Report / Probation Report


  1. The means assessment report states that you chopped the side of the small finger and the cut was deep that he was sutured and had 12 stiches and his left hand small finger is now permanently disabled and to do work is totally not 100%. The victim said he valued life more than compensation payment. He said that he waited too long to be compensated but the offender failed. However he said that he would like that he must pay some compensation and must go to jail. Importantly the victim has stressed that the compensation would not make up for the damage he received to his left hand. He said that he waited that long that he would compensate him but failed that responsibility to right the wrong he did.
  2. The recommendation of the means assessment report is that the offender be given 3 to 6 months to pay compensation. There is no schedule of payment nor what the offender is willing to pay as compensation. His income is from the oil palm of which he has stated of gross at K 2000 to K3000 yet he never for one moment paid the money that was ordered by the village court for the assault on the wife of George Kalim. How real is this assertion without any confirmation of payment slips that he has indeed from the sale of his oil palm got that much money? With 8 children and a total spending on all the workers in the block where would he get the money to realistically pay any compensation ordered here?
  3. Your Antecedent report was tendered you did not have any prior conviction and that you were married with 8 children. You were educated to grade 6 at Sakalau in Madang Province. You were of the AOG church.
  4. George Kalim the victim in a statement given to Police says that you were 3 meters from him and called out to him, Am I a child to you? You swang the grass knife at his abdomen, he jumped and held both your hands and then you both struggled in the course of which he sustained a small cut. He saw this and pushed you away. And then ran away in an attempt to get away from you and to pick up a stone to stop you from pursuing him, but fell down to the ground in attempting. You ran up and swang the grass knife at him. And he lifted his hand up to stop you from cutting his head as he was on the ground. But you went ahead and cut his hand, he saw that if he remained on the ground you would continue further and cause serious injuries over and above what you had inflicted. He got up quickly, got a stone threatening you with the stone to keep you at bay whilst another Kenneth Alois came and helped you stop.
  5. And you were determined and persisted the attack even when the bus that George was in on his way to the hospital came and stopped alongside where your house is to give way to another vehicle. You came and attacked so that he was forced out of the bus whereupon he got a stone, threw it at you but you pursued and was prevented by other people there who saw what you were doing and came into assist and chased you away from there. George was then taken to the Kimbe General Hospital and admitted.
  6. This is compounded by the probation report which states, the victim George Kalim reported that his family and the offender’s family had an ongoing conflict. He said that a village court order was made ordered the offender to compensate the victim’s wife and failed to meet it on time. The victim was after the payment that the offender was to pay. The victim approached the offender demanding the payment. It was from this that they argued in which the argument got heated up and the offender chopped the victim’s left hand. From the authors view the victim sustained quite serious disability and will be for a life time. Further the victim request that the offender compensate him and serve part of his sentence in jail. He feels that this would satisfy him in the long run and he waited long enough to be compensated”
    1. The probation report at Assessment says, “The offender reports that the crime he committed arose from failing to compensate the victim. He was approached by the victim in which both ended up in an argument. Their argument got heated up and that he did have no control over his emotions and chopped the victim’s left hand. He admitted the wrong and refused to repeat the same in future.”

Medical Report


  1. Doctor Peter Yama surgeon at the Kimbe General Hospital who attended to George Kalim made the following report dated the 16th April 2014, “The above gentleman was attacked by another man on the 15th March 2014 at around 5.00pm at Kavui section 1. It is alleged that the man become angry over an old case that was pending. He without warning chopped the victim with a grass knife on the head, but the victim raised his left forearm in self-defence. He was cut on the left palm and wrist, and sustained a deep wound on the hypothenar region of the palm. He was again chopped on the same hand at the extensor surface and elbow. He was rushed to the Kimbe General Hospital on the same date and seen at the emergency ward. He was admitted to surgical ward and was taken to the operating room on the 18th March 2014. In the operating theatre it was found that he had sustained a deep wound involving the hypothenar muscle 10cm and 5cm. the ulnar nerve and the flexor digiti minimus tendon of the small finger was also cut. He also sustained 5 cm superficial wound on the left elbow. The elbow wound was sutured with 3 stiches and forearm with 3 stiches. The wrist wound was sutured with 10 stiches inside and 5 stiches on the outside. He therefore has suffered from the following injuries;

Therefore the total permanent damage is 85%. He is unable to perform normal duties for a maximum of 6 weeks to 3 months due to the injury.”

  1. Doctor Peter Yama is a professional and has given account medically of a very serious case of grievous bodily harm and he has given 85 percent permanent damage for the rest of George Kalim’s life. Common sense dictates that it means the way he uses his left hand to support in the way he lives will be effected in that he now has 85 percent total permanent damage to his left hand.
  2. You are a 50 year old man resident at Kavui section 1 block 1792 originally from Suwabukum Maprick in East Sepik Province. But came here to West New Britain Province with your parents in 1972 when you were still a boy. Your father applied for an oil Palm Block at Kavui section 1 block 1792. This is where you have lived up to now. And you still live in the two bedroom house that was built by your father which now houses eight of you there. You are a mature married man with 8 children not a youth aged in the teens, you are fully fledged mature man who has cut grievously the left hand of a fellow human being living at the same place who was intent on getting what compensation were ordered by the village court from you. You cut a 38 year old man at that time 15th March 2014. It is three years since that time so he is now 41 years old with 85 percent total permanent damage.
  3. You sustain your life with cash earned from the three blocks of oil palm. That the price is not steady at most times as it is dependent on world market price and so the earning is K2000 to K3000 on oil palm pay days. Apart from that you do not have any other formal employment.
  4. You attend the AOG church at Kavui and the local pastor there is one Dominic Alois. He is prepared to supervise you should the court order probation. The victim George Kalim interviewed by the Probation officer said there was an ongoing dispute with you. Village court order was made which ordered you to compensate George’s Kalim’s wife. You failed up to now to make that payment ordered.
    1. You do not understand the simple equation that two wrongs do not make a right. It did not occur to you that you only had to pay what was due as ordered by the village court and then get on your life. You could not argue that it was provoked upon you. You own doing landed you with the compensation ordered by the village court. You had assaulted the wife of George Kalim. As the husband he had every right to ask that you settle what was ordered by the village court. That could not be provoking you. And even then what right did you have in law to cut him with a bush knife on his left hand. No one in their right mind would throw up their hands in the way of a bush knife thrown unless of course they were defending themselves as was the case here with George Kalim. He lifted his hand up in defence of the bush knife aimed at his head and suffered grievous cuts to his left hand depicted by the excellent medical report by Doctor Peter Yama.
  5. The probation report has your relatives and family including your wife who is concerned that you should not go to jail. That if you were sent to jail it would effect you. The maximum sentence under this section 319 is 7 years in jail. You will come out of Jail and carry on with your life past the jail term whereas the victim will not it is a life time disability that you have passed on him.
  6. You report in the probation report that the crime arose from failure to pay compensation to George Kalim. And this relates to a village court order that was made for you to compensate the wife of George Kalim. Here your own cousin brother Rodrick Piapia of section 1 Kavui Block number 034 confirms that you beat up the wife of the victim George Kalim and this has created the ill feelings fighting between the two of you. You have failed to meet it and to settle it. George Kalim was after the payment immediately before you assaulted and cut him up with the grass knife.
  7. I can only repeat what Justice Kandakasi said in State v Idab [2001] PGNC 39; N2172 (17 December 2001):

“There is an additional factor that makes the case even more serious or place the case on the worse type of its kind. Both the Supreme and National Court have made it clear that it is a serious offence and warrants the imposition of the maximum penalty if any members of the law-enforcing agency are the victims of the offence under consideration. My brother Justice Sevua in The State v. Joe Foe Leslie Leslie N1496, had regard to the Supreme Court decisions in Peter Naibiri and Kutoi Soti Apia v. The State, SC137 and Ure Hane -v- The State [1984] PNGLR 105 in the context of attacks on police and quoted with approval from the second case”.


  1. I hold that the views of the Supreme Court are relevant here and applicable to the facts of the case here because the village court is always with the people at the forefront accessible by all at first contact at the community level in any dispute settlement. It is important that decisions or orders that are issued for the peaceful settlement of disputes there must be complied with and adhered to. You beat up the wife of George Kalim and compensation was ordered by the Village court I do not have the date and time when the order was made, but that is the reason for the attack by you on George Kalim, as you say he was bothering you to get the compensation that was ordered by the village court per your record of interview Question and answer 12, “Em bihanim mi tumas long kisim moni we village Kot em orderim long baim em. Mi tokim em bai mi givim long Kot na bai yu go kisim tasol em laik bai mi givim em long han bilong em so em provokim mi so dispela hevi ikamap”. It may have been that you had not paid at the time that the court had given and were not making any headway to pay and settle, hence the persistence demonstrated here by George Kalim.
  2. It is serious because your admission confirms the existence of a court order from the village court to pay compensation to the wife of George Kalim. And he was asking for the payment of it and you say you were provoked because he kept on pestering you for it. Provoking you to commit another criminal offence. A more serious offence from the initial one upon his wife. It cannot be provocation and a prompt for you to attack as you did.
  3. You have graduated from a village court sanctioned order to the National Court the highest criminal court of the land. It is not a light matter when the offence is a result of trying to implement the orders of the Village court upon you. Your defiance with a serious criminal offence of Grievous Bodily Harm is not a light matter. And the analogy is similar in my view to that of a policeman who is wounded in the course of his duties as in The State v. Joe Foe Leslie Leslie (1996) N1496, Peter Naibiri and Kutoi Soti Apia v. The State (1978) SC137. And this I say so as the village court is not as strictly formalized as in the case of the lower and upper judiciary where there is police and the sheriff to carry out orders of the court. A village court does, indeed for the peace officers but they are not as formalized there to invoke that it is entirely the duty of the peace officers to enforce the orders of the village court. So a husband intent on getting an order carried out due for his wife is not committing a wrong or criminal offence. He cannot be beaten up or cut as was the case here. It is therefore likened to policemen in the course of their duties in that regard.
  4. You cut up a husband George Kalim intent on getting his wife’s compensation ordered by the village court. You do not dispute that that was an order upon you for payment by the village court and the husband was asking it from you. He is likened to policemen who are simply getting the orders of the court executed into effect. You simply had no choice but to carry out rather you chose to assault and grievously cut him up. You paid no respect that it was the orders of the village court not the personal wishes of George Kalim and his wife that he was asking from you. You reacted to that with a criminal offence. Your sentence must reflect that you must respect court decisions and orders that do not commit further illegal acts or commit criminal offence in the face of that order.
  5. You have produced no evidence of payment of that order up to the date of the probation report before me. The probation report also does not state when the village court made the order including obtaining a copy of it to assist the court. But the fact is clear that your attitude to observing court orders and compliance is not consistent with a law abiding citizen. If you had not complied with a village court order to compensate the wife of George Kalim what guarantee is there that you will compensate George Kalim if this court were to order compensation. It is important to consider this as material and fundamental basis because it is the basis which has led to this offence committed by you. It shows that you are a person who does not give heed to court orders and compliance thereof. Yes you have pleaded guilty but that must be real acceptance of the wrong that you have committed. Real in the sense of making amends without court sanctions to settle. As a Christian a Papua New Guinean you are not obliged to wait for the court to make orders for settlement, you take the opportunity and settle at first opportunity and bring that evidence to court at the time the matter comes before court as is the case here. There is no evidence to that effect against you in this case.
  6. Your pastor Dominic Alois says you assist very well in the church activities. If you are truly a Christian you ought to observe the laws that derive from God and implemented by authorities such as the courts including village courts who are given their powers to bring peace by God. It is sufficient to put what the Supreme court has said relating, “Also, as the Bible says, he should have shown mercy and care first before asking the Courts to be merciful with him. Besides, as we said yesterday in the Rudy Yekat case, the Appellant’s utterance of sorry must be accompanied by something tangible which befits the wrong he has brought upon the victim, her family and relatives, if such utterances are to be of any value and meaning. In the present case, there is no evidence of the Appellant paying any compensation or has taken any step to correct the wrong he has perpetrated. This Court or any other court for that matter should be slow to act on such meaningless and or valueless pleas for mercy or leniency Ala Peter Utieng v. The State Supreme Court delivered in Wewak on the 23rd of November 2000) SCRA 15 of 2000 at page 5:
  7. If you are indeed a Christian as you profess you have not of your volition paid compensation to George Kalim let alone the first order by the village court. In State v Idab [2001] PGNC 39; N2172 (17 December 2001) Justice Kandakasi had this to say to a man who was being sentenced before him:

“....for Our Constitution and our nation are built on the Christian principles. Those principles are founded in the "Holy Bible", which we accept as the words of God. One of the important principles of Christianity is no retaliation when someone does something wrong against you. Indeed Jesus said if someone hits you on the one side; allow him to hit the other side as well. You did not do that, instead you retaliated to the an extent more serious than any harm that may have been brought upon your mother by a mere verbal abuse, not demonstrated to have come from the victim. History has shown that people or nations that have not lived according to the words of God in the bible have been destroyed either by God himself or by other forces. The punishment God warns of for people like you unless you repeat is death. This is something you and everybody else in the country and the world over seriously need to consider every day of our lives and do has his words ask us to do to avoid his punishment.”


  1. The maximum penalty under section 319 is seven years in hard labour. The maximum penalty is always reserved for the worse case. Each case is depended on its own facts. But there is always a common range or tariff that the court imposes and these are material considerations which are taken into account in the passing of sentence. No one case is the same on all facts or the application in sentence but fairness and justice demands a safe and satisfactory sentence is passed.
  2. I am in agreement with Justice Kandakasi in State v Irowen [2002] PGNC 99; N2239 (23 May 2002):

“in the exercising of the sentencing discretion in a sentencing judge is not a matter of mathematics. Instead, it requires an exercise of judicial discretion in such a way to do justice in the circumstances of a particular case by reason of which there might be differences of sentences”


  1. In the State v Hianu [2006] PGNC 75; CR 1767 OF 2005 (25 August 2006) Justice Cannings in Buka sentenced the defendant to 4 years IHL for smashing a full bottle of beer on the face of the victim who suffered the permanent loss of his other eye as a result. Two (2) years was imposed in custody and 2 years was suspended on a non-custodial term with conditions for payment of compensation.
  2. In the State v Clifford Rangit (2017) N6767, I sentenced the defendant, a policeman to 4 years IHL for shooting the victim with a police issued gun at close range grievously injuring his foot with residual injuries whilst drunk. Two (2) years IHL in jail whilst 2 years IHL was suspended on conditions that compensation be paid to the victim even though he did not want compensation to be paid.
  3. In State v Naiwa [2004] PGNC 58; N2710 (22 June 2004), Justice Kandakasi in Wewak imposed a custodial term of 5 years IHL where the defendant was charged with grievous bodily harm of his sister in law where he cut off her hand with a bush knife rendering her left hand useless. He had pleaded guilty and was a first offender. No compensation was paid and the defendant did not have the means to pay compensation if ordered.
  4. In State v Irowen [2002] PGNC 99; N2239 (23 May 2002) in Wewak Justice Kandakasi sentenced the defendant to 7 years IHL where the defendant stripped both his wives naked and then cut the first wife on the shoulder almost severing the hand, and then cut the second wife on both legs left ring and small finger. Both were admitted and sustained life threatening injuries there and could have died had it not being for a pastor and his wife who saved them. The first wife suffered 25 percent permanent disability to the shoulder. The second wife could not be assessed as to her disability as at the time of judgement as she was still being treated at the hospital.
  5. In State v Tony Wartoto and Tito Isana CR NO 1317 & 1318 OF 2016 on the 20th April 2017, after a guilty plea to Grievous Bodily harm under section 319 of the Criminal Code, I imposed a sentence of 3 years IHL which was wholly suspended on a 3 year Probation order on conditions that compensation was paid to the victim and the defendants do free community work supervised by the probation officer and a pastor of the United Church in the locality. Pertinently because of the age of the defendants, and also because there were no residual injuries to the victim who had since fully recovered from the bush knife attack by the defendants.
  6. Your case comes with its own facts and circumstances and cannot be likened to any of the cases above in the sentence that must be passed upon you. Whatever is the sentence at the end is from the facts and circumstances here and is not dictated therefrom except that there is a general tendency and a range within which the courts have come along in passing sentence here.
  7. According to the Doctor there were two cuts that were made firstly “He without warning chopped the victim with a grass knife on the head, but the victim raised his left forearm in self-defence. He was cut on the left palm and wrist, and sustained a deep wound on the hypothenar region of the palm. He was again chopped on the same hand at the extensor surface and elbow”. There are two cuts that were made by you upon the victim. In so doing you exercised no mercy, if it was in defence it cannot be where the same arm is cut twice at the palm and then at the elbow. If he was holding the stone as you claim, he would have been disarmed at the time you cut the initial blow to the palm and the wrist. There are two blows both within a short space of time which has left the victim with 85 percent total permanent damage.
  8. I find as a fact that the victim was in no way of any threat to you at the time that you delivered the first blow with the knife and then again with the second. I further find as a fact that you injured George Kalim over the village court order for compensation made for the assault that you committed upon his wife. That the argument arose from it leading to the cuts that you inflicted upon him.
  9. Probation report has recommended probation with conditions for compensation. You did not respect law and the process of law and dispute settlement. What you did was to defy the law and the process of law. You acted in complete contempt by cutting George Kalim simply because he was trying to get you to pay the money that had been ordered by the village court for payment in settlement of the assault by you upon his wife. I have considered your case at length and make the following orders in sentencing you :

Orders accordingly
_________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant

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