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State v Kupilyo [2017] PGNC 65; N6691 (20 March 2017)

N6691

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 690 and 691 OF 2016

THE STATE

V

YOSEPH KUPILYO and JACOB YOSEPH

Wabag: Auka AJ
2017: 13^th & 20^th March

CRIMINAL LAW – Sentence – Particular Offence – Accuseds Father and son – One Count of Unlawful Assault causing Bodily Harm – Guilty Pleas – Use of bush knife – One bush knife wound on left leg – Not life threatening – Mitigating and aggravating factors considered –Each to Two years imprisonment less time spent in Pre-trial custody – Order that remaining term of 1 year 3 months suspended on condition – Criminal Code S.340 and S.19

Case Cited:
Goli Golu v. The State [1979] PNGLR 653
Lawrence Simbe v. The State [1994] PNGLR 38
The State v. David Tiki (2007) N5030
The State v. Martin Konos (2010) N4157
The State v. Pinda (2012) N4872
The State v. Terence Teko & Patimos, Unreported Judgement dated 21^st September, 2011

Counsel:
Mr. Emmanuel Thomas, lawyer for the State
Mr. Jeffrey Kolowe, lawyer for the Accused

DECISION ON SENTENCE

20^th March, 2017

1. AUKA AJ: Both Accused pleaded guilty to one count of Unlawful Assault causing bodily harm pursuant to S.340 of the Criminal Code.
   
2. The brief facts of the case were that on 28^th November, 2014 around 8:00 am both accused’s were at Pialum Village in Aiyel Valley, Wabag, Enga Province. The victim Sakam Kandiu an adult female was also at the same village but was in her Kaukau garden when she was attacked by the two (2) accused with a bush knife. The accused Yoseph Kupilyo struck her with the blunt side of the bush knife and held onto her while the accused Jacob Yoseph cut her on the lower part of her left leg. They then left her and ran away. The victim sustained a cut and a fractured left leg as a result of the injuries. Both charged under S.340 and state invoked S.7 of the Code as they aided and abetted each other in the commission of the offence.
   
3. The Medical Report by Dr. Peters Paulson of 14^th January, 2015 showed that the victim had compound fracture to her left leg. She was admitted for 2 weeks and appropriately treated. Dr Paulson stated that the victim was required to attend for regular review and dressings at the outpatients and further assessment to be done at the surgical consultation clinic in 3 months time. The assessment report was not made available to the court at the time of sentence.
   
4. In his address on Sentence the accused Yoseph Kipilyo said the victim is his sister and what happened was an accident and said sorry to her. He also said sorry to the court. He said he had spent 1 year 9 months in custody. He said as he has a family, he asked the court to have mercy on him and send him back to his community.
   
5. For accused Jacob Yoseph he said the lady receive the cut while we were fighting and struggling. He said sorry to the lady and her relatives. He also said sorry to the court. He said he had spent 1 year 9 months in custody. This was his first time to commit an offence. He asked the court to have mercy on him and send him back to the community so he can serve his punishment at the community level.
   
6. In relation to the accused’s personal particulars, Mr Kolowe of Counsel for both Accused’s submitted that the accuseds are father and son. Yoseph Kapilyo is the father and is 52 years old. Married with 8 children, 4 boys and 4 girls. The eldest child is the Co-accused Jacob Yoseph who is 25 years old. Both accused are members of the Apostolic Fellowship. The wife or the mother is deceased.
   
7. For Co-Accused Jacob Yoseph, he is 25 years old and he is the first born in the family of eight (8). He attended Taika Primary School and was doing grade 7 at the time of the offence. He is married with 1 child who is 1 year 6 months old. The wife is a subsistence farmer at the village.
   
8. Mr Kolowe submitted and urged the court to consider that both accused have apologised to the court and said very sorry to the victim. Both accused’s have pleaded guilty early and saved courts time and money. Both have no prior convictions. The victim and accused’s are relatives. Mr. Kolowe submitted that both Accused have spent 1 year 9 months in custody and that is sufficient time for the offence they have committed and both should be sentenced to the rising of the court.
   
9. Mr. Thomas of Counsel for the State submitted that the case is not a worst type of Unlawful assault causing bodily harm case. He submitted that a suspended sentence with conditions would be the appropriate sentence in the circumstances of the case. Mr. Thomas also handed up an affidavit by the victim of 13^th March, 2012 who deposed to the fact that both accused are her relatives who have made peace with her and asked the court to impose a non-custodial sentence.
   
10. The minimum punishment for the crime of Unlawful Assault causing bodily harm is 3 years imprisonment.
    
11. The Court has general discretion to impose a lower sentence with or without other forms of punishment enumerated in S.19 of the Code.
    
12. On Authority of the case of Goli Golu v. The State [1982] PNGLR 92, the maximum penalty must be reserved for the worst type case. In my view the case is a serious case of Unlawful Assault causing bodily harm.
    
13. It is also an established principle that each case must be considered on its own facts and circumstance. Lawrence Simbe v. The State [1994] PNGLR 38.
    
14. The trend of Sentencing on Unlawful Causing Bodily Harm and similar offences depend entirely on the facts of each case. On the side of sentences on this offence, let me cite the following cases;
    
    1. The State v. David Tiki (2007) N5030. In that case accused pleaded guilty to Unlawful Assault doing bodily harm. It’s a case where the accused strucked the victim with an iron bar and fractured his left shoulder bone. Accused was in a drunkard state when he assaulted the victim. He was sentenced to 9 months but the sentence was wholly suspended on condition including payment of compensation.
       
    2. The State v. Martin Konos (2010) N4157. In the case the offender pleaded guilty to Unlawful doing bodily harm to his nephew by attacking him with a piece of timber, fracturing his knee and inflicting other superficial injuries by multiple blows. His Honour Cannings J sentenced the prisoner to 3 years. The sentence was fully suspended with stringent conditions.
       
    3. The State v. Pinda (2012) N4872. In that case the accused was fighting with his wife and threatening to cut her with bush knife when an elderly woman placed herself between them and the accused hit her on the forearm with a piece of wood causing a fracture of the right forearm. Accused pleaded to the charge og unlawful assault doing bodily harm. His Honour Batari J imposed a sentence of 3 years fully suspended the sentence and placed the prisoner on probation for a period of 3 years on condition including compensation payment of K3, 500.00.
       
    4. In The State v. Terence Teko & Patimos Wutena, Unreported Judgement dated 21^st September, 2011, the 2 accuseds pleaded guilty to one count of unlawfully causing grievous bodily harm. This was a case where a female called a victim by phone and told him to wait for her on the road. When he came, the female told him to sit on the platform near a chapel while she went to see her mother at the well. While the victim was sitting down, the 2 accuseds approached him and attacked him. Patmos swung a bush knife and hit him on his hand. The victim fell to the ground. Both accused punched and kicked him all over his body. The Medical Report showed that the victim lost two of his teeth and suffered minor bruises on his face. His Honour Lenalia J imposed a sentence of 2 years and wholly suspended the sentence with conditions.
       

15. It is clear from the above cases that the courts have been exercising their discretion to impose sentences in terms as well as the maximum term of 3 years after taking into account the different circumstances of each case with respect to the factors of mitigation and aggravating as they may be.

16. In considering the appropriate sentence I consider the following factors in favour of the accuseds:

1. Both pleaded guilty;
2. Both are first time offenders;
3. Both have expressed remorse to the victim and said sorry to the court;
4. That both have spent 1 year 9 month in pre-trial custody;
5. That parties have made peace with each other;
   

17. The Aggravating factors considered against both accused are:

1. A weapon namely a bush knife was used;
2. Victim sustained a injury on her body; and
3. The offence is a prevalent offence.
   

18. In carefully weighing both the facts in mitigating as well as those against both accused and the Sentencing trend I have briefly discussed above, I consider that the maximum sentence of 3 years is appropriate in the circumstances of the case. Accordingly I impose a sentence of 3 years imprisonment on each accused. I order a deduction of 1 year 9 months each had already spent in custody whilst waiting for trial and sentence. I further order that the remaining terms of 1 year 3 months on each is suspended on the conditions that;

1. Both accuseds must enter into their own recognizance to keep peace and be of good behaviour for 12 months and further subject to the following conditions:
   
   1. Each accused must not cause trouble or harass the victim and her family;
   2. Each accused must pay K300.00 in cash as compensation to the victim payable with 5 months after the sentence;
   100. Both accused must reside at their village and nowhere else;
        
19. If the accused’s breaches any one or more of the above conditions they shall be brought before the National Court to show cause why they should not be detained in custody to serve the suspended terms of 1 year 3 months.

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