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State v Kup [2018] PGNC 366; N7477 (24 September 2018)

N7477

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 790 OF 2018

THE STATE

V

LUCAS KUP

Kimbe: Miviri AJ
2018 : 23 August, 21, 24 September

CRIMINAL LAW – PRACTICE AND PROCEDURE – GBH S315 CCA–Plea- left arm amputated–right leg amputated – PSR MAR ordered – victim prepared to accept compensation – victim disabled for life – custodial term appropriate.

Facts
Prisoner amputated the left arm and the right leg of the victim over a dispute involving an oil palm block.

Held:
Plea of guilty
First offender
Able bodied victim now disabled for life
Prevalent offence
Custodial term appropriate

Cases Cited:
The Queen v Pum [1974] PGSC 29; [1974] PNGLR 103
The State v Irowen [2002] PGNC 99; N2239
The State v Ogi Songe [2017] N6759
The State v Philip Piapia [2017] N6763
The State v Steven Tumu [2017] N6768
The State v Susure [1999] PGNC 58; N1880
The State v Taroh [2004] PGNC 104; N2675
Counsel:

A. Bray, for the State
E. Yavisa, for the Defendant

SENTENCE

24^th September, 2018

1. MIVIRI AJ: This is the sentence of Lucas Kup of Kunol, Kol, Jiwaka for the crime of with intent to cause grievous bodily harm did cause grievous bodily harm upon one Dorcas Solomon contrary to Section 315 (b) and (d) of the Code.
   

Short facts

2. The Prisoner had a long standing dispute over an oil palm block located at Wenge village oil Palm at Garu Talasea with the victim Dorcas Solomon. On the 21^st November, 2017 Prisoner found victim harvesting oil palm from that block. He was accompanied by another one John Mek Whiteman and both of them were armed with bush knives. They chased Dorcas Solomon who ran trying to escape from them. Prisoner and John Mek Whiteman chased her and caught her. Then Prisoner cut her on the right leg. She fell and John Mek Whiteman cut off her left hand. She was rushed to the hospital and survived.
   
3. Prisoner was indicted with intentionally causing grievous bodily harm pursuant to Section 315 “Acts intended to cause grievous bodily harm or prevent apprehension”
   
4. A person who, with intent-
   
   • (a) to maim, disfigure, or disable any person; or
   • (b) to do some grievous bodily harm to any person; or
   • (c) to resist or prevent the lawful arrest or detention of any person,

does any of the following things is guilty of a crime:–

(d) unlawfully wounding or doing a grievous bodily harm to a person;
(e) unlawfully attempting to strike a person with a projectile;
(f) unlawfully causing an explosive substance to explode;
(g) sending or delivering an explosive substance or other dangerous or noxious thing to a person;
(h) causing any substance or thing referred to in Paragraph (g) to be taken or received by a person;
(i) puts a corrosive fluid or destructive or explosive substance in any place;
(j) unlawfully casts or throws a fluid or substance referred to in

Paragraph

(k) at or on a person, or otherwise applies any such fluid or substance to the person of a person.

Penalty: Subject to Section 19, imprisonment for life.

5. Section 315 (b) and (d) were invoked against the prisoner to which he entered a guilty plea confirming his admissions to police and material on file. Application for presentence and means assessment reports under the Probation Act were made by defence counsel both victim and prisoner knew each other and whether there were possibilities to settle the matter between them.
   

Aggravation

6. Victim lost her left hand and also her right leg. She is now a disable person for life. Prisoner led the attack and persisted when the victim took flight to escape them. She could have easily bled to her death but has survived after admission to the Kimbe General Hospital. Medical report dated the 24^th January 2018 by Doctor Vanessa Anton Surgical Registrar of the Kimbe General Hospital showed complete amputation at distal one third of the forearm above wrist active bleeding bones and tissue exposed. Complete amputation of the distal one third of leg, above ankle active bleeding, bones and tissues also exposed. Thin layer of skin holding the foot still. Dorsalis pedis pulse absent. She was taken to the theatre treated admitted to the ward then removal of stitches wound care until she was discharged. Outpatient treatment followed after. She has recovered minus her left wrist and right foot. She was initially admitted on the 21^st November 2017 and discharged on the 20^th December 2017.
   
7. Comparably Section 315 is very serious there is intention to cause Grievous Bodily Harm and that intention is fulfilled as here by the prisoner. In Section 319 there is no intention but the result is grievous bodily harm is caused. That is evident from the penalty provision in the former life imprisonment is maximum, whereas in the latter it is seven years maximum. Its seriousness can be seen with Section 304 Attempted Murder where the maximum penalty is life imprisonment as with this Section 315. It reinforces the right to life under Section 35 of the Constitution that whether it is an attempt to murder or as here intention to cause grievous bodily harm and causing that as a result imprisonment is maximum of life years. The same as in murder or manslaughter. Thus it is not a light matter where a wrist and foot are amputated as here.
   
8. The availability of the bush knife as a tool and its use for evil as here is rampant and prevalent. Whether an armed robbery, or grievous bodily harm, or attempted murder, or any of the offences of homicide the bush knife is there and its uses has seriously grievously defied the law. This sentence will take account of that fact and will reflect that the courts will not tolerate complete defiance of Section 35 right to life. Nor of persons who resort to violence as is the prisoner without hindsight of their actions.
   
9. Prisoner did not explain the basis to police for the attack on the victim when given opportunity in the record of interview conducted on the 11^th May, 2018. It was his right by the Constitution but it was proper to give an understanding as to the cause for the attack upon a defenceless woman who was not attacking him. The presentence and means assessment reports dated the 19^th September 2018 detail that victim is the second wife of the prisoner. And that the marriage was filled with dispute and grievance which had seen and ended up at the Kimbe Police Station occurrence book numbers 5664/17 false pretence and stealing ; 3784/2017 attempted murder and arson ; 4818/2017 attempted murder. And that the prisoner reacted as he did because victim had uttered that she would kill him.
   
10. In my view credibility and veracity of the reasons for the attack ought to be disclosed at the earliest. To wait is to give opportunity for reason to come into any explanation made distorting the underlying reasons for the criminal behaviour as here. There is no chance of this at the first given opportunity as it simply is a recount of the actual events as it unfolds. Where it is after a while reasoning and logic sets in so what is given and told as here in a presentence and means assessment report is basically that. The intent is to influence sentence in favour of the prisoner as much as possible draw minimum effect upon the prisoner. It is reasoned and tailored in this regard and therefore the court must exercise care and diligence to so act upon it. Because it is a report and cannot be on the same footing as evidence in court either by affidavit or otherwise and therefore is not on the same footing. There must and ought to be verification in law before placing reliance on it. In my view this is the express intent of the Evidence Act 1975 and related provision.
    
11. On this basis the character infidelity of the victim is not on trial without any verification as the assertion are by the prisoner who has an interest in the favourable outcome of sentence upon him. What is more probable is that this was a dispute over the block held by the prisoner who wanted it leading to the dispute. This is a very prevalent offence which has left the victim without a hand and a foot. Property has taken prime position as opposed to life. Wrong must be corrected with a right not by another wrong as here. Prisoner was educated to grade 12 and on that basis would have been acquainted that there were processes and means available to settle disputes. He resorted to illegal and unlawful self help. He must be educated and any others similar to follow the rule of law.
    

Mitigation

12. Prisoner is 38 years old resident at Garu village oil Palm Block West Bakovi Talasea married with two wives. Originally he is from Kunol village, Kol, Jiwaka. He is a first offender. He is educated to grade 12 at Passam National High School. Prisoner was formally employed as a driver with Mosa but decided to get a block of land and to lead life from there. It is apparent that he made good but forfeited now because of the offence.
    

Allocutus

13. Here he stated that victim provoked what happened. It was not his intention but he apologised and asked for the mercy of the court and to be put on probation.
    
14. In Pum v The Queen [1974] PGSC 29; [1974] PNGLR 103 (1 July 1974) five appellants appealed against their sentences. Four were convicted of attempted murder and received eleven years four months’ imprisonment with hard labour and Kerua to ten years four months’ imprisonment with hard labour for with intent to cause grievous bodily harm did cause grievous bodily harm. They had acted in revenge against a bull dozer operator who had presumably killed one of their relative. They were stopped but persisted with iron bars and stones even when two policemen tried to stop them. They stopped when they thought the victim was dead. A brave bus driver joined the two policemen and saved the victim.
    
15. Comparably that is alot more serious than the present offence, State v Taroh [2004] PGNC 104; N2675 (13 September 2004) would be a lot similar to the present case where bush knife was used upon the victim cutting his hand three times. The court imposed 8 years imprisonment. He recovered. Here victim has lost both her limbs. She has become a disable person as a result. And almost lost her life in the attack. You pleaded guilty here whereas in the former a trial was run. You are prepared to pay compensation but have not done that since the commission of the offence.
    
16. In State v Susure [1999] PGNC 58; N1880 (17 June 1999) compensation was ordered where both victim and prisoner where friends and the matter arose because victim had gone into the bed room of the prisoner and wife and sought to have sexual intercourse with her after both were together drinking and prisoner had gone because he wanted to light his smoke. In his absence victim went into his bedroom with his wife and infant were and attempted to have sexual intercourse with her. She resisted and yelled out drawing the attention of the prisoner armed with an axe who argued with the victim. He uttered words that incensed the prisoner who reacted with two swings of the axe cutting him on the head and nose. The court imposed three years ordering one year in jail, two years were suspended on the condition that compensation be paid of K1000 in cash, a cow and garden food.
    

Issue

17. Given all what is the appropriate sentence for the prisoner here?
    

Appropriate Sentence

18. I start with the maximum sentence prescribed by that section which is life year’s imprisonment. At the outset this offence poses the element of grievous bodily harm usually associated with murder charge, and in that regard is a very serious offence.
    
19. Also that similar cases that had come before the court of family members or close knit members often drew sentences at mid range of 3 to 4 years suspended with conditions for compensation reformation and rehabilitation of the prisoner. Where there is use of a weapon with serious life threatening injuries as in State v Irowen [2002] PGNC 99; N2239 (23 May 2002) this court imposed the maximum penalty of 7 years for offence under section 319 of the Code, cumulative where both wives were cut with a bush knife almost killing them but they survived because they were taken quickly to the hospital but came out with serious residual injuries. That is the extreme which isn’t the case here. But family members must be protected like any other person by the law and this court has imposed similar.
    
20. Where a nephew attacked an uncle with a bush knife cutting him causing a life threatening injury this court imposed 3 years IHL part custodial and part non custodial with conditions for payment of compensation: State v Ogi Songe [2017] N6759 (27^th May 2017). Where there is demonstrated by clear evidence to mend family or relationship and there is means to ensure compliance of compensation orders this court has gone ahead to impose sentence giving effect: State v Philip Piapia [2017] N6763 (17 May 2017); see also State v Steven Tumu [2017] N6768 (23 May 2017). The sentence has been in the mid-range of 3 to 4 years part custodial and part suspended in each case. These are of the lesser offence under Section 319. It means sentences for Section 315 should not be within that section range and tariff but must reflect the gravity of the offence.
    
21. And it would be disproportionate to consider parallel. Here I determine that the just and proportionate sentence given all set out above is 10 years IHL and I so impose that upon the prisoner for the crime of with intent to cause grievous bodily harm committed upon Dorcas Solomon contrary to Section 315 of the Code. Victim is now a disable person for life over allegations that have not been verified to which the prisoner took the law into his own hands to be the Judge, Jury and executioner. It is a very prevalent offence this sentence will reflect that the courts will not tolerate this behaviour lightly. I order that time in custody will be deducted forthwith.
    

Ordered Accordingly,
__________________________________________________________________Public Prosecutor: Lawyer for the State
Public Solicitor : Lawyer for the Defendant