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State v Imbol [2024] PGNC 286; N10954 (24 July 2024)

N10954

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR 944 OF 2024


THE STATE


V


ELLY IMBOL


Minj: Miviri J
2024: 10th & 24th July


CRIMINAL LAW – PRACTICE AND PROCEDURE – GBH S319 CCA – Plea – Sticks & Stone Used – Fracture of Skull First Victim – Second Victim Right Hand – PSR MAR ordered – Serious Prevalent Offence – Law into Own Hands – Deterrent & Punitive Sentence.


Facts
Prisoner with two of her children attacked the victim’s husband and wife over earlier accusations by both victim against her that she was a sorcerer. Both victims sustained one, skull fracture, another hand fracture.


Held
Plea of guilty
First offender
Serious life-threatening Injuries to both victims.
Prevalent offence
Custodial term appropriate but suspended on conditions.


Cases Cited:
Pum v The Queen [1974] PNGLR 103
State v Taroh [2004] PGNC 104; N2675 (13 September 2004)
State v Susure [1999] PGNC 58; N1880 (17 June 1999)
State v Irowen [2002] PGNC 99; N2239 (23 May 2002)
State v Ogi Songe [2017] N6759 (27th May 2017)
State v Philip Piapia [2017] N6763 (17 May 2017
State v Steven Tumu [2017] N6768 (23 May 2017)
Kerua and Kerua, Public Prosecutor v [1985] PNGLR 85


Counsel:
F. Popeu, for the State
D.Pepson, for the Defendant


SENTENCE


24th July 2024


  1. MIVIRI J: This is the sentence of Elly Imbol of Por, Middle Jimi, Jiwaka for the crime of causing grievous bodily harm upon one firstly Tati Mark Kolip and secondly upon Mark Kolip contrary to section 319 of the Code.
  2. She was indicted that she on the 11th day of November 2023 at Por Village unlawfully assaulted Tati Mark Kolip and caused her grievous bodily harm. She fractured her skull by using a stone to hit her there. Secondly on that same day 11th November 2023 at the same village, she assaulted Mark Kolip with a huge stick and fractured his right hand. She was indicted with two counts on pursuant and proceeded together to which she admitted. Both victims were husband and wife together with their small son were walking back to their own village when sighted by the prisoner. She got her brother and sister and together they attacked them using sticks and stones to assault them resulting in the injuries sustained.
  3. That section Grievous Bodily Harm pursuant to Section 319 of the Code is in the following, “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. Grievous means that it is life threatening injury or that there will be permanent injury, section 1 Interpretations Criminal Code. No doubt that fits what the prisoner did to the victims both wife and husband. It is therefore a maximum imprisonment term of seven (7) years. But which will draw that if it is the worst offence of grievous bodily harm. I am clear that this is not a worst case so it will draw a determinate term of years. Further it is a guilty plea on the part of the prisoner. And she is a first offender. And reacted because of the reasons she has enlightened in her allocutus and the record of interview. In my view therefore she will not secure the maximum term of seven years imprisonment. And she is entitled to leniency because of that fact.
  2. On the other side is the fact that is depicted out by the medical report of the victims. There are no lingering residual effects of the assault upon to justify further incarceration upon the prisoner. Aggravating is the fact that the availability of village Courts in the villages must be the responsibility of persons such as the prisoner to differences as here. Because the village is interrelated and could by that fact lead to confrontations that would be beyond an ordinary matter as the present. It is not remote for the relatives of the victims to take sides and erupt the matter into a full-scale tribal conflict that will lead to damages in property and lives in the Community. It is paramount that sentences that are imposed bring to heart this. Beliefs in sorcery and the like has led to countless violence country wide. It is the heart of evil with the dominance of Christianity. And life resorting in this manner leaves the court no option but to impose custodial terms to emphasize that fact. The wheel maybe small but it will take the vehicle and the person on board to Lae or Madang or elsewhere in the highlands. This is a small matter, but its potential cannot be downplayed. It is therefore a very serious matter. Both could have simply ended up in homicide. And that would have been over a sorcery allegation.
  3. Presentence report was ordered and is now before me in the determination of this matter. I take due account of it. She is a grade 10 graduate from Kaul High School married with a seven (7) year old son. Originally from Por. Jimi, Jiwaka, she is a first offender. She has given to the victims a pig valued at K 500 and K300 in cash for the wrong committed. It was a trying time for both victims because the nearest decent hospital is a drive of some hours to sustain medical treatment. The pain suffering to both cannot be ignored. Unnecessary resort to violence and taking the law into one’s own hands must cease and stop forthwith. No man is above the law in any way or form. All must abide in the law to see out disputes. It is not a light matter given.
  4. Yes, the prisoner has stated in allocutus with all in the record of interview to police that she is remorseful for the offence committed. “I say sorry before Judge and to GOD and two Tati and Mark for hitting. I did not mean to kill or hurt them. In 2020 they accused me of being a sorcerer, puripuri or power meri. That I was responsible for the death of many. They mobilized everyone against me. They gun butted me, attacked me with bush knives. Magistrate came so they left me and burnt two of my houses. My four (4) year old son they held him up by the legs and threw him into the toilet pit. I gave mouth to mouth and his life was restored.”
  5. In Pum v The Queen [1974] PNGLR 103 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 bulldozer 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.
  6. Comparably that is alot more serious than the present offence: State v Taroh [2004] PGNC 104; N2675 (13 September 2004) would be a lot like the present case bush knife was used upon the victim cutting his hand three times. The court imposed 8 years imprisonment for the more serious offence of GBH with intent under section 315 of the Code. He recovered. Here both victims sustained injuries but have no residual injuries evident. And almost lost their lives in the attack. You pleaded guilty here whereas in the former a trial was run. You paid compensation evidenced by the record of interview and the presentence report since the commission of the offence.
  7. 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 bedroom 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 calling drawing 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.
  8. I start with the maximum sentence prescribed by that section which is seven 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.
  9. 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 any other person must be protected like any other person by the law and this court has imposed similar.
  10. 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 noncustodial with conditions for payment of compensation State v Ogi Songe [2017] N6759 (27th May 2017). Where there is demonstrated by clear evidence to mend family or relationship and there are 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 suspension in each case. These are of the lesser offence under section 319.
  11. Because the offences were committed at the same time on the same day, I order that both will be served concurrently: Kerua and Kerua, Public Prosecutor v [1985] PNGLR 85. So that is an effective sentence of 3 years IHL for both offences to be served concurrently. And further in the exercise of my discretion pursuant to section 19 (6) of the Code, after consideration of the presentence report in each case I order that the 3 years IHL will be suspended on the following conditions:

Ordered Accordingly


__________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant

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