The State v Nerious Pinda (2012) N4872

• Jurisdiction: Papua New Guinea
• Judge: Kawi J
• Judgment Date: 21 February 2012
• Citation: (2012) N4872
• Docket Number: CR No. 1337 of 2009
• Court: National Court
• Year: 2012
• Judgement Number: N4872

Full Title: CR No. 1337 of 2009; The State v Nerious Pinda (2012) N4872

National Court: Kawi, J

Judgment Delivered: 21 February 2012

N4872

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1337 OF 2009

THE STATE

V

NERIOUS PINDA

Kimbe: Kawi J

2012: 21st February

CRIMINAL LAW – sentence - plea of guilty to one charge of unlawful grievous bodily harm –amputation of arm below elbow with bushknife – unprovoked assault - mitigating and aggravating factors considered – sentence of 16 years appropriate – s315 (b) (d) of Criminal Code Act

Facts:

The Prisoner (Nerious Pinda) of Pangalu village Talasea District pleaded guilty on arraignment to an indictment charging with one count of unlawfully doing grievous harm with intent to one Stanis Reme contrary to section 315 (b) (d) of the Criminal Code. In sentencing the prisoner;

Held:

1. The aggravating factors significantly tip the scale in their favour. The mitigating factors have been rendered and watered down significantly.

2. The prisoner is sentenced to 16 years in hard labour less time spent in pre trial custody

Counsel:

Mr. F. Popeu, for the State

Mr. P. Mokae, for the prisoner

26th February 2012

1. KAWI J: INTRODUCTION : Nerious Pinda of Pangalu village Talasea District pleaded guilty on arraignment to an indictment charging with one count of unlawfully doing grievous harm with intent to one Stanis Reme contrary to section 315 (b) (d) of the Criminal Code.

2. FACTS

2. The facts to which he pleaded guilty are s follows: On the 19th October 2011 the accused and two of his friends were at the main road near their village of Pangalu in Talasea. They had armed themselves with bush knives. Sometime later between 2:00 pm and 3:00 pm the complainant/victim Stanis Reme and his wife got off from a pmv truck near the spot where Nerious and is two friends were. Upon seeing Stanis Reme and his wife, Nerious Pinda and his two friends approached them. When Nerious Pinda and his two friends approached Stanis Reme and his wife, the latter two began running away from them. Nerious Pinda and his two friends chased them and finally caught up with them and set up upon Stanis Reme, who tried to submit and surrender himself by putting both his arms up to indicate his surrender. The prisoner proceeded to attack him despite his surrender. He swung his sharpened long bush knife at him with such savagery and ferocity and vicious force that it cut and completely severed and amputated his left arm just below his elbow joint. Apart from being amputated Stanis Reme also received other knife cuts to his body resulting in him receiving other cuts and lacerations on his bicep muscles.

3. The State further alleged that the prisoner had no lawful excuse or justification to intentionally cause grievous bodily harm to Stanis Reme whose left hand is now completely severed and amputated.

3. THE LAW

4. In perpetrating this grievous bodily harm with intent the prisoner Nerious Pinda breached Section 315 (b) and (d). This provision is relevantly stated in this terms:

S315. Acts Intended To Cause Grievous Bodily Harm Or Prevent Apprehension.

A person who with intent –

(a)……..

(b) to do some grievous bodily harm to any person or

(c) ………

Does any of the following things is guilty of a crime. –

(d) Unlawfully wounding or doing a grievous bodily harm to a person or………

Penalty: Subject to section 19, imprisonment for life.

5. In my view both sections 315 and 319 deal with the offence of causing grievous bodily harm to another person. Off these two provisions, 315 creates a very serious offence as it involves a deliberate intention to cause grievous bodily harm to the body of another person. The penalty regime for both these offences create very different penalties. The penalty regime for section 315 is imprisonment for life subject to the sentencing discretion vested in the court by section 19 of the Criminal Code. Under section 319 the penalty is imprisonment for a term not exceeding 7 years.

6. Going by the penalty regimes in my view a more serious offence is created by section 315 than compared to the penalty imposed under section 319.

4. SENTENCING TARRIF

7. In determining an appropriate sentence, I must in general, start with a consideration of the penalty, prescribed by the relevant statute itself. In that regard I must start with the penalty imposed by section 315. The maximum penalty prescribed by section 315, is subject to section 19, imprisonment for life.

8. In the case of The State -v-Yale Sambrai (2005) N2886, the accused had armed himself with a bush knife and attacked the victim. The victim who is the brother in law of the accused had earlier been asked by the accused to go to the forest to cut some posts for a new house the accused was building. The victim did not do what he was requested to do and instead joined his friends to go and watch a game of soccer. The accused followed him to the soccer field came up from the rear and attacked him with his sharp bush knife when he was sitting down and watching the soccer game. He swung the bush knife with such savagery and ferocity that it cut the victim on the head rendering him fully unconscious. The victim was taken to the hospital and treated. He was admitted for observations and further treatment and spent some time in hospital before being finally released. On a plea of guilty to a charge under section 315(a) and (c), Sawong J sentenced him to two years in hard labour. In sentencing him Sawong J made these comments which is on point:

“ To my mind the penalty prescribed indicates that Parliament considered this offence this offence to be serious, that it has prescribed the maximum sentence of life servitude. The maximum penalty is prescribed because the crime involves deliberate intention to cause someone grievous bodily. Because of these in my view, unless there are exceptional circumstances such as a very young offender (below 18 Years) or a very old person or the like, the crime should attract an immediate custodial sentence in the first place. This is a crime of violence with deliberate intention to cause some one serious bodily injury.”

9. In the case of The State –v- Tamumei Lawrence & others (2007) N3117, the victim and his family were working in their garden when he was attacked by the accused and his gang. The attack was not provoked by the victim nor his family. The accused Tamumei Lawrence cut and slashed the victim on his left hand leaving a deep wound causing him to lose a lot of blood. He was further attacked with sticks and stones and he was inflicted with many other deep cuts and lacerations and abrasions to his body and he bled heavily from this wounds. They were charged under section 315 and they all pleaded guilty. Lay J sentenced each of them to six (6 years) imprisonment to be served in hard labour.

10. In The State-v- So-on Taroh (2004) N2675 an accused person pleaded guilty to a charge under section 315. Kandakasi J noted that the accused had cut the victim’s hands three times (3 X) using a very sharp bush knife from which the victim lost a lot of blood. There were no residual disabilities noted. Kandakasi J sentenced the accused to eight years imprisonment in hard labour.

5. MITIGATING AND AGGRAVATING FACTORS

11. In computing an appropriate sentence, I consider that the following mitigating factors operate for the accused.

(a) the accused is first offender,

(b) He pleaded guilty in the first instance.

(c) He is married with two children.

(d) Along with his wife he is a subsistence farmer and manage their coconut plantation as well as a plantation of oil palm.

12. Operating against the...