The State v Oliver Toluana and Penias Kivung (2011) N4417

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: (2011) N4417
• Date: 05 September 2011
• Docket Number: CR No. 1032 of 2008
• Year: 2011

Full Title: CR No. 1032 of 2008; The State v Oliver Toluana and Penias Kivung (2011) N4417

National Court: Maliku, AJ

Judgment Delivered: 05 September 2011

CRIMINAL LAW—Sentence on a Guilty plea to one count of unlawfully causing grievous bodily harm—s319 Criminal Code Act- First time offenders

CRIMINAL LAW—Sentencing co-offender with deferring degrees of participation—Main perpetrator should receive higher penalty than the one who played a lesser role - Deterrence—Need to protect community—Seriousness of the offence committed—Request for Probation Orders and Means Assessment Reports - Custodial sentences considered appropriate for each defendant.

Cases cited:

Winugini Urugitaru v R [1974] PNGLR 283; The State v Paul Kundi Rape [1976] PNGLR 96; John Elipa Kalabus v The State [1988] PNGLR 193; Andrew Uramani v The State [1996] PNGLR 287; The State v Nickson Pari (No 2) (2001) N2033; The State v So'on Taroh (2004) N2675; The State v Kenny Reuben Irowen [2002] PNGLR 190; The State v Henry Idab (2001) N2172; The State v Bomai Hesi (No.2) (2008) N3323; The State v Tamumei Lawrence (2007) N3117

5th September, 2011

1. MALIKU AJ: The two defendants pleaded guilty to one count of causing grievous bodily harm to Peter Woollcott (Jr) at Klinwara Plantation on the 29th of May 2008. This is an offence against s319 of the Criminal Code Act.

The Facts

2. The victim to this matter is Peter Woollcott (Jr). It is alleged that while he was addressing his workers at Klinwara Plantation on the morning of 29th of May 2008, he was confronted by a group of persons which included the two defendants, namely Oliver ToLuana and Penias Kivung both of Vunadavai village, Gazelle District, East New Britain Province.

3. An argument ensued and during the argument the victim walked toward his vehicle. He was about to open the door to his vehicle when both the accused approached him armed with bush knives.

4. The accused Penias Kivung swung his bush knife at the victim which was obstructed by the vehicle door but still cut the victim on his hand. Oliver ToLuana then swung his bush knife at the victim and chopped the victim on the left side of his head, the chin and jaw. This caused life threatening injuries to the victim. The injury sustained was 30 cm long and it was a deep wound.

5. This involved complex facial bone fractures. The victim had to be evacuated to Kokopo - Vunapope hospital where he received preliminary treatment and was later flown to Australia for proper medical treatment.

6. The State alleges that when Oliver ToLuana swung his bush knife and chopped the victim, he intended to cause grievous bodily harm to Peter...