The State v Peter Pepa (2010) N4146

• Jurisdiction: Papua New Guinea
• Date: 21 October 2010
• Citation: (2010) N4146
• Docket Number: CR No. 797 of 2008
• Court: National Court
• Year: 2010

Full Title: CR No. 797 of 2008; The State v Peter Pepa (2010) N4146

National Court: David, J

Judgment Delivered: 21 October 2010

CRIMINAL LAW—sentence—grievous bodily harm with intent—guilty plea—prevalence of offence—bush knife used - multiple and serious wounds - wounds inflicted on left face, right arm and right leg—surgery required on wound to right leg - radial nerve severed—several tendons lacerated—bones involved in all wounds—compensation paid promptly—first offender—previous good personal record and family background—co-operation with police—sole attacker—victim step brother - de facto provocation—no permanent disability—demonstration of remorse and contrition - premeditation - sentence of 6 years IHL—sentence partly suspended - Criminal Code s315 (b) and (d).

PNG cases cited:

Public Prosecutor v Terrence Kaveku [1977] PNGLR 110; Paulus Mandatititip v The State [1978] PNGLR 128; Public Prosecutor v Tom Ake [1978] PNGLR 469; Goli Golu v The State [1979] PNGLR 653; Acting Public Prosecutor v Joe Kovea Mailai [1981] PNGLR 258; Avia Aihi v The State (No 3) [1982] PNGLR 92; Ure Hane v The State [1984] PNGLR 105; Public Prosecutor v Sidney Kerua [1985] PNGLR 85; John Elipa Kalabus v The State [1988] PNGLR 193; Public Prosecutor v Don Hale (1998) SC564; The State v Inapero Susure (1999) N1880; Ala Peter Utieng v The State (Unreported & Unnumbered Judgment of the Supreme Court delivered in Wewak on 23 November 2000) SCRA 15 of 2000; Edmund Gima and Siune Arnold v The State (2003) SC730; The State v So'on Taroh (2004) N2675; The State v Yale Sambrai (2005) N2886; The State v Lionel Gawi (2005) N2951; Richard Liri v The State (2007) SC883; The State v Tamumei Lawrence (2007) N3117; The State v Namba Mako, CR 48 of 2007, Unreported & Unnumbered Judgment of David J delivered on 16 October 2007; The State v Ali Kawa Job, CR 1189 of 2006, Unreported & Unnumbered Judgment of David J delivered on 15 December 2009; The State v Jenny Joe, CR 100 of 2009, Unreported & Unnumbered Judgment of Makail, J delivered on 23 September 2010

SENTENCE

21 October, 2010

1. DAVID, J: INTRODUCTION: On 17 April 2008 between 07:00 pm and 08:00 pm, the prisoner was at his village at Wala, Mul Baiyer District, Western Highlands Province, when the victim, Lucas Wan arrived in a vehicle. He disembarked and went to talk to some of his friends. Upon seeing the victim, the prisoner followed him armed with a bush knife. He confronted the victim and had an argument over some roofing iron which the prisoner alleged were taken by the victim from his house. The prisoner swung his bush knife at the victim a number of times and cut him on the left side of his face, right arm and right leg. The victim lost a lot of blood. He then fell to the ground unconscious. He was rushed to the hospital and received medical treatment.

2. On 17 May 2010, the prisoner pleaded guilty and was convicted of doing grievous bodily harm with intent contrary to s.315 (b) and (d) of the Criminal Code.

3. The prisoner has no prior convictions.

4. On his allocutus, the prisoner admitted cutting the victim as alleged. He said the victim was his brother, but animosities had arisen between them due to the victim previously stealing his coffee beans and forcibly getting his land. He was cut by the victim when they had an argument over the land and when he wanted to take his grievance up with community leaders, the victim threatened to kill him. A year after the last of his misdeeds occurred, the victim stole his roofing iron by breaking into his house. He was therefore provoked into committing the crime. He said his father is deceased and he was residing with his mother when he committed the crime.

5. Following the administration of the allocutus and at the request of the prisoner’s counsel, Mr. Kos, I directed the Chief Probation Officer through the Probation Service, Mt. Hagen to provide to the Court a Pre-sentence Report. I then adjourned the matter to 27 May 2010 at 9:30 am for submissions. The Pre-sentence Report was compiled by the Probation Service as directed. Submissions were not heard as scheduled on 27 May 2010 and the proceedings were deferred generally until reconvened on 15 October 2010.

6. I have had the benefit of reading the Pre-sentence Report and I am grateful to the Probation Officer, Ms. Lilly Songoa for compiling the report. The report speaks favourably for a non custodial sentence and for the prisoner to be admitted to probation supervision. It is also reported that the prisoner is capable of meeting a compensation order within six months with the assistance of his mother hence he is willing to make a further compensation payment of K500.00 to the victim in addition to the amount of K300.00 and two pigs worth K200.00 each paid to the victim soon after the incident.

7. The prisoner’s counsel submitted that the prisoner was from Wala village, Mul Baiyer District, Western Highlands Province. He was the only child in his family and is now aged nineteen years. His father died when he was an infant. He was residing with his mother when the offence was committed. He has been educated to Grade 6. He has had no formal employment. He was arrested on 18 April 2008 and has been in custody since that time, a period of more than two years. He was committed to stand trial in the National Court on 14 July 2008.

8. The prisoner’s counsel further submitted that factors the Court should take into account in mitigation are; the prisoner entered a guilty plea, he was a first offender, he cooperated with the police and the court; there was no evidence of any permanent disability suffered by the victim; his expression of remorse was genuine as was demonstrated by a compensation payment made promptly after the incident to restore relations; the prisoner was the sole attacker; the victim is a relative; there was de facto provocation; and there was no premeditation.

9. The only aggravating factor in the present case was the use of a bush knife by the prisoner to assault the victim the prisoner’s counsel contended.

10. Counsel for the prisoner invited the Court to consider The State v Lionel Gawi (2005) N2951; The State v Tamumei Lawrence (2007) N3117; The State v Namba Mako, CR 48 of 2007, Unreported & Unnumbered Judgment of David J delivered on 16 October 2007; and The State v Ali Kawa Job, CR 1189 of 2006, Unreported & Unnumbered Judgment of David J delivered on 15 December 2009 when suggesting that a sentence of not more than five years less the period spent in custody was appropriate for the offence and that the balance of the sentence imposed should be suspended. In addition to the proposed sentence, counsel also invited the Court to consider making an order for the prisoner to pay to the victim compensation of K500.00 within six months in line with the recommendation in the Pre-sentence Report.

11. Counsel for the prosecution, Mr. Waine generally agreed with the suggestions made by the defence as to the proposed sentence and compensation order. He however submitted that given the severity of the offence...