The State v Bere Alupi

• Jurisdiction: Papua New Guinea
• Judge: Auka, AJ
• Judgment Date: 05 May 2016
• Citation: (2016) N6312
• Court: National Court
• Year: 2016
• Judgement Number: N6312

Full : CR No 741 of 2013; The State v Bere Alupi (2016) N6312

National Court: Auka, AJ

Judgment Delivered: 5 May 2016

N6312

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 741 OF 2013

BETWEEN:

THE STATE

V

BERE ALUPI

Wabag: Auka, AJ

2016: 18th February, 7th April and 5th May

CRIMINAL LAW – Sentence - particular offence – Two Counts of causing grievous bodily harm with intent –Committed on same victim at different times and places - Guilty pleas – Use of dangerous weapon-de-facto provocation – Multiple cuts to body – Injuries – Life threatening- Mitigation and Aggravating factors considered – Cumulative sentence appropriate ––Totality Principle - less time spent in Pre-trial custody- Criminal Code s.315 (b(d) and s.19.

Cases cited:

Acting Public Prosecutor v. Konis Haha [1981] PNGLR 205 at 216-217

Avia Aihi v. The State (No. 3) [1982] PNGLR 92

Public Prosecutor v. Sidney Kerua and Others [1985] PNGLR 85

Paul Mase & Another v. The State [1991] PNGLR 88 at p.91 to 92

The State v. Oliver Toluana and Penias Kivung (2008) N4417

The State v. Simon Taroto (2004) N2675

The State v. Yale Sambrai (2005) N2886

The State v. Tamumei & other (2007) N3117

The State v. Roga and 3 others (20012) N4804

The State v. Neriou Pinda (2012) N4872

The State v. Peter Pendin (2012) N4541

Ure Hane v. The State [1984] PNGLR 105

Wari Mugining v. The Queen [1975] PNGLR 352

Counsel:

Mr. Joe Waine and Ms. Sheila Luben, for the State

Mr. Robert Bellie, for the Offender

DECISION ON SENTENCE

5th May, 2016

1. AUKA AJ: The accused pleaded guilty to two (2) Counts of Causing Grievous Bodily Harm with intent Contrary to Section 315 (b) (d) of the Criminal Code.

2. The relevant facts for the first Count were that on Wednesday 2nd January, 2013 around midday at Monokam Village, Ambum Valley, Enga Province, the victim Londari Karawalo was with others taking measurements of dwelling houses built on the land which Mapai Trucking Company had offered to buy to build its office. Mapai Company was going to compensate the owner of the houses and the land later on. One of the houses which was going to be measured was accused father’s house which victim built and was living in at that time. As the victim and others were taking measurements of the houses, the accused Bere Alupi and another person armed with bush knifes approached the victim from his back and attacked him. State alleged that the accused swung his bush knife at the victim’s neck but the victim raised his left arm in order to protect his neck and as a result his left forearm was cut off. The victim fell to the ground and bled heavily. Victim’s friends saw him in blood from the attack and they rushed him to Monokam Aid Post where he was given first aid treatment and later transferred to Wabag General Hospital and was admitted and appropriately treated and after two (2) weeks was discharged.

3. A medical report of Dr. Jerry Hoga dated 27th January, 2013 confirms the victim sustaining injury to his left forearm with complete amputation of his distal limb. An operation procedure was applied on the injury and he appeared to have recovered uneventfully and was finally discharged on 11th January, 2013.

4. The relevant facts to the second count were that on Thursday 17th January, 2013 at about midday at Monokam village, Ambum Village, Enga Province, the victim Londari Karawalo was sitting with others near a trade store when accused Bere Alupi with another person armed with bush knifes approached the victim and accused swung his bush knife and cut the victim across the face. The accused swung his bush knife again and cut the victim on the head causing the victim to bleed heavily. Victim’s friends saw him in blood and rushed him to Wabag General Hospital and he was admitted for the second time.

5. The same Medical report of Dr. Jerry Hoga dated 27th January, 2013 particularly paragraph three (3), confirms the victim’s readmission to the Surgical Ward with multiple bush knife wounds to his face, thorax and Limbs and was bleeding heavily and in state of shock.

6. The same medical report shows further that the victim developed upper airway obstructions due to the facial wounds and also had fractured maxilla from the wound which was reduced and wired. After going through general operative procedures, the victim was finally discharged on 28th January, 2013 with minor dental and facial disabilities. Dr. Hoga in his report stated that the victim was required to attend surgical clinics on regular basis till he has recovered.

7. In his address on Sentence, the accused said that he did commit the trouble but did so with a motive. Accused said Mapai Company was going to work on his land at Monokam Village but the victim was going to get the land and house and when he insisted to get the land the accused attacked him. The accused said the victim is his big uncle’s son and he is big uncle’s brother’s son. After the incident the families and relatives of the victim asked for compensation payment. He paid 29 pigs and K7, 000. 00 cash to the victim’s line. During the compensation payment there was some witnesses present like land mediators from the village, Village Court officials, the CIDs and other Community leaders. Finally he asked the court to have mercy on him.

8. On the request of Mr. Bellie of Counsel for the accused, the Court directed the Probation officer based in Mount Hagen to furnish and file a pre-sentence report on the prisoner and directed the matter to return on 4th April, 2016. I am now in possession of that report.

9. On 7th April, 2016 the Court heard counsels address on Sentence. For the accused Mr. Bellie submitted that the accused is aged 25 years from Monokam Village, Enga Province. He is married with three (3) children. Both parents are alive. He is the fourth born in the family of six (6) children. He never attended any formal education. At the time of the offence he was a subsistence farmer.

10. The offences were committed on 2nd and 17th January, 2013. Police arrested him on 17th January, 2013 and was remanded in custody. On 17th May, 2013 was released on K500. 00 cash bail by the District Court. He absconded bail and was arrested on 22nd May, 2013. Since then he has been remanded in custody for 2 years 2 months 25 days.

11. In mitigation Mr. Bellie submitted and urged the court to consider in accused favour his guilty plea, that he is first time offender, that he freely admitted the offence to the police, that there was de-facto provocation, that payment of compensation in the sum of K7000. 00 cash and total of 29 live pigs were paid to victim’s line. An affidavit In Support by village Court officials and Ward councillors filed on 7th April, 2016 confirmed the payment.

12. For the prosecution Ms. Sheila Luben submitted and urged the Court to consider the following aggravating factors:

1. A dangerous weapon namely a bush knife was used on attacking the victim

2. The accused attacked the victim two (2) times on different places and dates.

3. That the victim was still recovering from the first injury/wound when the accused cut him again with the bush knife.

4. There was strong intention to cause grievous bodily harm

5. The victim received serious injuries which were life threatening

6. The victim was unarmed and defenceless.

7. The offence is very prevalent.

13. Ms. Luben submitted that this was a very serious case and the Sentence to be imposed should reflect the seriousness of the offence. She submitted that imprisonment terms of 5 to 7 years for each count were appropriate and should be served cumulatively.

14. I have had the advantage of reading the Pre-Sentence Report. At page 7 of such report, the writer reports that compensation of K7, 000. 00 cash and 29 pigs were paid to the victim’s line and peace was restored at the community level. The report however show that if the victim continue to claim ownership of the Land, that may provoke the accused to commit another crime. The report also show that accused and his line have requested for non-custodial sentence on the basis that compensation have been paid and he has been in pre-trial custody term for about 3 years.

15. The request and the recommendation that the accused should be given a non-custodial sentence because of compensation been paid is unacceptable. The compensation already paid reduces the sentence the accused should receive but does not and should not be substitute for criminal punishment. This is to avoid the risk of giving the impression that such a person like the accused can escape a severe and appropriate penalty by paying his way out.

16. The maximum punishment for this crime is life Imprisonment. The court has a general discretion to impose lower sentence with or without other forms of punishment enumerated in s. 19 of the Criminal Code.

17. It is established principle in Sentencing that the maximum penalty should be reserved for the worst type case: Avia Aihi (No.3) [1982] PNGLR 92, Ure Hane v. The State [1984] PNGLR 105.

18. The...