The State v Brian Delga Kiap

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 08 October 2015
• Citation: (2015) N6102
• Court: National Court
• Year: 2015
• Judgement Number: N6102

Full : CR No.374 of 2015; CR No.375 of 2015; The State v Brian Delga Kiap & Jeffrey Kop (2015) N6102

National Court: David, J

Judgment Delivered: 8 October 2015

N6102

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No.374 of 2015

CR No.375 of 2015

BETWEEN:

THE STATE

AND:

BRIAN DELGA KIAP & JEFFREY KOP

Offenders

Mt. Hagen: David, J

2015: 6 & 21 August, 8 October

CRIMINAL LAW – sentence – doing grievous bodily harm, with intent to do grievous bodily harm – one count - plea of guilty - Criminal Code, Section 315.

The offenders attacked the male victim with bush knives and inflicted multiple life-threatening injuries to him including serious cuts and fractures to the victim’s right ankle inclusive of the lower tibia and head. The victim was hospitalised for more than two months as a result. They pleaded guilty to doing grievous bodily harm with intent to do grievous bodily harm and were convicted. The victim refused to accept any compensation from the offenders and expressed the desire that they be imprisoned.

Held:

1. Mitigating factors are; they are first offenders; they saved the Court’s time by their pleas of guilty; they expressed genuine remorse; this was an incident in which there was a moderate amount of de facto provocation offered by the victim; this was an isolated incident; each offender inflicted a cut on the victim; the victim is a relative; until the offence, the offenders had previous good records; and the offenders attempted to pay compensation to mend and restore relationships, but was rejected by the victim.

2. Aggravating factors are; use of dangerous and lethal weapons; the victim sustained serious life-threatening multiple injuries to vulnerable parts of his body including serious cuts and fractures to the victim’s right ankle including lower end of tibia and head; permanent injury to the right ankle; it was a vicious attack; the offenders acted in the company of each other; the victim was attacked at his home; the offenders caused damage to his house by breaking down the door to gain entry; both are not youthful offenders, not unsophisticated and reasonably educated to have moral consciences which should tell them what was right and wrong; and the offence was prevalent. Being a pastor was an additional factor held against Brian Delga Kiap.

3. Sentences of seven years imprisonment in hard labour were imposed, partly suspended on terms.

Cases cited:

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

Edmund Gima and Siune Arnold v The State (2003) SC730

Goli Golu v The State [1979] PNGLR 653

Lawrence Simbe v The State [1994] PNGLR 38

Public Prosecutor v Don Hale (1998) SC564

Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91

Richard Liri v The State (2007) SC883

The State v So'on Taroh (2004) N2675

The State v Steven Moni (2006) PGNC 109; CR 293-297 of 2004, a judgment delivered by Cannings J at Kimbe on 19 December 2006

The State v Tamumei Lawrence (2007) N3117

The State v Peter Pepa (2010) N4146

Ure Hane v the State [1984] PNGLR 105

Counsel:

Joe Kesan, for the State

Robert Bellie, for the Offenders

SENTENCE

8 October, 2015

1. DAVID, J: The offenders, Brian Delga Kiap and Jeffery Kop pleaded guilty to doing grievous bodily harm with intent to do grievous bodily harm to the victim, Peter Ulg and both were convicted under Section 315(b) and (d) of the Criminal Code.

2. The incident occurred at Kuia village, Mt. Hagen in the Western Highlands Province on 26 July 2014 at about 7:00 o’clock in the morning. The two offenders, whilst in the company of another accomplice, all armed themselves with bush knives and proceeded to the victim’s house to settle a land dispute matter that they had with the victim’s family. When the victim saw the offenders and their accomplice coming to his house, he went inside the house and locked the door. Realising that the victim had locked them out, the offenders and their accomplice proceeded onto the veranda of the house, broke down the door and entered the house. The victim reacted by running out and grabbing one of the offenders in an attempt to protect himself, but it was too late as they chopped him on his head with a bush knife they had. They then chopped him on his right leg at the ankle and nearly chopped it off. The victim collapsed and fell onto the veranda with blood sprinkling out through the cuts on his body. The offenders and their accomplice then escaped. The victim was rushed to the hospital and his life was saved. At the time the two offenders and their accomplice chopped the victim, they were acting together and assisting each other and therefore caught by Section 7 of the Code and they intended to cause some grievous bodily harm to the victim.

3. The Medical Report produced by Dr. Jacob Painui of the Mt. Hagen Provincial Hospital dated 10 November 2014 reports that the victim presented himself at the hospital on 26 July 2014 for treatment after he was assaulted. It was reported that the victim sustained cuts to his right ankle and head and was bleeding. There was a deep wound on the head measuring 7 cm in length and the skull was fractured. The injured leg was cut across the anterior aspect of the ankle and the wound was very deep. The lower end of the tibia was completely cut or fractured. Most of the tendons at the anterior aspect of the leg/ankle were also cut or severed and the sensory nerves and blood vessels were also cut. The fracture to his injured leg was reduced and fixed with a K-wire (pin). The tendons were repaired. The leg wound became infected later and appropriately managed. The knee on the injured leg and ankle joints were very stiff and it was concluded that the ankle joint stiffness was most likely to be permanent and the knee joint stiffness may improve with physiotherapy. The skull wound was cleaned and closed.

4. None of the offenders has a prior conviction.

5. On his allocutus, Brian Delga Kiap said sorry to God, the Court and the victim. He was married with four children. He said the incident arose after his mother was assaulted by the victim who is his eldest brother’s first born son on Saturday, 26 July 2014. His mother was assaulted by the victim and her teeth were broken when she went to visit the victim’s father who was sick at the time. He said he was a first time offender appearing in Court for the first time and pleaded for mercy.

6. On his allocutus, Jeffery Kop admitted the offence and said sorry to the Court. He said he had been away in his mother’s village for 13 years and on his return, he built a house for himself. He was residing with his uncle Brian Delga Kiap when on 23 July 2014, the victim assaulted him when he cut his hand. The incident occurred because the victim assaulted his grandmother causing her teeth to be broken when she went to visit the victim’s father on Saturday, 26 July 2014. He said he was a first time offender appearing in Court for the first time and pleaded for mercy.

7. Pre-sentence reports were compiled and filed by the Probation Service, Mt. Hagen Branch which I ordered to be done at the request of each offender. I commend Ms. Lilly Songoa, Probation Officer for the reports. I have considered the reports. Both offenders propose to pay moderate amounts of compensation. The victim will not accept compensation due to the gravity of injuries inflicted on him and has expressed the desire that custodial sentences be imposed. Both reports recommend custodial sentences.

8. Brian Delga Kiap is 37 years old. He is from Kuia village, Mt. Hagen and resides there. He is married and has four children. Two of the children go to school. His parents are alive. He is the second born in a family of two. The other sibling is a sister. He completed Grade 10 at the Togoba High School in 1999. He later attended the Kim Pawa Bible College and graduated with a Pastoral Certificate. He is a serving pastor with the Papua New Guinea Christian Fellowship Church. His health is sound. He is a poultry farmer, but raises pigs as well. He does not have serious financial issues and he is content with what he has. He was arrested on 27 August 2014 and charged for a count of attempted murder. He was admitted to cash bail of K300.00 seven days later. He was committed to stand trial in the National Court on 16 February 2015.

9. Jeffery Kop is 20 years old and is single. He is from Kuia village, Mt. Hagen and resides there. His parents are alive. He is the fourth born in a family of five comprising three males and two females. He completed Grade 8 at the Wurup Primary School in 2013. He is currently doing Year 1 motor mechanic course at the Rebiamul Vocational Centre, Mt. Hagen. He is a baptised member of the Four Square Gospel Church. His health is sound. He is not financially strong and is dependent on his parents. He was arrested on 27 August 2014 and charged for a count of attempted murder. He was admitted to cash bail of K300.00 seven days later. He was committed to stand trial in the National Court on 16 February 2015.

10. In mitigation, Mr Bellie for the offenders submitted that this was a plea, they were first offenders, this was an incident in which there was...