The State v Hilary Lemia (2012) N4817

• Jurisdiction: Papua New Guinea
• Judge: Lenalia J
• Judgment Date: 13 September 2012
• Citation: (2012) N4817
• Docket Number: CR. NO. 350 of 2012
• Court: National Court
• Year: 2012
• Judgement Number: N4817

Full Title: CR. NO. 350 of 2012; The State v Hilary Lemia (2012) N4817

National Court: Lenalia, J

Judgment Delivered: 13 September 2012

N4817

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 350 OF 2012

THE STATE

V

HILARY LEMIA

Kokopo: Lenalia, J.

2012: 5th, 11th & 13th September

CRIMINAL LAW – Charge – Grievous bodily harm – Guilty plea – Sentence – Criminal Code s.319

CRIMINAL LAW – Particular offence – Grievous bodily harm – Victim cut on the body with a bush-knife – Injuries sustained in the course of trying to run away from his attackers with prisoner – Single clean cut to victim’s right hand – Injuries three deep cuts on right side of the head – Deep cut on the face – Scaring deformity and complete facial nerve loss – Multiple permanent disabilities.

CRIMINAL LAW – Guilty plea – First time offender – Prevalence of offence – No compensation paid – Pre-sentence report filed – Custodial sentence appropriate – Sentence of 4 years imposed to be fully suspended.

Cases cited

Rex Lialu-v-The State [1990] PNGLR 487

The State v Kopiwan Pupuni (20.4.98)

The State v Rueben Trowen (24.5.02) N2239

The State v Toparan Walangur (2004) Cr.No.1760 of 2003

The State v Vincent Naiwa (22.6.04) N2710.

The State v Patrick Kimat (24.4.05) N2947

The State v Peter Mideliu (24.7.08) unreported judgment Cr.No.302/08

The State v Penningson Vube (30.3.09) unreported judgment Cr.No.1123/07

Counsel

Mrs. Cherake, for the State

Mr. G. Kerker, for the Accused

September 13th 2012

1. LENALIA J: The prisoner pleaded guilty to one count of unlawfully causing grievous bodily harm to one Joe Punja, an offence contrary to s. 319 of the Criminal Code.

Brief Facts

2. Prior to 10th of February 2011 at Warongoi, the prisoner had been searching for his wife Leonie for a number of days. His wife had escaped from the matrimonial home for safety and sought refuge in the victim’s house. This is because, the prisoner had sought Leonie to hurt her with a bush-knife as the couple had had marital problems for some time.

3. The victim of this case Joe Punja tells the story of how Leonie ran away from their house to his house because the prisoner was searching for her at the time of the search holding a bushknife. The prisoner had told Otto Maen, Henry Tesa and his wife that, because the victim had hidden his wife (prisoner’s), if he found the victim he would cut him with his bush-knife.

4. So on the evening of the above date, (10.2.11) the prisoner took a number of friends with him to look for his wife at Joe’s house. The victim was not in his house but as he was returning, the prisoner’s brother asked Joe where the prisoner’s wife was. The victim was frank and admitted that she was in his house.

5. As they walked down together, they met up with the prisoner who took his bush-knife and started to cut the victim. Even David, the brother of the prisoner encouraged the prisoner by shouting “kilim em, kilim em” in English, kill him, kill him.

6. The clinical report revealed the following injuries:

Ø Head, 3 deep cuts on the right side,

Ø Face, 1 deep cut on the left side of the face.

7. On the medical opinion, by the doctor, the injuries revealed that the victim Joe Punja would suffer permanent disability and functional losses with:

1. Cosmetic facial and other tissue scaring deformity.

2. Left complete facial nerve function loss leading to paralysis of the left side of the face.

3. Left forearm dystrophy with musculocutaneus functional loss, and

4. Permanent left ulna bone mulunion (X-ray No.S. 683).

8. The doctor commented that the victim will suffer permanent disability and functional losses on the affected region on the victim’s body.

Addresses on Sentence

9. When asked if he wanted to tell the court anything prior to his lawyer addressing the court on sentence, the prisoner said, he is sorry for what he did to the victim.

10. Mr. Kerker of counsel for the prisoner submitted on the following mitigations:

ü Prisoner’s guilty plea,

ü His co-operation with the policemen who investigated this case.

ü His client could have raised the defence of provocation as the victim had committed adultery with his wife,

ü The prisoner’s remorse,

ü First time offender,

11. Counsel made submission on case law authorities and submitted for a lenient sentence be imposed on his client.

12. Mrs. Cherake replied by saying that this case was one of those cases where vicious attacks have been made on victims and this was one of them. She asked the court to sentence the prisoner to an appropriate sentence.

Application of the Law

13. The accused is charged with an offence for which he could be sentenced to a term of seven (7) years. Section 319 of the Criminal Code provides:

“319. Grievous bodily harm.

A person who unlawfully does grievous bodily harm to another person is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.”

14. I would like to thank the Community Correction Officer of this Province for the two well prepared reports. The pre-sentence report contains all the family background information of the prisoner. The reports endorse the fact that the offence committed is very serious, but the writer says that the accused acted the way he acted because he was provoked by the victim hiding his wife for sometime.

15. I have read the pre-sentence report and the means-assessment report. Two men commented on the offence committed b y the prisoner. First David Parek a community leader for Floodway Community in Sinivit LLG, Pomio District. David revealed to the writer of the reports that, he knew of the problem faced by the prisoner and his wife. He said, the prisoner’s wife had been hiding for nine (9) days and when the prisoner learnt from someone that his wife may be hiding in the victim’s place, he went down to find out. On their way down, they met the victim and the prisoner cut the victim using a bush-knife.

16. I also appreciate comments by Maen Otto. He is the village court magistrate. He learnt of the prisoner’s problem earlier and tried to assist by telling the accused not to take any action. The prisoner openly told Otto that he was to cut the victim with his bush-knife if his wife had been committing adultery.

17. The offence of grievous bodily harm carries a maximum sentence of 7 years. The maximum sentence is always reserved for the worst cases. An example of such a ‘worst case’ was The State v. Kerry Reuben Trowen (2002) N2239 where (Kandakasi J) imposed the maximum penalty. In that case the Defendant forced his two wives to strip naked before him. He inflicted severe permanent injuries to both women by using a bush knife. In fear for their lives the pair fled naked out of their house.

18. In The State v Vincent Naiwa (22.6.04) N2710, the same Judge imposed a sentence of 5 years on the offender who pleaded guilty to one count of doing grievous bodily harm to his sister in law. The prisoner in that case broke the door of his own house at night. When his wife saw this, she enquired with the prisoner who had broken the door to their family house. He swore at his wife and her sister. He cut his wife with the bush knife. She luckily avoided it and the prisoner approached his sister-in-law and swung the same bush knife at her. She ducked to avoid the blow but put up her hand to protect her. The knife cut her finger completely amputating it.

19. Examples of less serious cases where sentences less than 5 years have been imposed include cases such as The State v Patrick Kimat (24.4.05) N2947, a case in Lorengau where Lay, J imposed 12 months imprisonment but suspended the sentence fully on conditions. In that case at Kubalia settlement in Lorengau, Manus Province an argument arose between the prisoner and his in-law who was living with him. The prisoner got a bush knife and cut Pongo Felix (his brother-in-law) on the head causing harm grievous to his body.

20. In The State v Toparan Walangur (2004) unreported judgment Cr.No.1760 of 2003 a case in Kokopo, East New Britain Province where Lay, J; imposed a sentence of four (4) years. Since the prisoner had spent more than a half of the imprisonment term awaiting custody, the balance was suspended.

21. In another case before this court, the case of The State v Penningso Vube (30.3.09) unreported judgment Cr.No.1123 of 2007, the prisoner was sentenced to 2 years imprisonment which was fully suspended. In that case on 24th April 2007, between the hours of 3am and 4am, the victim was waiting on the side of the road at his village at Nanuk for the company vehicle to pick him up for work at Kokopo town. While waiting, the prisoner approached him with a small bush knife and swung it at him twice leaving him with a laceration on the left shoulder and a fractured left arm. The prisoner was sentenced to 2 years imprisonment which was fully suspended.

22. The case of The State v Peter Mideliu (24.7.08) unreported judgment Cr.No.302 of 2008 before me was even more serious than the present one. In that case, the prisoner approached the victim from his back and...