The State v Peter Pepa (2010) N4146

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

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

National Court: David, J

Judgment Delivered: 21 October 2010

N4146

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 797 of 2008

BETWEEN:

THE STATE

AND:

PETER PEPA

The Prisoner

Mt. Hagen: David, J

2010: 17 May, 15 & 21 October

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 s.315 (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 & Billy 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

Counsel:

Mr. Joe Waine, for the prosecution

Mr. Charles Kos, for the defence

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 reflected by the prescribed maximum penalty, subject to s.19 of the Code, of life imprisonment and the prevalence of the offence, the Court should consider imposing a sentence that would operate both as a personal deterrent to the prisoner and a general deterrence to the public at large.

12. In the medical report authored by Dr. Jeffery Tore of the Mt. Hagen General Hospital dated 28 May 2008 which was tendered with the depositions, the learned doctor reports that when the victim was examined, he was found to be conscious, but drowsy and looked pale. The victim was bleeding heavily from multiple bush knife wounds and he was in haemorrhagic shock. There were gaping wounds to; the left side of the face measuring about 20cm x 4cm involving the maxillary and zygomatic bone; the right arm measuring about 15cm x 3cm which involved the humerus bone and the radial nerve was severed; and to the right leg which involved the archilles and bone and several tendons were lacerated. The victim was treated for shock. Two litres of N/Saline fast with 11 haemacele fast and two units of blood transfusion were administered. Antibiotics were given intravenously and a dose of tetanus toxoid was administered immediately. The wounds were cleansed and sutured under anaesthesia except for the wound on the right leg. He was later admitted to the surgical ward.

13. The maximum penalty for the offence under consideration is, subject to s.19 of the Code, life imprisonment.

14. I have considered the cases suggested by the defence and a few more.

15. In Public Prosecutor v Terrence Kaveku [1977] PNGLR 110, the trial judge imposed cumulative sentences each of fifteen months imprisonment on the offender in respect of two counts of unlawful wounding with intent to do grievous bodily harm. In the first incident, the offender cut the first husband of his wife three times with a three feet long very sharp bush knife. He was arrested, charged and admitted to bail for that offence. Some three weeks later, the offender...