N2169

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 151 of 2001

THE STATE

-V-

JOSEPH PINGU

WEWAK: KANDAKASI, J.
2001: 12th and 17th December

CRIMINAL LAW – PRACTICE & PROCEDURE - Pleading guilty to lesser charge of unlawful wounding from possible attempted murder or grievous bodily harm – Court to take facts disclosed in deposition into account for purposes of determining appropriate sentence – Plea bargaining already reduced substantially likely penalty if proceeded under more serious charge – No need to further reduce sentence – Maximum under lesser charge must be imposed.

CRIMINAL LAW – Customary compensation – Call for means assessment – Means assessment and pre-sentencing report recommending compensation – Compensation ordered with part suspended sentence on terms - Criminal Law Compensation Act s.4 – Criminal Code s. 19

CRIMINAL LAW – Sentencing – unlawful wounding – Use of a bush knife with intent to kill – Guilty plea – Joining in somebody else’s fight uninvited - First time offender with no prior convictions - Sentence of 3 years with 2 years to be suspended on terms if compensation of K5,000.00 is paid within 6 months – Criminal Law (Compensation) Act ss. 4Criminal Code ss. 322(1)(a) & 19 – Criminal Law (Compensation) Act ss.2 - 5.

Cases cited:
The State v. Sabarina Yakal [1988-89] PNGLR 129, 
The State v. Jason Dongoma (13/12/00) N2038 
The State v. Kennedy Arus (16/03/01) N2081
The State v. James Gurave Guba (19/12/00) N2020
The State v. Peter Yawoma (19/01/01) N2032
The State v. Attiock Ishmel (unreported and unnumbered judgement delivered in Alotau on 16/10/01) CR 1146 0f 1999
Ala Peter Utieng v. The State (unreported and unnumbered judgement of the Supreme Court delivered in Wewak on the 23rd of November 2000) SCRA 15 of 2000

Counsel:
M. Ruarri for the State
G. Korei for the Accused

17the December, 2001

DECISION ON SENTENCE

KANDAKASI J: 	You pleaded guilty to one count of unlawful wounding of one Bobby Yamrumbu on the 18th of August 2001, contrary to section 322 of the Criminal Code.

The law permits me to consider the evidence that has been presented against you per the depositions to determine an appropriate punishment for the offence you committed against Mr. Yamrumbu in particular and the society or the county as a whole. For authorities on this see The State v. Sabarina Yakal [1988-89] PNGLR 129, which I followed and applied in my own judgements in The State v. Jason Dongoma (13/12/00) N2038 and The State v. Kennedy Arus (16/03/01) N2081. 

The Facts

From the brief facts put to you by the State and the depositions, the facts are straightforward. A Nick Pelingama alleged sometime before the incident that the victim’s brother, a Jacob Sangi is a sorcerer. On the day of the incident, the victim saw Mr. Pelingama walk past his house at about 4:00pm. The victim called out to Mr. Pelingama and said: "Hey Nick you alleged my brother Jacob Sangi is a sorcerer. Can’t you have some respect for my elder brother because we have been looking after you and your family, they were under our care and why do you mention my elder brother’s name in the public as a sorcerer?"

Mr. Pelingama replied: "That’s right you are the suspect of having set fire to the house and sorcery." He then walked to his house and put a string bag he was carrying at the time and walked straight back to the victim with his brother Kaw Pekiguria and started a fight with the victim. The three of them fought using their hands, as they were all not armed. A Jack Sangi intervened and stopped the fight and at least managed to separate them. 

Then without any invitation by anyone, you and others came in aid of Nick Pelingama canting "Patim, paitim em. No ken larim em. Katim em. Kilim em na kukim haus bilong tripela. Noken larim wanpela istap. Wanpela i mas dai" (Hit him, hit him. Do not let him escape. Chop him. Kill him and burn down the house of the three of them. Do not let one of them survive. One of them must die"). You came out of your house with a bush knife and cut the victim so badly on his right and useful shoulder. You in fact aimed to cut off the victim’s head with intent to kill him but he moved his head and the bush knife landed on his shoulder. 

Upon you seriously chopping the victim on his right shoulder area, that side of his hand was almost severed. He fell down on the ground and remained unconscious. You and your gang tried to continue the fight using a sago stick. As if what you did to the victim was not enough, you attempted to also chop Jack Sangi but he avoided you and you ended up cutting a nearby bamboo tree. After that, you and your gang left the scene and the victim was taken to the Boram Hospital.

Uncontested medical evidence confirms that the victim was admitted unconscious. He was therefore resuscitated and taken to the theatre for immediate surgery. He had lost a lot of blood. His hemoglobin level was well below the normal level of 15G by 10 points reading at 5G. It was found that the victim’s muscles were severed and his acromion and spine of the scapular were chopped off. It was also found that the rim of the shoulder joint was severed. The bones were medically wired together. The muscles were also joined appropriately and the wound was closed with drainage and stitches. 

The victim was put to intensive physiotherapy to get his affected hand to work again without much success because the muscle bellies were divided from the nerve supply from the injuries inflicted upon him. He needs a shoulder fusion in future to attempt to get more effective use from his right arm. The uncontested medical evidence describes his injury in these terms: "It took a savage blow to inflict a wound such as this, and this right-handed man is left seriously disabled."
 
On these fact the charge originally presented and you were committed to stand trial was attempted murder, which carries a maximum penalty of life imprisonment. However, following a plea bargain the charge was brought down to unlawful wounding. That surpassed a slightly serious charge of grievous bodily harm, which attracts a sentence of up to seven years imprisonment. 

As I said in The State v. James Gurave Guba (19/12/00) N2020:

"The case of … The State v. Jack Golu and Mopana Aure [1990] PNGLR 206, provides authority for the proposition that, once the prosecution and the defence have reached an agreement or a plea bargain and an indictment is presented in accordance with such an agreement, the only role of the court in such a setting is to accept the presentation of the indictment. This emanates from the fact that, under our constitutional framework, the Public Prosecutor is the only one that has the power to decide whether or not to prosecute an offender and in what manner or for what offence. That power is not subject to any direction, control or supervision of any other authority, not even the courts. It also proceeds on the basis that the Public Prosecutor is in a better position to consider the interest of the people and the mechanics of proving a charge against an accused person and then proffers the charge he considers sustainable."

But when it comes to what kind of sentence should be imposed, I adopt what I said in The State v. Peter Yawoma (19/01/01) N2032, that:

"… where the facts of a case disclose a more serious offence such as rape but for a plea bargain as in the present case, the maximum prescribed term of 5 years should be imposed.

In my more recent judgement in The State v. Attiock Ishmel (unreported and unnumbered judgement delivered in Alotau on 16/10/01) CR 1146 0f 1999, I reasoned at page 4 that:

"No doubt by reason of a plea-bargaining resulting in the dropping of a more serious offence to a less serious one drastically reduces the kind of penalty an offender should receive. Given that, in my view, there exists no reason or basis for a further reduction of any sentence. The society quite rightly expects the courts to impose on their behalf a sentence that best reflects its disapproval of the kind of conduct the offender has engaged him or herself in. That expectation should always be borne in mind by a sentencing authority when considering an appropriate sentence to impose in any case. It would be a disservice to the society’s legitimate expectation if sentences prescribed under a lesser offence were further reduced."

You have presented no reason to me for me to move away from that position. You attacked the victim viciously. You aimed to kill the victim but fortunately he managed just in time to move his head and you chopped him so badly on his right shoulder. The uncontested medical evidence describes it as a "savage attack". The victim was not armed and was not fighting with you. He was fighting with another person using his fist. The fight did not concern you in any way. You were not even called upon for help by either or both of them. You were part of a gang, which set out to kill and to destroy the victim. The victim has now been rendered useless because his right and useful hand has been render totally useless. It is not hard to imagine the kind of pain and suffering the victim has been put to and will undergo to survive in his community. He will depend on others for his living. No sentence or any form of compensation will ever relief him of that.

The above outline of the facts warranted a more serious charge than the one that has been presented against you. The prosecution was entitled to present the charge it presented against you notwithstanding the serious aggravating factors I have just outlined above. I am not entitled to inquire into the reason for the choice the prosecution has made save only to act on the indictment presented taking into account all of the factors for and against you.

I have already outlined the factors against you. In your favour I note your plea of guilty and you being a first time offender. You have expressed remorse for the serious harm and disability you have brought against the victim. But as the Supreme Court noted in Ala Peter Utieng v. The State (unreported and unnumbered judgement of the Supreme Court delivered in Wewak on the 23rd of November 2000) SCRA 15 of 2000 at page 5 an offenders:

"… utterance of sorry must be accompanied by something tangible which befits the wrong he has brought upon the victim, her family and relatives, if such utterances are to be of any value and meaning. In the present case, there is no evidence of the Appellant paying any compensation or has taken any step to correct the wrong he has perpetrated. This Court or any other court for that matter should be slow to act on such meaningless and or valueless pleas for mercy or leniency." 

You have by pleading guilty to a much lesser charge you have avoided charges that could have meant either life imprisonment for attempted murder or 7 years for causing grievous bodily harm. You therefore managed to secure a much-reduced sentence already. Our society is becoming unsafe because of people like you who take the law into their own hands. They become jury, judge and executioners all at the same time in a summary manner without a proper trial and establishing of any guilt. The fight in this case as noted was between two other people both not armed. Instead of opting to help stop the fight, as did Jack Sangi, you and your friends made it extremely worse. This places your case in the worse category of unlawful wounding contrary to section 322 of the Criminal Code, even if there was no plea bargaining resulting in the guilty plea. It is this very kind of conduct that is contributing to a breakdown in law and order today. Stern punishments are therefore called for to deter others from repeating what you did. This warrants an imposition in my view of the maximum penalty of 3 years imprisonment in hard labour. I will have no hesitation to order such a sentence but would also suspend part of the sentence if customary compensation were paid in full say within 6 months from today. 

Pursuant to s. 4 of the Criminal Law (Compensation) Act 1991, I asked for a means assessment report following your request for a compensation order in mitigation of your sentence. A report from the Community Correction services was received on Friday the 14th of this instant. Both your lawyer and that of the State made their submission based on the reported. I reserved a ruling to today to consider the report and the submissions. I accept the reports recommendation that there be an order for compensation. However, given the seriousness of the injury and the disabilities resulting therefrom as well as the circumstances in which they were brought upon the victim, I would order customary compensation in the amount of K5, 000.00 to be paid within six months. If compensation is paid within the period proposed, then I would suspend a period of two years from the head sentence of 3 years. 

In the ultimate, I make the following orders:

1.	An head sentence of 3 years is imposed;

2.	Of the head sentence of 3 years, you will serve a term of 1 year in hard labour at the Boram CIS, less time already spent in custody awaiting your trial;

3.	The balance of 2 years shall be suspended upon the following terms:

a.	payment of K5,000.00 in compensation to the victim Jacob Yambrumbu within 6 months from today;
b.	immediately undertake to keep the peace for two years from the date of your release from prison;
c.	Not to carry any offensive weapons anywhere in public; 
d.	Report to the Community Correction office as to compliance of these terms every first Monday of each month commencing the first month of your release from prison; 
e.	Not to leave your village of Walemba and live else where; and

4.	The suspended sentence will not take effect unless, this Court receives credible evidence with verification from the victim that compensation has been paid and this Court writes to Boram CIS authorising your release.
______________________________________________________________________
Lawyer for the State: 		Public Prosecutor
Lawyer for the Accused:	The Public Solicitor