N2172

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 544 of 2001

THE STATE

-V-

HENRY IDAB

WEWAK: KANDAKASI, J.
2001: 11th and 17th December

CRIMINAL LAW – PRACTICE & PROCEDURE - Pleading guilty despite inconsistencies in the evidence particularly on the identity of the victim – Issue raised with counsel for the prisoner – Guilty plea confirmed on prisoner deciding not to raise any defence.

CRIMINAL LAW – Customary compensation – Call for means assessment – Means assessment and pre-sentencing report recommending compensation without prisoner having means to pay compensation – No compensation order made in the absence of any evidence showing how compensation by relatives would assist in rehabilitation or make the prisoner pay for his crime - Criminal Law Compensation Act s. 2 – 4.

CRIMINAL LAW – Sentencing - Grievous bodily harm – Victim a village peace officer – offences against law enforcement agencies includes village court officials – stiffer penalties called for - Use of a bush knife – Provocation in the non legal sense – Guilty plea – first time offender with prior convictions - Sentence of 5 years part suspended on terms – Village Courts Act 1989 ss.26 -30 – Criminal Code ss. 319, 7, 8 & 19.

Cases cited:
The State v. Sabarina Yakal [1988-89] PNGLR 129
The State v. Andrew Keake (unreported judgement delivered on 27/02/01) N2097
State v. Nickson Pari (No.2) (10/01/01) N2033
The State v. Darius Taulo (10/01/01) N2034
The State v. Isaac Warupi [1994] PNGLR 271
Peremai Naroi v. The State [1987] PNGLR 293
The State v. Joe Foe Leslie Leslie N1496
Peter Naibiri and Kutoi Soti Apia v. The State, SC137
Ure Hane -v- The State [1984] PNGLR 105
The State v. Rex Lialu [1988-89] PNGLR 499
The State v. Abel Airi (28/11/00) N2007
The State v. Nickson Pari (N0.2) (10/01/01 N2033
The State v. Billy Kauwa [1994] PNGLR 503

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

17th December, 2001

DECISION ON SENTENCE

KANDAKASI J: 	You pleaded guilty to one count of doing grievous bodily harm to one Philip Cletus which is not permitted by section 319 of the Criminal Code. I entered a provisional plea of guilty and then proceeded to read the depositions handed up in support of the charge against you. Upon reading the depositions, I found out that, in your record of interview with the police, you admitted to causing grievous bodily harm to one Robert Suanu. You denied having anything to do against Philip Cletus. I raised this with your counsel first and then yourself as to whether your were going to run a defence on that basis. You however, decided not to raise any defence and maintain your guilty plea to causing grievous bodily harm to Philip Cletus. 

I accepted your guilty plea and proceeded to convict you on the charge proffered. I did that also because other material in the deposition (which I am entitled to considered based on authorities e.g. The State v. Sabarina Yakal [1988-89] PNGLR 129) did disclose that the victim was attack at the relevant time by a small group of men which included you and your brother Ronny Idab. That in my view brought into operation the provisions of sections 7 and 8 of the Criminal Code. These sections say that if a person acts in association with others, the conduct of the others in the commission of the offence become his or hers as a main actor regardless of what part he has played. Hence, I considered it save to accept your guilty plea and have you convicted of the charge presented against you.

The Facts

The evidence is that, your mother was verbally abused by a group of men who were near a river. So you and your brothers decided to go and retaliate by fighting those responsible. When you got to the river, you found the victim and several others. You and your brothers then proceeded to attack them. Witness statements on file show that the victim was not responsible for the abuse of your mother. However, without knowing that you and your brothers were already nearby, those who were with the victim, laughed over the verbal abuse of your mother. The laugh was in response to the victim inquiring as to who was responsible for the assault on you mother. One of the persons the victim was with had asked, "Why are you asking? Is she your wife?" This made them to laugh.

When you attacked the victim and the others that were with him, you were armed with bush knives and stones. You used those weapons to attack the victim and the others. The victim and the others were seriously injured and were left in the river and you left the scene. Some of the men who were with the victim ran away into hiding for fear of being attacked. After you left the scene, those who manage to escape your attack returned to the scene and helped the victim and three others out from the river. They were found with serious injuries and were taken to the Boram Hospital. Philip and his fellow victim, a Baltazar were admitted at that hospital. After receiving appropriate treatment, Philip recovered but with an estimated 85% permanent disability.

Medical evidence which was admitted into evidence without any objection form the defence describes Philip’s injuries as consisting of:

"two deep cuts over the dorsal surface of his left upper arm done to the bone chipping the bone but not fracturing it completely through. His triceps muscle was completely divided. In continuity with the upper cut was a 4cm superficial slash of the chest wall….On his right hand the thumb was severed, all nerves and blood vessels divided, with no circulation to the part, which was hanging by a small skin bridge only."

The right thumb was detached from his hand. This is a serious handicap to Philip because that part of his hand is the right and dominant hand. "He can do no power work" such as chop wood or dig. His other hand has healed but with pain on heavy lifting. Clearly, therefore your victim is restricted to light duties. This can be a very crippling handicap in our country’s settings.

The evidence on file also shows that, Philip is a village peace officer. He was therefore, part of the law enforcement agency at the village level. There is no direct evidence, but it is reasonable to infer from the question he put to the people he came into contact with before the attack, he was just about to commence is role following the news of the abuse of your mother. It seems without actually ascertaining who in particular abused your mother, not that, that would have given the right to you to take the law into your own hands and attack that person, you proceeded on the assumption that Philip and the others were the ones who abused your mother.

Apart form being sworn at, there is no evidence of what if any, serious harm or hurt your mother suffered. Also, there is no evidence to show why you could not use the village elders or the village court officials like Philip to get a peaceful redress for the abuse of your mother. 

The Law

The offence of grievous bodily harm and its penalty is prescribed by section 319 of the Criminal Code in these terms:

"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."

The maximum prescribed penalty in most cases is reserved for the worse type or category of the kind of offence under consideration. There are many cases on that point. I mentioned some of them in my judgement in The State v. Andrew Keake (27/02/01) N2097 at pp. 3 - 6. It is not necessary to repeat them here save acknowledge their existence, in case there is a need for the citation of an authority for this proposition.

In The State v. Nickson Pari (No.2) (10/01/01) N2033, I noted that there are not many recently reported or numbered judgements. That was in the context of considering the current sentencing trends. In addition to my judgment in the case mentioned, I decided to impose a sentence of 3 years but suspended on strict terms having regard to the particular circumstances of another case. That was in The State v. Darius Taulo (10/01/01) N2034. It was a case of repeated domestic wife beating over a period of time. The prisoner had very good mitigating factors such as genuine remorse, having paid compensation already according to his custom and was prepared to again pay compensation according to the victim’s (his wife’s) custom and the community showing preparedness to assist and see him rehabilitate. 

I was influenced by the judgement in The State v. Isaac Warupi [1994] PNGLR 271, which was not necessarily a bad or worse case of grievous bodily harm. Nevertheless, it was a serious case of injury to one of the victim’s eye by just one act of assault, which was provoked, in the non-legal sense. 

A survey of all cases of grievous bodily harm cases, show a trend of sentencing in this type of case from a few months as in the Isaac Warupi’s (supra) case and five years endorsed by the Supreme Court in Peremai Naroi v. The State [1987] PNGLR 293. This is in exercise of the discretion of the Court under section 19 of the Criminal Code. Of course, the particular circumstances of each of the cases determined the kind of sentences that have been imposed. In The Premai Naroi case, the Supreme Court (per Hinchliffe J. with Los J. agreeing) considered the execution of two serious blows using an axe on the head and a canoe paddle on a person’s chest area was serious and warranted the maximum prescribed sentence of 7 years. Hence, it was of the view that five years given by the National Court was too lenient.

In your case, you were in a group of men who attack another group of people. You were armed with bush knifes and stones. You attacked them, much to their surprise because they did not expect it. Included in the victims was a village court official, a peace officer. He is well known to you. That knowledge did not matter to you. You were intent on attacking him. Your inflicted a serious cut to his right and useful thumb completely severing it. You also cut the victim twice on his left forearm, fracturing his bone and completely separating his triceps muscle. He is now effectively useless with an estimated 85% loss to his right and useful hand and pains to his left hand when attempting heavy-duty work. 

I consider the nature of the injuries, the way in which they were inflicted and the resultant disabilities makes this case a more serious case of grievous bodily harm. Most of the past decided cases deal with an attack on a one on one basis. This is a case of a group attack. In my view, therefore, this case attracts the maximum prescribed penalty. 

There is an additional factor that makes the case even more serious or place the case on the worse type of its kind. Both the Supreme and National Court have made it clear that it is a serious offence and warrants the imposition of the maximum penalty if any members of the law-enforcing agency are the victims of the offence under consideration. My brother Justice Sevua in The State v. Joe Foe Leslie Leslie N1496, had regard to the Supreme Court decisions in Peter Naibiri and Kutoi Soti Apia v. The State, SC137 and Ure Hane -v- The State [1984] PNGLR 105 in the context of attacks on police and quoted with approval from the second case the following:

"The Courts must protect the police, as they carry out their duties, by stern punishments on anyone who attacks them.

A policeman carrying out his duty deserves the full protection of the law. If he is trying to arrest an escapee, for example, he should be able to do so by virtue of the authority which attaches to his position without fear of attack. He should be able to arrest an escapee, although outnumbered by the escapee’s wantoks."

Then on his part His Honour said the following, which I agree and adopt as my own in the context of this case:

"I adopt these statements in the present case and I want to reiterate my own belief that, where a policeman is attacked in the course of his lawful duty, the attacker must be severely punished. It is my view that an attack on a law enforcement agency, be it a police officer, Judge, Magistrate or CIS officer, is a very serious matter. I consider that an attack on any of the law enforcement agency is tantamount to an attack on the fundamental democratic institutions we have under our Constitution. The attack on the police officer in the present case, in my view, is tantamount to an attack on the function of the Police Force under s.197 of the Constitution. Neither the Courts nor the community at large should condone or tolerate violence against police officers who are going about their lawful and constitutional duties."

In this case, the victim was a village peace officer. Such officers are appointed under s. 26 of the Village Courts Act 1989, for the exercise of the powers and functions vested in him or her by sections 28 – 30 of Act. These powers and functions include the power to effect arrests and report any disputes to his village court for resolution. Hence, he is a policeman at the village or community level. The principles set out in the above cases equally therefore apply in my view to village court officials, which includes peace officers.

As noted, the facts disclose that the victim was trying to establish who was it that verbally abused your mother. Some young men, who also fell victim to you and your brothers, made fun of that and went into laughing. In my view therefore, he was in the process of carrying out his duties when you attacked him so severely that he fell into the river and was subsequently helped out by other people. 

It is the failure to respect and appreciate the work of persons like the victim that is causing a general breakdown in law and order in our country today. There is in some societies no respect for the elders let alone the law and legal authorities. In my view this is reflective of the community and or the families not taking a control in the discipline of their children. Some share of responsibility in all of these therefore have to be placed on the families who allow their children to go around destroying the fabrics of society such as respect for the elders, the law and lawful authorities. This kind of conduct must be discouraged and must be stopped by imposing sterner and appropriate sentences. 

Our Constitution and our nation are built on the Christian principles. Those principles are founded in the "Holy Bible", which we accept as the words of God. One of the important principles of Christianity is no retaliation when someone does something wrong against you. Indeed Jesus said if someone hits you on the one side, allow him to hit the other side as well. You did not do that, instead you retaliated to the an extent more serous than any harm that may have been brought upon your mother by a mere verbal abuse, not demonstrated to have come from the victim. History has shown that people or nations that have not lived according to the words of God in the bible have been destroyed either by God himself or by other forces. The punishment God warns of for people like you unless you repeat is death. This is something you and everybody else in the country and the world over seriously need to consider every day of our lives and do has his words ask us to do to avoid his punishment. 

In your allocutus you asked for leniency given your guilty plea, no prior convictions, expression of remorse and that you are a single man. I note and take these into account in your mitigation. However, these will have to be considered in the light of the loss and damage you brought upon the victim, who is going to live with them for the rest of his life. It will also have to be weighed against the circumstances in which you committed the offence and the other factors going against you. 

Further, in your mitigation you submitted that your relatives are now prepared to pay about K3, 000.00 in cash and kind in compensation to the victim. This gave rise to the need to call for a means assessment report as required by section of the Criminal Law (Compensation) Act 1991. I therefore called for and received a means assessment report on Friday the 14th of this month. 

I have now considered the report. The report states that you personally have no means to pay any compensation. At the same time, it states that, your family is able to make a payment of about K3, 000.00 in cash and in kind within a period of 12 months. Both your lawyer and that of the State made submissions based on the report. They are agreed that your family or relatives should be allowed to pay the compensation on your behalf to enable a reduction in the kind of sentence you stand to receive for your wrong. 

The law is clear, compensation is a relevant factor only in mitigation and not in substitution of criminal penalties: see The State v. Rex Lialu [1988-89] PNGLR 499 and The State v. Abel Airi (28/11/00) N2007, at page14. In The State v. Nickson Pari (N0.2) (10/01/01) N2033, in the context of considering both already paid and future compensation I said that if the offender is making the payment in either case, only then should such payments be taken into account. I reasoned that:

"… the whole basis of our criminal justice system is based and any penalty imposed is dependant on the offender’s culpability (see The State v. Abel Airi (supra) at page 6) and he is the only one that is personally responsible for his actions. It is also apparent from a reading of the provisions of ss. 2 to 7 of the Criminal Law (Compensation) Act 1991, especially the wording in ss 2(1) which sets the context in which the other provisions and hence the Act is to apply. It makes it clear that compensation is in addition to other punishments that may be imposed and is not a substitute or replacement for the prescribed punishments. Section 2(1) reads: 

‘(1)	Notwithstanding that payment of compensation is not specified as a punishment for an offence, a court may, in addition to any other punishments imposed, order an offender to pay compensation in accordance with this Act.’
 (Underlining mine)
…
This is why the Courts in cases like that of The State v. Margaret John (no.2) [1996] PNGLR 298 have decided not to order compensations against persons other than the offender. That was a case in which the defendant was in a way caused to commit an act of murder by her husband but the Court decided that only the offender was responsible for her own actions. In so doing the Court did not prevent the husband from paying compensation to the deceased’s relatives in accordance with custom to fix up relations between his line and that of the deceased."

In the end, I refused to take into account customary compensation already paid because the prisoner had no part in it. Only his relatives made the compensation payment to maintain relations between them and the relatives of the deceased. Similarly, my brother Justice Injia decided not to take into account the amount of compensation paid by the offender’s relatives in The State v. Billy Kauwa [1994] PNGLR 503.

Despite these cases and the principles behind them both counsel submit that sentencing is a community responsibility. They submit that your relatives are part of the community and as such they should be allowed to make compensation payments to your victim. I was almost persuaded but on reconsideration and a careful consideration of the submission, I am unable to accept that submission. The law requires you as the offender to be punished for your wrongful deeds. Nobody else, be it your parents or any of your brothers and or sisters can take your place, simply because they did not commit the offence. 

Nevertheless, there is room in my view to develop the law in the way suggested by counsel. That must be on the provision of sufficient evidence and therefore basis showing for example that the offender will be required to reimburse the relatives contribution toward any compensation either by providing free labour over a specified period and that they are in a position to ensure that happens. Also if there is evidence showing that the payment of compensation by family members or relatives will help rehabilitate an offender in a more meaningful and tangible manner, it may then be appropriate to take into account compensation payment by persons other than an offender. 

In the case before me there is no evidence of the kind mentioned above. In view of that, I am not prepared to take the law of compensation in criminal cases beyond what is the clear import of the legislation and cases on it. This does not however, prevent your relatives from paying compensation to the victim if to do so will reconcile you and your people and the victim and his people. 

Taking all of the above factors into account, I consider a part custodial and part suspended sentence would be appropriate. This has to reflect the fact that this is a serious case of grievous bodily and is one of the worse one because it involves a village peace officer. The injuries inflicted upon him are serious which has left the victim with serious life long disabilities. At the same it will have to reflect the fact that there has been a guilty plea and that you are quite a young person and this is your first ever offence. 

I will start with a head sentence of 5 years, which reflects your guilty plea. If it were not a case of guilty plea I would have started with the maximum prescribed sentence of 7 years. Of that I will suspend a period of 2 years on the terms I will shortly spell out and order you to serve the balance of three years first in hard labour. Of course, the period you have already spent in custody will be deducted from that three years. 

The terms for the suspended sentence are these:

1.	You immediate undertake to be of good behaviour bond and agree to faithfully comply with the terms that follow straight after this term;
2.	Render 4 hours daily services to the Village Court in the Lowan area Wewak, under the direction and supervision of the Village Court Chairman or in his absence the Councillor for that area between the hours of 8:00am and 4:00pm, which may include at the discretion of the village Court Chairman or the Councillor services to Philip Cletus;
3.	Never to leave Lowan within the period of the suspended sentence;
4.	Be home bound between the hours of 5:30pm and 7:00am for the whole of the suspended period;
5.	Not to be in the company of any youth for the whole of the suspended sentence; and
6.	Allow for Community Correction Service to do home visits and do quarterly reports to this Court.

Any breach of these terms will automatically lift the suspended sentence and you will be required to serve the balance of the suspended sentence commencing from the date of the first default. I make orders in these terms.
_____________________________________________________________________
Lawyer for the State: 		Public Prosecutor
Lawyer for the Accused:	The Public Solicitor