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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 536 of 2004
THE STATE
MARSHALL WESTERN PANGIH
LORENGAU: KANDAKASI, J.
2004: 14th and 23rd September
CRIMINAL LAW - Sentence – Unlawful wounding – Prisoner spearing victim with fishing gun on his right elbow penetrating to abdominal wall – Recovered well - No residual disability -Provocation in the non-legal sense - Guilty plea – First time offender – Provocation in the none legal sense – Expression of remorse and preparedness to pay compensation – Pre-sentence and means assessment report supporting order for compensation and non-custodial sentence - 3 years suspended sentence imposed – Criminal Code s. 322(1)(a).
Cases cited:
The State v. Jamie Campbell Fereka (07/04/03) N2359.
The State v. Guise Jopping (23/09/04) CR 871 of 2004.
The State v. Joseph Ping (17/12/01) N2169.
The State v. Kevin Anis and Martin Ningigan (07/04/03) N2360.
The State v. Albina Sinowi (13/12/01) N2175.
Counsels:
A. Kupmain for the State
A. Raymond for the Prisoner
23rd September 2004
KANDAKASI J: You pleaded guilty to a charge of unlawfully wounding Steven Eluh Petsul at Nderimbat, West Coast Manus on 28th March 2003, which was contrary to s. 322 (1) (a) of the Criminal Code. Upon reading the District Court depositions and satisfying myself independently that, there was sufficient basis for the charge and your guilty plea, I accepted your guilty plea and convicted you on the charge presented.
I then asked you to address the Court regarding your sentence and you said you will leave that to your lawyer. Your lawyer relying on a pre-sentence and means assessment report asked the Court to note that, you are 28 years old married with a 7 year old child. Next, she asked the Court to note that you live a subsistence style of dwelling in your village, Nderimbat, West Coast Manus. She went on to inform the Court that after completing your grade ten formal education, you have become useful in your community by raising a piggery project, own and operate a tradestore, small fuel outlet and have a vanilla project. The means assessment report states that from these sources of income, you have K2, 800.00 standing to your credit with the Manus Savings and Loans Society and a further K1,800.00 with the BSP bank. Further, she informed the Court that, you belong to the Catholic faith and are the last born in a family of 9 children. Finally, she informed the Court that, after the commission of the offence, police arrested you and held you in their custody for a week before you successfully obtained bail.
Your lawyer urged the Court to note your above personal details and or background before arriving at a sentence for you. She then went on to point out by way of mitigation for you a number of factors. Firstly, she submitted that you have not committed any offence before and have lived a peaceful law abiding life expending your time and energy in the various income earning projects noted above. Your local village court chairman and a number of your relatives support that submission. The village court chairman has gone further to indicate his preparedness to be a volunteer probation officer to supervise you if the Court decides to impose a non-custodial sentence on terms. The chairman and your relatives say, the commission of the offence was a step out of character for you.
Secondly, your lawyer urged the Court to note your guilty plea that, save the State extra time and costs that could have been inevitable if you pleaded not guilty. This also saved the Court the time it could have taken to hear and arrive at a decision on your guilt or innocence. Thirdly, you have the means and are prepared to pay compensation of up to K2,000.00. Relatives are prepared to assist you with any compensation order if need be. The report unfortunately has no input from the victim and his side’s attitude to compensation and sentence generally despite word sent for him to make his input.
The Court is duty bound to consider your submissions in the context of the particular facts and or the circumstances in which you committed the offence. I therefore turn to a consideration of the relevant facts now.
Relevant facts
On the day of the offence, you were clearing some bush in your village to plant vanilla. While you were busy doing that, the victim came running toward you with a bush knife and a meter long timber with a sharp edge. As he did, he called out to you saying, you should not continue with the clearing of the land and leave it whilst its ownership was under dispute. He also threatened to cut you in half if you did not comply. Not long after that, the victim swung the bush knife at you twice but you avoided both of them and started to run away with the victim pursuing you. Realizing that he could not get you, he chopped one of your dogs, which came barking at him. He then proceeded to cut down some of your vanilla shade plants. Thereafter, he retired to his house.
Meanwhile, you went to your house, armed yourself with a fishing gun, and followed the victim to his house. You caught up with him and shot him with the fishing gun. That resulted in a penetrating injury to the victim from his right elbow to the right lateral abdominal wall. In the process, the victim’s right hand was stuck to his abdomen. He tried to release them but could not do it himself. Two of his cousins helped him to do that and take him to the hospital at Lorengau the same day. At the hospital, he received appropriate treatment and recovered uneventfully.
On these facts, it is clear that the land on which you worked on was the subject of a dispute. Despite that, you worked on it and that caused the victim to come and attack you. When he attacked you, you managed to run away and secure your safety. When you did that, the victim left you and retreated after having cut your dog and some of your vanilla shade trees. This made you angry so you armed yourself and went and attacked him with a fishing gun. It is therefore save, in my view, to infer that you acted under some provocation but not sufficient to give you a legal defence. I note these facts in your favour in addition to the factors put forward to the Court by your lawyer.
These facts also disclose however, that you had time to reconsider what you set out to do in retaliation. You failed to note that, you started the attack on you by trying to make your vanilla garden on a disputed land. Given that, it was incumbent on you to take an approach that would resolve the matter peacefully, through means such as mediation by the local leaders, and failing that, the village Court and land Court system and or formal Court process both criminally and civilly against the victim. You chose not to do that.
You chose instead to arm yourself with a dangerous weapon, a fishing gun and use it against the victim. I note that, this is not the first time I have come across the ready use of a fishing gun to commit an offence. In The State v. Jamie Campbell Fereka (07/04/03) N2359, I had before me a case in which the offenders used two fishing guns to hold up, injure and commit an act of armed robbery in Wewak. I therefore note that, it is a common occurrence in the coastal areas of our country for people to readily, resolve to the use of fishing guns to commit offences such as armed robbery, murder, or cause personal injuries to human beings.
Just as much as the use of fishing guns to commit offences is common, the ready resolved by people in the country these days to take the law into their own hands and become, accuser, jury, judge and executioners is very common.
In this regard, I repeat what I have just said in the case of The State v. Guise Jopping (23/09/04) CR 871 of 2004, as they are relevant and applicable to your case. There, I said and observed and I do so in your case that:
"The Courts have been therefore increasing penalties with a view to deterring others from readily using such weapons to injure or beyond that even kill others over disputes or disagreements that can be easily resolved peacefully. Our society is becoming unsafe because of people like you who take the law into their own hands. Your kind of people are becoming accusers, police, judge, jury and executioners all at the same time in a summary manner without a proper trial and establishing of any guilt against your victims. This is resulting a lot of violence and lawlessness with people like you continue to readily, resolve to violence using dangerous weapons such as a bush knife to injure others."
These factors operate against you when considering what punishment to give you. The question of what punishment is appropriate is dependant on the provision of the Criminal Code you breached and the foregoing factors. Hence, I turn now to consider the provision you breached, its penalty and the sentencing trend.
The Offence and Sentencing Trend
Section 322 of the Criminal Code creates and prescribes the offence of unlawful wounding in these terms:
"322. Wounding and similar acts.
(1) A person who—
(a) unlawfully wounds another person;
(b) ...,
is guilty of a misdemeanour.
Penalty: Imprisonment for a term not exceeding three years."
Both your lawyer and that of the State were not able to assist the Court with any case on point providing any guidelines for sentencing for this offence. The only case that shows up on my limited research is my own judgment in The State v. Joseph Ping (17/12/01) N2169. The facts in that case warranted an indictment for grievous bodily harm under s. 319 and even 315 of the Code. So I imposed a sentence of 3 years, 1 year custodial and 2 years suspended on conditions. In so doing, I note that, that case was on the worse end of the kind of offences under consideration and said:
"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."
In the subsequent case of The State v. Kevin Anis and Martin Ningigan (07/04/03) N2360, I imposed a sentence of 2 years against the prisoners. There, the commission of the offence was in the course of committing another offence, namely armed robbery and murder on a highway.
These cases do not provide us with any assistance in terms of providing us with a sentencing guideline for unlawful wounding cases. Nevertheless, the first case makes it clear that, where the facts disclose a more serious case of bodily injury, the maximum prescribe sentence of 3 years would be appropriate. The next case shows that, the commission of the offence in the course of another offence may attract a sentence closer to the prescribed maximum.
A case that might assist with the devising of a guideline for sentencing in unlawful wounding is my judgment in, The State v. Albina Sinowi (13/12/01) N2175. There, faced with a conviction against s. 340 for assaults occasioning bodily harm, I tried to devise a guideline in the following terms:
"As with any other offence, the offence of unlawful assault causing bodily harm has its own categories. Up on the top of the scale would be cases in which there are multiple acts of assault with serious bodily harm but falling short of grievous bodily harm cases. Next to that would be cases in which there is say, a single act of assault resulting in a closer to serious bodily harm to the victim. Following this category of unlawful assault resulting in bodily harm, would be cases in which there is an act of assault resulting in a very minor bodily harm.
Of course, whether an offender should be given the maximum prescribed sentence would also depend on the particular facts of the case and whether or not the offender has any prior convictions. If the offender has a prior conviction and he or she is found guilty after a trial and his or her case falls in the worse category, that may attract an imposition of the maximum penalty of three years imprisonment. If however, the offender pleads guilty and has no prior convictions, a lower sentence may be appropriate.
I consider it also important that a sentencing judge should have regard to the type of sentences being imposed in similar but more serious offences such as unlawful assault resulting in grievous bodily harm. This is important because going by the scheme and intent of the legislation, Parliament in my view, intended that the more serious an offence is, the higher the penalty should be. It follows therefore that, a sentencing judge should not impose a sentence in an unlawful assault case, which is higher or equivalent to a sentence for an offence such as unlawful assault causing grievous bodily, which is a more serious offence then an unlawful assault causing only bodily harm.
Applying these guidelines, I imposed a 6 months wholly suspended sentence against the prisoner in that case. The persuasion for that sentence came from the fact that, I considered the victim a co-wife to the prisoner caused the prisoner to commit the offence in two ways. Firstly, she chose to marry the prisoner’s husband knowing that he was already married to the prisoner. The victim therefore knew or ought to have known that, there was bound to be trouble because of the fact that she was becoming a second wife. This was in line with the generally accepted position that wives in a polygamous marriage do not often get along together except in one or two exceptional cases. Children of such marriages also often have conflicts, disagreements and disputes over limited family properties or assets.
Secondly, the victim abandoned her child and often left the child in the care of the prisoner, and did not contribute to the up bringing of the child and the household chores. That angered the prisoner. The prisoner and the victim’s husband who was responsible for marrying the two of them did not do a thing to prevent the victim from conducting in the way she was. The prisoner therefore decided to teach her co-wife a lesson.
I also took into account the fact that the prisoner struck her victim once. Although that resulted in a fracture injury to the victim’s left hand, there was no evidence of any residual disability. So I took it as minor injury case. I further, noted that the prisoner pleaded guilty to the charge and had no prior convictions. Furthermore, I noted there was some provocation in the non-legal sense.
I am of the view that, the above guidelines are suitable and or appropriate for sentencing under s. 322 Code in the absence of any other guidelines to the contrary. Accordingly, I adopt them with the necessary modifications to reflect that the guidelines are for an offence under s. 322.
Your Case
In order to decide upon an appropriate sentence for you, it is necessary to take into account both the factors for and against you. In the foregoing, I discussed both the factors for and against you. I now note and consider those and carefully weigh them against each other and the kind of sentence already imposed in this kind of cases. At the end of that exercise, I find that your case does not fall into the worse category.
Nevertheless, this does not mean that, what you did is not serious. You armed yourself with a very dangerous weapon and injured the victim. Fortunately, he recovered well with no residual disabilities. No doubt, he suffered great pain and suffering at the time of your spearing him and the period of his recovery.
Then as already noted, the ready use of weapons such as bush knives, fishing guns and kitchen knives are becoming very dangerously lethal weapons. A deterrent sentence is therefore called for to help deter you and other like-minded persons from committing this kind of offence. I therefore consider a head sentence of 2 years is appropriate. Then in view of your guilty plea, being a first time offender having the means and being prepared to pay compensation, I am prepared to suspend the whole of that sentence. This is conditional on the probation service furnishing to this Court by or before 23rd October 2004 a statement from the victim indicating a preparedness to accept compensation and you receiving a non-custodial sentence with community service orders. Until the Court receives that input and the Court confirms the suspension thereupon, you shall serve your term in hard labour at the Lorengau Correction Service.
This is necessary and is consistent with the position I have taken in a number of cases that, the Court cannot order an unwilling victim to accept compensation. Imposing compensation on an unwilling victim has the potential of further aggravating the endeavours of the victim to recover from the effects of the offence on him or her, which has the potential of leading to a lack of confidence in the judicial system to deliver justice. That in turn has the potential of causing people to take the law into their own hands leading to more violence and disorder.
In arriving at the decision to suspend, I continue to maintain the view that imposing a suspended sentence is not an exercise of discretion in leniency. However, it is a form of punishment aimed at achieving one of the purposes of criminal sentencing, which is rehabilitation. I also maintain the view that a community-based sentence is far more effective in appropriate cases, not only in terms of rehabilitation but also in terms of serving both as a personal and general deterrence against other would be offenders.
If the Court decides to suspend the sentence as indicated, it will be on the following conditions:
6. you shall be home bound between the hours of 6:00pm and 6:00am;
_______________________________________________________
Lawyers for the State: The Public Prosecutor
Lawyers for the Accused: The Public Solicitor
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