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State v Ute [2004] PGNC 215; N2550 (29 April 2004)

N2550

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 259 of 2004

THE STATE

-V-

ELIZAH UTE

POPONDETTA: KANDAKASI, J.
2004: 15th and 29th April

DECISION ON SENTENCE

CRIMINAL LAW - Sentence – Attempted murder - Use of a licensed firearm by member of a disciplined force with intend to kill – Provocation in non legal sense – Victim then acting officer of vital service institution for the community – Victim’s service withdrawn following incident – Guilty plea by first time offender – Pleas of danger in prison and family welfare - Factors in aggravation outweighing those in mitigation – Sentence of 25 years imposed.

Cases cited:
Acting Public Prosecutor v. Don Hale (27/08/98) SC564.
The State v. Rex Lialu [1988-89] PNGLR 449.
Joe Foe Leslie Leslie v. The State (Unreported judgment delivered on 07/08/98) SC560.
Peter Naibiri and Kutoi Soti Apia v. The State (Unreported judgment delivered on 25/10/78) SC137.
Ure Hane v. The State [1984] PNGLR 105.
The State v. Michael Kamban Mani (Unreported judgment delivered on 21/05/02) N2246.
The State v. Paul Yepei (No 2). (Unreported and yet to be numbered CR No. 97 of 1998, delivered on 26th March 2004).
The State v. Robin Warren & Ors. (No 2) (Unreported judgment delivered on 20/06/03) N2418.
The State v. Ennie Mathew Ors (Unreported and yet to be numbered judgment delivered on 29/10/03, CR 1089 of 2002 & Ors).
The State v. Louise Paraka (Unreported judgment delivered on 24/01/02) N2317.
Anna Max Marangi v. The State (08/11/02) SC702 as modified by the recent Supreme Court judgment in The State v. Sakarowa Kewa (Unreported judgment delivered on 01/04/04) SC.
The State v. Lucas Yovura (unreported and judgment delivered 29/04/03) N2366.

Counsels:
P. Kaluwin for the State
P. Kumo for the Prisoner

29th April 2004.

KANDAKASI J: You pleaded guilty to one charge of attempting to murder a Keisi Kiri on 26th September 2003, at Saiho, here in the Oro Province. On being satisfied that the evidence in the committal deposition, admitted evidence with your consent, supported your guilty plea, I confirmed your guilty plea and had you convicted of the charge.

Relevant Facts

The facts giving rise to the charge and your guilty plea are as were put to you during arraignment and as set out in the committal depositions. That starts with going to the house of the then acting officer in charge of the Saiho Health Centre, a Keisi Kiri during the night of 26th September 2003. You went armed with a shotgun, licensed to you. Upon arrival at the victim’s house, you told the victim that, you had gone there to kill him because he had disturbed you, loading and cocking your gun as you spoke to him. That was over a removal of two electrical line supporting poles by your boys. The victim tried to reason with you by pointing out that the poles belonged to the State and invited you to sit on a chair at the veranda of his house to reason it out with you.

You refused to reason with the victim and take the invitation to sit down. You then pointed the loaded gun at him and said to him "Fucking say your last prayers and I’ll blow your head off now". You repeated this three times and a fourth time with the question, "Have you finished your prayer." You then took a step back from where you were, got your balance, took aim at the victim and shot at him. Miraculously, the bullet you fired from your gun missed the victim by a fraction of an inch. The impact of your shot however caused the victim fall to the floor covered in gunpowder from the shot you fired. The pallets from the bullet penetrated through the wall of his house and almost killed one of the victim’s family members. You then left the scene without saying a word thinking you had killed him.

This was not the first time you used your gun in such an illegal pursuit. You did use the gun to threaten the staff of the Health Centre over your wife’s medical treatment. That was in 2001, when a female staff of the Health Centre got on your wife for not being faithful to her medication even though she lived much closer to the Health Centre. You confronted the female stuff after getting drunk and discharged a live bullet from your gun. On your undertaking on the Bible not to repeat your actions, the police decided not to charge you. Notwithstanding your promise, you repeated your actions, getting drunk and using your gun to threaten staff of the Heath Centre on subsequent occasion and before the incident you are now in Court for. These events changed an otherwise prior very good relationship between you and the staff of the Heath Centre in which you helped them and they helped you in return.

Address on Sentence

After your guilty plea and eventual conviction, I administered your right to address the Court on the kind of sentence you should receive and you did address the Court. You said sorry to the State, the Court and the victim and his family. You also said you acted under frustration and because the victim blocked your house from receiving electricity supply from the Heath Centre from a generator donated by Mr. Skate who said the nearby community should receive such services. At that time, and prior to the commission of the offence, you had very good relations with the victim and the staff of the Health Centre. You provided them land for them to make gardens. You then asked for a lenient sentence, as a custodial sentence would be too risky for you, given the roles you played as an officer with the Correction Service over a number of years as a parole officer.

You then tried to admit into evidence an affidavit. You did not serve the State and your lawyer with a copy of that affidavit. I therefore asked you to provide them with a copy and directed your lawyer to seek your instruction and decide what to do as the State’s quick perusal of the affidavit revealed that you were saying things contrary to the guilty plea. The Court thus adjourned for a short while for you to instruct your lawyer. On resumption, you decided not to admit the affidavit, allowed the proceedings to continue, and concluded your address by asking for an order for compensation or non-custodial sentence.

Your lawyer reiterated most of what you said and added that, you come from the Awala village here in the Oro Province. You lived in your village which is next to the Heath Centre. The land on which the Health Centre is on was originally yours and that you have organized the community to clean the Health Centre and look after it. In terms of education, you have been up to grade 10. You then joined the Correction Service were since then based at Biru Correction Services. You have two wives and have 5 children out of these marriages. You have been remanded in custody since 1st October 2003 and since then, removed from the payroll.

Whilst appreciating that this a serious offence committed with the use of a firearm by a member of one of the discipline forces, your lawyer urged the Court to give you a lenient sentence. In so doing, he pointed to your guilty plea, you are a first time offender, you lost a good paying job and that no physical injuries resulted from your unlawful discharge of the firearm. He then asked the Court to impose a sentence of five (5) years.

The State through, its counsel, Mr. Kaluwin, on the other hand drew the Court’s attention to the Supreme Court judgment in Acting Public Prosecutor v. Don Hale (27/08/98) SC564, where the Supreme Court said, the use of a fire arm to commit an offence makes the offence a very serious case. He also drew the Court’s attention to the case of The State v. Rex Lialu [1988-89] PNGLR 449. There the Supreme Court said the crime of attempted murder is very serious and that its sentence may be appropriately beyond those imposed in manslaughter cases because of an intention to kill in the case of an attempted murder.

Mr. Kaluwin of counsel for the State also urged the Court to note the factors in your aggravation. These were namely, the illegal use of a firearm to commit the offence, the offence disrupted smooth flow of vital medical services to the people in the community. He also highlighted the fact that you failed to admit earlier which meant the expansion of police resources and that the victim fled from the Health Centre and not wishing to return to this province. Finally, he pointed out that the offence is a very serious one which is reflected in the prescribed penalty of life imprisonment. He then asked the Court to impose a sentence that reflects these factors.

The Offence and Sentence

Section 304 of the Criminal Code creates the offence of attempted murder and prescribes its penalty in the following terms:

"304. Attempted murder, etc.

A person who—

(a) attempts unlawfully to kill another person; or

(b) with intent unlawfully to kill another person does any act, or omits to do any act that it is his duty to do, the act or omission being of such a nature as to be likely to endanger human life,

is guilty of a crime.

Penalty: Subject to Section 19, imprisonment for life."

The only reported case in terms of determining an appropriate sentence in attempted murder cases is the Supreme Court decision in Joe Foe Leslie Leslie v. The State (Unreported judgment delivered on 07/08/98) SC560. In that case, the appellant was a prisoner on the run after escaping from the Bomana prison. Police received a tip-off and they mounted an operation to arrest him. Police surrounded the house at a settlement where the appellant was hiding. A policeman involved in the operation then proceeded up the steps of the house and called out if there was anyone in the house. There was no response so he pushed the door open and found the appellant lying on the floor with a sawn-off shotgun, which he used to shot at the policeman injuring him on the right shoulder. The injured policeman ran out of the house and was eventually taken to the hospital for medical treatment.

Meanwhile, other policemen who had surrounded the house fired shots into the house to force the appellant out but he did not come out. The police then fired a gas canister into the house but still the appellant did not come out. During this time, he fired another shot at the policemen outside but fortunately did not injure anyone. Not long and a fire started from the gas canister fired earlier and that caused the appellant to come out of the house whereupon police shot him on the leg and apprehended him.
The medical report on the injured policeman confirmed that he recovered from the injury but with ten percent permanent loss of the efficient use of his right shoulder. The report confirmed that that the victim suffered from constant arthritic pain in his right shoulder.

The National Court found the case to be a worse case of attempted murder and imposed the maximum prescribed sentence of life imprisonment. On appeal the Supreme Court agreed with the National Court that it was a worse case of attempted murder and confirmed the sentence.

The trial judge considered this case to be amongst the worse type of attempted murder and imposed life imprisonment. The trial judge in his reasons for judgment took into account what the Supreme Court said regarding violence against police in the course of performing their duties and referred to the following passage from Peter Naibiri and Kutoi Soti Apia v. The State (Unreported judgment of the Supreme Court dated 25/10/78) SC137:

"Outbreaks of violence.......appear to be on the increase....... The Courts must therefore do their duty to try to assist the preservation of orderly life and to convince police that they will be assisted and protected in carrying out their duties by the sanction that will be involved against anyone who attacks them."

The trial judge also referred to the Supreme Court judgment in Ure Hane v. The State [1984] PNGLR 105 at 107 where Bredmeyer J. listed wilful murder of a policeman in the execution of his duty as one of the worst type of wilful murder cases. After having referred to these passages, the trial judge said:

"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 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."

The Supreme Court reaffirmed these passages as proper principles applicable to sentencing of violent offenders against law enforcement agencies such as the police. The Court also added that there has been an increase in the use of violence against the police since the cases referred to by the trial judge and that it was a matter of public knowledge that the use of firearms against the police by violent offenders was prevalent in the National Capital District. The Supreme Court was therefore, of the view that the trial judge correctly referred to the principles and found no error in the application of these principles to the facts of the case.

On its own part, the Supreme Court found that:

"... the appellant in this case was determined to fight even though the house was surrounded by armed policemen. He showed no respect for the law and the value of human life. We find that this case falls into the category of worst type of this class of offences. In the circumstances, we find that the trial judge correctly imposed life imprisonment."

That case did not lay down any sentencing guideline. Nevertheless, it is clear that committing the offence against a police officer in the course of his duty is a serious offence. Accordingly, it requires a stiffer penalty to reflect that seriousness.

To this, I accept and add the principles emerging from Acting Public Prosecutor v. Don Hale (supra), where the Supreme Court said, the use of a firm arm to commit an offence makes the offence a very serious one. The same goes for those that emerge from the case of The State v. Rex Lialu (supra). There, the Supreme Court said the crime of attempted murder with intention to kill is very serious, and that its sentence may be appropriately beyond those imposed in manslaughter cases because of the intention to kill in the case of an attempted murder.

In my view, it is appropriate to add to the list of factors for consideration what I have said in a number of cases, for example in The State v. Michael Kamban Mani (Unreported judgment delivered on 21/05/02) N2246. There, I have expressed the view that where an offence affects the provision of a service to the community, it calls for a sterner punishment in these terms:

"If the impact of the offence deprives the community of a vital service such as health services, important research work which as the potential of greater benefit to the society, the sentence should be sterner to reflect such impacts on the society. After all, criminal sentencing is a duty being discharged by the Courts on behalf of the community."

Bearing this in mind, I am of the view that, what the Supreme Court said about an offence of violence against a policeman, in Joe Foe Leslie Leslie v. The State (supra) should also apply for the protection of all other persons providing a vital service to the community. This is necessary, given the hard economic times the country is going through and some of the basic services are not readily available particularly in the rural areas. The list of persons falling under that category would include without limiting the list, health workers, teachers, other public servants, NGO and volunteer service providers. Such protection is necessary to encourage members of the community to appreciate the services these persons provide and to enable such persons to take up positions in the provinces without fear of any criminal attack on them.

At the same time, I consider what I have recently said in The State v. Paul Yepei (No.2) (Unreported and yet to be numbered CR No. 97 of 1998, delivered on 26th March 2004) relevant. In that case, the prisoner was at the time of the offence, the District Administrator for the Aitape/Lumi District. In deciding to impose a sentence above the one received by his co-offender, I said to him:

"You were also in a position of leadership and responsibility. You were then the District Administrator for the Aitape Lumi District. People holding such positions have a duty to respect and uphold the rule of law. They represent the government at that level. As such, their conducts should be beyond reproach, in order to ensure the common people respect the law and conduct themselves appropriately. Getting drunk running and running around with woman other than their wives in the middle of the night abusing government vehicle is certainly a conduct that is unacceptable and intolerable by anyone in the society. It is the unbecoming conduct of people like you, holding a responsible government office that are contributing to the serious break down in law and order in the country. Accordingly, a severe penalty against you is appropriate to send a message to people in positions similar to the one you had, that your kind of conduct is unacceptable.

It follows therefore, in my view that, where a person in a responsible position commits an offence, he is in breach of his duty by virtue of his position to uphold the rule of law and to lead by example. Where he or she fails to do that and commits an offence, he or she deserves a sterner penalty.

Proceeding on this basis, I have imposed slightly higher penalties against a soldier in the case of The State v. Robin Warren & Ors. (No 2) (Unreported judgment delivered on 20/06/03) N2418. In doing so, I said to him:

"I add 1 more year against John Nakon Gabsie to reflect your background as a member of the discipline forces who should have exercised some restrain and leadership against the destruction but you did not. Members of the discipline forces should never ever get anywhere near committing an offence. They represent the government. Hence engaging in an activity that is illegal and contrary to any discipline force is a serious offence. It breaches the trust the government and the people place in them. Thus John Nakon Gabsie’s conduct is similar to your colleagues who burnt down public properties such as those we have witnessed in relation to the mutiny case at the Moem Barracks. It is a total disgrace to see that such offences have been committed against public property by members of the PNG Defence Force."

Similarly, I imposed a sentence higher than his co-offenders in The State v. Ennie Mathew Ors (Unreported and yet to be numbered judgment delivered on 29/10/03, CR 1089 of 2002 & Ors). That was particularly against Ennie Mathew who was the village councillor.

Finally, I note that the well accepted principle of the maximum penalty is for the worse category of offence under consideration applies. As the Supreme Court found in the case of Foe Leslie Leslie v. The State (supra), that case fitted the worse kind of attempted murder case.

Your Case

For the purposes of determining an appropriate sentence for you, I note that your case is distinguishable from that of Foe Leslie Leslie v. The State (supra). The offender in that case, had a prior conviction and was on the run after escaping from prison. He had an opportunity to surrender but chose to have a shoot out with police who were in the course of their duty. In the process, he almost killed a police officer and shoot at another as well but fortunately missed killing or injuring the second police officer.

Your case is otherwise similar to the Foe Leslie Leslie v. The State (supra) as you used a firearm to commit the offence. You deliberately took aim and shot at your victim. Your victim would have died save for the fact that you missed him by a fraction of an inch. Nevertheless, the impact of the shot at him was such that the victim fell and thereafter could not afford to remain at the Saiho Health Centre and continue to provide his services to the community. Hence, even though he sustained no injury, there can be no doubt that he must have been devastated sufficiently to cause him to leave.

In addition to these, I note that, you have had on previous occasions used your shotgun licensed to you to threaten other staff of the Health Centre, even though this is not the same to say you have a prior conviction. This was despite your undertaking on the Bible that you would not engage in such conducts. Although there is no evidence on the purpose for the grant of the license to you, certainly it was not for you to use it to threaten and attempt to kill innocent people who did not also have a firearm like you. Besides, you are an experienced and until the commission of the offence, a serving member of the Correction Service. Your duty is to uphold the rule of law and not to take it into your own hands. What you did is not only a breach of that duty but a conduct that is unacceptable in our society. It therefore calls for a sterner punishment to send a deterrent message to members of the Correction Service, the Defence Force and the Police. Given these, I note that this is not a straightforward case of an otherwise good man stepping out of character. Rather, you have had a pattern of unlawfully using your gun and threatening innocent people.

Further, what happened was not accidental. You took aim and shot at the victim. Fortunately, you missed him by a fraction of an inch. You stated your intention to kill him and proceeded to execute it. The cause of your action was nothing serious. It was something you could have easily had it resolved in a less violent manner. The victim was a friend of yours so it could not have been that difficult to find a peaceful solution but you chose the more violent way, forsaking friendship and your duty as a disciplined officer with the Correction Service.

The kind of behaviour and action you displayed is on the increase in the country and is quite frightening to imagine what can become of it if not meet with an appropriate penalty with a view to deterring it. Instead of looking after public property and public servants who are in the course of their duties rendering a much needed service to the community, man well educated and experienced like you are taking the law into their own hands and are attacking public properties and public servants. Because of these kinds of conducts, some public institutions such as health centres, hospitals, schools and others are closing down, thereby seriously denying the vast majority of peace loving members of the community’s vital services.

Although you have said sorry to the State, the Court, the victim and his relatives in Court, there is no evidence of you making it right with the victim. There is for example, no evidence of you paying any compensation and being in a state of readiness to pay it, with prove of the means you have to meet any compensation orders, if the Court were to make such an order. I can only refer to my judgment in The State v. Louise Paraka (Unreported judgment delivered on 24/01/02) N2317. There, I held amongst others that, if an offender is going to ask for a lenient sentence, they must before hand secure and produce a pre-sentence report. The same goes for any desire to ask for a compensation order. The rationale for this is to avoid wastage of the Court’s limited time in belated requests for pre-sentence and means assessment reports.

Moving on, I note that there is ample authority for the proposition that, an expression of remorse without anything such as a payment of compensation means nothing: See The State v. Louise Paraka (supra). On the strength of these authorities, I find that your merely saying in Court sorry to the exclusion of your victim means nothing. Accordingly, it is not a factor in your favour.

Against the above factors, you have a number of factors in your favour. Firstly, you pleaded guilty plea to a serious charge. That saved the State from calling the victim and other witnesses to come and testify against you and hence, extra time and money. It also, saved the victim from coming into Court to re-live the bad memories of what you did to him. Secondly, I note subject to what I have already observed that, you have no formal prior conviction against you. Thirdly, the victim did not sustain any physical injury from your gunshot. I consider these factors in your favour whilst noting at the same time that, your actions did have an impact on the victim, sufficiently to cause him to leave his employment at the Saiho Health Centre as discussed above.

Weighing the factors both for and against you, as outlined above and given your personal background, I note that the factors against you far out weigh those in your favour. But this is not sufficient in my view to warrant the maximum penalty of life imprisonment. Instead, I consider a determinate term of years that reflects all of the considerations outlined above would be appropriate. I take guidance from the suggestion in authorities like that of The State v. Rex Lialu (supra) and consider that a sentence beyond those imposed in the third category of manslaughter cases per the Anna Max Marangi v. The State (08/11/02) SC702 as modified by the recent Supreme Court judgment in The State v. Sakarowa Kewa (Unreported judgment delivered on 01/04/04) SC739 appropriate is appropriate. These cases suggest a sentence between 18 years and life imprisonment.

A sentence beyond the starting point is appropriate in my view to demonstrate in addition to the aspects already discussed that you committed an offence with an expressed intention to kill as opposed to an accidental death as in manslaughter cases. I thus consider a custodial sentence of 25 years in hard labour less the time you have already spent in custody appropriate. If the victim sustained any injuries, a sentence beyond 25 years would have been appropriate.

In arriving at the above sent, I note your pleas as to your personal safety. I trust, the Correction Service will be able to take care of that within their facilities and means including serving your time at a different location, in consultation with you. As you may thus realize, what you are asking for is for this Court to help you to avoid the consequence of your own actions. Indeed the law is that an offender should consider is personal backgrounds and needs before committing the offence. After the offence is committed, it is too late. I have alluded to that in a number of cases already. A recent example of that is the case of The State v. Lucas Yovura (unreported and judgment delivered 29/04/03) N2366. There I noted that:

"Indeed I note what the Supreme Court in Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000 said is relevant. In that case, the Court observed that an offender should consider his background first before committing any offence. Implicit in that is the fact that, it is a little too late to talk about an offenders personal background including the needs of his family concerns once he is proven guilty according to law. His background and concerns should have little or no weight against the need to impose a sentence or punishment that best befits an offence he has committed in the particular circumstances in which the offence was committed.

I followed this principle in a number of cases already. An example of that is the case of The State v. Raphael Kimba Aki (No.2) (28/03/01) N2082. Following this line of authorities and the reasoning behind them, your plea for leniency to avoid suffering to you family has no place. If at all, that plea has little or no weight in determining an appropriate sentence for you."
___________________________________________________________________
Lawyers for the State: Public Prosecutor
Lawyer for the Prisoner: Public Solicitor