N7000
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 795 OF 2004

THE STATE

V

GIONANDANG MEAPATO

Kerema :     Kirriwom, J
2005      :     12 & 18th April 

CRIMINAL LAW – Sentence –  Particular offence - With intent to do grievous bodily harm, unlawfully did grievous bodily harm – guilty plea – admits essential elements of offence only – compensation – reconciliation of parties an important sentencing objective – prisoner suffering from chronic illness not responding to conventional medicine and treatment – prison lacking resources and facilities to address prisoner’s special or particular needs - exceptional circumstances – suspended sentence warranted – Criminal Code, ss.315 & 19 .

SENTENCE – Particular offence - With intent to do grievous bodily harm, unlawfully did grievous bodily harm – guilty plea – mitigating features of the case outweighed factors of aggravation - imprisonment for three years – one year three months and 15 days served while awaiting trial – balance of one year seven months and 15 days suspended with conditions.

SENTENCE – conditional suspension - compensation – prisoner to give three live pigs and food stuff from the garden not exceeding the value of K5,000 – Criminal Law Compensation Act, ss.2 & 5(2) &(3).

Cases cited:

R v Gabai Vagi [1973] PNGLR 30
The State v William Norris [1979] PNGLR 605 
The State v Yaulipa Bulaim and Four Others [1980] Unreported National Court Judgment No. N234.
The State v Jenny Walker - CR. 1378 OF 2003 [2004] Unreported National Court Judgement (10/8/04)
The State v Sari [1990] PNGLR 48
Weaver v Samuel [1971] SASR 116

Counsel:

Mr Luman, for the State
Mr Norum, for the Defence

DECISION ON SENTENCE

18th April, 2005

1.	KIRRIWOM, J:  The prisoner Gionandang Meapato of Katopa village, Kaintiba, Gulf Province was charged with one count of with intent to do grievous bodily harm, unlawfully did grievous bodily harm to one Peter Nano, an offence that falls under one of those serious categories of assault cases falling short of homicide under section 315 of the Criminal Code and carries a maximum penalty of life imprisonment. He pleaded guilty on arraignment.

2.	The State case is that on 26 December 2003 at Kaintiba Station, the prisoner and his relatives whilst armed with bush knives, axes and iron rod attacked the victim and his line. The prisoner headed straight for the victim upon seeing him and struck him with his bush knife on his shoulder and on his back.  The victim suffered severe injuries and was rushed to the health centre at Kaintiba and subsequently airlifted to Lae Angau Memorial Hospital where he fully recovered some days later and discharged from the hospital.

3.	The statements obtained from the witnesses show that there were two victims in this attack which was over land dispute on which the victim and his family resided and operated a business of retail store. In that same incident the victim’s elder brother was shot dead with a bow and arrow by the prisoner’s elder brother. The prisoner attacked the victim who went to the aid of his brother. Under the law of accessorial responsibility the prisoner could well be liable for the death resulting from that same incident, but he has not been charged with that offence. I can only punish him for the offence he pleaded guilty to which is the one he is charged with. The State has not even relied on this death as an aggravating factor, so I will not consider it at all in this case. After all the law is well settled since Weaver v Samuel [1971] SASR 116 in the judgment of Bray, CJ where he said: 

“The rule is that if the defendant desires to dispute circumstances of aggravation alleged in sworn evidence for the prosecution, he must do so by sworn evidence from himself or someone else; but if the aggravating matter is not sworn to, but is only alleged on the one hand and denied on the other in an unsworn form, then it is the duty of the court `to act upon the version of the facts which, within the bounds of reasonable possibility, is most favourable to the accused’ (Maitland’s case). In addition I held in Law v. Deed that if the defendant alleges circumstances of mitigation peculiarly within his knowledge which the prosecution is not in a position to negative, again his version must be accepted `within the bounds of a reasonable possibility’ and if the court is minded to reject it as beyond those bounds, it must at least give him an opportunity to support his story by his oath if he so desires... The defendant must be given the benefit of any reasonable doubt on matters of penalty, as well as on matters of guilt or innocence, in the absence of any statutory provision to the contrary. The plea of guilty admits no more than the bare legal ingredients of the crime. Any dispute as to anything beyond this must be resolved on ordinary legal principles, including the presumption of innocence.” 

4.	This principle was unreservedly adopted and applied since 1973 in a number of leading decisions of both the National Court and the Supreme Court. See R v Gabai Vagi, The State v William Norris and The State v Yaulipa Bulaim and Four Others. 

5.	Evidence from the town residents is that despite their intervention to diffuse the tension between the two groups and the prisoner’s line persisted and drew the first blood and another when they were disarmed and the police eventually picked up the rest from there when situation had already gone bad.

6.	The offence carries a maximum of life imprisonment subject to section 19 of the Criminal Code. The section reads:

“315.	Acts intended to cause grievous bodily harm or prevent apprehension.
A person who, with intent—
(a)	to maim, disfigure, or disable any person; or
(b)	to do some grievous bodily harm to any person; or
(c)	to resist or prevent the lawful arrest or detention of any person,
does any of the following things is guilty of a crime:—
(d)	unlawfully wounding or doing a grievous bodily harm to a person;
(e)	unlawfully attempting to strike a person with a projectile;
(f)	unlawfully causing an explosive substance to explode;
(g)	sending or delivering an explosive substance or other dangerous or noxious thing to a person;
(h)	causing any substance or thing referred to in Paragraph (g) to be taken or received by a person;
(i)	puts a corrosive fluid or destructive or explosive substance in any place;
(j)	unlawfully casts or throws a fluid or substance referred to in Paragraph (i) at or on a person, or otherwise applies any such fluid or substance to the person of a person.

Penalty:	Subject to Section 19, imprisonment for life.” (emphasis added)

7.	Usually in this type of cases the extent and seriousness of the injuries suffered determine the length and nature of punishment that the court imposes on the offender. There is no doubt that the victim suffered serious injuries that required hospitalisation in a bigger hospital, so he was flown to Lae from Kaintiba for medical attention. No report has been obtained for the treatment received at Angau Memorial Hospital except for a handwritten report prepared by the Nursing Officer in Kaintiba who first attended to the victim when he was brought to the health centre and he applied the initial treatment to stabilise the wounds. In his report he expressed confidence that the victim would pull through and he did.

8.	In the case of The State v Jenny Walker - CR. 1378 OF 2003 [2004] Unreported National Court Judgement (10/8/04) the prisoner, a young mother of two children pleaded guilty to unlawfully doing grievious bodily harm to another woman closely related to her because the victim was committing adultery with her husband. She armed herself with two bush knives and followed the victim to the garden and set up an ambush and hid herself beside the track leading to the garden and waited. As the victim and her little sister came to where she was she sprung out with both bush knives swinging wildly chopping the victim all over her body almost severing an arm. The victim was lucky to survive albeit with extensive disfigurement of her body and permanent disability.

9.	Despite the plea for leniency based on her prior good record, good cooperation with the police, plea of guilty, some element of provocation and her young age with two small children who required her care and attention, the court was of the view that the gravity of the offence far outweighed the mitigating features of the case and sentenced her to 4 years imprisonment, but suspended half the term on condition that she paid compensation to the victim in the sum of K3,500.

10.	The following excerpts from the judgment in the case are worthy of noting as the remarks are attributed to guilty pleas by prisoners following discussions and agreement reached between the lawyers:

“The description of the injuries inflicted on the victim from the victim herself clearly explains the prisoner’s state of mind at the time of the attack on her and affirmed by the medical report following examination by the attending medical personnel on arrival at the hospital. The evidence quite justifiably supports a more serious case than the one that the prisoner pleaded guilty to which carries a maximum penalty of seven years imprisonment. But the plea in this case is based on negotiation between counsel on behalf of their respective clients that this court cannot unduly interfere without good reasons. Plea bargaining is an acceptable practice in our adversarial system of administration of justice although not formally adopted in our courts. Courts must not unduly interfere in this exercise of discretion of the prosecutorial function of the Public Prosecutor except where it is legally justified in doing so. Such example is, in my view, where the accused might have had a good chance of acquittal, if a trial had run based on a possible legal defence available on the deposition that his counsel overlooked in his haste to complete the case for the sake of reducing the caseload and advised his client to plead guilty to a lesser count hoping for a reduced sentence in the client’s favour. In this regard I agree with Jalina, J in his observation in his judgment in The State v Sari [1990] PNGLR 48 where he said at p.59:

“It follows from the authorities that if the depositions do not disclose any offence or do not disclose all the elements of the offence charged or disclose possible defences, the entry of a plea of guilty would, in my opinion, be tantamount to denial of the right of the accused to the full protection of law under s 37(1) and his right to be proven guilty according to law under s 37(4)(a) of the Constitution. These rights should not be at the whim of lawyers who, perhaps in their plea-bargaining process, or perhaps to reduce the amount of workload, decide to advise the accused to plead guilty. The accused could have been denied his constitutional rights had the court not intervened.”

Where the accused pleads guilty to a lesser charge following numerous lawyer-client conferences and negotiations between the lawyers, court must, in the exercise of its sentencing discretion, pay due regard to the efforts that had preceded the formal process of reducing the charge into writing for purpose of arraignment of the accused without unduly interfering with the exercise of discretion of the Public Prosecutor regarding the choice of charge with which the accused is indicted.”  

11.	In line with this reasoning during the course of this sitting I rejected a plea of guilty in a case in which the depositions did not support the plea, the kind of scenario that Narokobi, AJ was alluding to in The State v Yaulipa Bulaim and Four Others (supra) which leaves the court with the ultimate discretionary power to decide whether on its own volition it must accept the plea or reject it as the interest of justice dictates.

12.	The question for this court is, what is the appropriate penalty in this case? The defence has pleaded for leniency and requested that the court must have regard to the Criminal Law Compensation Act and order the prisoner to pay compensation which he is willing to do with three pigs valued at no more than K300 each and K300 in cash. In addition it is also submitted that the prisoner is a sick person whose health is deteriorating and needs particular attention outside the prison cell. This concern is verified by Inspector Napina Yuimb OIC of CS Medical Centre Bomana CS in a report dated 5th April 2005 requesting bail on behalf of the prisoner in order for him to seek proper medical treatment or herbal medicine outside the institution for his chronic illness that has persisted despite treatment given at CS Medical Centre and Port Moresby General Hospital. The report states that the prisoner has intestinal infection which has already claimed the lives of two of his relatives who were remanded together with him for this same offence. They died in custody suffering from similar complaints.

13.	Following submission on sentence I adjourned sentence to May 30, 2005 and requested for a Means Assessment Report to be compiled and submitted to the court before sentence is passed. It was intended to have the decision on sentence delivered in Waigani on the return date referred to because the prisoner was in custody in Bomana CS. However since making that order, I also heard another case concerning the prisoner’s accomplice in the same trouble who was charged with affray under section 73 of the Code which offence is a misdemeanour and carries a maximum penalty of 12 months. Because the prisoner in that case had already spent over one year and one month in custody awaiting trial together with the prisoner in this case who has been in custody for the same length of time, he was deemed to have already served his term and was sentenced to the rising of the court. He was a much younger person than the prisoner and played some role in the incident but struck nobody in the process.

14.	Since delivering that decision I have reconsidered my position on the request for means assessment report and have decided that the request be withdrawn. The reason simply is that I am not at all sure if this is the most expeditious way of disposing of this matter particularly in view of the prisoner’s medical condition and the fact that he wishes to pay compensation and restore normalcy back into their lives. This reservation is justified given the remoteness of Kaintiba and the high cost of airfares of getting there which is the single most chronic problem that will not enable officers from CBC to go to Kaintiba to collate this report, especially operating out of Port Moresby. The CBC office here in Kerema closed its doors last year and returned to Port Moresby due to funding constraints and lack of Gulf Provincial Government support. I don’t know how fruitful it will be to have this matter further adjourned to enable any attempt to get the information the court needs to make an informed decision of the case without any real commitment coming through the respective bodies responsible for ensuring the vitality of these essential services.

15.	In the exercise of my discretion therefore I have decided to dispense with the requirement for a Means Assessment Report and rely on my own intuition and conscience to make the right decision that will terminate this prolonged waiting in Waigani.

16.	The prisoner is aged 35 years old, married with two children aged 16 and 6 years respectively. He is a member of the Lutheran faith and completed Gr. 6 education at Kaintiba Community School and went on to Vocational Training where he obtained certificate in 1989 at Ihu Vocational Centre. He worked as security guard with Talair between 1991 – 1993. He was arrested for this offence on 30th December 2003 and has been in custody for one year three months and 15 days today. 

17.	With a rare chronic illness that is not responding to conventional treatment and inability of the prison authorities to provide special attention and service to the prisoner, inadequately resourced and equipped as the institution is, he is a serious security risk and liability to the prison. The times have changed and the courts are no longer insensitive about these basic practical issues that did not concern them except those whose specific functions were to provide that support to the courts for efficient administration of justice.  

18.	The case of The State v Jenny Walker provides a good tariff as guide for sentencing in this matter. There are however extenuating circumstances in this case that warrant special consideration which include:

1.	The prisoner’s ill-health. Prison authorities neither have funds or resources to deal with the prisoner’s peculiar health problems.

2.	Two of the prisoner’s relatives charged for offences arising out of the same incident have died under mysterious circumstances suffering from similar complaints that the prisoner has been treated for without much success.

3.	One of the prisoner’s co-offenders who could just as easily have been charged together with him for this more serious offence by virtue of accessorial responsibility was leniently dealt with for what appeared to be a trivial offence knit-picked to suit him.

4.	The prisoner is anxious to reconcile by payment of compensation of several pigs and cash money which is an initiative coming from himself that the court must facilitate, however difficult the circumstances maybe. 

5.	He has already spent enough time in prison which is sufficient to teach him a lesson for taking the law into his own hands.

19.	Considering his plea of guilty, his expression of remorse, his cooperation with the police and those extenuating circumstances referred to above, I sentence the prisoner to three years imprisonment in light labour. I deduct the time he already spent in custody awaiting trial which leaves him with one year eight months and 15 days. This period I suspend on these conditions:

1.	the prisoner shall keep peace and be of good behaviour for a period of two years;

2.	The prisoner shall compensate the victim Peter Nano with three live pigs and some food stuff from the garden, total value not to exceeding K5,000, within six months from the date of this order. This event must take place in the presence of and witnessed by a government officer in Kaintiba, who may be the District Manager of Kaintiba or his delegate who shall submit a report to the Registrar of the National Court in Waigani by way of sworn affidavit or a statutory declaration.

20.	The court considers reconciliation as an important sentencing objective. Law and order problems are the products of social ills that people themselves create by their own likes and dislikes and desires to pursue their ambitions and dreams in life. Court must avail the parties opportunities to make amends to seek lasting solution to their conflicts. Sentencing is not all about retribution and punishing an offender. The ultimate goal is to create a just and safe society for all.

21.	The prisoner is sentenced to three years imprisonment, one year three months 15 days deducted for time already spent in custody and the balance of one year seven months and 15 days suspended on conditions stipulated above.

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defence