N3862

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 868 of 2008

THE STATE

v

YAKE ATE

Tabubil: Kandakasi, J.
2008: 02nd And 19th September

DECISION ON SENTENCE

CRIMINAL LAW – Sentence – Particular offence - Grievous bodily harm – Use of bow and arrows and bush knife – Offender retaliating over attack of brother after threat had ended – Penetrating injuries to the abdomen area with wounds inflicted at 4 locations on small intestine - Injuries life threatening – Guilty plea – First time offender – Prevalence of offence - No compensation paid- Custodial sentence of 6 years imposed – Criminal Code s. 319. 

Cases cited:

The State v Vincent Naiwa (22/06/04) N2710.
The State v. Isaac Wapuri [1994] PNGLR 271.
The State v. Philip Susuve Raepa [1994] PNGLR 459.
The State v. Nickson Pari (N0.2) (2000) N2033.
The State v. Rueben Irowen (2002) N2239.
The State v Henry Idab (2001) N2172.
The State v. Eddie John Naopa (2003) N2411.
The State v. Tamumei Lawrence, Koloata James and Tobia Thomas (2007) N3117.
The State v. Ambe Tu (2008) N3306.
Acting Public Prosecutor v. Don Hale (1998) SC564.
Edmund Gima v. The State & Siune Arnold v. The State (03/10/03) SC730.
The State v. Marety Ame Gaidi (2002) N2279.

Counsel:

D. Mark, for the State.
M. Norum, for the Accused.

19th September, 2008

1.	KANDAKASI J: Yake Ate, you pleaded guilty to a charge of causing grievous bodily harm to one Luvis Gengom on 5th April 2008 at Hiorenkia Village, Nigerum, Western Province. 

Relevant Facts

2.	The facts giving rise to the charge and your guilty plea and subsequent conviction are these. On 5th April 2008, Luvis Gengom, who is your nephew, fought with Rex Ate, your younger brother, who started the fight. The fight was over, Luvis'' mother authorizing another woman to collect gold dust from your land. Luvis'' mother is your sister. In that fight, Luvis kicked your brother to the ground from where he got up and ran into a nearby house and took refuge there. On the community''s intervention, Luvis stopped his fight with your brother. 

3.	Meanwhile, however, you got word of the fight between your brother and your nephew. Given some pre-existing difficulties you had with your sister''s family and not being happy with your sister permitting another person to collect gold dust from your area, you armed yourself with a bush knife and a bow and arrows and went to fight your nephew. On seeing what you were trying to do, the members of the community tried to stop you. Despite that, you initially attempted unsuccessfully to shoot your nephew with arrows from the bow you had. After those failed attempts, you eventually managed to get your target. You shot your nephew on his stomach area which penetrated into the internal parts of the stomach, seriously affecting his intestine. Attempts to pull the arrow out failed as it got stuck inside.

4.	The members of the community then assisted your nephew onto a vehicle and had him transported to the Tabubil Hospital. The hospital appropriately treated him. The medical doctor found and established that the arrow penetrated the abdomen and wounded the small intestine at four different locations. The arrow had also penetrated the right iliac crest. There was of course bleeding and the leakages of faecal contents due to the wounds to the small intestine. The treatments Luvis received consisted of a surgery to remove the arrow, cleansing of the faecal matter, bleeding and other debris or foreign matter introduced by the penetrating arrow. 

5.	The hospital discharged Luvis on 11th April and had his stitches removed three days later. Doctor Inina of the Tabubil Hospital provided a report. In his report, the doctor stated that Luvis sustained life threatening injuries but the good news was that, he recovered well and did not die. 

Offence and Sentencing Trend

6.	As this Court said earlier this month in the case of The State v. Rex Waida and Waida Gima CR 1271 and 1272 of 2007, a decision handed down here in Tabubil, s 319 of the Criminal Code creates and prescribes the penalty for the offence of grievous bodily harm. The maximum prescribed sentence there is 7 years. The National Court has dealt with a lot of cases under this provision and has imposed a variety of sentences from a few months to the maximum of 7 years. Your lawyer ably referred to most of these cases, some of which this Court discusses below as it did in the earlier case.

7.	This Court noted in a number of cases as in The State v. Vincent Naiwa, that the earlier cases such as the case of The State v. Isaac Wapuri and The State v. Philip Susuve Raepa imposed much more lenient sentences. Those decisions go back more than ten years. However, given an increase in the incidents of this offence, the Courts have increased sentences to correspond with the increase in the offence. 

8.	Noting the prevalence of the offence and forming the view that past sentences appear not to be deterring other persons from committing this offence, this court imposed a sentence of 4 years, part suspended on terms in The State v. Nickson Pari (No.2). That was in a case of a young first time offender pleading guilty. He shot at and injured the victim on his left arm in the course of and in furtherance of an armed robbery. 

9.	A more serious case of grievous bodily harm this Court dealt with was the case of The State v. Rueben Irowen. In that case, the prisoner forced his two wives to strip down naked and effected serious bodily harm to them. That included the use of a bush knife to inflict serious cuts to their bodies, resulting in loss of a lot of blood rendering both of them unconscious. They had to run out of the house naked for help. If it were not for their running out and the help of third parties, they could have died. The Court imposed the maximum sentence of 7 years each for the harm he had occasioned to the victims for him to serve cumulatively.

10.	Another serious case this Court dealt with was the case of The State v Henry Idab. In that case, a group of men attacked another group mistakenly taken to be the ones responsible for verbally abusing one of the attacking group member''s mother. In the process, a village court magistrate sustained serious bush knife injuries to both of his hands, resulting in an estimated 85% loss of efficient use of his hands and restricted to only light work. The Court imposed a sentence of 5 years, and suspended part of it on strict terms including community work. The Court also allowed at the discretion of the village court magistrate, room for the prisoner to render services free of charge to his victim appreciating that the victim was prevented from using one of his hands.

11.	In another case, namely, The State v. Eddie John Naopa, this Court imposed a sentence of 5 years part suspended because of a guilty plea and an order for compensation. The victim in that case lost one of her eyes completely from a slingshot. 

12.	In the other case of The State v. Vincent Naiwa, this Court imposed a custodial sentence of 5 years. That was for grievous bodily harm caused to his sister–in–law by the prisoner. He used a bush knife to do that. There was no good reason for the attack. The attack on the victim left her left hand useless. That was on a guilty plea by a first time offender, who had not paid any customary compensation and did not have any means to pay any compensation if the Court were to make such an order. 

13.	Other judges have imposed higher penalties in cases similar or closer to your case. An example of that is the decision of Lay J., in The State v. Tamumei Lawrence, Koloata James and Tobia Thomas. There, the victim had been gardening and the offenders and their friends attacked him without provocation. The victim suffered serious knife wounds. His left upper arm was cut through to the bone, the back of the left shoulder involving the shoulder joint was cut, there were cuts to the posterior upper right chest and the right forearm involving the elbow. There was a prompt compensation payment.

14.	In a number of this Court''s previous decisions on grievous bodily harm cases, this Court noted that, the offence was prevalent for no good reasons or for silly reasons or clearly avoidable situations. In most cases, offenders were carelessly using dangerous weapons such as bush knives and other dangerous weapons to resolve problems even in close family relations. 

15.	Taking into account the foregoing sentencing trends and tariffs and the particular circumstances, this Court imposed a sentence of 4 years in the case of The State v. Ambe Tu. There, the prisoner acting alone caused also life threatening injuries to his victim. However, I found that he had good reason constituting some provocation though not in the legal sense, by his wife running off with another man and failing to reason with him as to her abandonment of her children. That was on a guilty plea by an elderly first time offender.

Sentence in Your Case

16.	Bearing the above sentencing trend in mind, the Court now needs to determine the issue of what is an appropriate sentence or punishment for you. In order to determine that question, it is necessary for the Court to take into account what you said in your address on sentence, your lawyer''s submissions and the factors that are in your favour as well as those against you. 

17.	Turning firstly to your address on sentence, you said sorry for committing the offence against your nephew, your family, his family and the community. You also said your daughter and your people have been threatened whilst you were in custody awaiting your trial. Further, you said, you have been landed with a K60,000 compensation demand. You say you have money but the Court has to make a decision for you. 

18.	Your lawyer added by informing the Court that, you are 45 years old and married with 6 children. You come from the Hiorenkia Village, Nigerum, Western Province. You are the 2nd born in a family of 4, 2 brothers and 2 sisters. Both of your parents are deceased and you belong to or a follower of the Seventh Day Adventist Church. You have no formal education. You have, however, managed to get some casual employment with Poon Catering Services for 7 years. 

19.	We turn next to a consideration of the factors for and against you. We start with a consideration of the factors in your favour. The first thing the Court notes and takes into account is your guilty plea. That saved the State much time and expenses of running a trial to establish your guilt. Guilty pleas in most cases allows for a lenient treatment of an offender.

20.	Secondly, your lawyer also pointed out and the Court accepts that, you are a first time offender. This means you have not been in trouble with the law all your life. This was the first time for you to commit an offence. You are 45 years old. That means you have been a law abiding citizen for that long and this is the only time you stepped out of line. As with a guilty plea, the law allows for a lenient treatment of first time offenders with good character and standing in the community in contrast to repeat offenders. Hence this is a factor in your favour.

21.	Thirdly, your lawyer submitted and the Court accepts that, you expressed remorse. At the same time, however, the Court notes that, there is no evidence of you paying any compensation or otherwise taking some real steps to appease the wrong you have perpetrated against your nephew. You say now that, you have money to pay compensation if need be and you will go by whatever decision the Court makes. The Court also notes that, you are a Seventh Adventist Christian. As the Court said in the course of your lawyer''s submissions, all Christians are under an imperative not to react negatively but positively to anything said or done against them. This is encapsulated in the principles such as, if someone hits you on one side of your cheek, give him the other cheek also for the assailant to hit, or that if anyone steals a garment from you, you give the thief something else to take. All of these principles were clearly displayed by Jesus Christ the man behind all of Christianity, on the cruel cross of Calvary at Mt. Golgotha. He did not retaliate to all the pain and suffering that the Romans and even the Jews inflicted upon him. He did not call the host of heaven to come down and strike down his attackers and those who crucified him on the cross, even though he had every power and reason to make such a call. Instead, he said, ""Father forgive them for they do not know what they do"". 

22.	Turning now to a consideration of the factors against you, what has just been stated as regards your claimed Christianity goes against you. Additionally, then, the Court notes firstly, that you attacked the victim with a dangerous weapon, arrows fired from a bow. Arrows are commonly used in our country to hunt down big animals such as wild pigs and even human beings. They are therefore very dangerous weapons. How dangerous it was, was demonstrated in this case, when you caused the serious life threatening injuries to your own nephew. If it were not for the medical intervention and treatment, he would have died. 

23.	Secondly, the Court notes that the fight was between your younger brother, Rex and your nephew. Their fight had ended with Rex safely taking refuge in a house. Members of your own community who were there tried to stop you without success from you attacking your nephew. You did not adhere to the wisdom of the community members. You chose instead to defy them and show that you were more powerful despite being a SDA Christian and injured your nephew in the way you did. You show that, you were not a Christian at all by your very own conduct which went clearly against Christian teachings. 

24.	Thirdly, save only to come into Court belatedly to say you are prepared to pay compensation, you took no step whatsoever to appease the wrong, injuries, pain and suffering you brought upon your nephew. A person who is truly sorry for his wrongful conduct often takes prompt steps to appease his or her wrongful conduct. You did not do that.

25.	Fourthly, you were much older than your nephew. People in these kinds of relationships look upon the older person for appropriate and proper guidance in life and protection from all or any forms of danger. Coupled with that and the fact that you are a SDA Christian as well as the intervention of the members of the community, you were in a better position to appreciate that, what you set out to do against your own nephew was wrong but you proceeded to act in the way you acted. There is no evidence before the Court that shows that, your nephew was a lawless person and was a real bighead in the community or that you had something personally against him. If anything, you had difficulties with your sister, Luvis'' mother and possibly her husband. That is however, no reason to attack their child who was not a party to that which caused you and Rex to attack him. What you did was a display of very bad conduct from someone who could be seen as an elder in the village and in the family.

26.	Finally, I note that the offence you committed is a very prevalent one. People throughout the country are not taking their problems to the lawful and peaceful avenues such as the Courts, from the Village Courts at the village level to the District and National Courts for a peaceful resolution of their conflicts, if they cannot resolve them amongst themselves. Instead, they are resorting to taking the law into their own hands and are freely and violently attacking others even in our towns and cities. These people like you, are defying the law and claiming in effect that, they are above the law. When people like you are eventually caught by the law, the law through the judgments of the Court has made it clear that, the law is above everyone else, even including the Prime Minister and the Judges.

27.	Carefully weighing both the factors in your mitigation as well as those against you, the Court finds the factors against you far outweighing those in your favour. Hence a sentence up to or close to the maximum is called for. However, given your guilty pleads and being a first time offender, the Court is of the view that a sentence of 6 years is appropriate. 

28.	The Court has given consideration to the possibility of ordering the payment of some compensation and suspension of either the whole or part of the sentence and has decided against them. The reason for this is simple. Firstly, you are an adult in that, you are well past the age of 18 or 19, going by the decision of the Supreme Court in Acting Public Prosecutor v. Don Hale. Secondly, there is no pre-sentence report that supports an order for compensation and suspension of sentence. Going by the decision of the Supreme Court in Edmund Gima v. The State & Siune Arnold v. The State, this Court notes that, unless there is a pre-sentence report supporting an order for compensation and a suspension of sentence, there can be no such order or decision. 

29.	Further, the Court notes that, sending you to prison will of course affect your wife and your children and or other relatives. That is however, the direct consequence of your own criminal conduct. That is the consequence you chose when you choose a violent way to resolve your problems. You had the opportunity to choose a peaceful way of resolving that problem and thereby avoid adverse consequences against your wife and children and other relatives but you did not choose that path. Many decisions of both the Supreme Court and this Court have made this clear. This Court''s decision in The State v. Marety Ame Gaidi states the law and mentions some of the authorities on point which we need not discuss in any detail save only to mention it as we have here. 

30.	Ultimately, the Court is left with no option but to have you sent to jail to serve your sentence of 6 years. Of that sentence however, the Court orders a deduction of the time you have already spent in custody and you serve the balance in hard labour at the Nigerum Correction service. A warrant of commitment shall issue forthwith in those terms.
____________________

Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner