N3742

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 59 of 2007

THE STATE

V

YATIME KOROGULA

Goroka: Kirriwom. J
2009: 20 August

(No.2)

CRIMINAL LAW – Sentence – unlawfully doing grevious bodily harm – prisoner cut victim’s left thumb almost severing it – victim’s relatives retaliated and chopped prisoner with bush knife all over his body – both prisoner and victim recovered with residual scars and discomfort – compensation paid day after incident by prisoner’s relatives – dispute over land – fight started by victim’s brother – prisoner retaliated but used bush knife – Prisoner sentenced to 2 years imprisonment and suspended wholly on condition of good behaviour and compensation of K2028.00 already paid – Criminal Code, s.319

Cases Cited

The State v Peter Erne [1998] Unreported National Court Judgment N1939 (10/4/98)
The State v Larsen Talian [2003] Unreported National Court Judgment N2382 (23/4/03)

Counsel

K. Umpake, for the State
V. Agusave, for the Accused

SENTENCE

20 August 2009

1. KIRRIWOM. J: The prisoner Yatime Korogula was found guilty after a trial and convicted of unlawfully doing grevious bodily harm to a fellow villager Don Peter. They are from Donito village, Lufa District in the Eastern Highlands Province.

2. Under the Criminal Code this offence carries a maximum penalty of seven years imprisonment. I have heard submissions from both lawyers on sentence and I am grateful especially to Ms. Mauta who has put a lot of work in preparing a very balanced presentation in a very difficult case where the court had already taken a view of what it intended to do subject to appropriate assistance being given by the prisoner’s counsel and agencies responsible for providing relevant reports to the court on sentencing.

3. After all the evidence has been placed before the court, it had become quite plain to me that this is a case that the parties took the law into their own hands and dealt with their problem back in the village on the day it happened by resorting to eye for eye and tooth for a tooth method of justice. When I looked at the evidence before me on the injuries received by the victim and the injuries inflicted on the prisoner in retaliation, the prisoner copped the worst of the two according to the medical reports before me and also from what each displayed for the court to see during the trial. 

4. Because the extent of the injuries in this kind of cases play significant role in sentencing I set out the nature and extent of injuries that both the victim and the prisoner received in this same incident:

Don Peter’s injuries	Prisoner’s injuries	
Single cut or wound on left palm almost severing the left thumb, kept hanging by skin but has since reunited with 17 stitches and treated with antibiotics and painkiller tablets leaving him with permanent disability of 90% loss of full function of left thumb, visible scar of knife mark on hand. 	Multiple wounds including:
Forehead – deep bush knife wound, now healed with scar
Nasal septum – healed laceration with slightly deformed septum
Left index finger – laceration healed – markedly reduced grip and grasp functions – restriction of joint movements at interphalangeal joints
Left elbow – healed stable fracture of bone
Left ankle – healed lacerations
Left knee – traumatized, now still having pain and not walking well due to pain
Back/spine – painful and difficulty standing from sitting position.

45% of permanent functional loss of efficient and effective use of the injured parts of the body
	
Report compiled by the District Health Officer Mr Gabriel Wau of Lufa Health Centre dated 20/09/06.	Report compiled by Dr. Max Manape – MOIC-A&E/AOPD
Goroka General Hospital dated 9/10/06	

5. In a society where all things being equal, it would have been said that ‘fair is fair’ and there is no need to take this matter further. However, they will still need to find a lasting peace between them and that is what they all have work towards achieving it for true peace and tranquility to prevail between them despite the fact that the score was even.

6. We do not have the benefit of established informal dispute resolution mechanisms to process complaints in the community level before they reach the formal criminal justice system or process thus resulting now in the prisoner being the only one arrested and charged for causing injury to the victim, Don Peter whereas those who inflicted serious bodily harm upon the prisoner have been exempted from criminal prosecution. Unless those who assaulted the prisoner are also going to be arrested and charged for causing grievous bodily harm to the prisoner, current prosecution of the prisoner can amount to persecution than prosecution simply because he is said to have caused the injuries on the victim Don Peter without any provocation, an assertion I have already found to be false. This can even amount to a biased prosecution when all was settled back home where both sides suffered severe injuries and the victim’s side was compensated immediately which I will come to later in the judgment the following day.

7. When I look at the facts to understand why this trouble started that day I see the victim and his line are pointing their fingers at the prisoner, but the reality is the reverse. This problem could not have exploded into this unfortunate proportion, had only Joshua Peter controlled his temper and restrained himself from assaulting Aneane. Joshua Peter should have allowed the law to deal with his complaint rather than taking the law into his own hands. He provoked the whole chain of events. The prisoner only reacted when he saw his daughter in-law involved in this fracas with Joshua Peter. She was only a woman and not Joshua’s wife for him to physically assault her. The prisoner was therefore justified in intervening not only because she was a woman, but she was his daughter in-law and his son was not at home to defend his wife.

8. There is no question that there is an underlying issue to this dispute. We have seen evidence of the relevant authorities already being alerted of this issue between the parties before Joshua Peter decided to take the law into his own hands. The dispute has to do with land and the prisoner is in the middle of this controversy. We have heard evidence from Joshua Peter of his understanding of the land in question and we heard from the prisoner that the land was his which he gave to Joshua Peter’s mother whom he regarded as his sister through clan relation on his mother’s side. 

9. This is the real sore point of this dispute which lives with the parties day and night. It is not going to go away until it is resolved amicably between them. What this court saw in this case is a spill-over of a much bigger issue at stake.

10. With this understanding of the case in the context as I have explained and given the circumstances unfolded leading to this court hearing and the ultimate conviction of the prisoner, is it going to help solve the crisis at home if the prisoner goes to jail? Would this not trigger a further escalation of the problem in the community where the prisoner’s line already think and so does the prisoner that the victim and his line have already been compensated for the injuries the victim Don Peter received?

11. I have given serious consideration to this case in the light of the facts before me and have come to the conclusion that what the parties should be working on is restorative justice, solving the crisis that stands between them and reaching an amicable solution to finding a way forward so that normalcy is restored amongst them in the community. Sending the prisoner to jail is only a short term answer but not a long term solution to the problem plaguing their relationship that the parties need to come up with. 

12. I note from the pre-sentence report that the victim and his line refused to cooperate with CBC office to give their views on punishment, thereby missing out on a good opportunity to express their feelings. The court only has the prisoner’s views and those of his line and others who know the prisoner.

13. The prisoner’s lawyer says that her client is willing to pay K1,000 in compensation and garden food but the means assessment report is silent on this. However, the means assessment report tells me that the prisoner’s relatives paid K2,028.00 in compensation the very next day when the victims line demanded K2,000 compensation to be paid by 3pm the very next day. The relatives contributed and paid that money to avert further escalation of problem.

14. Otherwise, the means assessment report tells me that the prisoner does not have any money except income generated from coffee which is seasonal. His lawyer submitted that if the prisoner is to be ordered to pay compensation, he must be given at least five months to raise that money during coffee season and come up with the amount ordered by the court. 

15. Both counsels agree that suspended sentence would be a good option and also compensation pursuant to section 2 of the Criminal Law Compensation Act. It seems to me that this latter option can best be left out now as I do not have any assistance in that regard particularly when none of the victim and his line have been interviewed for their willingness to participate in this peace process. For compensation punishment under section 2 of the Act to have a meaningful effect and impact, there must be a willing giver and a willing taker. So all I am now left with to choose from is suspended sentence, probation or both.

16. Sentences imposed in unlawfully doing grievous bodily harm cases currently range between suspended sentence to six years imprisonment at the highest level for the most serious category. In The State v Peter Erne [1998] Unreported National Court Judgment N1939 (10/4/98) Sakora J imposed a sentence of two years on the prisoner and suspended the entire sentence after deducting ten months for pre-trial detention conditional on the prisoner entering into good behaviour bond for two years. It was a bad case where the prisoner and several other persons fought and the victim sustained serious scalp wounds caused by a bush knife and was hospitalized for ten days. His wounds healed completely and was discharged. The prisoner expressed remorse. The State v Larsen Talian [2003] Unreported National Court Judgment N2382 (23/4/03) is another case where the prisoner was found guilty after a heavily contested trial, the court sentenced him to six years imprisonment but wholly suspended the sentence and ordered the prisoner to pay compensation of K5,000 to the victim within a specified time frame under the supervision of the Assistant Registrar of the National Court. That was a very bad case where the prisoner chopped off the victim’s left arm leaving him minus one arm. The victim was a family man with children who was now minus an arm to fend for his family and he wanted compensation. The court exercising its discretion and applying the Criminal Law Compensation Act ordered the prisoner to pay the maximum allowed under the Act to the victim by way of monetary compensation to alleviate some of his burdens.

17. I initially considered the course Jalina J took in that case as I thought compensation as a form of punishment grounded on a suspended jail term would be an effective punishment on the prisoner and one that is beneficial to both parties. But like I stated earlier, I cannot apply this option because the victim and his line chose not to participate in the scheme. The success of this sentencing option rests on the willingness on both sides to meet each other half-way to resolve their conflict and to bury the hatchet forever. It is not a one-sided affair where the willing party is prepared and the unwilling party wants to remain aloof and wants no part in the process. 

18. By his unwillingness to participate, Don Peter has denied himself and his family this golden opportunity to find lasting peace amongst them, through a controlled and regulated process which guaranteed them acceptable and meaningful end results. The court will now proceed to sentencing the prisoner in the circumstances it thinks just and fair.

19. The prisoner is a middle age man in his fifties and is married with three children. The first born lives with his family in Port Moresby where he works, the second son is also in Port Moresby attending school and the third born son lives at home. He is a community leader and Village Court Magistrate for 21 years. The latter responsibility could not have been bestowed on him without the appropriate leadership qualities that one must possess. The prisoner no doubt commanded that respect from the majority of his people who trusted him to be the custodian of this public office for many long years. What has happened in this case is clearly an isolated incident and it has to be because this is the first scar or dent on his otherwise an unblemished record of his past.

20. I have also considered imposing a suspended sentence on condition of the prisoner paying compensation to Don Peter in addition to what the relatives have already paid to the victim and his line the very next day which has not been refuted by the victim and his relatives through the Means Assessment Report by their deliberate choice not to participate. This has denied me the opportunity of appreciating what that payment was for from the victim’s perspective, and I have decided that I will not make such order for these reasons:

a. Compensation in the sum of K2028.00 in cash has been paid to the victim or his family already on his behalf by the prisoner’s family while the prisoner was under-going medical attention the next day of the trouble. The injury occasioned to the victim was also evened out with similar, if not more severe, injuries occasioned upon the prisoner by the victim’s relatives.

b. The victim’s own brother Joshua Peter sparked off the whole incident by taking the law into his own hands and assaulting Aneane who was the prisoner’s daughter in-law in his presence. She is wife of his son who was in Port Moresby. In many PNG societies when a man assaults another man’s wife, it can almost immediately erupt in a family feud. The prisoner’s reaction was not uncalled for as the guardian of his son’s family. However, he was punched heavily to the ground by Joshua Peter, a younger muscular man compared to the frail old man like the prisoner. They were not evenly matched. 

21. To impose a further monetary penalty on the prisoner when the man who started the all chain of events leading to this incident remains above the law and continues to enjoy exemption from criminal prosecution at the discretion of the law enforcement agencies in Goroka will be making a mockery of the criminal justice system by penalizing only the prisoner. Public Prosecutor may need to look at this case closely with appropriate advice to the police to charge all those implicated in the fight irrespective of the reasons. That is the function of the courts to determine.

22. In my view for his part in these entire chain of events that the victim’s brother started it and they all became tangled up in it, the prisoner has suffered enough firstly in the hands of the victim’s relatives, paid compensation of K2028.00 and then has a conviction recorded against his name in a court of law which is more than enough punishment. 

23. In all the circumstances of the case I sentence the prisoner to two years imprisonment which is fully suspended on the condition that he keeps peace and be of good behaviour for two years.

_____________________

Acting Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused