Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Bongi [2014] PGNC 367; N6536 (10 November 2014)

N6536

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR712, 713 & 714 of 2012

THE STATE

V

EDWARD BONGI, MICHAEL BONGI

CHRISTOPH LINGE

Kimbe: Batari J
2014: 9 July, 10 November

CRIMINAL LAW – sentence – grievous bodily harm – accused chopped off hand of suspected robber with bush-knife – seriousness of – circumstances of aggravation –payment – prevalence of – plea – factors in mitigation – de facto – provocation – compensation – orders for – punitive effect of in custom – 6 years suspended on probation orders appropriate.

The accused persons attacked a suspected robber chopping off his left hand at the wrist joint. This is their sentence following their plea of guilty.

Held:

(1) In mitigation, an early guilty plea adds value to consistency of the offender’s mitigating conduct and pertinence following commission of the offence. [5 - 19]

(2) Grievous bodily harm falls into serious crimes of violence where a plea may be favourably supported by such factors as good background, genuine remorse, compensation and restitution. [8-19]

(3) Payback though widespread and seemed culturally entrenched is unconstitutional and repugnant against principles of civil liberty. [26]

(4)

Cases Cited:

JohnElipaKalabus v The State [1988] PNGLR 195
Kalabus v The State [1988] PNGLR 193.
Public Prosecutor v TomAke [1978] PNGLR, 469
The State v PaulKalu (2011) N5270.

Counsel:

A. Bray, for the State

S.Inisi, for the Accused

DECISION ON SENTENCE

10 November, 2014

1. BATARI J: The three of you of Dire Village, Talasea District of West New Britain Province unlawfully caused grievous bodily harm to Kevin Vava Marongo. On 9 July 2014, I convicted you upon your plea of guilty and reserved to consider your sentence. The Court also ordered pre-sentence and means assessment reports.
   
2. You are in Court again today to receive your punishment. Presentence reports from Probation Officers Ms Elizabeth Passingan and Mrs Christine Robe are now before the court. I find each report commendably comprehensive and useful given the difficult task of sentencing particularly, in this case involving youths and an adult who, subsequent to his arrest, lost a limb in reprisal.
   
3. The common facts for the purpose of your sentence are that on 22 May 2012 Edward Bongi was on National Elections campaign trail with others when robbers held up their vehicle and robbed them. They proceeded to Dire where he informed the villagers about the incident and the loss of election goods intended for them. Angered by the report, village youths, Michael Bongi and Christoph Linge amongst them, commandeered the election vehicle in pursuit of the robbers. Edward Bongi possibly knew the identity and location of the robbers because you proceeded to Kopa village and attacked the victim.
   
4. The medical report compiled by a Dr.Peter Yama of Kimbe General Hospital confirmed the injuries the victim suffered from the attack as follows:
   
   • (i) A 20cm wound on mid scalp of the head.
   • (ii) 30cm wound across left eye and temporal bone involving left eye.
   • (iii) Complete amputation of left hand at wrist joint.
   • (iv) Severed left foot extensor tendon.
   • (v) Compound fracture of the right lower third of the leg.
     
5. In deliberating your punishment, I have considered matters for and against you under the heads,following.
   
   • (A) MITIGATION
     
6. Your lawyer, Mr. Inisi has submitted a number of factors that are in your favour from your instructions and from the presentence reports. I will refer to some in so far as they are relevant and important factors in mitigation.
   
   • (i) Arrest and Custody
7. You were detained shortly after the incident following your voluntary surrender to the police and kept in custody for two weeks before bail. Your case was however, delayed after you absconded bail. You have been incacerated since your conviction on 9/7/14, a period of four months. I will deduct your custodial period from the head sentence that I will shortly impose.
   
   • (ii) Plea of Guilty
8. A plea of guilty will usually be reflected in the final outcome of sentence. This however depends on a number of considerations. The worth or value of a plea may be dictated by the serious nature of the offence and other personal factors like good background, compensation, restitution, remorse and contrition on the part of the offender.It has been long recognised that a guilty plea may demonstrate and support remorse and contrition. Public Prosecutor v Tom Ake [1978] PNGLR, 469; Kalabus v The State [1988] PNGLR 193. On the other hand, in crimes of violence or serious crimes like wilful murder, murder, violent rape, violent arm robbery, a plea of guilty by itself will have no effect at all on the outcome of the final sentence: John Elipa Kalabus v The State [1998] PNGLR 195.
   
9. The effect of a plea of guilty may also depend on when it is taken. An early plea may have more weight. A delayed plea may also favour the accused but the weight to be attached will depend on a number of factors such as; case listing, plea bargaining, frequency of court sittings or court circuits, change of lawyers, or fitness of the accused to enter a plea.
   
10. Where the accused procrastinates on his right to stand trial and changes his plea in the last minute or in the middle of the trial, the plea may be consistent with lack of remorse or indifference and therefore, less weight. The significance of an early plea is the opportunity of having to serve the penalty early. But more importantly, a plea at the earliest opportunity adds to consistency of the offender’s mitigating behaviour and penitence following the commission of the offence. The State v PaulKalu (2011) N5270.
    
11. The offence of grievous bodily harm is not in the same category of grave seriousness as piracy, wilful murder, murder, violent rape and violent arm robbery. It is nevertheless a serious offence of violence where a plea may be favourably supported by such factors as early admissions, genuine remorse, payment of compensation anda generally good background with no record of prior conviction. These attributes are present in your case. They support your guilty plea.
    
    • (iii) Remorse
12. You all have expressed remorse in open court. That is supported by your plea of guilty. From your conduct immediately following the offence, Edward Bongi readily cooperated with the police. You voluntarily surrendered and freely admitted your involvement.
    
13. Michael Bongi, unlike your father, you reluctantly conceded your role to the police. It was the same with you, Christoph Linge. The two of you did not expressly admit your involvement though your guilt may be inferred from your records of interview admissions of presence. Your expressions of remorse have support in your plea of guilty.
    
14. Some form of compensation in traditional ‘rea’ shell money together with cash amount of K500.00 or more than K1,000.00 have been paid. It is not clear on whose behalf that was paid but you all have offered to pay compensation. The willingness to pay compensation may also be an indication of remorse.
    
    • (iv) Personal Circumstances
      
15. Edward Bongi, you are 49 years old and married with four children. One of them is 21 year old Michael, your co-accused. You are a subsistent farmer. Your son, Micheal completed grade 10 and went on to do an IT course in 2011 but the course folded. From the beiginning of this year until June when Micheal resumed studies at the IT Training Centre, he was in brief employment. Your family has two oil palm blocks, two cocoa blocks and a coconut block. During the 2012 National Elections,Edward was a campaign leader for one of the candidates. Your misfortune in being a robbery victim arose out of that.
    
16. You were put through further trauma and misery after your arrest. While waiting for your trial, you became a victim of ‘jungle justice.’ The victim’s brother chopped off your arm at the wrist joint in total disregard of the rule of law. At this point, no-one has been charged and it is not known if anyone is ever going to be held responsible. So that there is no misapprehension of double punishment or jeopardy, I will take into account the personal hardship and the unlawful ruthless punishment meted out to you.
    
17. Edward and Michael are members of the Bahai’i Faith while Christoph Linge is a Catholic follower. Your general good backgrounds are well documented in the the presentence reports. For each one of you, this is your first offence.
    
18. Christoph Linge was a youthful offender aged 17 years at the time of the offence. Your father was also implicated but he has not been charged. You were no doubt led by older men. The presentence reports say your father has a syndrome which affects his agility. That leaves you to support him with your old mother at the family oil palm and coconut blocks. Apart from those and a youthful first offender factor, there is nothing else remarkable from your personal background.
    
    • (v) Motive
19. Your offence was incited by a robbery incident. You fell victims and the campaign vehicle was also damaged. Items of goods lost in the incident included trade store goods for the Bongi family canteen. Kevin was the principal suspect and you had set out to avenge the wrong he had purportedly committed against you. The victim was also alleged to have anti-social attitude towards your village.
    
20. You chose the wrong remedy for your complaint. I do accept however, that you had reacted strongly against a very serious criminal act and that some elements of provocation existed. You had reacted on the spur of the moment.
    
    • (B) AGGRAVATING CIRCUMSTANCES
      
21. This type of offence is most prevalent in this province, more particularly so,with respect, amongst the settlers and the local Bakovi tribal group in the Talasea District. The offence is associated with violence committed sometimes in the most extreme and ghastly circumstances.
    
22. The escalating frequency of this offence just about any where in urban or rural areas shows, Christianity and goverment influences have had little impact on the social, cultural beliefs and attitudes of the people. At this day and age, common sense should prevail in conflicts, whether real or perceived. Good sense should guide the choice of right from wrong;peaceful remedy over violence.
    
23. The nature of the injuries the victim sustained in this case is a clear indication of a vicious attack. The facts suggested that you and others deliberately armed yourselves with bush-knives and timber in pursuit of the robbers. One of your accomplices struck Kevin Vava with the timber before the three of you attacked him with bush-knives. You exhibited unrelenting aggression after Kevin fell and lying helpless on the ground. There was a serious attempt to take his life. Kevin is lucky indeed to have survived that gang attack.
    
24. You, Michael Bongi and Chrisoph Linge, intentionally accompanied Edward Bongi to attack the victim. Your active participation and presence provided each other, the necessary support and encouragement. The three of you shared equal responsibility for the multiple injuries caused to the victim. Because of that you are all liable to the same punishment that I am about to impose.
    
25. Anyone who unlawfully assaults, injures or causes grievous bodily harm shows a weakness in attitude and propencity towards violence. No society that thrives on the rule of law and freedom should tolerate such potentially violent persons living freely amongst the majority of peace-loving people. Such persons deserved to be punished in the community interest.
    
26. You attacked Kevin in a way that demonstrated your violent nature. You sought him out at his village having suspected him as a robber. He might well be an innocent victim and was possibly unaware that you were there to attack him. You did not give him the opportunity to explain himself in court. Instead, you became his accuser, prosecutor and executioner. You could have literally chopped him to death.In other words you took the law into your own hands.
    
27. Your case was a payback. The frightening thing about payback is that those seeking revenge decide what punishment is to be inflicted, when it is to be inflicted and on whom it will be inflicted. The payback system, based on the notion of an ‘eye for an eye’ and a ‘tooth for a tooth’, albeit, widespread and culturally tolerable, is unconstitutional and repugnant to the general prnciples of civil liberty. Disputes and grievances arising from wrongful conduct of others should be left for the courts to decide through the formal course of justice, the right person has been blamed for the crime and to punish that person.
    
28. It is clear you and your fellow villagers ignored the formal way to settle your grievance. You decided instead, to take the law into your own hands. You chopped off the victim’s hand at the wrist joint and also caused him permanent loss of the left eye. You need not attack him in the violent manner you did. The circumstances of your offence warrant punishment by imprisonment.
    
    • (A) COMPENSATION
      
29. You have each offered to pay compensation. If compensation is a justifiable option, the maximum amount to award is K5, 000.00 under s. 5 (3) of the Criminal Law (Compensation) Act 1991.Of this maximum limited amount, it is my view that it applies separately to each offender. Before this Court are three co-accused persons on trial together but to be sentenced separately under s. 19 of the Criminal Code. The Court may order disparity of sentence as in the case of a child or juvenile co-offender. Similarly, under s. 2 (1) of the Criminal Law (Compensation) Act a court may, in addition to any other punishment impose, “order an offender to pay compensation.”The amount to be paid by a co-offender may again be determined by his/her active participation or young age. It follows, that where compensation orders are justified in a trial involving two or more persons, the amount ordered in total may exceed the statutory limit of K5, 000.00.
    
30. I have considered that option. The Act authorizes the court when considering punishment, to consider whether to award compensation. Section 3 sets out matters to take into account as follows:
    
    1. Nature and seriousness of the offence;
    2. Degree and nature of any personal injury suffered by the victim;
    100. Any other factors from the offence or the offender's attitude which may be considered in mitigation or aggravation of punishment;
    4. Any relevant custom regarding compensation;
    5. Report on "means;"
    6. Other relevant matters;
       
31. The extent of the injuries the victim suffered makes it an appropriate case to consider compensation for the pain and sufferings. I have had regard to those matters enumerated above and have covered much of them under general and specific remarks in the body of this judgment. A report on the “means” of each prisoner is also before the Court. I am satisfied that each prisoner has some means to generate income. I am also satisfied on the evidence of compensation payment in traditional form (‘rea’ shell money), that compensation is a norm in the Bakovi language group.
    
32. Kevin is not willing to settle for compensation. This is not because he detested compensation or that compensation is not customary. Kevin was initially prepared to settle for compensation but his demands went unheeded largely due to your indifference and unresponsive attitude. Consequently, your stubbornness may have resulted in you losing part of your hand in a retaliatory attack.
    
33. The victim’s initial demand for compensation was crucial not only for early settlement, but compensation by traditional payment of rea shell money has an implied customary punitive element to it. Payment by traditional medium has both the civil and criminal punitive effect. For instance, in many coastal areas, shell money is an integral component of bride price and payment for civil wrong. When a person is wronged in both the civil and criminal sense, payment by shell money is often demanded as a form of compensation or customary punishment.
    
34. The significance of compensation payment, whether to restore peace and bring back harmony or as a customary punishment cannot be underestimated. It has been long recognised by the courts that compensation is a factor that may support remorse and contrition in mitigating sentence.
    
35. I propose to order compensation, taking into account, the seriousness of the assault, the extent of the injuries and permanent disabilities the victim suffered and the customary payment of rea shell money as punishment.
    
36. This award will not stop any further court action by Kevin for compensation. He may pursue his personal claims through the civil courts for damages for personal injuries sustained. Any eventual award for assessment of compensation in a civil suit will take account of this order for compensation. Whether the result in any such legal action would be an award of greater compensation from you is a question I need not answer here.
    

Summary

37. The crime of grievous bodily harm carries the penal servitude of 7 years imprisonment.Your conduct fall into the worst type. Therefore the maximum or near maximum term of imprisonment is warranted.
    
38. I take into account your plea of guilty and expression of remorse. This is your first offence. Michael and Christoph were youthful offenders. Edward has paid dearly with permanent loss of an arm at wrist joint. You lost part of your hand in a classic eye for an eye, tooth for a tooth payback. They chopped off your hand at the exact location of the left hand where the victim Kevin Vava lost his hand.
    
39. You have each served sometime in custody awaiting your sentence. I do not propose to send you back to jail. I think you have seen, experienced and learnt how difficult and overwhelming it is to lose your freedom for a long time. An order for compensation award is also appropriate for all these reasons.
    
40. Pursuant to s. 6 of the Criminal Law (Compensation) Act, I order that you compensate Kevin Vava Marongo in cash and in traditional items as follows:
    
    1. You shall pay compensation of K3,000.00 each in cash;
       
    2. You shall pay group compensation of rea shell money at market value of K600.00 and a pig at market value of K600.00;
       
    100. Compensation shall be paid within 3 months or by 10 February 2015; in default 6 months imprisonment;
         
    4. Compensation is payable to Kevin Vava Morongo;
       
    5. Compensation shall be paid at a reconciliation ceremony by arrangement through Senior Probation Officer, Ms Elizabeth Passingan of Kimbe CBC Office and the Talasea District Administrator.
       
41. The sentence of the court is six years imprisonments in hard labour. You have served four months in custody. That period is deducted from the head sentence. The balance of five years and eight months is suspended on the usual terms of probation orders and in addition;
    
    1. The conditions of suspended sentence are that each of you :-
       
       1. Shall within 48 hours, report to the Probation Officer;
          
       2. Shall reside at Dire village and nowhere else without leave of the National Court;
          
       100. Shall not leave Dire village, Kimbe or West New Britain Province without leave of the Court;
            
       4. Shall pay the victim, Kevin Vava compensation as adjudged;
          
       5. Shall perform 600 hours of unpaid community work at a worksite nominated by the Probation Officer and approved by the Court;
          
       6. Shall attend church every weekend for service and worship and submit to counselling;
          
       7. Shall join a Church Fellow group and participate in all its activities;
          
       8. Shall not take, consume, or deal with any form of alcohol or drug;
          
       9. Shall keep the peace and be of good behaviour for five years;
          
       10. Shall have a satisfactory probation report filed with the National Court Registry as required;
           
       11. Shall appear before the National Court as and when required.
           
    2. The Probation Office shall file quarterly reports with the first of such report due at the Call-over in March 2015 and whenever required on your responses and progress on probation until discharged in five years or by 10 November, 2019.
       
    3. In the event of a breach of any of these conditions, you shall be brought before the National Court to show cause why you should not be incarcerated to serve the suspended term of five years, eight months imprisonment.
       

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