N5453

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 624 OF 2012

THE STATE

V

TORRY AKIA

Popondetta: Toliken, AJ
2013: 15th, 19th, 23rd November

CRIMINAL LAW – Sentence – Grievous bodily harm – Prisoner, a policeman shots victim on foot with gun – Victim picked up by prisoner and colleagues and was being conveyed to Police Station when shot – Mitigating factors - Guilty plea – first time offender – Substantial compensation(K10,000 cash and K5000 in kind) paid – Fully reconciled with victim – Aggravating factors – Use of dangerous weapon – Victim in lawful custody when shot – Prisoner a serving policeman – Prevalent offence – Appropriate sentence – 3 years – Suspension – Supported by favourable PSR – Sentence wholly suspended – Prisoner placed on probation – Criminal Code Act Ch. 262, s 319. 

Cases Cited

The State v Eddie John Naopa (2003) N2411
The State v Bob Ananias CR No. 1413 of 2003, CR No. 1414 of 2003 (unreported and unnumbered judgment dated 20th April 2006
The State v Fidelis Kiatni (2011) N4331
The State v Paino Auduwa, CR No. 520 of 2011 (unnumbered and unreported judgment delivered on 7th of December 2012 at Kimbe
The State v Emoto Noine CR No. 179 of 2012 (unreported and unnumbered judgment dated 25th September 2013)
The State v Modoreta Anataula, CR 568 of 2012 (Unreported and unnumbered judgment dated 24th October 2012)
The State v Mark Ezekiel, CR No. 52 of 2012 (Unnumbered and unreported judgment dated 24th October 2013)

Counsel

J. W. Tamate, for the State
P. Moses, for the accused

JUDGMENT ON SENTENCE

23rd November, 2013

1.	TOLIKEN, AJ:	 On the 15th of November 2013, the prisoner pleaded guilty to one count of unlawfully causing grievous bodily harm to one Japheth Jahara on the 14th of March 2010 at Hohorita Wet Crossing along the Kokoda Highway. This is an offence under Section 319 of the Criminal Code Act Ch.262.

2.	The brief facts put to the prisoner on arraignment as that on 14th March 2010, the accused and other police officers had picked up the victim who was suspected of sorcery from his village and were travelling back into Popondetta town. At the Wet Crossing at Hohorita, the accused stopped the vehicle and ordered the victim to get out of the vehicle and go and have his bath in the river. The victim obeyed, alighted and went into the river and had his bath as ordered. The accused then got an A2 assault Rifle, aimed it at the victim and shot him on his right foot causing him bodily harm. He then ordered the victim to get back into the vehicle and they continued on to the Popondetta Police Station where they placed him in the cells with his injuries. The victim later discovered by another officer who then took him to the hospital for treatment.

3.	I entered a provisional guilty plea. I confirmed it after I had read the committal court depositions and accordingly convicted the prisoner.

4. 	The prisoner is a serving member of the Police Force. Because of this offence he is currently under suspension. He is 37 years old and comes from Maputo village, Baimuru, Gulf Province. He is married with four children. He comes from a family of six where he is the 3rd born. He is an adherent of the Baptist Church. He was educated up to Grade 12. He has no prior conviction.

4.	When asked to address the court this is what the prisoner said:

"The victim approached me sometime later after the incident to settle matter out of court by way of compensation. We agreed and I paid the victim K10,000.00 in cash and K5,000.00 worth of food stuff. We have settled and there are now no grudges between us."

5.	A Pre-Sentence Report (PSR) was filed. The report is favourable to the prisoner and confirmed that he did pay compensation as he stated in allocutus. The prisoner is assessed to be a suitable candidate for probation supervision.

6.	Mr. Moses, on behalf of the prisoner asked me to take into account the prisoner's mitigating factors which include his guilty plea, that he is a first time offender, the injury was not permanent, that a substantial amount of compensation was paid and that the prisoner and the victim had reconciled. Counsel said that the mitigating factors outweigh the aggravating factors. He suggested 3 years as appropriate and that that should then be fully suspended on terms.

7.	Mr. Tamate for the State conceded that substantial compensation was paid and that it is a significant mitigating factor. He agreed with the defence that a three year suspended sentence would be appropriate.

8.	This offence carries a maximum penalty of 7 years. It is, however, well settled that the maximum high is reserved for worst instance of offending and whatever the sentence will be will depend very much on the peculiar circumstances of each case. 

9.	The offence is pretty prevalent so let me consider a few decided cases to gauge how what sentences had been imposed on offenders as of late in order to assist me in arriving at an appropriate sentence for the prisoner. 

10.	The State v Eddie John Naopa (2003) N2411. There, a gang attacked school girls returning from a Scripture Union Fellowship. The prisoner grabbed the victim and threatened her with a knife in fact cut her left fingers. She fell into a drain and the prisoner shot her in her eyes with a stone with a sling shot. Though the victim recovered from her injury to her eyes, she unfortunately lost 100% sight from that eye. The prisoner was a first time offender. He pleaded guilty to the charge and expressed remorse. Even though compensation was paid, the offender did not contribute to it. He was sentenced to 5 years, 3 of which were suspended on terms.

11.	The State v Bob Ananias CR No. 1413 of 2003, CR No. 1414 of 2003 (unreported and unnumbered judgment dated 20th April 2006). There, the prisoner pleaded guilty to two counts of causing grievous bodily harm to two victims whom he had suspected of being responsible for her mother's illness through sorcery. He held them captive and slashed one of the victims on the leg with a bush knife. He also cut off one of his fingers. He then slashed the other victim with the knife. This victim suffered permanent injuries. The offender was sentenced respectively for 1 year and 3 years.

12.	The State v Fidelis Kiatni (2011) N4331. The offender pleaded guilty completely chopping off the victim's right hand. He was a youthful offender with no prior convictions. Against him were the facts that he used a dangerous weapon and the victim lost 100% permanent disability to his right hand. The offender was sentenced to 4 years, 2 of which were suspended on terms.

13.	The State v Paino Auduwa, CR No. 520 of 2011 (unnumbered and unreported judgment delivered on 7th of December 2012 at Kimbe). The prisoner there attacked the victim with a bush knife. He slashed the victim's ankle with a bush knife. The ankle was fractured and was only held by the skin. Though the doctors managed to debride the leg, the victim will not regain full and complete use of his leg. This was a vicious attack. The prisoner pleaded guilty and was a first time offender expressed remorse and there was non-legal provocation. No compensation was made nor was any offer for reconciliation given to the victim. I viewed this case to be a near worst case and imposed a sentence of 5 years. I suspended 3 of these with conditions which included K5,000.00 compensation and reconciliation.

14.	The State v Emoto Noine CR No. 179 of 2012 (unreported and unnumbered judgment dated 25th September 2013). The prisoner there confronted the victim who had some time before made sexual propositions to his wife. He fought with the victim and then retired. However, the victim threw a stone at him and the prisoner returned and in an attempt to parry a blow by the victim, the prisoner cut the victim's hand above the wrist. The hand was later amputated. I sentenced the prisoner to 4 years imprisonment two of which I suspended with conditions.

15.	The State v Modoreta Anataula, CR 568 of 2012 (Unreported and unnumbered judgment dated 24th October 2012). There the prisoner cut the victim on the shoulder, arm and chin with a bush knife. He was angered because the victim had taken his wife to be away to his village. The wounds were life-threatening. He pleaded guilty to the charge. I took that into account and the fact he was a first time offender, there was non-legal provocation and payment of customary compensation. I sentenced the prisoner to 2 years less time spent in custody awaiting sentence. I then suspended the balance with conditions because of a good PSR.

16.	The State v Mark Ezekiel, CR No. 52 of 2012 (Unnumbered and unreported judgment dated 24th October 2013). There the prisoner pleaded guilty to causing grievous bodily harm to the victim whom he had caught trying to steal from his taro garden. The victim and another person had gone into the prisoner's garden in the early of the morning. The prisoner followed them to his garden and disturbed them just as they were harvesting his taro. He chased after them and caught up with the victim and then proceeded to brutally attack the victim completely slashing off his right arm. He then cut the victim's other arm inflicting deep extensive wounds to that arm. I sentenced the prisoner to 5 years. Due to a favourable PSR I suspended 2 years and bound the prisoner over to be of good behaviour with conditions including payment of compensation. 

17.	Now turning to the current case I find in the prisoner's favour the following mitigating factors:

•		He pleaded guilty to charge.
•		He is a first time offender.
•		He paid substantial compensation of K10,000.00 cash and K5,000.00 	worth of food stuff.
•		He reconciled with victim.
•		The victim's injuries were not permanent.

18.	Against him, however, are the following aggravating factors.

•	Use of dangerous weapon (gun) on a defenceless victim.
•	The victim was in police lawful custody.
•	Prisoner was a serving police officer on duty.
•	Offence prevalent.

19.	So does this case fall within the worst category? The peculiar circumstances of this case place it up there close to the worst. The victim was in lawful custody of prisoner and his colleagues. He was merely suspected of sorcery and regardless of whether or not he was a sorcerer, he deserved the full protection of the law through its law enforcement officers like the prisoner. The prisoner assumed the role of prosecutor judge and jury when he shot the victim that day.

20.	Apart from the victim, something else became victim that day - that is the rule of law. It suffered a blow when the prisoner, a policeman on duty decided to extra-judicially mete out punishment on the victim for a mere suspicion of sorcery.

21.	Every time those of us who are supposed to be enforcing the law behave in this manner, the public lose confidence in our ability to protect them. Police brutality of late has been such that citizens are now wondering out loudly who will protect them from law breakers when certain members of the police force are increasingly becoming lawless themselves. It is as if the law enforcers have given up trying to uphold the law so much so that they now feel that if you can't beat the criminals, join them and become criminals too.

22.	This case, therefore, calls for a strong punitive sentence which will and must deter the prisoner and like- minded colleagues of his. I, however, do not lose sight of the fact that he has paid substantial compensation which must and should mitigate his offence significantly. So, what would be an appropriate sentence for him? 

23.	I think a sentence of 3 years would be appropriate in the circumstances. I, therefore, sentence the prisoner to 3 years imprisonment less time spent in custody pre-sentence. This works out to be 9 days. Resultant sentence should be 2 years 11 months and 21 days. Should there be any suspension?

24.	There is a good PSR in his favour and because of his significant mitigating factors, I think that a full suspension is appropriate. I, therefore, wholly suspend the sentence and order that he enter into probation for a period of 3 years with additional conditions that he should perform 200 hours of unpaid community work at the Popondetta General Hospital.

13.	My orders are therefore as follows:-

1.	Prisoner is sentenced to 3 years IHL of which 9 days is deducted for pre-sentence custody period leaving a resultant sentence of 2 years 11 months and 21 days.

2.	The resultant sentence of 2 years 11 months and 21 days is wholly suspended and offender is placed on 3 years probation with the condition that he shall perform 200 hours of unpaid community work at the Popondetta General Hospital under the supervision of the Provincial Probation Officer in consultation with the Office of the Hospital Chief Executive Officer.

3.	The Probation Officer shall file 6 monthly reports to the Court.

4.	The accused's bail is forfeited to the State for absconding bail while awaiting trial resulting in his arrest.

__________________________________________________________________
Public Prosecutor:  Lawyers for the State
Public Solicitor: Lawyers for the prisoner