N6262
PAPUA NEW GUINEA 
[IN THE NATIONAL COURT OF JUSTICE]

CR No: 817 of 2012

THE STATE  
V
JEFFERY UAPIPI & DAVID KUNDU 

Kundiawa: Liosi, AJ
2014: 14th November
2016:  14th & 17th   March, 25th April

CRIMINAL LAW – Practice and Procedure – Murder Trial – Criminal Code s.300 (1) (a) –Trial Complete –Accused found not guilty of Murder – Found Guilty of Grievous Bodily Harm – Section 319 Criminal Code – Submission on Sentence Pending – Trial Judge resigns – Should mistrial be declared – Whether proper for another Judge to complete matter – s.576(3) Criminal Code. 
CRIMINAL LAW – Sentence – Grievous Bodily Harm – Criminal Code Section 319 – Pleaded not guilty to murder – found guilty of Grievous Bodily Harm – Deceased accidentally pushed onto a sharp pocket knife piercing the left ventricle causing death – 
CRIMINAL LAW – Charge of Grievous Bodily Harm resulting in death – Circumstance of Assault – Not as serious – Should range of sentences be higher than normal Grievous Bodily Harm case where death does not occur. – Whether certain Aggravating factors should be taken into account or not. 
CRIMINAL LAW – Pre-Sentence Report – Prisoners Requesting to pay Compensation – Need to pay rather than being ordered to pay – Indication of genuineness of being remorseful – Whether order for Compensation can exceed K5,000.00 – Distinction between compensation order under Criminal Law (compensation) Act and order for damages or compensation as part of Probation order under Probation Act chpp.381. 

Cases Cited: 
Anna Max Marangi v. The State SC 702
Goli Golu v. The State [1979] PNGLR 65. 
John Warambo v. The State SC 551.
Manu Kovi v. The State (2005) SC 789.
State v. Aga (No.2) (2013) N5381.
State v. Lawrence Matau (2008) N3865.
Thress Kumbamong v. The State (2008) SC 1017.

Counsels: 
P. Tengdui, for the State	
M. Yawip, for the offenders  
		
25th April, 2016
	Charge
1.     LIOSI AJ:  The two prisoners are charged that on the 4th day of January 2012 at Kundiawa bus stop in PNG they did each and severally with intent to do Grievous Body Harm to one Daka Mond Kewa killed, the said Daka Mond Kewa a national male thereby contravening s.300 (1) (a) of the Criminal Code Act chp 262. 

Facts for Arraignment 	
2.     The accused are policeman based in Kundiawa. It is alleged that on the 4th day of January 2012 at Kundiawa Town Bus stop, the defendants were on foot patrol at Kundiawa Town bus stop. It is further alleged that the accused knifed the deceased. The deceased died at the Hospital after been taken there.
Plea 
3.     The prisoners pleaded not guilty to the charge of murder under s. 300 (1) (a) of the Criminal Code Act. 
Trial 
4.        The prisoners were tried on one count of Murder but were found guilty of the lesser court of Grievous Bodily Harm. After the verdict of guilty was returned but before the prisoners were sentenced the Trial Judge’s term expired. On the 14th March 2016 the matter came on for Submission by counsels on Sentence. The court noting the above raised the issue as to whether I should hear submissions on sentence or should this matter be declared a mistrial. The matter was then adjourned to 17th March 2016 for submission to be made. On 17th March 2016 the court ruled that it could proceed and hear submissions on sentence as the offenders had already been convicted of Grievous Bodily Harm after a trial. The ruling was made pursuant to s.576 (3) of the Criminal Code which states;
	“If after an accused person has been convicted of an offence but before sentencing the presiding Judge becomes incapable of proceeding, some other Judge may, on application by the accused person or his counsel, or by a State Prosecutor, proceed to sentence as though the accused person had been convicted by him”.
After the Ruling the court proceeded to hear submissions on sentence. 
Allocutus 
5.	On Allocutus Jeffrey Uapipi says he is 42 years old and has been in the Police force for 26 years. The court case has taken about 6 years. The accident happened when they were on Police duty and were charged for the Criminal offence and convicted. He is married with three (3) children to look after. He will respect the court decision and will follow what the court orders him to do. He also asked for court’s mercy. He apologises to the victim’s relatives for what had happened.
6.	 David Kundu says he is 39 years old. He has been in the Police Force for almost 7 years. The incident happened whilst he was on duty. He will rely on the court’s decision and ask the court for mercy. He has two (2) children to look after.	 
Defence Submission  
7.	The brief facts as found by the Court after the verdict of guilty to the lesser count of Grievous Bodily Harm are these. On the 4th of January 2012, both accused were on duty at Kundiawa Police Station. They walked up to patrol the PMV bus stop as there were complaints of street sellers harassing the travelling commuters going to Mt. Hagen. 
8.	It was there that the accused Jeffery Uapipi caught the deceased who was selling pocket knives. He took a knife from the deceased and was talking to him when the other co-accused David Kundu came at the back and pushed the deceased towards Jeffery without knowing that Jeffery was holding a knife pointed at the deceased. The Knife pierced the left ventricle of the heart causing death. The trial Court found that the stabbing was accidental but found that the act of holding out the knife was unlawful as it was a dangerous object and thus convicted the two prisoners of Grievous Bodily Harm. 

9.	The offenders Brief Particulars as submitted by counsel are as follows. Mr. David Kundu is a Policeman attached with the Task Force Unit here in Kundiawa. He holds the rank of Constable and has been with the Police for eight years since 2009. He completed Grade 12 at Tari Secondary School. He is from Koroba station. He is married with two (2) children. Currently he resides at Ega Police Barracks and still on duty as a member of the Task Force Unit here in Kundiawa. 
10.	Mr. Jeffery Uapipi is a Policeman. He holds a rank of Senior Constable and is the officer in charge of general duties here at Kundiawa and also a Shift supervisor. He is married to another officer who is attached with the Criminal Investigation Division. He is from New Ireland Province, and has five children. The eldest has completed grade twelve (12) last year and three are attending primary school. He completed Grade 10 at Namatanai High School in 1990 and joined the Police in 1991. He has served the force for 26 years. He is presently in charge of General duties and a shift supervisor.
11.	The maximum penalty under section 319 of the Criminal Code is seven (7) years. This is however subject to Section 19 of the Criminal Code which gives the Court the discretion to impose lesser sentence. It is trite law that a maximum penalty is reserved for worst cases. Principles established in Goli Golu –v- State (1979) PNGLR 653. It is submitted that this case does not fall under the worst case category. We submit the following factors to demonstrate that this case does not fall under the worst case category.
12. 	In mitigation counsel has pointed to the following factors. Both offenders are policeman and are first time offenders. The fact that this was a trial matter should not be held against them as they were found not guilty for the charge of Murder as Indicted. The evidence shows that the stabbing was accidental and was not done intentionally. Reconciliation has been made where an amount of K5000.00 was paid on behalf of the two accused by the Provincial Government to the deceased family. Both offenders have good working records with the Police Department. Their Pre-sentence Reports contains recommendations by their superiors who spoke highly of them. It is submitted that the Court approve and endorse the recommendation of the Pre-sentence Report for both offenders.
13.	Counsel has further cited the following cases by way of comparison.  
 State –v- Aga (No: 2 (2013) N538, His Honour Justice Geita at Wewak found the prisoner guilty of Manslaughter after he was indicted for Wilful Murder. The Court Sentenced him to 7 years wholly suspended with conditions. 

 State –v- Lawrence Matau (2008) N3865, His Honour Justice Kandakasi, Sentenced the prisoner charged with Murder to 10 years wholly suspended on strict conditions.  
14.	Mr. Yawip submits that the case of State-v- Aga is similar to the current case in that the offence occurred while the prisoner Policemen were discharging their duties, the prisoner tried their best by taking the victims to the hospitals but they died. Both cases were trial matters. However, in relation to Charges, the present case is less serious as the offenders were found guilty of Grievous Body Harm. Further the use of a gun is considered very serious as compared to a pocket knife. The Present case is not as serious as Lawrence Mauta’s case. It is submitted that the prisoner be sentenced to four (4) years to be wholly suspended with Conditions. Both spent three (3) months in custody before been granted bail. 
	State Submission
15. 	Mr. Tengdui of Counsel for the state submits that there are present aggravating factors. 
  It was a fatal wound to a vulnerable part of the body,
 The weapon used was a pocket knife,
 The prisoners were found guilty after a trial,
 The prisoners used the cloak of police and government authority to commit the offense,
 The offense was committed against an unarmed youth, 
It was a vicious and cowardly attack, 
The accused acted in concert, 
Offense is prevalent, especially instances of police brutality, 
Abuse of the trust placed in the law enforcement officers by the public, No provocation.  
16.	For Grievous bodily harm cases, courts have imposed sentences ranging from two (2) years to five (5) years imprisonment depending on circumstances of each case. Given the aggravating factors the State submits a head sentence of 4 – 6 years is appropriate.  
17.	Should the Court suspend any or all of the sentence? The Supreme Court has held in Public Prosecutor v. Don Hale (1998) SC 564, that there can be no suspension of sentence without the support of a pre-sentence report. Suspension of sentence is a discretionary matter to be exercised upon a proper basis. It has been held that suspension may be warranted to promote the personal deterrence, reformation or rehabilitation of the offender: Public Prosecutor v. William Bruce Tardew [1986] PNGLR 91.
18.	In the instant case, the Pre Sentence Report recommends for a non-custodial sentence. However, the peculiar circumstances of the offending involved the breach of a duty as police officers to protect. The breach of this duty calls for a strong punitive sentence in order that other serving members of the police force are deterred from similar conduct. We submit a custodial sentence should be imposed as a general as well as specific deterrent. 
Comparable Verdicts
19. 	It is always a useful practice to refer to comparable verdicts of previous cases dealt with. I deal here with a case where two offenders were charged with murder but were found guilty of Grievous Bodily Harm. The main focus being that a life was taken away. Counsel should not only cite cases but to explain the circumstances and the reasons for the court making such a decision. Counsel have a duty not only to its clients. It also has a duty to court to explain the circumstances and the reasons for a court making a particular decision in past decided cases.  
20.	 Mr. Yawip for the offenders has cited two cases which are relevant. One is the case of Lawrence Matau N3865 and the case of State v. Aga (2013) N5381. A final reference is made to the case of the State v. John Warambo SC 551.
21.	I now discuss this 3 cases and their applicability to the current case. The State v. Lawrence Mattau N3865 (2008).In this case, Mr. Lawrence Mattau, a former Bougainville Revolutionary Army (BRA) strong man and an important link in the restoration of peace and normalcy on Bougainville, pleaded guilty to killing his nephew, Felix Mania. He committed the offence because Felix was having sexual affairs with his wife Mrs. Angella Mattau. Their custom authorized Lawrence’s actions but not the formal introduced Legal system, which Lawrence helped to restore after the Bougainville conflict. He resorted to taking matters into his own hands because no leader or any other lawful authority he turned to was able to help attend to his problem and help find a solution.  The aggravating factors here were, he used a firearm to kill the deceased. Courts have repeatedly said that the use of a firearm is an aggravating factor. He used the same firearm to shoot and injure his wife. Thirdly Human life was taken away with another injured. These are serious factors against Lawrence. The factors in his favour were the finding that his wife was taken away by his own nephew whom he had cared for under his own roof deprived him of any rational thinking. He pleaded guilty. In a situation where Bougainville was just recovering from civil war, it would have been hard bringing offenders to justice. His plea of guilty was invaluable in assisting the court. He had no prior convictions and references spoke highly of him and the part he played in bringing peace and normalcy Bougainville was now enjoying. The prisoner restored the rule of law and the formal legal system in Bougainville. Finally, Lawrence said sorry in his allocatus- He expressed remorse for his nephew’s loss whose loss is a stigma he will live with for the rest of his life. Lawrence committed a very serious offence. However the factors leading to or contributing to the commission of the offence significantly mitigates the severity of his offence. Consequently a wholly suspended sentence of 10 years was imposed with very strict conditions. 
22.	The second case is that of the State v. Anton Vele Aga (N12) (2013) N5381. The Offender pleaded not guilty to Wilful Murder and was convicted of manslaughter under s.302 of Criminal Code. In this case the offender a policeman was on duty with others providing security at Wewak Yacht Club dance. The deceased in a drunkard state approached the offender. Argument erupted. The offender retreated to the Police Vehicle and got the weapon a SLR Assault rifle to ward off the deceased approach. The deceased followed, a scuffle ensured and the rifle went off wounding the deceased in the left rib. He was rushed to the hospital but died on arrival. 
23.	The final case is the Supreme Court case of John Warambo v. The State (unreported 29/04/98) SC 551 in Wewak. Herein the Supreme Court having found the offender guilty of manslaughter after a trial imposed a 4 year prison term. The Police officer herein in an attempt to disperse a rowdy crowd by firing into the air accidentally touched the trigger setting the rifle off into the oncoming crowd killing one of them. The above case was distinguished from the current case as here the deceased was involved in a struggle with the offender for the gun when it went off killing him. 
Sentence
24.	The main issue now is what the appropriate sentence should be bearing in mind the mitigating and aggravating factors, your personal, family background and circumstances under which the killing happened. I will also need to assess your case in the light of the past decided cases I have referred to.
25. 	As stated earlier on, the range of awards for sentences in Grievous Bodily Harm cases depending on the circumstances ranges from 3 – 5 years. These in my view are matters where plain injuries were sustained. Does this include Grievous Bodily harm cases where death results? Because of lack of decided cases in such situations. I have had recourse to range of Sentences in manslaughter cases. This range of sentences was set out in the above Supreme Court cases of Anna Max Marrangi v. The State (supra). In this case the Supreme Court established 3 categories of manslaughter and their corresponding tariffs.
26.	The first category is the least serious one. Where death is caused by an application of force in an uncalculated manner, such as a single blow, punch or kick on any part of the deceased’s body a sentence of three to seven years is suggested. Spleen killing falls under this category. This case is cited by way of comparison. In my view the current case falls into this category.  This was a death caused in an uncalculated manner, which calls for a sentence of 3 – 7 years in manslaughter cases.  
27.	I now come to the main issue of what would be an appropriate sentence in this case. This is the main issue in all cases of criminal sentencing. To address that issue, I will need to address the following subsidiary issues:- 
(i) 	What are the relevant facts or the particular circumstances in which the offence was committed?
(ii)	What is the nature of the offence the offender has been charged with and its relevant sentencing trend?
(iii)	What are the factors in aggravation and mitigation of the offender?
(iv)	After carefully considering all of the relevant factors, what should be the appropriate sentence? 
(v) 	Whether the whole or any part of the sentence should be suspended and if so on what terms?
28.	 What are the relevant facts or circumstances in which the offence was committed? The offenders are policeman based in Kundiawa. On the 4th January 2012 whilst on duty, a Complaint was received that street sellers were harassing travelling commuters at the bus stop. Consequently the offenders walked up to the bus stop on foot patrol to monitor the bus stop. Whilst up there the co-offender Jeffery Uapipi got hold of the deceased who was selling pocket knives. He took a knife from him pointed it at him and was talking to him. Whilst talking to him, the co-prisoner David Kundu came at the back and pushed the deceased towards Jeffrey without knowing that Jeffrey was holding and pointing the knife at the deceased. As a result of the push the knife penetrated the deceased chest causing a puncture to the left ventricles of the heart causing death. The offenders than rushed the deceased to the Kundiawa Hospital where he died an hour later. 
29.	What is the Nature of the offence and its Sentencing Trend? s. 319 of the Criminal Code been the provision under which the offenders are charged creates the offence of Grievous Bodily Harm and prescribes its penalty of 7 years. This is however subject to the wide Sentencing Discretion of the courts under s. 19 of the Criminal Code. In the exercise of that discretion the courts have imposed varying sentences. The trend has been imprisonment of 3-5 years wholly suspended on conditions. 
30.	What are the mitigating factors operating for the offenders? Apart from all other matters in the Pre-sentence Report, allocutus, the accused are first time offenders, the plea of not guilty was a genuine plea as they were not found guilty of murder and this should not be used against them (State v. Michael No. 2 PNGLR (2003) 175. Stabbing was accidental as found by the court, some reconciliation has been made by payment of K5, 000. 00, by the Provincial Government to the deceased family, both offenders have very good working records with the Police Department and have very good report by the bosses. They both have very good Pre-sentence Reports. 
31.	What are the aggravating factors operating against the offenders?
The wound was a fatal wound to a vulnerable part of the body and a weapon was used namely a pocket knife, I might add at this juncture that the State in its submission raised a number of factors as aggravating factors which this court does not accept and agree with. This factors are that the prisoners were found guilty after a trial, the trial was run on the charge of murder and not Grievous Bodily harm, that the offenders used cloak of police and government authority to commit the offence, the offence was committed against an unarmed youth, it was a vicious and cowardly attack, they acted in concert. Whilst the offence is prevalent, this is not a case of Police Brutality and abuse of trust placed on Law Enforcement Authority. The Court does not agree that this are aggravating factors simply because of the finding of fact that the act of stabbing was an accident and not intentional. That finding in my view negatives all the above alleged aggravating factors.  
32.	What would be appropriate sentence for the offenders? 
I have noted all that has been submitted for and against the offenders, the discussion on all the subsidiary issues. The Pre-sentence Report which contains the offender’s wishes and those of the victim’s relatives. I have also noted comparable case Laws which have been cited. I note in particular the cases of State v. Aga, State v. Lawrence Matau and John Warambo v. The State. All these cases involved the use of High powered firearms. Further these matters related to manslaughter cases whereas the current case related to Grievous Bodily Harm. Whilst I note a life was taken, every case must be looked at in its own circumstances. I consider the incident here a very unfortunate accident. The actual sentence should and must be dictated by the particular circumstances in which the offence was committed, factors of Aggravation and Mitigation and the sentences imposed in similar cases for consistency purposes as well. S.19 of the Criminal Code vests the court with wide discretion to deal with offenders as reaffirmed in Thress Kumbamong’s case. I consider that Head sentence of 5 years is appropriate. 
33.	The next issue is whether the whole or part of the sentence should be suspended. I have a Pre-Sentence Report on both offenders. After noting views of the members of the Community the Pre-Sentence Report recommends that if the court wishes to consider probation Sentence then the court should sentence the offenders to probation supervision for a period of not less than 2 years and not more than 5 years on conditions. Secondly and alternatively to consider Probation sentence after serving part of their term in custody. The Supreme Court case of the Public Prosecutor v. Don Hale (1998) 564 says there can be no suspension of Sentence without the support of a Pre-Sentence Report. Suspension may be warranted to promote personal deterrence, reformation or rehabilitation of the offender, Public Prosecutor v. Bruce William Tardew (1986) PNGLR 91. Courts have also held that Criminal Sentencing is a community Responsibility. Court must seriously take into account views of the community expressed through Pre-Sentence Report. The courts must do this when called onto exercising the sentencing discretion vested in the courts by s.19 of the Criminal Code. 
34.	Earlier case authorities have suggested that suspending whole or part of the sentence is not been lenient. It is rather a form of punishment aimed at serving one of the important purposes of Criminal sentencing to rehabilitate an offender. Prisons should be reserved for repeat or hardcore criminals who have a high possibility of reoffending. 
35.	Giving due consideration to all foregoing discussions. I am inclined to impose a wholly suspended sentence here. I do not believe that both offenders are habitual criminals and a danger to society warranting imprisonment for the safety of the Community. The suspension however must be on very strict conditions. I consider the following conditions appropriate and order that this will be the conditions upon which the sentences will be wholly suspended. The offenders shall:
1. 	Immediately enter into their own recognizance to keep the peace and be of good behaviour for the whole of their suspended sentence which commences today.
2. 	Within 6 months from today, the offenders are to pay K5, 000.00 each to the relatives of the deceased. 
3. 	During the period of the suspended sentence the offenders must be home other than attending to duties between hours of 6 am to 6 pm. 
4. 	Shall not consume any form of alcohol including any form of homebrew during the remaining period of the suspended sentence. 
5. 	Other than for duties the offenders shall not leave Simbu Province without leave of the Court. 
6. 	Allow for and permit the Probation Service to visit the respective homes on regular basis to monitor compliance of these terms. 
7. 	Serve the remaining term of the suspended sentence if any of these terms are breached from the date of any such breach. 
8. 	Be at liberty to apply for a review and or variation of any of these terms with support of appropriate evidence on material conditional upon faithful compliance of all foregoing conditions. 
9. 	The K1, 000 – bail monies shall be converted to a fine. 
Sentenced Accordingly,		
_______________________________________________
Public Prosecutor:   Lawyer for the State 				
Public Solicitor:  Lawyer for the Accused