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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR No. 514 OF 2013
THE STATE
V
JOHN SNAKE STALUS
Kundiawa: Liosi AJ
2017: 20th April & 29th August
CRIMINAL LAW – Sentence – 2 Counts of Grievous bodily harm – S.319 of the Criminal Code – Guilty Plea – No prior convictions – Plea of family suffering if custodial sentence imposed rejected as this is a natural consequence of committing the offence in the first place – Pre-Sentence Report recommended non-custodial sentence not followed in view of the seriousness of injuries inflicted.
Case Cited:
Goli Golu v. Bubura (2004) PGNC 194; N2577
State v. Lucas Yovura N2366
The State v. Irox Winston N2347
The State v. James Gurove N2020
The State v. Raphael Kimpa Aki (No.6) N2082
The State v. Attiock Ishmael N2294
The State v. James Gurave Guba N2020
The Acting Public Prosecutor v. Haha (1981) PNGLR 85
The State v. Winston (2003) N2347
Counsels:
Mr. Emmanuel Thomas, for the State
Mr. M. Yawip, for the Defence
DECISION ON SENTENCE
29th August, 2017
1. LIOSI AJ: The Accused is charged for two counts.
Charges
Count 1:
The accused is charged that he on the 30th day of June 2012 at Gondmakane Village Gembogl in Papua New Guinea unlawfully did Grievous bodily harm to one Melchior Meremba contrary to s. 319 of the Criminal Code.
Count 2:
And also the said John Snake Stalus is further charged that he on the 30th June 2012 at Gondmakane village, Gembogl in Papua New Guinea unlawfully did Grievous bodily harm to one Kawage Meremba contrary to s.319 for the Criminal Code.
Facts for Arraignment:
2. The accused and the two victims are all from Gondmakane village in Gembogl District, Simbu Province. Few years prior to the incident, there were two disputes and confrontations between 2 victim’s relatives and the accused’s relatives. On 30th June 2012 about 4 pm the fight erupted again.
Plea
3. The prisoner pleaded guilty to the 2 counts of Grievous bodily harm pursuant to s.319 of the Criminal Code.
Allocatus
4. On allocatus the offender said, “in the eyes of the Court and God I say sorry. I will not repeat. On the question of penalty, I am thinking of compensation. I have my wife and children and my mum and dad to worry about. I am unable to settle down properly in the village. I have to stay with them and I look after them. Whatever penalty, I want to pay compensation.”
Defence Submission
5. The offender has pleaded guilty to 2 count of Grievous bodily harm against Melchior and Kawage Meremba and the offence was committed at the same time. He is from Gondmakane Village and was educated up to Grade 6. He is married with 2 wives. He has two children from his first wife. The first child graduated from Chuave Secondary School in 2016 after completing Grade 12 at same school. From the second wife he has three other children at Community School.
6. The cause of problem is the land dispute. At the time of the incident he was assaulted and outnumbered by the victims so he
resorted to use of a bushknife slashing the 2 victims. There is the issue of possible self-defence but the manner of assault does
not help the offender. There was provocation in a non-legal sense but the force applied was disproportionate so he pleaded guilty.
7. The maximum penalty under s. 319 of the Criminal Code is 7 years subject to s. 19 of the Criminal Code. He submits this is not the worst case in its category. The two counts of Grievous bodily harm were also committed simultaneously.
Consequently whatever sentences imposed should be served concurrently and not cumulatively. The offender also pleaded guilty which
has saved a lot of courts time. He has no prior convictions and has expressed remorse in his allocatus. He has been in custody for
10 months.
8. In the Pre-Sentence Report the village court magistrate’s report must be considered as the offender acted in self-defence when he was attacked by the victims with a much more dangerous weapon namely a gun. He said the offender was alone when he was attacked by the victim and his supporters and would have been killed as he was outnumbered.
9. He submits in the circumstances a 3 year sentence for each count to be served concurrently is an appropriate penalty.
State Submission
10. The State submits the following. It notes the mitigating factors and the concerns raised by the village court magistrate. However he says there are also aggravating factors. There are two victims herein and the injuries were inflicted to vulnerable parts of the body which included multiple wounds to the head, hands and legs to the victims. The injuries were serious which indicated a strong intention to do Grievous bodily harm by looking at the wounds to where they were inflicted. Finally there has been no reconciliation at all.
11. On the issue of concurrent/cumulative sentencing, he cites the case of The State v. Irox Winston N2347. He submits it is a discretionary matter. The issue of whether a sentence should be concurrent or cumulative is governed by the following principles.
(a) 1 transaction rule
(b) Where the offences are so different
(c) The totality rule
(d)
Because there are 2 victims herein, he submits that a cumulative sentence
is appropriate and not a concurrent sentence.
12. The Pre-Sentence Report states that the offender cannot pay compensation as the offender has no capacity to pay. A short sharp sentence should assist the situation. He submits a sentence of 4–6 years should be appropriate in the circumstance for each count.
13. The maximum penalty under s.319 of the Criminal Code is 7 years subject to s.19 of the Criminal Code which allows the court to impose
a lesser sentence. It is trite law that the maximum penalty is reserved for the worst cases–Goli Golu v. The State (1979) PNGLR 653. I find that the case does not fall in the worst case category.
14. In mitigation, counsel pointed out the following factors. The offender has pleaded guilty, has no prior convictions and has
expressed remorse in his allocatus. Counsel has also submitted that the Court seriously considers and note that the offender only
retaliated after being outnumbered and attacked over dispute over land. The circumstances of the offence should be mitigating in
themselves. The State on the other hand submits this is a serious assault as injuries were inflicted on vulnerable parts of the body
with no reconciliation.
Sentence
15. The issue now is what the appropriate sentence should be bearing in mind the mitigating and aggravating factors, your personal and family background and circumstances under which the killing happened. I will also need to discuss your case in light of the past decided cases I have referred to.
16. The range of sentences in Grievous bodily harm cases depending on the circumstances ranges from 3 – 5 years. But to answer the above 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?
17. What are the circumstances under which the offence was committed? The offender and the victims are all from Gondmakane Village in the Gembogl District of Simbu Province. Prior to this incident there had been disputes and confrontations between the offenders and victims’ relatives. Then on 30th June 2012 the fight erupted again.
18. The facts in the first count were that the first victim Melchior Meremba been a leader and elder of both factions tried to intervene to stop the confrontation when you and another person attacked him with bushknives. You chopped him on his head, left mid-calf area and the left leg where he suffered serious life threatening injuries including a fractured skull.
19. In the second count Kawage Meremba the son of the first victim ran in to help his father when you used the same bushknife to attack him by chopping him on the head and the left forearm. The second victim suffered a fracture of the skull and a fractured bone in the left forearm. They were life threatening injuries.
20. Section 319 creates the offence of Grievous bodily harm and prescribes the maximum penalty of 7 years subject to s.19 of the Criminal Code. In the exercise of that discretion the Courts have imposed varying sentences with the trend being 3 – 5 years including total suspension upon conditions.
21. What are the mitigating factors in favour of the offender? Apart from other matters in the Pre-Sentence Report and allocatus, the accused is a first time offender and has pleaded guilty.
22. What are the aggravating factors operating against the offender? There were two victims in this case, the injuries inflicted were to vulnerable parts of the body, wounds were multiple and were serious which indicated a strong intention to do Grievous bodily harm and there has been no reconciliation.
23. Section 319 of the Criminal Code creates the offence of Grievous bodily harm and prescribes penalty of imprisonment of a term not exceeding 7 years. There is a large number of judgments demonstrating prevalence of the offence and imposition of varying sentences.
24. What would be the appropriate sentence for the offender? I have noted all that has been said for and against the offender. I have also noted comparable case laws which have been cited. I refer in particular the case of The State v. Bubura (2004) N2577. The offender pleaded guilty to spearing the victim in the abdomen after he was provoked by the victim after he came to his house and argued with him over a piece of land. The court took into account the victim was unarmed, the nature of the injuries and difficulties suffered because of the injuries and that there was no reconciliation efforts made. Despite the early guilty plea, the offender was sentenced to the maximum penalty of 7 years less the pre-trial custody period of 1 year.
25. Another serious case of Grievous bodily harm is the case of Reuben Irawen (2002) N2239. In that case the prisoner caused his 2 wives to strip down naked and caused Grievous bodily harm to them. It included the use of bushknives to inflict serious cuts to their bodies resulting in a lot of blood loss rendering both of them unconscious. They had to run out of the house naked for help or they would have died. The court therein imposed cumulative sentences of 7 years each of the counts.
26. In the case of The State v. Henry Idab (2001) N2172 a group of men attacked another group mistakenly taking them to be the ones responsible for verbally assaulting one of the attacking group member’s mother. The victims included a village court magistrate who suffered serious bushknife wound injuries to both his hands resulting in an estimated 85% loss of efficient use of his hands and was restricted only to light work. The court imposed a sentence 5 years partly suspended on strict terms including community work.
Your case
27. In your case you and the 2 victims are from Gondumakane village, Gembogl, Simbu. A few years prior to the incident you had disputes and confrontations between your relatives and the 2 victim’s relatives. On the 30th June 2012 at about 4 pm the fight erupted again. In your allocatus you said that in the eyes of the Court and God you say you are sorry and you will not repeat what you did. You said you have your wife and your kids and your mum and dad to worry about. That you are unable to settle down properly in the village. That you want to stay with them. That you wanted to pay compensation.
28. Your lawyer in your defence submits that you were outnumbered and assaulted by the victims so you used the knife and slashed the two victims. He submits that there was a possible self-defence but the manner of attack and the serious nature of injuries inflicted on the victims say the opposite. The State on the other hand says that although you claim that you were trying to protect yourself from the imminent threats posed to you, the nature of wounds suggested otherwise and that you were in fact the aggressor and the attacker.
29. In your allocatus, you never said anything along the lines your counsel tried to mitigate your sentence. That is that you were outnumbered and you attacked the victims with bushknife occasioning serious injuries to the two victims. Given this I do not think this is a situation where your statement of facts on your allocatus differs from the statement of facts. That is that you accepted the statement of facts alleged against you. However, going by the nature of the injuries and the particular circumstances under which you committed this offence and the weapon you used suggest to me that you intended to kill or cause substantial bodily injury to the victims.
30. The medical reports explicitly states that the injuries were serious. In the case of Kawage, he sustained multiple, deep soft tissue injuries to both hands, deep laceration to the left forearm severing the flexor tendons and fracturing the distal ulnar bone, resulting in a displaced fracture. Linear (5cm) laceration to the anterior scalp, with a linear fracture of the skull bone below. The wounds were cleansed & sutured and he was put on antibiotics and analgesics (anti-pain medications). He may need repair of the left hand, flexor tendons by a specialist after the other soft tissue wounds have healed. In the case of Michael Meremba he suffered linear but circular, degloving (peeling of skin from bone) injury of the anterior scalp (skin of the head) – consistent with a chopping action of a sharp bladed object. Linear fracture of the skull bone below the degloved skin (consisted with an impact from a heavy object). Linear (6cm) laceration to the left mid-calf area. Linear (7cm) laceration to the left, upper back. The wounds were cleansed and sutured and he was put on antibiotics and analgesics (anti-pain medications).
31. In order to determine an appropriate penalty for you, I take into account the fact that you pleaded guilty to 2 counts of Grievous bodily harm and that you said you will not repeat again what you did. Whilst you are apologetic to the court, you have not specifically apologised to the victims who sustained life threatening injuries. In our society, remorse is normally demonstrated by payment of compensation on top of verbal expression of remorse. Whilst there is no evidence of this, I note from your allocatus, your lawyer’s submission and the Pre-Sentence Report that you have been displaced because of the incident. This in the circumstances appears to make it very hard for you to reconcile and to bring peace and normalcy to you, your relatives and those of the victims.
32. On allocatus, you seem to have agreed to and pleaded guilty to the facts. In respect to count 1, the first victim Melchior Meremba as been the leader and elder of both factions intervened to stop the confrontation when you and another attacked him with bushknives. You chopped him on his head causing a fractured skull, mid-calf area and left leg causing him to suffer serious injuries.
33. In respect to count 2 the first victim’s son came to rescue his father but you used the same bush knife to attack him by chopping him on the head and left forearm causing him to suffer a fractured skull and a bone in left forearm. You did not seem to have any thoughts of the damage which had the potential of causing death.
34. It is now clear law that pleas for leniency due to family needs or concerns of an offender are direct consequences of one’s actions. Such factors therefore cannot be mitigating factors in your favour. In the Supreme Court case of Allan Peter Utieng (Unreported Judgment delivered in Wewak on 23/11/00 SCR 15 of 2000) the court observed that the offender should observe his background first before committing the offence. It is a little too late to ask about an offender’s background including the needs of his family concerns once he is proven guilty. His background and concerns shall have no weight against the need to impose a sentence or punishment that best fits the offence he has committed.
35. The principle I note was followed in a number of cases already including the case of State v. Lucas Yovura (2003) N2366 and State v. Raphael Kimpa Aki (No.6)(2001) N2082. Following the line of authorities and the reasoning behind them, your plea for leniency to avoid suffering to your family has little or no merit.
36. The circumstances of your case are serious which could have landed you in jail for attempted murder had it not been for plea bargaining allowing you to plead guilty to the lesser charge of Grievous bodily harm which the State accepted. Given that it is justified that there should be no further reduction of the sentences under the lesser charge. I therefore consider it appropriate that 3 years is imposed on each count.
37. Should these sentences be served cumulatively or concurrently? Mr Yawip for defence submits that 3 years for each count would be appropriate to be served concurrently as the offences were committed simultaneously.
38. The State submits the principles of law discussing whether a sentence should be concurrent/cumulative was discussed in a number of cases. They include The State v. James Gurave Guba (2000) N2020, The Acting Public Prosecutor v. Haha (1981) PNGLR 85 and The State v. Winston (2003) N2347. The principles in summary are that:-
For eg. Burglary and violence to the house holder or assault plus
escaping from custody, or sexual assault to different victims, and
(c) The “totality rule or principle” where the sentencing authority has arrived at an appropriate sentence and decide whether they should be concurrent/cumulative, he must then look at the total sentence and see if it is just and appropriate. If it is not then to vary one or more of the sentence to get a just total.
39. The principle should apply in cases where a person is charged, tried and convicted for more than one offence all at the same time.
40. In your case, there is no doubt that the one transaction rule may be applicable as two different offences were committed in the cause of single transaction. That is that you attacked the two victims simultaneously in the one transaction. Whilst that maybe the case and the offences are not different in character, clearly these were two different victims hence in normal circumstances cumulative sentences would apply. Therefore the sentence has to be cumulative.
41. In the circumstances I sentence you to 3 years imprisonment in hard labour on the 1st count. I also sentence you to 3 years imprisonment in hard labour on the second count making it a total cumulative sentence of 6 years. In the end result I find that the sentence of 6 years is appropriate.
42. The next issue is whether I should suspend any portion of your sentence. In the case of Acting Public Prosecutor v. Don Hale, if the court is minded to give a lenient sentence because of tender age or other good mitigating factors it must first have before it a Pre-Sentence Report supporting such a sentence. This is because criminal sentencing is a community response to an offence. And so it must reflect the community’s view of the kind of sentence an offender should receive. Without such a report supporting either the suspension of a sentence or the imposition of a lenient sentence a court cannot arrive at such a sentence. This should particularly be where a person is charged for a serious offence.
43. As stated and acknowledged in a large number of cases already, the community expects the court to appropriately deal with each offenders given the kind of effect this kind of offences are having in particular communities where such offences are being committed. Any leniency without good reason and support of Pre-Sentence Report could defeat the whole purpose of criminal sentencing. The courts must ensure that the kind of sentence it arrives at must reflect the people’s wish.
44. In your case you have a very detailed Pre-Sentence Report. The Pre-Sentence Report has requested the court to consider a non-custodial sentence because you have no priors and that the victims tried to shoot you with a gun first. I find that this aspect of the case has already been catered for when as a result of plea bargaining your charge has already been reduced from attempted murder to Grievous bodily harm. Further if the court was to impose custodial sentence, then your two wives and your 5 children will suffer and they will not be able to support themselves as they have been displaced and the future of the two boys will be greatly affected.
45. As I stated earlier on, it is now clear law that pleas for leniency due to family needs or concerns of an offender are direct consequences of your own actions. Such factors therefore cannot be mitigating factors. Nevertheless, given the Pre-Sentence Report I am inclined to suspend 1 year of your sentence. You are therefore to serve 5 years imprisonment in hard labour.
Ruling accordingly.
______________________________________________________________
Public Prosecutor : Lawyer for the State
The Public Solicitor : Lawyer for the Accused
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