N7341

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR Nos. 1492 – 1493 OF 2017

THE STATE

V

JESSIE KAIA

Lae:	Numapo AJ
2018:	04th, 19th April, 04th May & 03rd July

CRIMINAL LAW – Particular Offence – GBH – Plea of Guilty ––Abuse of Police Powers – Breach of trust for law enforcement officers - Use of offensive weapons – Public’s reactions towards police brutality - Prevalence of the Offence- Custodial sentence – Strong deterrence- Sections 319 & 19 of Criminal Code.
 
Held:
(i)	Sentencing is influenced by various factors that include the gravity of the offence and its prevalence and public opinion about the particular offending.

(ii)	Police brutality is becoming too prevalent and there is a general distrust by the public of the law enforcement officers.

(iii)	The serious aggravating factor is that offensive weapons were used and the assaults took place inside the police station in the presence of other police officers.

(iv)	Police officers are entrusted with the responsibility to uphold the laws of the country and if they break these laws they must be punished appropriately.

(v)	A custodial sentence is necessary to demonstrate community’s disapproval of this type of behaviour by police officers.

(vi)	Prisoner sentenced to 3 years each on each count to be served concurrently.

(vii)	Part of the sentence to be deducted if compensation is paid to the victims.

(viii)	No suspended sentence. 

Cases Cited:

Goli Golu v The State [1979] PNGLR 633
Avia Aihi v The State (No 3) [1982] PNGLR 62
Ure Hane v The State [1984] PNGLR 105
The Acting Public Prosecutor v Aumane & Ors [1980] PNGLR 501
The State v Iori Veraga (2005) N2921
Mase v The State [1991] PNGLR 88
The State v Kund [2011] PNGNC 42, N4246
The State v Martin Konos [2010] N4157
The State v Heni Meakoro Cr. No. 428 of 2011
The State v Joachim Otto Bare Cr. No. 638 of 2015

Counsel:

J. Done, for the State
S. Katurowe, for the Defence

SENTENCE
03rd July, 2018

1.      NUMAPO AJ: This is the decision on sentence. On arraignment the accused Jessie Kaia of Longo village, Imbongu, Sothern Highlands Province pleaded guilty to two (2) counts of Grievous Bodily Harm contrary to Section 319 of the Criminal Code. He was convicted accordingly.

A.	THE LAW

Section 319: 	GRIEVOUS BODILY HARM

‘A person who unlawfully does grievous bodily harm to another person is guilty of a crime.’
Penalty: Imprisonment for a term not exceeding seven years.

2.      The maximum penalty for grievous bodily harm (GBH) is seven (7) years imprisonment, however section 19 of the Criminal Code gives the court a wider sentencing discretion to impose a lesser sentence than the prescribed maximum penalty.  It is also trite law that maximum penalty is reserved for the worst type offence. See Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No 3) [1982] PNGLR 62 & Ure Hane v The State [1984] PNGLR 105.

B.	THE FACTS

3.      The prisoner is a policeman based in Lae and attached to the Lae Prosecution Section. On the 25th of May 2017 at around 8:30am he was at Anderson Supermarket at Eriku.  He was off duty and wearing civilian clothes. He was under the influence of alcohol when he entered the supermarket. He entered the supermarket and went to the kai bar section of the shop and whilst standing there he spat on the floor. A female shop assistant who saw what the prisoner did, asked why he spat on the floor. The first victim Philip Barasuru, a customer waiting to be served told the prisoner that what he did was not right and that he should not spit in the shop. The prisoner got into an argument with the victim and the security guards and walked outside of the shop. At the same time the Chinatown police vehicle arrived and the prisoner told the policemen what happened and they then apprehended the victim Philip Barasaru and a staff of the shop John Vendon and put both of them into the police van. On their way to the police station the prisoner punched and kicked the two (2) suspects in the police vehicle.

4.     At the Chinatown Police Station the prisoner hit the first victim Philip Barasuru on his left arm with an iron bar and inside the police station he got the wooden handle of a spade and hit the second victim John Vendon on the nose. They both were then locked up in the cell. The medical reports obtained by both victims showed that Philip Barasuru suffered a fractured and displaced distal ulna on his left arm and John Vendon suffered a broken nose. Both suffered serious injuries and were required to receive medical treatment. 

C.	SUMMARY OF THE EVIDENCE FROM THE TWO VICTIMS

5.     This is what the two victims had to say in their respective statements to the police.

6.     Victim Philip Barasuru stated that:

‘’On the 25th of May 2017 around 8:30am I was at Andersons Supermarket at Eriku to buy a meat pie for my daughter. I was standing in the queue at the kai bar section of the shop waiting to be served when the accused entered the shop and spat on the floor in front of the kai bar. One of the female employee called out to the accused and asked him why he spat on the floor. I realized that what the accused did was against the public health rules and regulations so I said to the accused that he is matured enough to know that what he did was wrong. The accused angrily replied and said; so what are you going to do? He then walked towards me and threw a punch but missed and the meat pie in my hand fell to the ground. He was under the influence of alcohol and heavily intoxicated. I quickly walked to the cashier and paid for the pie and left the shop with my daughter.
After I dropped off my daughter at school I went to the bus stop to catch a bus to go back home. I noticed a big crowd in front of the Andersons Supermarket and saw a police van in the crowd. I walked to where the crowd was and immediately the accused noticed me and walked towards me in the presence of the other policemen and punched me twice on the face. He then grabbed me by my collar and pushed me into the police van. He also got another person and shoved him into the police van whom I later knew as John Vendon, an Assistant Cook for the Andersons Supermarket. 

There were 5 other policemen inside the police van. On our way to the police station we were abused and punched several times by the accused. None of the policemen did anything to stop him. The accused swore at us and threatened to kill us with a gun. At the Chinatown police station we both were left behind in the police vehicle with the accused whilst the other 5 policemen came out and walked into the police station. The accused told us to get out of the vehicle and go into the police station. As I came out to walk into the police station the accused kicked me and I fell towards the door way of the police station. He then got a piece of iron bar and hit me on my left hand. I felt a sharp pain on my hand and fell to the ground. The accused told me and the other victim to go and wash the blood off our faces from the water hose. While I was bending down washing my face the accused came back and kicked me on my left side ribs and picked up a stone and hit John Vendon on the head. John fell down unconscious. I thought he was dead but he was still breathing. 

We walked into the police station after washing our faces and sat in the waiting room waiting to be formally arrested and charged for whatever offence they think we may have committed. We waited until 5:30pm in the afternoon but the accused nor any of the policemen came back to have us formally charged. We waited for nearly 10 hours at the police station. We were then taken to the Top Town Police Station and were told to go and seek treatment for the injuries we sustained. Later we were released without any charges. That is all.”

7.     Victim John Vendon basically said the same thing except the following:
“I came out to see the commotion in front of the supermarket and saw the police vehicle in the crowd. I thought they came to pick up the accused for spitting in the shop. I was surprised when one of the policemen came out of the police van and asked me if I was the one who wanted to hit the policeman and he was referring to the accused. Only then that I knew the accused was a policeman as he was in civilian clothes when he entered the shop earlier on. I told the policeman that the accused was the one who spat on the floor in the supermarket. All of a sudden the policemen started throwing punches at me and grabbed me by my collar and tried to push me into the police van. I resisted but was over powered and got thrown into the back of the police van. The accused started throwing punches at me and Philip Barasaru inside the police vehicle. The assaults and abuses continued in the vehicle until we reached the Chinatown Police Station. At one stage inside the vehicle the accused grabbed and squeezed my testicles so hard that I blacked out temporarily from the sharp pain. At the police station the accused hit Philip with a piece of iron bar on his left hand and Philip fell to the ground. He punched me on my nose and mouth and I was bleeding profusely. He ordered us to wash our face from a water hose inside the station. The assault continued after that and it was at that time that the accused picked up a handle of a spade and hit me on the nose and I bled again. I was ordered to go and wash the blood off my face the second time. After I washed my face the accused picked up a big stone and hit me on the back of my head. I feel down unconscious and didn’t know what happened after that. When I woke up I realized I was lying on the some (sic) loose gravel with blood all over my body.

We were later taken up to the Top Town Police Station but no formal charges were laid against us. Later we were released and told to go and get treatment from our injuries. To this day I do not know what offences I and Philip Barasuru committed to be taken to the police station and treated the way we were treated. That is all.”

D.	SENTENCING 

8.    Sentencing is influenced by various factors that includes the gravity of the offence and its prevalence and public opinion about the particular type of offending.  The wishes of the victim and society and the interests of the prisoner are also taken into account. The type of penalty to be imposed on a prisoner and the purpose that penalty will achieve such as deterrence, rehabilitation, restitution or retribution are also matters for considerations. See; The Acting Public Prosecutor v Aumane & Ors [1980] PNGLR 501 and The State v Iori Veraga (2005) N2921. 

9.     Another consideration in sentencing is where an offender is charged with more than one offence the court will have to decide whether the sentence should be concurrent or cumulative. In Mase v The State [1991] PNGLR 88 the Supreme Court held that the first step is to consider the appropriate sentence for each charge. The next step is to consider whether the sentence is to be concurrent or cumulative. If the court decides to impose a cumulative sentence then it must take the totality principle approach where the total should not be excessive and should reflect the offence. If the cumulative sentence is excessive, then the court should set a sentence below that. On the contrary concurrent sentence is imposed where the offences committed stemmed out of a single transaction.
 
10.     In the present case, although there were two (2) different victims the facts and circumstances are somewhat similar as both were attacked together at the same time and at the same place. The offences stemmed from a single transaction. For this reason, a concurrent sentence is most appropriate in this case. 

E.	HEAD SENTENCE

11.     The head sentence is determined by the peculiar factual circumstances of each case being the aggravating circumstances, the mitigating factors and the extenuating circumstances. In the present case, the aggravating and mitigating factors and circumstances are as follows:

(a)	Aggravating factors

(i)	Both victims’ sustained serious bodily injuries following the assaults – victim Philip Barasuru suffered a broken left arm that would cause a mild deformity with irreversible effect according to the medical report. Victim John Vendon suffered a fracture of the nasal bone. 

(ii)	Offensive weapons were used namely, an iron bar and a wooden handle of a spade to attack the victims. 

(iii)	Prisoner was under the influence of alcohol at the time.

(iv)	The assaults started in the police vehicle and continued at the Police Station in full view of other policemen (serious aggravating factor).

(v)	Police brutality is becoming too prevalent in recent times.

(vi)	Breach of trust for law enforcement officers.

(b)	Mitigating factors

(i)	First time offender.

(ii)	Pleaded guilty early.

(iii)	Expressed remorse.

There are no extenuating circumstances.

12.     The aggravating factors and circumstances outweigh the mitigating factors in the present case. 

F.	SENTENCING TREND ON GRIEVOUS BODILY HARM (GBH)

13.     Both Counsels cited to me a number of recent comparable case laws reflecting the current trend on sentencing in GBH cases which I find very helpful. I refer to some of them below:

(i)	The State v Kund [2011] PNGNC 42, N4246

14.     The victim was mistaken for a rape suspect and assaulted by the relatives of the victim.  He suffered multiple bruises and lost three of his tooth. A PSR report showed that the offenders have paid compensation to the complainant.  The offenders were sentenced to 2 years imprisonment less 4 months for pre-trial custody with the balance of the sentence suspended and the offenders were required to enter into their own recognizance and be of good behaviour bond during the period of suspended sentence. The court noted that no offensive weapon was used during the attack.

(ii)	The State v Martin Konos [2010] N4157

15.     The prisoner was sentenced to 3 years IHL less the pre-trial custody period and the balance to be served in custody. The offender pleaded guilty to doing grievous bodily harm to his nephew by attacking him with a piece of timber fracturing his knee and other superficial injuries. 

(iii)	The State v Heni Meakoro CR. No. 428 of 2011

16.    The offender pleaded guilty to doing GBH to his wife. The offender hit her with the mobile phone on her right eye which caused her permanent damage. He was sentenced to 3 years which was wholly suspended on the condition that the offender enters into his own recognizance and be of good behaviour.

(iv)	The State v Joachim Otto Bare CR. No. 638 of 2015

17.     The offender pleaded guilty to GBH. He was chasing two small children when he was intercepted by the victim. He punched the victim on his jaw resulting in laceration and a broken tooth to the lower right jaw. He was sentenced to 3 years imprisonment, less pre-sentence custody period of 2 years, 6 months and 4 days. The balance of the sentence was wholly suspended with conditions.

G.	ALLOCUTUS

18.     In his allocutus, the prisoner told the court that:
“I would like to say sorry to this Honourable Court and also to the two victims. I do not have any conflict or trouble with the two victims in the past. I was provoked and my actions are wrong. I am a first time offender. I am also newly married and my wife is now 8 months pregnant. I also look after my mother and my small brother. I am sole bread-winner. I am very sorry for what I did and apologized to the two victims. I will not do this again. I ask the court to be lenient with me and give me non-custodial sentence. The victims are present in court today. That is all.”

H.	MEANS ASSESSMENT REPORT

19.     The prisoner is a policeman and earns K500 net per forthnight after deductions. He stated that he is willing to pay K1000 each to the two victims for the injuries they sustained. He asked the court to give him two months to look for the money. The two victims wanted K5000 each as compensation given the seriousness of their injuries. 

I.	PRESENT CASE

20.     Certain features of the present case stand out from the rest of the other ordinary GBH cases. Firstly, the prisoner is a police officer who committed the offence. Secondly, he was under the influence of alcohol when he committed the offence. Thirdly, and perhaps the most serious aggravating factor of all is the fact that the abuse and the assaults took place inside the police vehicle and continued at the police station in full view of the other policemen, yet none of them did anything to stop the prisoner from continuously assaulting the two victims that subsequently resulted in both receiving serious injuries to their bodies. Fourthly, offensive weapons namely, an iron bar and a spade handle were used to attack the two victims. And finally, the injuries sustained by the victims were serious resulting in a fractured left arm for victim Philip Barasuru that caused a mild deformity that is irreversible and victim John Vendon suffered a broken nose. 

21.     What I found most surprising is the fact that no formal charges were laid against the two victims and so it begs the question; why did the police take them to the police station at the first place and subjected them to all these ill-treatment? If the victims have committed an offence then why didn’t they charge them?  It appears to me that the victims were assaulted for no apparent reason at all. This is a typical example of police brutality without any justifiable reasons.
22.     And as far as I am concerned, this is a clear abuse of police powers and authority to unnecessarily subject innocent people to such ill-treatment by the very people who are entrusted with the responsibility to uphold the laws of this country to save lives and protect properties.  People run to the police station to seek protection, not to be abused and assaulted by police officers. And because of this type of behaviour by the police, people are now too scared to go to the police station to seek help for fear of being abused as they can no longer trust our policemen and women to protect them. There is a general breach of trust for our law enforcement officers. Police brutality is becoming too prevalent and is almost a norm in this country. We hear and see of it every day.  This has to stop. It sends a wrong signal to the public. The courts can no longer tolerate such behaviour and will impose a deterrent sentence to demonstrate community’s disapproval of this type of offending.

23.     Majority of our policemen and women are hardworking, doing their best in upholding the laws of the country that often times requires them to perform some of the most arduous tasks under very difficult circumstances just to keep our communities safe and secure day and night. It’s only a few rogue elements within the Police Force like the accused who continue to tarnish the good image of the Royal Papua New Guinea Constabulary (RPNGC). The prisoner in the present case is a police prosecutor and one of his main tasks is to prosecute offenders and I have no doubts in my mind that he is well and truly aware of the rights and protection of the law provided under sections 37 and 42 of the Constitution for those who are arrested for committing an offence. As they say; ‘’He should have known better.’’

24.     The offence occurred last year on the 25th May 2017 and it is well over a year now and if the prisoner was genuine about paying compensation he would have done so already. This happens a lot especially in GBH and other similar cases where compensation is paid even when the matter is still pending before the court as a gesture of peace and good-will between the perpetrator and the victim.  Most often than not, the court would accept that as a mitigating factor in favour of the offender. The prisoner has not paid any compensation to the two victims since and I doubt if he ever would. In any case, I will give him the benefit of the doubt.

25.     With respect to the prisoner’s plea for leniency and non-custodial sentence, it is often said that committing an offence is an individual choice and therefore, those who committed an offence must be prepared to accept the consequences of his or her own action(s), one of which is incarceration if the merits of the case so requires. In this case, I have considered custodial sentence as the most appropriate form of punishment based on the reasons stated above. To my mind, a non- custodial sentence or suspended sentence will not do justice to this case given the seriousness of the offence and the circumstances under which the offence was committed.  Law aside, any sentence imposed by the court must also reflect the wishes of the society at large, such as for example, the public’s attitude or reaction towards a particular type of offending, the prevalence of such offence and the economic costs to the country associated with this type of offence. The court must impose a sentence that has a deterrent effect both to the offender himself and other-would be offenders that those who commit such offence can expect nothing less than a custodial sentence. 

J.	SENTENCE

26.     I make the following Orders:

(i)	Count 1 - GBH on victim Philip Barasuru:

(a)	I sentence the prisoner to 3 years imprisonment.

(b)	Pursuant to Sections 2 of the Criminal Law (Compensation) Act 1991, I further order that the prisoner pay a sum of K3000 as compensation to the victim Philip Barasuru.

(ii)	Count 2 – GBH on victim John Vendon:

(a)	I sentence the prisoner to 3 years imprisonment.

(b)	Pursuant to Sections 2 of the Criminal Law (Compensation) Act 1991 I further order that the prisoner pay a sum of K2000 to the victim John Vendon. 

(iii)	I order that the term of imprisonment is to be served concurrently, which is a net total of 3 years imprisonment.
(iv)	 I further order that upon the full payment of the total compensation of K5000 to the two victims as described above, One (1) year and Six (6) months will be deducted from the total head sentence of 3 years.
(v)	 The prisoner is to serve the remaining balance of One (1) year and Six (6) months imprisonment.
(vi)	 All compensation must be paid within 30 days from the date of this Order failing that the prisoner will serve his full term of 3 years imprisonment. 

27.      No suspended sentence is given.

Orders accordingly

Public Prosecutor:	  Lawyers for the State
Public Solicitor:  	 Lawyers for the Applicant