N7518

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 917 OF 2016

THE STATE

V

MICHAEL DAU

Kimbe: Miviri AJ
2018: 27 September 1, 12, 15, 16 &17 October

CRIMINAL LAW – PRACTICE AND PROCEDURE – GBH S315 CCA – Plea – left thigh penetrated by spear – left wrist & right leg cut – PSR MAR favourable to prisoner – amputation of left wrist – rendered disabled by actions of prisoner –  dispute over a community project owned solar panel – resort propensity to violence – disputes by law –  punitive and deterrent sentence.

Facts

Prisoner speared victim on the thigh then cut him on his left wrist and also his right leg. He intended to cause Grievous bodily harm and did that.

Held

Plea of guilty
First offender
Substantial compensation 
Good PSR and MAR
Deterrent and punitive sentence

Cases Cited:
 
Tardrew v Public Prosecutor [1986] PNGLR 91 
The State v Simo [2018] PGNC 221; N7312 
The State v Steven Tumu [2017] N6768 
The State v Hagei [2005] PGNC 60; N2913 
The State v Irowen [2002] PGNC 99; N2239 
The State v Kairi [2006] PGSC 8; SC831 
The State v Kialo [2008] PGNC 290; N5467 
The State v Kwapena [1978] PNGLR 316 
The State v Nerious Pinda [2012] PGNC 291; N4872 
The State v Peter Pendin [2012] PGNC 292; N4541 
The State v Philip Piapia [2017] N6763 
The State v Yalibakut [2006] PGSC 27; SC890 
The State v Tupulit [2015] PGNC N6185 
The State v Waimba [2016]PGNC 430; N6954 

Counsel:

D Kuvi, for the State	
D. Kari, for the Defendant
						
  SENTENCE
17th October, 2018
 
1.	MIVIRI AJ: Michael Dau of Matoto village is now sentenced on conviction after pleading guilty that he on the 30th May 2015 at Matoto village Talasea West New Britain speared his cousin brother Clarence Chare with a spear in the thigh over a dispute over a Solar panel then cut him on his left wrist and the right leg.

Short facts

2.	The Prisoner had intended to cause grievous bodily harm and did cause that upon Clarence Chare who is now without his left wrist, amputated when he was cut by the Prisoner. 

Charge Grievous Bodily Harm

3.	The charge is pursuant to Section 315 of the Criminal Code that, “A person who with intent-
(a)	…………………..
(b)	to do some grievous bodily harm to any person; or
(c)	to resist or prevent the lawful arrest or detention of any person
does any of the following is guilty of a crime-
(d) 	Unlawfully wounding or doing a grievous bodily harm to a person; or
(e)……………. (j)

Penalty: Subject to Section 19, imprisonment for life

4.	Comparably this is a very serious offence much more than section 319 where the penalty prescribed is 7 years maximum. Here the maximum penalty is life imprisonment. The other offences which have similar maximum penalties are Concealment of Treason section 38, Treasonable crimes section 39, section 41 inciting to mutiny, Section 42 assisting escape of prisoners of war, section 47 unlawful oaths to commit capital offences, section 137 forcibly rescuing capital offenders, murder section 300, infanticide section 301, manslaughter section 302, attempted murder section 304, and section 305 accessory after the fact to murder.

5.	Medical report by Doctor James Apamumu Kimbe General Hospital of 2nd June 2015 on the admission of the victim on the 30th May 2015. He was chopped on the left foot and wrist and went into a life threatening shock at the accident and emergency. He was very low on blood and may have died if there was no sufficient blood to supply to his body. Coupled with and borne out by three photographs depicting the victim without his left wrist and the left leg heavily plastered because of compound fracture. The left thigh had wounds of the spear including the right hand bandaged around the bicep immediately before the elbow. 

6.	The solar panel in the possession of the prisoner that victim wanted to take back was underlying cause. He asserted that he went in peace to retrieve it from the prisoner who was armed with a spear, a bush knife on his veranda and reacted as he did to cause the injuries. It has not been pursued that prisoner acted in self- defence or was provoked to act as he did. Though the latter has been pleaded as of fact and not law in mitigation by counsel. And it will be taken into account in sentencing him.
 	
Allocutus

7.	The prisoner in allocutus admitted taking the solar panel up to his house. That on the date in question there were three of them, the victim, Paul Chare, and Judith Chare. They went up to my house they were drunk under liquor they cut me and I got the spear after that and speared them. No reason has been disclosed as to why prisoner took the solar panel up to his house. If it belonged to the Community project that is where it should have been and nothing would have eventuated out of or from it. 

8.	He showed scars on his back which were inflicted on him as pay back by the relatives of the victims. It was clear he also suffered as a result depicted by the level of scaring on his back and body. The medical report attached to the presentence report annexure “B” confirmed from Bitokara health Centre by Sister in Charge Catherin Lamut dated the 3rd September 2015 that he was carried on a stretcher and was unable to walk as he was bleeding weak and dizzy. The cuts were on the shoulder requiring 15 stiches cut on his hand requiring 15 stiches cut on the head required 4 stiches and cut on the back requiring 3 stiches. He was treated and supplied to continue at home. 

9.	The matter is a plea matter without any agreed statement of facts but open pick for the court but by Yalibakut v The State [2006] PGSC 27; SC890 (27 April 2006) inclined to the version of events favourable to the Prisoner more. It would be held in favour that prisoner suffered and has paid for the injury that were inflicted on him. This is independent confirmation of the injuries and extent received by the prisoner in retaliation for injuries inflicted upon the victim. In my view it would be imposing upon him where he has been made to suffer outside of the law almost also giving his life. It would be injustice to him considering that he almost lost his own life evidenced by the medical report which I set out under. To give him what is due in law without regard to this fact would be disproportionate and an error in my view to the sentence imposed. I take due consideration and determine it as a factor in the sentence to be imposed upon the prisoner. It would be in his favour. That is not to say that taking the law into one’s own hand must be encouraged and will be discounted. Justice must be done in consideration of all facts before the court including sentence that is meted out at the end as here.

10.	And the seriousness of the matter is depicted by evidence that he was holding a spear with a bush knife and sitting on his veranda. Clarence Chare told him to come down for them to talk over the matter. Prisoner got up saying to him I am going to eat you and started dancing. Despite the plea of the victim that they were cousins Prisoner threw the spear spearing him in the thigh. Then cut him on his wrist amputating it and also cutting his leg. He hopped down to the beach where he was taken to Garu and then to Kimbe and admitted at the Hospital. He was treated and survived without the left wrist and a very grievous cut to the leg.

Issue

11.	What is the appropriate sentence for the prisoner here?

12.	The maximum sentence drawn is life imprisonment but is that due upon the prisoner here?

Defence Submission

13.	Counsel defending submits there was factual provocation. The victim was accompanied by two of his brothers. All were intoxicated by alcohol swearing and attacked him on his shoulder arms and back. He acted to defend himself. They have reconciled and K9200 has been paid as compensation to the victim by the prisoner confirmed by the Village court Magistrate Linus Reu Ward 9 West Bakovi and the councillor Chris Gala pre-sentence report dated 11th October 2018. Prisoner is a first offender who has good character references from both the leaders above and also there has been reconciliation and peace restored amongst the family. 

14.	Patrick Tangole Church representative of Matoto Sub Parish confirms these and says both victim and his brothers were drunk and swore at the prisoner and attacked him, he retaliated in self-defence because he was one against the three of them. He inflicted to defend himself. This is not to say that his case is likened to Kairi v The State [2006] PGSC 8; SC831 (28 April 2006) or Kwapena v The State [1978] PNGLR 316 where in each case the prisoner acted in self-defence to save himself. The former with the use of a knife against repeated assaults by the deceased and in the latter use of a knife blade fitted on a pole made into a spear against a gun which was unloaded that the deceased had threatened him with. In both instances the former matter was remitted back for retrial and in the latter conviction was quashed and prisoner acquitted. 

15.	What arises here is that the prisoner was at his home and would not have caused the injuries upon the victim had the latter accompanied by his brothers not fronted at his home as set out by the witness. He was entitled to peaceful enjoyment of his own property accompanied by his wife and children. And had a right to prevent any injury or harm to befall as it happened. It did not require complete defence in law and has not been pursued in that regard. But it is a very strong mitigating factor that will underlie any sentence passed upon him. It would be an extenuating circumstance as set out in State v Hagei [2005] PGNC 60; N2913 (21 September 2005) upon which would constitute proper basis to deviate sentence from the ordinary.

16.	Here the prisoner’s assertion that the victim acted with his brother is supported but not to the level set in Kairi and Tapea’s (cases supra) and therefore the level is of mitigation rather than a defence in law. Prisoner was seriously injured by the brother of the victim Jude Chare to save the victim attacked by the prisoner. He will therefore be accorded that benefit in the sentence that is passed upon him. 

17.	Both Counsel have agreed that these cases set the light to be considered in this matter, State v Kialo [2008] PGNC 290; N5467 (11 December 2008) where 6 years was imposed by this court for two convictions one for Grievous bodily harm with intent under Section 315 and secondly for wilful damage.  Four (4) years was ordered to be served in jail and 2 years suspended on non-custodial term. In State v Tupulit [2015] PGNC N6185 (28 July 2015) 5 years was imposed. K2500 was paid as compensation, time in custody was deducted and the balance was suspended on a probation order. And further State v Simo [2018] PGNC 221; N7312 (20 June 2018) 8 years was imposed on a guilty plea to Arson and Grievous bodily harm pursuant to section 319, 4 years was ordered to be served in jail and the remainder was suspended on a probation order for the same period. All these cases are not strictly the offence under section 315 or 319 whichever is the case, but accompanied by another criminal offence room is made given the facts for suspension which is often set and followed in Tardrew, Public Prosecutor v [1986] PNGLR 91 (2 April 1986) applicable here also in the light of the facts and circumstance set out in this judgement. In summary suspension will promote personal deterrence, reformation, rehabilitation of the offender. Where suspension will promote repayment or restitution. And where imprisonment will cause excessive degree of suffering in particular for the health of the offender. Given the facts and circumstances of this case, I determine and consider these applicable in the determination and appropriation of the sentence here.

18.	In my view it is clear that all cases are depended on the facts and circumstance produced before the court. There are those cases where immediate strong custodial term would be considered as proportionate to the gravity of the offence as held in State v Peter Pendin [2012] PGNC 292; N4541 (26 March 2012) and State v Nerious Pinda [2012] PGNC 291; N4872 (21 February 2012) where his honour Justice Kawi imposed 16 years IHL remarking that, “the aggravating factors significantly tip the scale in their favour. The mitigating factors have been rendered and watered down significantly. The prisoner is sentenced to 16 years IHL less time spent in custody. The prisoner in that case with two others armed themselves with long bush knives and waited on the road near a village in Talasea when they saw a vehicle come and stop and a man and his wife jumped down and started walking away on their destination. The Prisoner and his friends followed them. The couple seeing this hastened their pace but the prisoner and his friends chased them. The victim seeing no win situation put up his hands up in surrender. But the prisoner chopped his arm and cut him all over his body. Prisoner pleaded guilty, was a first offender and cooperated with Police” But there are those that to so impose would be disproportionate as where good mitigation is shown as some examples that have been highlighted in my view by defence counsel which are set out above.

19.	There are also others where there is demonstrated by clear evidence to mend family or relationship and there is means to ensure compliance of compensation orders this court has gone ahead to impose sentence giving effect, State v Philip Piapia [2017] N6763 (17 May 2017); see also State v Steven Tumu [2017] N6768 (23 May 2017). The sentence has been in the mid-range of 3 to 4 years part custodial and part suspension in each case. In State v Waimba [2016]PGNC 430; N6954 (18 May 2016) 8 years IHL was imposed where the prisoner under the influence of homebrewed alcohol had cut the face of a policeman who had come to where he was to investigate a criminal complaint. The court observed that between 6 to 10 years depending on the circumstances of each case was the range for the offence. 

20.	In the final after due consideration of all set out above an appropriate sentence given all is 5 years IHL and I so impose that upon the prisoner. I deduct all time spent in custody of 1 month 3 weeks and in the exercise of my discretion under section 19 of the Code given all above I order that  the remaining period of that sentence of 4 years 10 months 1 week to be wholly suspended on a Probation order for the same period remaining on conditions as follows:
(i)	You shall enter into a probation order for 4  years 10 months 1 week on conditions;
(ii)	You shall within 48 hours report to the Probation Officer;
(iii)	You shall be resident at Matoto village Talasia West Bakovi at all times in the course of your probation period.
(iv)	You shall not leave this place of resident or Kimbe without leave of this court during the course of your probation period;
(v)	You shall perform 500 hours of community work at a worksite to be approved by the by the Probation Office;
(vi)	You shall keep the peace and be of good behaviour at all times;
(vii)	You shall not take liquor or any form of intoxicating substance or drugs during the period of your probation;
(viii)	You shall attend your local Catholic Church every Sunday for Mass and worship whilst on probation; 
(ix)	You shall undergo counselling from your local Parish Priest for number of times as may be determined by the counsellor;
(x)	You shall within 4 months as of the date of release from Jail make restitution to Clarence Chare in the sum of K800 in cash.
(xi)	The restitution shall be witnessed by your probation officer, the police informant, Chris Gala ward 9 Kambili. Village court magistrate Linus Reu Ward 9 West Bakovi and Patrick Tangole Matoto Sub Parish church representative.
(xii)	The occasion for the reconciliation and compensation payment is to be recorded and a report filed at the National Court registry by the probation officer;
(xiii)	The Probation officer shall file a report on the responses and progress of the probationer every six months and at any other time or interval as the National Court may order upon application;
(xiv)	In a breach of any of these Probation Orders your Probation shall lapse and you shall be arrested to serve the whole term of your sentence.
(xv)	Bail refunded forthwith

Ordered Accordingly,
__________________________________________________________________Public Prosecutor:  Lawyer for the State	
Public Solicitor   : Lawyer for the Defendant