N7850
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1127 OF 2017

THE STATE

V

ALBERT LUCKIE JUNIOR

Kimbe: Miviri J
2019: 18th 19th March 05th 23rd 24th April

CRIMINAL LAW – PRACTICE AND PROCEDURE – Attempted Murder S304 CCA – Trial –Prisoner armed with a pistol – two warning shots – third shot victim – injury left shoulder front & back – with intent – life threatening injury –victim unarmed – on premises of prisoner – nothing said before shots fired – dangerous weapon –fired without regard for life – not warranted in law – strong sentence to deter – punitive sentence. 

Facts
Accused was armed with his licenced Glock semi-automatic pistol discharged at the victim Shedrick Kamara injurying him in the shoulders from which he woke up at the hospital.

Held
In excusable action with a gun
Menacing deadly weapon
No cause to discharge
Injury life threatening
Deterrent and punitive sentence.

Cases Cited 

Tardrew, Public Prosecutor [1986] PNGLR 91 
The State v Bartholomew David [2019] N7825.
The State v Goli Golu [1979] PNGLR 653 
The State v Makapu [2017] PGNC 118; N6761 
The State v Idab [2001] PGNC 39; N2172  
The State v Pari (No 2) [2001] PGNC 2; N2033  
The State v Pendin [2012] PGNC 292; N4541 
The State v Taroh [2004] PGNC 104; N2675  
The State v Tasion [2013] PGNC 176; N5393  
The State v Waimba [2016] PGNC 430; N6954 

Counsel:

E Kave, for the State
J Waiwai, for the Defendant
						
SENTENCE
10th May, 2019 

1.	MIVIRI, J: 	This is the sentence of Albert Lukie Junior of Baai convicted of grievous bodily harm with intent contrary to section 315 of the Criminal Code Act.

2.	 This Section reads; 

315. ACTS INTENDED TO CAUSE GRIEVOUS BODILY HARM OR PREVENT APPREHENSION.
A person who, with intent–

(a) to maim, disfigure, or disable any person; or
(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 things is guilty of a crime:–
(d) unlawfully wounding or doing a grievous bodily harm to a person;
(e) unlawfully attempting to strike a person with a projectile;
(f) unlawfully causing an explosive substance to explode;
(g) sending or delivering an explosive substance or other dangerous or noxious thing to a person;
(h) causing any substance or thing referred to in Paragraph (g) to be taken or received by a person;
(i) puts a corrosive fluid or destructive or explosive substance in any place;
(j) unlawfully casts or throws a fluid or substance referred to in Paragraph (i) at or on a person, or otherwise applies any such fluid or substance to the person of a person.
Penalty: Subject to Section 19, imprisonment for life.

3.	He has been convicted under Section 315 (b) (d) which draws the maximum sentence due upon him of life imprisonment. He could spend the rest of his life in jail, but for Goli Golu v The State [1979] PNGLR 653 (14 December 1979) the maximum is always reserved for the worst case of its kind. Here this is not the worst case of its kind and therefore a determinate sentence is in view upon the prisoner. He was primarily concerned with ensuring the safety upkeep and wellbeing of his family notably his daughter. But the law also provides that reasonable force must be used. The force used must not exceed the threat posed it must balance out or cancel out. Here clearly he exceeds what was reasonable by law and committed this criminal offence. He will be accorded due consideration balanced out with all before the court. I start with consideration of all the mitigating, aggravating and extenuating circumstances of the case to arrive at an appropriate sentence.  But before that the facts to which the charge flowed on arraignment.

Short Facts 

4.	To start off the primary facts are that on the 23rd day of June 2017 at Aling; Kimbe the prisoner shot and wounded one Shedrick Kamara with a pistol Glock 9mm serial number NUP 772. He injured him on the left shoulder front and back. The victim woke up in the hospital bed at Kimbe General Hospital. He was revived and saved by the delicate medical hands of the Doctors and staff there. It was therefore a life threatening injury. And a manifestation of his intent to cause grievous bodily harm upon the complainant.

Issue

5.	Given these facts what is an appropriate sentence befalling the prisoner for the offence?

Aggravating features

6.	At the outset the Prisoner was not justified in the firing of the gun given the evidence of the complainant that, He did not call out to me but opened fire twice. When I heard I turned and faced him third shot he aimed and shot me on my left side. I fell to the ground and my hand was numb. Blood was flowing and I crawled under the house a low post house. I looked out from under there and saw their legs only. There were around four or five people came and saw him. They were busy searching on other side and I came out of other side and ran up to house. There I heard another shot that was the last on the road. I went and fell on the hand of Kemran Tapidiks I do not know what happened next. When I woke up I was in hospital and I saw the drip and recall that Junior shot me. I was there for three days discharged and then went back again for review.

7.	These facts illustrate the gravity of the offence. By these facts there is deliberate intention to cause grievous bodily harm. These are overt from these facts and the behaviour of the prisoner leading up. He does not stop that the complainant is unarmed. He discharges three shots within the third fatally to the left shoulder of the complainant through and through. This is the immediate area of the body where the lungs are located including the heart and vital organs to the human body. It was by grace that these were not injured and that only the shoulder sustaining three days in hospital and discharged. There are no further medical complications emanating from the injury. It was a disproportionate act of violence uncalled for. He could have simply called the complainant and then told him to leave the premises without discharge of the weapon leading to the injury. 

8.	He was a former reserve policeman and knew the drills of safety in the use of firearms. He may have been trained in shotgun but the safety procedures were always the same. He acknowledged this fact in his evidence but did not display that night. He was not licensed without recourse to his background in the use of firearms. He abused that authority in the discharge of that firearm because it was in a residential area and harm or injury could have easily befallen others there. The firearm was discharged over and above necessity, four times in all. It was a lethal weapon and could have easily killed the complainant or any others within the vicinity given that the projectile emitted through from the shoulder of the complainant. It was a premeditated offence because he deliberately drove onto his premises a lightened armed weapon drawn out overtly with the intention to use it upon whoever was on the property.  He was prepared and therefore the injury to the complainant was not an accident.

9.	And this is borne out by his own evidence where he stated on oath that on the 23rd June 2017 at night about 10.00pm he was texted twice and then called by his daughter Faith, that there was a man outside who wanted her to come out and to see him. He went to his house a 3 minute drive from where he was in Kimbe. Arriving he parked on the road leading into Kimbe lodge got out of the vehicle and went on foot holding his Glock 9 mm pistol serial number NUP 772. He saw a figure in the door way and fired twice into the air. The person turned and ran around the back so he fired again into the air. He knew he had committed a very serious wrong and tried to hide it with shift that the injury was as a result of crawling under the house which was less than a meter high almost equivalent to his knees. This untruthfulness does not mitigate the offence but aggravates. Because it is a deliberate attempt to disassociate himself from the crime. It means he is aware of that fact and its consequences. 

10.	Use of guns at random without control as here is not warranted and must be stopped immediately with strong punitive sentences. Guns or firearms for that matter by their nature whether handguns or otherwise are lethal killing or maiming weapons. Not anyone is privy to a gun or firearm. Hence the requirement for license and process thereof. The standard is high prisoner has derailed and must be punished to maintain that standard. I am inclined to accept the submission of the State in this regard. It is a very prevalent offence.

Mitigation

11.	When given an opportunity to address on matters to be considered in the determination of an appropriate sentence, prisoner said he was sorry for what he did and asked for the mercy of the court for a non-custodial term. A first offender aged 51 years old married with six children. He was educated to grade 10 at Kimbe High School in 1985. And worked with Westpac 1988 to 89, and went on to work with KBSA group of companies as its Wholesale Manager after doing management training and customer Sales and Service. In 2005 he worked with consort shipping as a clerk and Container Controller. Then as electoral officer in the office of the member for Talasea leaving after the 2017 National Elections. Then from 2011 to 2019 he was managing his own Timber Company Hagai Lumber and then his own second company Hagai construction. He has unblemished record and good standing in life until the commission of this offence.

12.	These are sufficiently set out in the presentence report before me. In it also he says he has the means to pay compensation if the court so orders. In my view there is great difference in the way this is considered for the purposes of sentence. In a guilty plea where compensation is made without the formal orders of the court and its process in my view is a genuine attempt to settle, compensate, bring the matter amicably to close. In the case here where sentence is envisaged after trial its impact to sway sentence as mitigating is not as empowering as in the former. It will not be as strong in a case where payment is made without orders of court, State v Bartholomew David [2019] N7825. When the seriousness of the matter is considered its gravity outweighs to simply impose a suspended sentence with compensation order it would be gravely disproportionate. I take due regard of the means assessment report filed but these far outweigh even with the recommendation for payment of compensation. A trial was run and the victim suffered life threatening injuries by gun fire. The right to life is guaranteed by the Constitution section 35 and when that is threatened as here without proper basis on facts and law a stern and punitive sentence is in order. Even in the light of the references that have been it would not balance without the views of the complainant fundamental to whether or not an order for compensation is made. He suffered his views are paramount to any order for compensation. It would not be proper to order without hearing. It means therefore any orders for compensation will not be made as there is no factual basis provided by the presentence and means assessment reports to so accede. Discretion of the court in law is exercised by proper basis: Tardrew, Public Prosecutor [1986] PNGLR 91 (2 April 1986). Particularly also considered that simple grievous bodily harm is defined by section 1 of the Code as, “bodily injury of such a nature as to endanger or likely to endanger life, or to cause or be likely to cause permanent injury to health.”   Here intent is inclusive and therefore makes the offence much more serious that section 319 comparing the penalties in each case former is life years and the latter 7 years maximum. I do not accept the submission by counsel for the prisoner that this is an appropriate case for suspension of sentence and a non-custodial sentence in view of all the above. The authorities relied of State v Pari (No 2) [2001] PGNC 2; N2033 (10 January 2001) and State v Idab [2001] PGNC 39; N2172 (17 December 2001) both not alleviate the seriousness of the offence in view of the fact that both cases deal with section 319 and not 315 and there is marked differences which are set out above.

13.	I am fortified that the views set out above warrant the sentence as has seen in State v Waimba [2016] PGNC 430; N6954 (18 May 2016) where prisoner pleaded guilty that he slashed the complainant policeman on his left side eyebrow, he lost 100 percent use of that eye when he went into investigate a complaint. The court imposed 8 years imprisonment for section 315. Again the use of a bush knife on a guilty plea under section 315 attracted 16 years imprisonment in State v Pendin [2012] PGNC 292; N4541 (26 March 2012), the prisoner completely severed the right hand of the complainant after chasing her because he was agitated by her presence. Initially he cut her head prompting her to run and he chased leading. Both these are in line with the views of this court in State v Tasion [2013] PGNC 176; N5393  (23 August 2013) prisoner a reserve policeman was charged as here under section 315 he aimed with a police issue rifle at the head of the complainant shooting him there. He was revived medically but with clear evidence of disability following immediately from the offence. Prisoner pleaded guilty and was sentenced by this court to 12years imprisonment. 

14.	A trial has been run here and there were four shots not two as in that case. As correctly pointed out by counsel for the State the views of this court set out that the range is 8 to 12 years: State v Taroh [2004] PGNC 104 ; N2675 (13 September 2004); State v Makapu [2017] PGNC 118 ; N6761 (19 May 2017).

15.	The distinction between those cases and the present is that here a gun was fired four times, the third inflicting the subject injury on the left side of the shoulder.  This was not a hunting trip where pig or wild animal was shot repeatedly to subdue it so that it could be consumed as food. This was a fellow human being who was for reasons set out above on the premises of the prisoner. It could have been simply a warning shot into the air or subduing and detaining him to the police station for being unlawfully on premises given the prisoners background as a former reserve policeman. There are no residual injuries as in the use of the bush knives here. But it is a very serious and life threatening offence by its penalty provision comparable. And 2019 the offence is ever prevalent from 2012 and 2016 set out above.  Therefore warrants coupled with the individual facts and circumstances deterrent and punitive sentence.

16.	In all the circumstances the prisoner Albert Lukie Junior of Baai for the conviction of grievous bodily harm with intent pursuant to section 315 of the Criminal Code you are hereby sentenced to 10 years imprisonment in hard Labour. I would have gone higher if there was medical evidence. I order that the time you have spent in custody is deducted forthwith you will spend the remainder in jail forthwith.

Ordered accordingly.

__________________________________________________________________
Public Prosecutor:  Lawyer for the State	
Emam Lawyers   : Lawyer for the Defendant