N9732

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1359 & 1361 OF 2019

BETWEEN:
THE STATE

AND:
NATHAN GEDI & HABAKUK GEDI

Wewak:  Rei, AJ
2022:  2nd, 5th & 10th May

CRIMINAL LAW – Practice and Procedure – plea of guilty – unlawfully wounding – young offenders – 3 years IHL – suspended on conditions – health workers – custodial sentence crushing – head sentence of 3 years wholly suspended on conditions.

Cases Cited:

Papua New Guinean Cases

The State -v- Elizah Ute [2004] PGNC 215; N2550 
The State -v- Frank Johnson, Murray Witllam, Moses William (No.2)
[2004] PGNC 185; N2586
Passingan -v- Beaton [1971-72] PNGLR 206 
The State -v- Mark Poka [2002] PGNC 96; N9551
The State -v- Hatson Charlse & Tobby Freddy (2022) N9541 
The State -v- Priscilla Kusa [2021] PGNC 258; N8966 
The State -v- Pangih [2004] PGNC 106; N2676
The State -v- Joseph Pingu [2001] PGNC 106; N2169
Goli Golu -v- The State [1979] PNGLR 653
Ahia Aihi -v- The State (No.3) [1982] PNGLR 92
Ure Hane -v- The State [1984] PNGLR 105

Overseas Cases

R -v- Taggart (1923) 17 G App R 132
R -v- Mather & Rogers [1962] Tas SR 25
Lakey -v- Sanderson [1959] Tas Sr 17

Legislation:

Section 332 (1) (a) of the Criminal Code
Section 19 of the Criminal Code
Section 340(1) of the Criminal Code 

Counsels:	
	
Mr. Lukara Rangan, for the State
Mr. Alex Kana, for the Defence

DECISION ON SENTENCE

10th May,2022

1.	REI AJ: The accused persons were charged with the offence of unlawful wounding of a Michael Inabiyu and Rebecca Bandi on 20th January 2019 under Section 322(1)(a) of the Criminal Code.

2.	Both Michael Inabiyu and Rebecca Bandi were at all material times officers of the Boram General Hospital.

3.	The brief facts of the case are that the two accused person are related to another person who was previously admitted at the Boram General Hospital for treatment.  The patient was the brother of both accused persons.

4.	The patient died on the 20th of January 2019 and when the two (2) accused persons heard of the death of their patient brother, they attended at the Boram General Hospital armed with dangerous weapons to cause damage to the property.

5.	In the process the complainant Michae Inabiyu was struck around the area of the hand and received cuts to his body. Rebecca Bandi also received injuries.

6.	The injuries were not life threatening.

ARRAIGNMENT

7.	Both accused persons were arraigned on 5th May 2022 in which the charge and the alleged facts were read to them.

8.	Both accused persons entered plea of guilty.

ANTECEDENTS

9.	 No prior convictions.

ALLOCUTUS

10.	Both prisoners said sorry that they caused injuries to both Michael Inabiyu and Rebecca Bandi.

11.		As their actions caused shame to their family and village people they also said sorry to them and said will not do same thing again.

MITIGATING FACTORS

12.	The mitigating factors are:

i.	early guilty plea, which saves court time and money and money and inconvenience in calling witness, to run a trial;
ii.	has apologised and shown genuine remorse;
iii.	has surrendered and cooperated with the police;
iv.	is first time offender with no prior conviction;
v.	paid compensation of K7,000.00 plus;
vi.	de facto provocation in a non-legal sense; and
vii.	reconciliation ceremony with the late CEO of Boram Hospital.

AGGRAVATING FACTORS

13.	The aggravating factors are:

i.	use of offensive weapon;
ii.	in the company of others; and
iii.	permanent scar but not disability.

PRE-SENTENCE REPORTS (“PSRs”)

14.	  The PSRs prepared by Lorraine Nahuet for both prisoners dated 9th May 2022 say that both are not threats respectively to the community and strongly recommend non-custodial sentences for both prisoners.

SENTENCE

15.	Section 322(1) of the Criminal Code provides that “[A] person who unlawfully wounds another person ….. is guilty of a misdemeanour and is liable to imprisonment for a term not exceeding 3 years.

16.	The mitigating factors are that the two offenders entered early plea and that they are relatively young:  Nathan Gedi is 19 years of age and Habakuk Gedi is 28 years of age and paid compensation of K11,000.00.

17.	The aggravating factors are that they used dangerous weapons to attack two innocent people who were providing vital health services to the community.

18.	The fact that the brother of the two prisoners died is beyond the control of the health workers who did all they could to help their sick brother who unfortunately passed on.

19.	It is not a situation where the victims deliberately caused the death of the brother.  It does not give the two (2) prisoners any reasonable excuse to harm them resulting in unlawful wounding.  Even if their brother died as a result of any misconduct on the part of the victims, there are avenues available for the alleged prisoners to press their grievances.

20.	People who provide vital health services to the community must always be respected because of the nature of services they provide to the community.  If people are going to unreasonably cause harm to them for reasons that their relatives died in their hands whilst giving them much needed medical treatment should not be shown any mercy at all - The State -v- Elizah Ute [2004] PNGC 215; N2550 (29 April 2004) and The State -v- Frank Johnson, Murray Willam, Moses William (No.2) [2004] PGNC 185; N2586 (30 April 2004).

21.	Those cases deal with the indictable offence of attempted murder and murder which I relied on in the case of The State -v- Mark Poka [2022] PGNC 96; N9551 (4th February 2022).

22.	Although Section 340(1) of the Criminal Code describes the offence of unlawful assault or unlawful wounding as a misdemeanour, I am convinced that the comments made in the cases referred to here must be relevantly relied on in this case.  The reason is simple.  People providing essential services to the public must not be harassed, intimidated or coerced in the discharge of their public duties or providing services to the public for the good of the public.

23.	This case, however, involves prisoners who are youths.  The prisoner Nathan Gedi is 19 years and the prisoner Habakuk Gedi is 22 years of age and is attending Yawasoro Mechanical School.

24.	The case of Passingan -v- Beaton [1971-72] PNGLR 206 (8 June 1971) which I referred to in the case of The State -v- Hatson Charlse and Tobby Freddy N9541 (21st March 2022, Maprik) contains a succinct statement of the law on sentencing young offenders.  Raine J said (at p.209):

“To the extent that is possible, young first offenders should not be sent to gaol.  The appellant was strictly not a first offender, but, as I have explained, the prior offences were part and parcel of the offences out of which this appeal arises.

The late Lord Goddard went so far as to say that a judge or magistrate who sends a young man to prison for the first time takes upon himself a grave responsibility.  One of Lord Goddard’s predecessors in the office of Lord Chief Justice of England, Lord Hewarr, said in R -v- Taggart (1923) 17 G App R 132, “It is not practicable, and if practicable it would not be desirable to lay down a general rule, but there are many cases in which it is worth while to take some risk in order to save a young man or young woman from prison and the consequences of imprisonment.”

These observations seem to me to make it clear that where a court deems it proper or imprison a young first offender that it should not impose a crushing sentence.  It should be remembered that there are no reformatories in (Papua New Guinea) and that in many cases young people share what is provided in the corrective institutions with adults.  See the difference of the approach of Burbury C.J. in R -v- Mather and Rogers [1962] Tas SR 25, when an excellent new reformatory institution was in existence as compared with his approach in Lakey       -v- Sanderson [1959] Tas SR 17, before the institution was available.

25.	It is of highly risky not to imprison youth offenders. They should be given the opportunity to rehabilitate. It will not help them when imposing custodial sentences that would crush their lives.

26.	The following cases were referred to me by Mr. Kana to assist in imposing a sentence:

“The State -v- Priscilla Kusan [2021] PGNC 258; N8966 (Vanimo)
In this case, the Court (per AJ Rei) sentenced the prisoner to 18 months, wholly suspended with conditions.  The offence was committed in a domestic setting.”

“The State -v- Pangih [2004] PGNC 106; N2676 (Lorengau)
In this case, the Court (per Kandakasi J, as he then was) sentenced the prisoner to 3 years IHL, wholly suspended with conditions.  In this case the victim was shot using a fishing gun into his abdomen.”

“The State -v- Joseph Pingu [2001] PGNC 37; N2169 (Wewak)
In this case, the Court (per Kandakasi J, as he then was) sentenced the prisoner to 3 years, IHL, 1 year per-trial custody period deducted and 2 years wholly suspended with strict conditions, payment of K5,000.00 compensation.  The prisoner in this case slashed victim with bush knife.”

27.	Maximum sentence in any case should be reserved for the worst case – Goli Golu -v- The State [1979] PNGLR 653, Avia Aihi -v- The State (No.3) [1982] PNGLR 92, Ure Hane -v- The State [1984] PNGLR 105.

28.	I therefore sentence the two prisoners to a full term of 3 years imprisonment.  But because they pleaded guilty, showed genuine remorse and are youthful offenders and in the exercise of my discretion under Section 19 of the Criminal Code, I suspend the whole sentence of 3 years imprisonment on the following conditions:

(i)	bail monies of each prisoner be converted as fine of 
K500.00 each;
(ii)	they are to keep the peace and be of good behaviour for
the whole of the suspended term; and
(iii)	they shall be brought to Court and sentenced accordingly
should each of them breach any of these conditions.

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defendants