N9551

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 711 OF 2021

BETWEEN:
THE STATE

AND:
MARK POKA

Angoram:  Rei, AJ
2021:  15th, 18th, 20th & 26th October
2022:  4th February

CRIMINAL LAW – Sentence – Attempted murder – Use of a licensed firearm by member of a disciplined force with intend to kill – Provocation in non legal sense – Victim then acting officer of vital service institution for the community – Victim’s service withdrawn following incident – Guilty plea by first time offender – Pleas of danger in prison and family welfare – Factors in aggravation outweighing those in mitigation – Sentence of 25 years imposed.

Cases Cited:

Don Hale -v- Public Prosecutor [1988] PGSC 26; SC564 
Goli Golu -v- The State [1979] PNGLR 653
Lawrence Simbe -v- The State [1994] PNGLR 38
The State -v- Elizah Ute, Joe Foe Leslie Leslie [2004] PGNC 215; N2550
The State -v- Frank Johnson, Murray William & Moses William (No 2) [2004] PGNC 185 N2586
The State -v- Kapi [2017] PGNC 94; N6734
The State -v- Kara [2012] PGNC 19; N4663
The State -v- Michael Kamban Mani (2002) N2246
The State -v- Pingu [2001] N2169 
The State -v- Rex Lialu [1988 – 891] PNGLR 449

Legislations

S304(a) of the Criminal Code 
S398(a) of the Criminal Code 
Section 19 of the Criminal Code 	

Counsel	

Mr. Solomon Kuku, for the State
Mr. Stanley Parihau, for the Defendant

26th October,2021

1.	REI AJ, INTRODUCTION: The State through Mr. Popeu presented an indictment against the accused Mark Poka on 15th October 2021 alleging that:

Mark Poka of Wam Village Keram LLG Angoram East Sepik Province stands charged that he, on the 26th day of November 2020 at Yar Point, Angoram Town East Sepik Province, attempted to murder unlawfully to kill one Jano Joseph.

2.	The said indictment was laid under Section 304 (a) of the Criminal Code (“CC”).

3.	Arraignment was deferred to the 18th of October 2021 when the brief facts of the matter was introduced by Mr. Solomon Kuku State Prosecutor.

4.	The facts relied on are that on the 26th of November 2020, the accused and his father Hendrick Poka took their weapons after drinking home brew (steam) and attended at the victims house at Yar Point at Angoram Town and had an altercation with the victim Jano Joseph in which the father Hendrick Poka punched the victim several times.  The accused then assisted the father by telling him ‘papa move’ and as he moved out of range the accused used a bush knife cutting the victim’s right shoulder who fell to the ground.

5.	The accused then swung the bush knife the second time and slashed his left back then again swung the bush knife and repeated the blow to his left back.  His father returned with a spade to swing to hit the victim the fourth time in order to kill but his other son by the name of Junior Jano arrived at the scene in a haste and removed the spade in time to avoid hitting the victim to death.

ARRAIGNMENT 

6.	The contents of the indictment and facts were read out to the accused on 18th October 2021 for purposes of a plea been taken.

7.	The accused did say he understand both documents and did plead guilty to the charge.

8.	Mr. Parihau confirmed that the plea was consistent with his instructions.

9.	A perusal of the record of interview dated 12 December 2020 the accused did admit the charge in answers contained in questions 12, 13, 14 and 15.

ANTECENDENT

10.	No prior record of convictions.

ALLOCUTUS

11.	I cannot understand why accused persons come to Court admitting the crime they committed and say sorry for what they did knowing very well that they were wrong at the first place and should have avoided doing what they did.

12.	The accused did say sorry to the victim and his family but he said that the reason is that Jano Joseph went and destroyed the market goods belonging to his wife which resulted in this offence.

13.	Resenting his unlawful actions, he paid the medical bill of K400.00 and cash of K320.00.

MITIGATING FACTORS

•	First time offender
•	No prior convictions
•	Plead guilty to the offence, thereby saving Court’s time and expenses to run a trial
•	No intention to cause attempted murder but to cause Grievous Bodily Harm or wounding
•	No pre-meditation or pre-planning
•	Shown Remorse during allocutus when he said:
(i)	said sorry to the victim and his family;
(ii)	sorry to his family for taking their time in this case;
(iii)	sorry to the Honourable Court for its time in hearing his case
•	Willingness to pay compensation, even though the victim demanded K5,000.00
•	Accused has a very young family

AGGRAVATING FACTORS

•	The victim suffered severe injuries to his back
•	The victim was unarmed
•	The accused and his father were armed with bush knives
•	The accused and his father were drunk
•	The father used a spade to attack the victim
•	There were two persons against one

SENTENCE

14.	The sentence of attempted murder is life imprisonment.  Section 304 provides that:
“A person who –
“(a)  attempts to kill another person; or
“(b)  ……..
is guilty of a crime.
“Penalty:  Subject to Section 19, imprisonment for life.”

15.	The defence Counsel urged the Court in his filed written submissions that sentences imposed in grievous bodily harm cases be used as a guide in imposing a sentence here.

16.	While I agree with this, I do not think the circumstances involved in inflicting the wounds dictate any lesser sentence than a term of 10 to 25 years imprisonment.

17.	The prisoner hit the victim twice at the same vulnerable area which almost costed his life but for the assistance of his brother Junior Poka in removing the spade from being swung by his father Hendrick Poka which could have caused instant death, the fourth blow.

18.	Had the father not involve himself, the accused, who was determined to end the life of the victim by his intended last blow by intervening to inflict that ‘intended last blow’ and Junior Poka not removing the spade, the accused was definitely bound to apply the everlasting blow to the victim.

19.	For these reasons, I do not think the sentences should be similar to those of grievous bodily harm as indeed the charge before the Court is that of attempted murder and not grievous bodily harm which involves the element of intention to kill and not to cause grievous bodily harm.

20.	This argument was made with reference to the cases The State -v- Kapi [2017] PGNC 94; N6734; The State -v- Kara [2012] PGNC 19; N4663 and The State -v- Pingu [2001] N2169 where sentences 7 to 12 years were imposed some of which were suspended with conditions.

21.	I have read the medical report on this matter and assessed the nature of the injuries inflicted and concluded firmly that they were seriously life threatening.

22.	In a decided case by Kandakasi J (as he then was) in The State -v- Frank Johnson, Murray William & Moses William [2004] PGNC 185 N2586 and The State -v- Elizah Ute PGNC 215; N2550 (29/4/04) sentences of 17 years and 25 years respectively were imposed are relevant here.  Although s304 of the Criminal Code provides for life imprisonment, a term of years was imposed applying discretionary powers provided under Section 19 of the Criminal Code.

23.	The maximum penalty (of life imprisonment) should be reserved for the most serious cases:  Goli Golu -v- The State [1979] PNGLR 653; and that each case be determined on its own peculiar facts and considerations:  Lawrence Simbe -v- The State [1994] PNGLR 38.

PRE SENTENCE REPORT (“PSR”)

24.	Upon the request of Mr. Parihau a PSR was prepared on the 18th October 2021 and filed on 20th October 2021.

25.	The PSR does not look favourable to the accused as the report recommends that “the offender is not a suitable candidate for parole supervision …”

26.	The PSR confirms that his parents: Hendrick Poka and Ruth Poka and uncle Nick Poka paid K200 for medical expenses and rushed him to the hospital.  The sum of K1,300 offered as compensation with a pig was rejected as the complainant demanded K5,000.00 but has not been paid since October of 2020.

27.	But after a long time the prisoner’s father, and not the prisoner himself, on behalf of the prisoner, took courage, went to the victim who had been waiting for these words of remorse and relent to be uttered to him in a sincere and heart felt manner:

“Brother I am very sorry for what I did to you.  Please forgive me and my children.”

28.	These words of regret, remorse and resentment came too late in the process as such, the PSR reports that the victim insists that this matter be heard by the Court first before any further offer for compensation is made and the remorse expressed be atoned.

29.	The PSR is very helpful in the sentencing process as it meaningfully assists the Court in imposing sentence because it balances and weighs the views of the community where the prisoner comes from as to suitable sentence.  It has to be taken into account in sentencing and given weight whether in favour of the prisoner or otherwise – Don Hale -v- Public Prosecutor [1988] PGSC 26; SC564 (27 August 1998)

PSR – VICTIM

30.	The PSR reports that the victim Jano Joseph is a missionary of the Seventh Day Adventist denomination whose main daily task is to spread the Gospel throughout the Keram River by paddling upstream and downstream.

31.	Being a missionary involved in spreading the Gospel, he was, in many ways assisting in bringing law and order to the communities in and around Keram River on a voluntary basis.

32.	I am sure the prisoner’s father Hendrick Poka and their village people knew well about this.

33.	However when the missionary victim made a minor mistake of destroying the market goods belonging to the wife of the prisoner, no respect for life and work were shown and almost murdered him, the prisoner knowing very well of the good efforts of the missionary victim in bringing and maintaining peace to his own village and to the surrounding nearby villages.

34.	A simple approach by way of enquiring of the victim why he destroyed market goods and seeking a little bit of compensation payable could have easily resolved matters rather than resorting to inflict life threatening wounds with the use of a bush knife which almost ended a precious life: a life needed in the community promoting and fostering peace.

35.	The PSR contains a photo shot of the left side of the spine/back which was cut twice by the prisoner which do not look attractive to my eyes – the flesh bulging with scars of stiches protruding from the flesh.

36.	The words of remorse and resentment expressed by Hendrick Poka to the victim missionary did not come from the prisoner himself as no mention of his name was made except that the words were expressed by the father on his own behalf and on behalf of his children.

37.	There is no genuine and sincere expression of remorse made directly by the prisoner which reflects the conclusion of the author of the PSR that he is not a suitable candidate for probation.

38.	Similar comments were expressed by His Honour Kandakasi J. (as he then was) in the case of The State -v- Elizah Ute [2004] PNGC 215; NZ 550 (29 April 2004) and The State -v- Frank Johnson, Murray William, Moses William (No.2) (2004) N2586 (30 April 2004).

39.	In that case His Honour Kandakasi J. dealt with the sentencing of the prisoner who caused grievous bodily harm amounting to the offence of  attempted murder under Sec.398(a) of the Criminal Code.

40.	After assessing sentences imposed in situations where Police officers and other free agent workers providing services to the community are victims in attempted murder cases, he concluded that “sterner sentences” are called for.

41.	In that case, His Honour make references to the cases of The State -v- Elizah Ute, Joe Foe Leslie -v- The State (Unreported Judgement delivered on (1998) SC560 and expressed the following opinion:

“I also accepted and adopted, based on the Supreme Court Judgement in The State -v- Rex Lialu [1988 – 89] PNGLR 449, the crime of attempted murder is serious compared to a case of manslaughter.  This is because there is in the former, an intention to kill, whereas in the latter, that is absent.  As such, the sentence for attempted murder may appropriately be beyond those imposed in manslaughter cases.

I also said it is appropriate to add to the list of factors for consideration what I have said in a number of cases, for example in The State -v- Michael Kanban Mani (Unreported judgement delivered on 21/05/02) N2246.  There I expressed the view that where an offence affects the provision of a service to the community, it calls for sterner punishment.  I said that if the impact of the offence deprives the community of a vital service such as health workers, important research work which has the potential of greater benefit to the society, the sentence shall be sterner to reflect such impacts on the society.  After all, criminal sentencing is a duty being discharged by the Courts on behalf of the community.”

(emphasis added)

42.	This case of course does not involve Police personnel or government workers involved in some research work who are paid guaranteed fortnightly salaries.  It involves a volunteer missionary who may be paid just sufficiently to keep him going for doing work involving bringing peace to the communities in and around the Keram River Angoram District East Sepik Province.

43.	But that does not put him in an situation isolated from the duties carried out by paid officers of Government of Papua New Guinea in that the differences are in the nature and extent of work done and salaries payable.

44.	Otherwise the victim here has always been actively involved in providing community service almost free of charge to promote and foster peace.

45.	A sterner punishment is therefore on offer in this case.

SENTENCE IN THIS CASE

46.	The prisoner did not use a firearm or an axe.  If that had been the case, the missionary worker victim could have met his fate at the first blast of a firearm or the swing of an axe which is easier to wield.

47.	Had he hit him on the third occasion, death could have occurred but for the intervention of his father Henrick Poka who was in turn stopped by his son Junior Poka.

48.	The dangerous weapon used in this case is a bush knife and not a firearm or axe.  But that does not alter the motive with the use of a bush knife: to inflict grievous bodily harm with the intention to kill the missionary worker who was unarmed, outnumbered, helpless and defenceless.

49.	It is also distinguishable from the cases involving paid Police or other Government workers in providing community service for a salary whereas in this case a missionary was involved.

50.	Even if not, all citizens of this country must be protected wherever they are as they are allowed to freely move around within the parameters of the law.

51.	I have been on Circuits in Maprik, Aitape, and now in Angoram and note that the towns appear to be peaceful when the Court is in session but revert to lawlessness after the Court rises.

52.	I have noted that when issues such as the destroying of small market stalls occur, people are aroused and turn to violence resulting in the death or serious grievous bodily harm caused without resorting to solving those problems either in an amicable Melanesian style or by going to Court.  Similar comments were raised by His Honour Kandakasi J. in The State -v- Frank Johnston, Murray William and Moses William (supra) where he said:

	“Finally, I note once again that, there is so much violence in this province and the rest of the country.  People are not turning to the law to settle their differences or problems.  Instead, they are becoming judge, jury and executioners all at the same time.  In your case, you claimed that you attacked the victim because he broke into your house and stole some of your properties.  You also said you reported the matter to a village leader who you said failed to resolve the matter quickly so you attacked the victim the next day after you reported the matter.”

53.	The use of bush knives to inflict wounds has become viral except in Angoram where crocodile hunting spears are sometimes used. 

54.	These implements were never manufactured for the purposes of killing people or to cause grievous bodily harm.  They were purposely meant to be used for gardening, fishing or hunting and yet they are being used to cause harm.

55.	I note the prisoner is a first-time offender, no previous convictions and pleaded guilty saving time and costs.

56.	I also note in his allocutus that he is sorry for what he had done to the victim missionary worker and indicated he has offered compensation of K5,000.00 but was refused on the basis that the victim wants this matter to be dealt with by the Court.

57.	No strong indication was given supported by a means assessment report as to when the sum of K5,000.00 would be paid.

58.	The fact that the prisoner did what he did to an unarmed, helpless and lone victim with no feeling of regrets in doing so outweigh the mitigating factors and the expression of sorrow in allocutus.

59.	There is no evidence before the Court that the prisoner went to the victim and spoke to him in person expressing he is sorry.  Furthermore there is no intention on his part of doing so in the future although the reason why he attacked the victim came from a trivial matter of destroying a market stall.

60.	Taking all these into account, I am of the view that sentence of 25 years is appropriate and so I impose it.

61.	The prisoner shall serve a total of 25 years imprisonment less time spent in custody.

62.	If however the prisoner pays compensation in the sum of K5,000.00 to the victim within 6 months of today, 5 years of the remaining term be suspended.

63.	Upon the payment of the sum of K5,000.00 to the missionary victim, the period of 5 years be suspended upon the following conditions:

(i)	he shall be on probation for 2 years;
(ii)	he shall not consume any alcoholic beverages including home brew – steam 
(iii)	he shall not interfere, harass and intimidate the missionary victim, his friends, relatives whomsoever or howsoever;
(iv)	the Probation and Parole Officer be advised of the payment of the sum of K5,000.00 who should forward the same to the Assistant Registrar of Wewak National Court to take necessary steps to expedite payment;
(v)	failure to comply with any of these conditions, the prisoner shall serve the whole of the remaining sentence in full.

Ordered accordingly

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