N2675

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 545 of 2004

THE STATE

-V-

SO’ON TAROH

LORENGAU: 	KANDAKASI, J.
2004: 	09th, 10th and 13th September

CRIMINAL LAW –Verdict – Grievous bodily harm – Self defence – Issue for trial – Whether Accused acted in self defence – Elements of defence - Evidence showing accused had time to avoid danger in more than one peaceful means - Defence not established – Guilty verdict returned – Sections 269 and 270 of Criminal Code.

CRIMINAL LAW – Sentence – Intentional grievous bodily harm – No sentencing guidelines – Some guidelines suggested and applied – Sentence has to be above those imposed in non-intentional grievous bodily harm cases – Three cuts to the hand with no residual disability – Use of bush knife – Not worse case of - 8 years sentence imposed – Criminal Code ss. 19, 315 and 319.

Cases cited:
The State v Emmanuel Bais & Felix Fimberi (11/06/03) N2416.
The State v Peter Malihombu (29/04/03) N2365.
The State v. Murray William and 2 Ors. (No 1) (28/04/04) N2556.
The State v. Cosmos Kutau Kitawal & Christopher Kutau (No 1) (15/0502) N2266. 
Rosa Angitai v. The State [1983] PNGLR 185.
The State v. Sinzai Karawa (27/08/04) N2631.
The State v. Inapero Susure (17/06/99) N1880.
The State v. Isaac Wapuri [1994] PNGLR 271.
The State v. Rueben Irowen (24/05/02) N2239.
The State v. Apa Kuman (20/12/00) N2047.
The State v Henry Idab (17/12/01) N2172. 

Counsel:
A. Kupmain the State.
A. Raymond for the Prisoner.

DECISION ON VERDICT

13th September 2004

KANDAKASI J:	You stand charged with one charge of causing grievous bodily harm to Peter Su’u on 26th August 2003, Timoenai village West Coast Manus. You denied the charge, saying in your defence that you attacked the victim in self-defence. This necessitated a trial in which you went into evidence with Saleu Kalai while the State called the victim and his wife. Additionally, the State admitted into evidence with your consent a medical report dated 25th August 2003 (exhibit "A") and another dated 13th October 2003 (exhibit "B"). 

Given your defence, there following facts are not in dispute:

1.	you and the victim fought on 26th August 2003;
2.	you used a bush knife in that fight and caused three cuts to both of the victim’s hand;
3.	the fight took place after the victim had gone and talked to Mr. Kalai and was on his way back to his house;
4.	you two fought in the open and not within a confinement; and 
5.	was in the village where there were many people.

What was factually in issue was, what did the victim do that caused you to act in self-defence? The victim with the support of his witness said he did not attack you. You attacked him from the back and cut him on both of his hands. On the other hand, you with the support of your witness said you cut the victim twice on his hands to avoid the victim cutting you. Which of these versions the Court should accept is dependant on which side the Court finds more credible.

Finding of credibility is in turn dependent on matters of logic and commonsense as well as the demeanour of the witnesses and consistencies in their evidence: See The State v Emmanuel Bais & Felix Fimberi (11/06/03) N2416 and The State v Peter Malihombu (29/04/03) N2365. Accordingly, I carefully observed the demeanour of each of the witnesses called. I must say I could clearly tell that each of the witness were protective and supportive of the version of the party that called them. I sensed therefore that, their respective testimonies were not entirely the truth. There were some truths and some tailored evidence on both sides. 

A clear example of this observation against the State is where the victim initially said he went to Mr. Kalai’s house armed only with a piece of wood, despite going to express his disapproval for Mr. Kalai trying to bring onto the victim’s land a timber company. Later under cross-examination, he admitted to carrying a grass knife also and the wood had the shape of a gun. His wife, Piwen Su’u tried to support this version and said her husband carried only a wood carved in the shape of a gun by her little children. In so doing, she contradicted her husband’s evidence. This contradiction could however, be explained by your evidence that, this witness was not there and did not witness the fight.

On your side, both you and Mr. Kalai, had reason to know the reason why the victim went to talk to Mr. Kalai in the morning of the day of the fight. It was over you and Mr. Kalai trying to bring onto the victim’s land a timber company. The victim spoke about that when he went to Mr. Kalai’s house. Both of you said you heard him, but were not able to tell the Court what exactly he said to Mr. Kalai and later you. You also said he came with a gun pointed at you to shot you. However, when he came closer to you, you said he put his gun down and used his grass knife to attempt to attack you several times. If he came with intend to shoot you or kill you, I cannot understand why or what made him to put the gun down and attack you with his grass knife. This does not sound well in logic or commonsense. Similarly, I cannot readily find that, Mr. Kalai remained in doors and did nothing, if indeed the victim was attacking you. Naturally, Mr. Kalai would have come to your help, after all, according to your own evidence, the victim put his gun down and was attacking you with his grass knife.

Further, and more importantly, you in your evidence said, the victim tried to cut you several times but you successfully avoided them by ducking and running away. You went on to say you ran under the steps to your house and he continued to pursue you there. Hence, you reached into your house and said seeing that, you had no hope because you had nothing in your hands, you got your bush knife and swung it at the victim twice cutting him on both of his hands. You did not explain whether, you cut the victim’s hands in the one swing of your bush knife or one after the other with each swing getting the hands separately. If it was one after the other, you did not explain how the victim was still able to try to cut you after you cut him on the first swing of your bush knife at him and whether, that was on his left or right hand. Similarly, you did not say whether you ran into your house, came out with your bush knife, and cut the victim. If you did not run into your house, you did not say where in the house was your bush knife and how you were able to reach for it and use it against the victim. 

Given the undisputed facts and your own testimony, I need to determine whether you in fact acted in self-defence. Section 269 of the Criminal Code provides for the defence of self-defence in an unprovoked situation, which is what you claim here provides:

"269.	Self-defence against unprovoked assault.

(1)	When a person is unlawfully assaulted and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make an effectual defence against the assault, if the force used is not intended to cause, and is not likely to cause, death or grievous bodily harm.

(2)	If—

(a)	the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm; and
(b)	the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm,

it is lawful for him to use such force to the assailant as is necessary for defence, even if it causes death or grievous bodily harm." 

In The State v. Murray William and 2 Ors. (No 1) (28/04/04) N2556 speaking of the elements of the defence under this provision I said:

"It is clear to me that, the defence under this section covers to situations. The first is under the first subsection where an assault is directed at the person acting in alleged self-defence. The second is under the second subsection where death or grievous bodily harm is directed at the person allegedly acting in self-defence. In the first case, the following are the necessary elements:

1.	a person is unlawfully assaulted;
2.	the person assaulted has not provoked the assault;
3.	uses such force as is reasonably necessary to make an effectual defence against the assault; and
4.	the force used is not intended to cause death or bodily harm; 

As for the defence under the second subsection, the following are the elements that make up the defence of self-defence:

1.	there is a threat of death or grievous bodily harm; and 
2.	the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm…"

This view is similar to the wording and interpretation, given to s.270 of the Criminal Code distinguished only by the fact that, the defence under s. 269 is for unprovoked assaults and the one under s. 270 is for provoked assaults. I considered s.270 in a number of cases as in The State v. Peter Malihombu (supra) and The State v. Cosmos Kutau Kitawal & Christopher Kutau (No 1) (15/0502) N2266. In those cases, I had regard to the Supreme Court’s judgment on this provision in Rosa Angitai v. The State [1983] PNGLR 185 in relation to the defence of provocation and said this for example in the The State v. Peter Malihombu:

"It seems clear to me that, in order for there to be a valid defence under this provisions the following conditions must exist:

(a)	a person must first unlawfully assault the person claiming the defence independent of any provocation from him;
(b)	the other person has applied such force or violence to cause the person claiming the defence to have a reasonable apprehension of death or grievous bodily harm;
(c)	induced to believe on reasonable grounds that it is necessary for his preservation from death or grievous bodily harm to use force in self-defence,

But this defence can not be available, where:

(a)	the person claiming the defence first began the assault with intent to kill or do grievous bodily harm; or 
(b)	endeavoured to kill or to do grievous bodily harm to some person before the necessity of preserving him arose; or 
(c)	before the necessity to prevent him arose, the person using the force declined further conflict and quitted it, or retreated from it as far as is possible."

Applying these principles in my most recent judgment in The State v. Sinzai Karawa (27/08/04) N2631, I found that the accused did not act in self-defence and said these to the accused by way of reasons for finding him guilty:

"… [N]o imminent harm was directed at you that necessitated your actions at both the first and second time you cut the deceased. So, you overreacted to a situation that did not warrant the cutting of the deceased twice. Even if we proceed on the basis of your own evidence, I find that the harm or threat the deceased posed ceased as soon as you cut the deceased the first time and he fell to the ground. You had already disarmed, if not, put an end to the imminent harm directed against you. The deceased did nothing after your first cut that could have given you an indication that he was going to get up and kill you. Even if that were to happen, you still had opportunity to run away from the deceased before he could have gotten up, regained his strength and attacked you." 

In your case, as noted, you did not explain or give any evidence showing an imminent danger to you. All you say is that the victim chased you and attempted several times to cut you. However, you avoided them all and even managed to run away from him. You do not give any evidence as to why you could not run away completely from the victim, given the fact that you are much younger and stronger than the victim coupled with the fact that, the fight took place in an open space in the village and in the presence of other villagers. 

Your evidence instead is that, you went to your house and reached for your bush knife and cut the victim not once but twice. Again as noted, you do not provide any explanation or evidence as to the necessity to cut the victim the second time. Your evidence does not disclose that, the victim used both of his hands to attack you thereby making it necessary for you to cut both of his hands. The only reasonable inference open in the absence of any evidence or explanation from you is that, you were intent on either killing or causing the victim grievous bodily harm that you went on to cut the victim the second time. 

Further, your evidence does not disclose as to where your bush knife was, whether at the doorway, a cupboard inside your house or in your bedroom. This could mean either that, you took the bush knife with you when you heard the victim arguing with Mr. Kalai and as he passed your house, it is reasonable to infer that, you attacked the victim as the victim said in his testimony. If that is not what happened, then it is also reasonable to infer that, your bush knife was well inside the house and you could only reach it by getting into the house and picking it up, given your evidence of your house having steps. If the latter was the case, you did not give any evidence of the victim running after you into your house and there he tried to kill you or chop you. You also do not give any evidence as to why you could not get into your house and shut the victim out of the house and then call for help from the villagers who were there.

In view of the facts before me and the lack of explanation or details of your claim of acting in self-defence, I am not able to find as a fact exactly, what was the assault, threat of a serious grievous bodily harm or act that directly threatened your safety or life. Following on from that, I am unable to find that even if there was an assault or a threat of grievous bodily harm or death, the force you used was reasonably necessary to make an effectual defence against either or any of them. Similarly, I am not able to find that you used force, not intended to cause death or bodily harm.

What I am able to find on the evidence and the lack thereof is that, if there was an assault or threat of a grievous bodily harm or death, you had every time and opportunity to avoid it. In fact, from your own evidence, you did that for six different attempts on you by the victim. Indeed, you were able to run away from the victim to your house under its floor. You then had time to get into your house, if not already armed to attack the victim, as he testified. Of the two of you, you were much younger and stronger than the victim was. All of this presented you more than one, peaceful way of avoiding the victim’s unspecified assaults or threats of grievous bodily harm or death. Yet, you chose a course of action that was violent and totally, unreasonable and unnecessary for the preservation of your body or your life.

For these reasons, I am unable find that you made out the defence you claimed under s. 269. Consequently, I am satisfied and find on the required standard of prove, namely, prove beyond any reasonable doubt and I find that you acted unlawfully and in breach of s. 315 of the Criminal Code. Accordingly, I return a verdict of guilty against you and convict you on the charge as presented. I order that you be remand in custody pending your sentence. Your bail is now revoked and your cash bail shall be refunded on the provision of the relevant receipt.

DECISION ON SENTENCE

22nd September 2004

On Monday 13th of this instant, this Court found you guilty after a trial on a charge of causing grievous bodily arm to one Peter Su’u contrary to s 315 of the Criminal Code. 

The relevant facts are set out in the forgoing judgment on verdict. In summary, however for the purposes of sentencing, I note that you cut the deceased three times on both of his hands. You used a bush knife being a very dangerous weapon. You did that with intent to cause him grievous bodily harm. You claimed that, you acted in self-defence but the Court found that was not the case. Your attack on the victim was related to a land dispute. That dispute was given rise to by you and your side of the dispute trying to bring onto the victims land a timber company.

Offence and Sentence

Your conviction was under s.315 of the Code. That provision 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; or
(e)	unlawfully attempting to strike a person with a projectile; or
(f)	unlawfully causing an explosive substance to explode; or
(g)	sending or delivering an explosive substance or other dangerous or noxious thing to a person; or
(h)	causing any substance or thing referred to in Paragraph (g) to be taken or received by a person; or
(i)	puts a corrosive fluid or destructive or explosive substance in any place; or
(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."

This is a more serious offence than the one prescribed under s. 319. The main distinguishing factor is the element of intention to cause grievous bodily harm. Section 319 covers cases of grievous bodily harm where the offender acts with an intention to cause such harm. Because of that, the penalty prescribed under s.315 is life imprisonment.

Neither counsel were able to refer the Court to any case on point to guide the Court into arriving at an appropriate sentence against you. They are however, agreed that the sentence for a conviction against s. 315 has to be above those imposed for offences under s. 319 of the Code. 

There appears to be not many cases under s.315 of the Code. The only case, I am able find is the case of The State v. Inapero Susure (17/06/99) N1880. That was a case in which, the prisoner and the victim were good friends. On the day of the offence, they had beer together and then depart for their respective homes. The prisoner discovered he had no fire to light his smoke so he returned to a riverside to fetch fire. During this brief absence, the victim made his way into the prisoner’s house and into the bedroom where his wife was trying to sleep with her baby. There, the victim tried to rape the prisoner’s wife and a struggle ensued. The prisoner heard the commotion as he got near to his house and enquired of his wife, who told the prisoner of what happened.

The prisoner chased the victim with his axe in his hand. When he caught the victim, the prisoner assaulted him physically. The fight was stopped and the victim and the prisoner waited for the Police to get there and take them to the Police Station to solve the problem. The prisoner continued to argue with the victim for breaching the trust he had on him as a friend and someone he had looked after when he was young. During these verbal exchanges, the victim said something that hurt the prisoner so badly that this time he attacked the victim with his axe and cut him twice on his head and nose.

The Court imposed a sentence of 3 years, part suspended on terms including orders for compensation. This was possible because the prisoner pleaded guilty to the charge and that he was a first time offender.

Although the Court made reference to varying sentences between 2 and 4 years, it did not refer to any particular case and factors influencing those sentences. Given that, I find with respect, this case would not be of much assistance except to note the sentence imposed in the case itself.

On the other hand, there are a number of cases for s. 319 offences. They start as low as 18 months as in The State v. Isaac Wapuri [1994] PNGLR 271 and up to the prescribed maximum of 7 years as in The State v. Rueben Irowen (24/05/02) N2239. In between these cases have been many cases imposing sentence ranging between 3 years as in The State v. Apa Kuman (20/12/00) N2047 and 5 years as in The State v Henry Idab (17/12/01) N2172. These ranges of cases make it clear that the offence of causing grievous bodily harm under s.319 is a prevalent offence. These cases also show that some of them as in The State v. Rueben Irowen (supra) case could have qualified under s. 315 but the presentation of the relevant indictments were under s. 319.

Given that a commission of an offence, which falls under s. 315, is more serious than a one that falls under s. 319, I accept the submission of counsel that, a sentence under s. 315 ought to be above those imposed under s. 319. That does not automatically mean, in my view, that, the maximum prescribed sentence of life imprisonment is appropriate. Instead, a sentencing judge is under an obligation to carefully consider the circumstances in which the offence has been committed. The Court is also duty bound to weigh the factors for and against an offender and impose a sentence that is reflective of these considerations. I am of the view therefore that, where the injury sustained is not serious, and or not premeditated and no dangerous weapons such as a bush knife is used, the sentence could start at 7 years. However, where the injuries are serious resulting from the use of dangerous weapons like guns, bush knives and others with serious disabilities or where the victims narrowly escapes death, it may warrant a sentence up to the maximum of life imprisonment. Then depending on the factors in mitigation and aggravation, a sentence falling in between those two extremes may be imposed.

Sentence in Your Case

In your case, I first note that this Court found you guilty after a trial. I also note that, you used a dangerous weapon, a bush knife to attack the victim. These kinds of attacks are prevalent as noted in the foregoing cases in the context of the offence under s. 319. You used the bush knife to cause three different cuts to the victim’s hands. You claimed acting in self-defence but the evidence and the decision on your verdict does not support you. Clearly therefore, you did not act under self-defence or any provocation for that matter. Instead, you carried out your intention to seriously injure or kill the victim. This appears clearly from which the evidence before the Court which reveals that, you stopped cutting the victim when he fell down on the ground once you cut him. You demonstrated this by your failure to say sorry and show that by say, paying compensation soon after the commission of the offence. After the Court found you guilty, you say you are prepared to pay compensation. That is obviously an attempt on you part to avoid imprisonment for the offence you committed. Besides, there is no evidence before this Court showing what means if any, you have to meet any compensation order. 

Fortunately, for you and the victim himself, he received appropriate medical treatment and has recovered without any serious residual disability. Coupled with that is you being a first time offender. Apart from these two, there is no other factor in your mitigation. Nevertheless, I am not satisfied that this is a worse case of grievous bodily harm under s. 315. Accordingly, you do not deserve the prescribed maximum sentence of life imprisonment. Instead, in the particular circumstances of your case, I consider a sentence between 7 and 10 years appropriate. 

Noting the factors both for and against you as well as your personal details as put to the Court both by yourself and your lawyer, I consider a sentence of 8 years less the period you already spent in custody awaiting your trial and sentence in hard labour appropriate. Accordingly, I impose that sentence to serve both as a punishment for what you have done and to serve as a personal and general deterrence to other like-minded persons in your village, the community in the province and the country as a whole. A warrant in those terms shall issue forthwith.
_____________________________________________________
Lawyers for the State:			Public Prosecutor
Lawyers for the Prisoner:		Public Solicitor