N2934

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1481 of 2005

THE STATE

-V-

MAKIS LUNGE KRANINGI

WEWAK: 	KANDAKASI, J.
2005: 22nd and 26th September

CRIMINAL LAW — Sentence – Grievous bodily harm without intent – Scuffle with auxiliary policemen in course of their duty – Accused first to throw punches – Victim retaliating – Accused then using piece of stick to assault auxiliary policeman – Both accused and victim sustaining personal injuries – Provocation in the non-legal sense – Guilty plea – First time offender – 5 years custodial sentence imposed.

Cases cited:
The State v. David Saun (02/05/03) N2409.
The State v. Abel Airi (28/11/00) N2007.
The State v. Isaac Wapuri [1994] PNGLR 271.
The State v. Rueben Irowen (24/05/02) N2239.
The State v. Henry Idab (17/12/01) N2172.
The State v. Vincent Simbango ( CR 438 of 1999).
The State v. Kerowa Kana, (16/08/03) N2376.
The State v. Peter Malihombu (29/04/03) N2365.
The State v. Cosmos Kutau Kitawal & Christopher Kutau (No 1) (15/0502) N2266.
The State v. Vincent Naiwa (22/06/04) N2710.
The State v. Bob Wali (11/06/04) N2580.

Counsels:
Mr. A. Kupmain for the State.
Mr. J. Mesa for the Prisoner.

DECISION ON SENTENCE

26th September 2005

KANDAKASI J:	You pleaded guilty to one charge of causing grievous bodily harm to another person, namely, Jehu Nahau, an auxiliary policeman (victim) at Ambukanja Village, Yangoru, East Sepik Province on 21st March 2005. Upon being satisfied that there was sufficient evidence supporting your guilty plea, I accepted your guilty plea and had you convicted of the charge. That came about after I raised with your counsel a disclosure of a possible defence of provocation.

Relevant Facts

The relevant facts are straightforward. On Monday 21st March 2005 around 10:00am, at Ambukanja Village, the victim, with two of his fellow auxiliary policemen went looking for signs of marijuana plants and cultivation in the area. They went passed your house and then to a trade store where they bought a packet of biscuits and as they were trying to buy some more, you confronted them. You effectively asked them as to where they were coming from, what right did they have to do what they did, what kind of college they have been and what kind of education they received and then threatened them saying, if you went to prison, one of them will die on your return from prison. The victim responded with a challenge for you to stand in front of the village and make your point.

Thereafter, you approached the victim and his colleagues, started to push the victim, and threw punches at him. You hit the victim on his chest twice. The victim responded by punching you to the ground. When you got up, he punched you again to the ground. He repeated this a third time after which, you got a piece of stick and hit the victim on the head causing him to fall on the ground unconscious. 

The victim was taken to the Yangoru Health Centre and from there to the Wewak General Hospital at Boram, where he had 9 days of hospital admission, and received appropriate medical treatment. The hospital discharged him with a prognosis that he recovered with no residual disability.

There is a medical report from the Wewak General Hospital dated 6th April 2005. It states that, the victim was admitted with a bruised, painful and swollen cheek. An X ray revealed a fractured zygomatic bone. He complained of an inability open his jaw or mouth fully. A dental examination did not reveal any abnormality. 

You produced evidence, and the State accepts that you also sustained injuries to you fingers. You received medical treatment for those injuries. The evidence does not go further to suggest that you suffer from any residual disability. Other evidence you produced establishes that you paid customary compensation of K500.00 in cash and a further K500 worth of shell money, which the victim refused to accept.

Allocatus and Submissions

In your address on sentence, you asked the Court to note that this is your first time to be in Court and convicted of an offence. You also asked the Court’s exercise mercy toward you by placing you on probation or on good behaviour bond.

Your lawyer then made submissions on your behalf. He asked the Court to note your guilty plea, you being a first time offender and that you acted in a situation where there was de facto provocation. He then drew the Court’s attention to my judgment in the case of The State v. David Saun, where I imposed a wholly suspended three years sentence. The States, lawyer, highlighted the factors operating against you and agreed with your lawyer’s submission in relation to the appropriate sentence.

The Offence and Sentencing Trend

You have been charged under s. 319 of the Criminal Code. That section creates the offence of grievous bodily harm and directs that anyone who does such harm to another must be punished by imprisoned to a term not exceeding 7 years. A number of judgments have already dealt with the offence under this section before imposing a variety of sentences. This, I believe has been the case because as I said in The State v. Abel Airi, the exercising of the sentencing discretion in a sentencing judge is not a matter of mathematics. Instead, it requires an exercise of judicial discretion in such a way to do justice in the circumstances of a particular case because of which there might well be differences of sentences.

In the case of The State v. David Saun, I reviewed the various cases on grievous bodily harm. That started with the judgment in The State v. Isaac Wapuri, where a sentence of 18 months in hard labour with 5 months deducted on account of time spent in custody was given. The balance of the sentence was suspended on condition of good behaviour bond and compensation of K500 cash and pigs to the value of K800 in accordance with the victim and the offender’s custom.

That was a case in which the prisoner hit his sister-in-law with a vehicle hand brake cable on one of her eyes resulting in a 90% residual disability. This was supposedly after the victim failed to get the prisoner to have sexual intercourse with him and she scattered all of his clothes all over the place. The prisoner thought that was in retaliation for his refusal and so he reacted in the way he did.

My review of the cases ended with my own judgments in the more serious case of grievous bodily harm in The State v. Rueben Irowen and The State v. Henry Idab. In former case, the prisoner caused his two wives (victims) to strip down naked and caused serious bodily harm to them. That included the use of a bush knife to inflict serious cuts to their bodies resulting in the loss of a lot of blood rendering both of them unconscious. They had to run out of the house naked for help. If it were not for their running out and the help of third parties, they could have died. The prisoner was given the maximum prescribed sentence of 7 years each for the harm he had occasioned to the victims to be served cumulatively.

In the later case, a group of men attacked another group mistakenly taken to be the ones responsible for verbally assaulting one of the attacking group member’s mother. The group that was attacked included a village court magistrate. He was the victim of the attack. He suffered serious bush knife wound injuries to both of his hands, resulting in an estimated 85% loss of efficient use of his hands and restricted to only light work.

I imposed a sentence of 5 years, part of which was suspended on strict terms including community work. At the discretion of the village court magistrate, I left room in the judgment for the prisoner to render services free of charge to his victim. 

At the end of that review and after taking into account the particular circumstances in which the prisoner committed the offence in The State v. David Saun, I imposed a sentence of 3 years wholly suspended on strict conditions as an alternative to imprisonment. I was persuaded to arrive at that sentence because the facts disclosed a possible case of acting in self-defence but the prisoner chose not to take that up. Instead, he chose to proceed to a plea of guilty. I also noted that he paid compensation and was prepared to pay additional compensation if the Court so ordered. Accordingly, I found that he expressed genuine remorse in Court. Further, I noted that he had no prior record of any conviction or being a violent man. Furthermore, a pre-sentence report, which had inputs from the community, recommended a non-custodial sentence.

Your Case

In order to arrive at an appropriate sentence in your case, the law requires me to and I need to take into account both the factors for and against you. I start that process with a consideration of the factors in your favour.

You pleaded guilty to the charge presented against you. This saved the State the time and money it could have expanded in securing the attendance of its witness to secure your conviction. It also saved this Court the time it could have taken had it been a trial. For these reasons, a guilty plea is usually taken into account as a factor in mitigation. Nevertheless, this is not automatic. In some cases, guilty pleas could be disregarded particularly in cases where an offender had no choice but to so plead. As I observed in the judgment I just handed down a while ago in the matter of the The State v. Vincent Simbango, the National Court in The State v. Kerowa Kana, per Jalina J., decided against a reduction of the prisoner’s sentence on account of his guilty plea. His Honour arrived at that decision because he found that the prisoner had no choice but to plead guilty. In the judgment I handed down today, I also declined to take the prisoner’s guilty plea in account in his mitigation as I found that he had no choice but to so plead.

In your case, you committed the offence in the presence of two of the victim’s colleagues. It is also clear that you committed the offence in the presence of other villagers. In your record of interview, you admitted to committing the offence. Clearly therefore, there was no escape for you but to plead guilty. I will therefore have some but not much regard to your guilty plea when determining an appropriate sentence for you.

The second factor in your favour is the fact that this is your first ever offence. This means you have not been in trouble with the law before until you committed this offence. Usually this factor, where it exists operates in favour of an offender when it comes to his or her sentence. I will thus take this factor into account in your favour.

Thirdly, you paid customary compensation of K500.00. Your offer to pay a further K500 in shell money was rejected, as it seems the victim did not value that. Where compensation is paid, it operates only as a mitigating factor and not as a complete excuse from an offender’s criminal responsibility. 

Finally, I note that you appeared to have acted in what appears to be provocation by your victim, who punched you to the ground three times. However, when one closely examines how all this began, it points to you. The victim and his colleagues were carrying out their duty as auxiliary policemen. Instead, of respecting them and what they were doing, you confronted them and question their authority in a humiliating manner and threw three of the first round of punches that reached the victim. Given this, your lawyer and you were correct in not raising the defence of provocation because one of the requirements for successfully raising that defence as is the case in the defence of self-defence is that, the person claiming that defence must not have himself first provoked the other. Hence, I cannot see how I could find that you acted under provocation in the non-legal sense.

Against this are several serious aggravating factors against you. Firstly, you are an adult person. You were therefore in a position to appreciate that what you set out to do was against the law. In fact, I note that in your record of interview you admitted to having that knowledge when you committed the offence. Hence, you are not in the same position as say a young person who does not fully appreciate his or her actions. 

Secondly, the offence of grievous bodily had is an almost every day occurrence in larger numbers in this province. I made that observation in The State v. Vincent Naiwa. More than a year later, the offence has not decreased but has increased in number and frequency. If what appears on the circuit list is anything to go by, it suggests that the offence has not decreased but substantially increased. This can only mean the past sentences have failed to help deter people like you from becoming violent and taking the law into their own hands. Hence, this alone calls for a deterrent sentence.

Thirdly, you attacked a policeman in the cause of his lawful duty. The Courts have treated attacks against the law enforcement agencies, namely the courts, court officers, police establishments and officers and village court officials very seriously. Thus, it is now settled law that, an offence against a law enforcement agency is a serious offence that requires a stiffer penalty. I made that observation in The State v. Ian Bob Wali (11/06/04) N2580. In doing so, I had regard to the relevant authorities in this way:

"In Peter Naibiri and Kutoi Soti Apia v. The State (Unreported judgment delivered on 25/10/78) SC137, the Supreme Court said in the context of an attack on a policeman:

"Outbreaks of violence…….appear to be on the increase……. The Courts must therefore do their duty to try to assist the preservation of orderly life and to convince police that they will be assisted and protected in carrying out their duties by the sanction that will be involved against anyone who attacks them."

Subsequently, the Supreme Court judgment in Ure Hane v. The State [1984] PNGLR 105 continued to emphasis this point in the context of classifying the types of wilful murder cases. There at p. 107 Bredmeyer J. listed wilful murder of a policeman in the execution of his duty as one of the worst type of wilful murder cases. In 1998, the Supreme Court emphasized this yet again in Joe Foe Leslie Leslie v. The State (Unreported judgment delivered on 07/08/98) SC560. It did so by affirming the judgment of the National Court, per Sevua J., who said:

‘I want to reiterate my own belief that, where a policeman is attacked in the course of his lawful duty, the attacker must be severely punished. It is my view that an attack on a law enforcement agency, be it a police officer, Judge, Magistrate or CIS officer, is a very serious matter. I consider that an attack on any of the law enforcement agency is tantamount to an attack on the fundamental democratic institutions we have under our Constitution. The attack on the police officer in the present case, in my view, is tantamount to attack on the function of the Police Force under s 197 of the Constitution. Neither the Courts nor the community at large should condone or tolerate violence against police officers who are going about their lawful and constitutional duties.’

The Supreme Court also added that, there has been an increase in the use of violence against the police since the cases referred to by the trial judge and that, it was a matter of public knowledge that, the use of firearms against the police by violent offenders was prevalent in the National Capital District. The Supreme Court was therefore, of the view that, the trial judge correctly referred to the principles and found no error in the application of these principles to the facts of the case."

As the highest Court of the land has acknowledged and said, it is already a dangerous job policemen and women throughout the country are doing. Hence, every citizen needs to appreciate the kind of work they do and respect and honour them for taking on such a difficult task on their shoulders. All of us need to therefore respect and support them. Of course, should they step out of line, there are proper channels to address them rather than take the law into one’s own hand as you did in this case. Any attack on any policemen or any law enforcement agency or their establishment is a very serious matter because it affects the very heart of the country’s internal security. Hence, people who commit an offence against them ought to be dealt with severely.

In your case, I notice that, since the establishment of the auxiliary police unit in this Province, the law and order situation has greatly improved. However, people who think they are above the law and are clearly against the good work thus far done by the auxiliary policemen and women have been opposing them and even in some cases, assaulted them. What you did is therefore not isolated.

It is not for you or anybody else to question their authority, what college they have been to and what kind of education they have obtained and then proceed to attack them. As I already said, any person having any difficulty with the auxiliary or any of the other law enforcement agencies, have proper channels, such as the courts for appropriate redress. In making that observation, I note that, it is the general lack of respect for the role and part police and other authorities including auxiliary policemen and women, village court officials and leaders play that is leading to a lot of lawlessness and misbehaviors in our communities. It is about time therefore that, those who continue to show disrespect and take matters into their own hands as did you be dealt with severely. This will send a clear message that those who engage in the kind of conduct you got yourself into will be dealt with severely.

Fourthly, your attack on the victim had him hospitalised for 9 days rather than going about his normal day to day activities. The injuries you inflicted upon him were serious. Fortunately, however, he recovered well from those injuries without any residual disability. You claim being injured in the incident. I note as I have done before, that you asked for it when you first attacked the victim. Besides, your injuries did not result in any hospitalization apart from what appears to be receiving treatment from a clinic or outpatient.

The serious aggravating factors identified against you clearly contrasts your case from that of The State v. David Saun of particular note here, firstly, is the fact that you attacked a law enforcing agency in the course of his duties. Secondly, you initiated the whole incident that lead to his assault on you before you seriously injured him. You used a stick as opposed to the exchange of fist, which was the order of things in the scuffle.

In my view, the aggravating factors far outweigh those in your mitigation. Nevertheless, I propose to impose a sentence that reflects your guilty plea, your being a first time offender and that you have paid compensation and said sorry in open court. That sentence must however, be above that which I imposed in The State v. David Saun because of the distinguishing factors I have outlined above. The sentence also needs to reflect an element of deterrence again for the reasons I outlined above. In all of the circumstances, I consider a custodial sentence of 5 years, 2 years less then the prescribed maximum of 7 years in hard labour is appropriate and impose that sentence against you.

Of the head sentence of 5 years, I order a deduction of the period you have already spent in custody awaiting your trial and sentence. You shall serve the balance of your sentence at the Boram Correction Service. A warrant of commitment in those terms shall issue forthwith.
____________________________________________________

Lawyers for the State:			The Public Prosecutor.
Lawyers for the Accused:		The Public Solicitor.