N4804

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 1209 – 1212 OF 2009

THE STATE

V

KAPAKA ROGA
ROGA ROGOTI
KINI ROGA &
ALEX ROGA

Bomana: Gauli AJ.
2012: 15 & 16 August

CRIMINAL LAW – Sentence – Plea - Guilty – Causing grievous bodily harm – Criminal Code, Section 315 – Used offensive weapons – Group attack – At the victim's home village – Multiple wounds to the head, left hand and Back – Completely severed left thumb – Sentence be above sentence on GBH under Section 319 of the Code – No prior criminal records – Prevalent offence – Sentences imposed 8, 7,& 4 years respectively – Sentence partly suspended 

Cases Cited: 

The State v. Manga Kinjip [1971] PNGLR 86 
Wui Wapiv Ludwick Kembu [1980] PNGLR 7
Manu Kovi v The State (2005) SC789
Public Prosecutor v Tome Ake [1978] PNGLR 469
Saperus Yalibakut v The State (2006) SC 890
The State v. Attiok Ishmael (2001) N2294
The State v. Toluana [2011] PGNC 138
The State v. Pepa [2010] PGNC 148
Goli Golu v The State [1978] PNGLR 653
Avia Aihi (No.2) v The State [1982] PNGLR 92
Ure Hane v The State [1984] PNGLR 105 
R v. Meauri [1969 – 1970] PNGLR 254

Counsel 

Mr. S. Collins, for the State
Mr. Kombri, for the Prisoner

SENTENCE

16 August, 2012 

1.	GAULI AJ: The four accused were originally charged for attempted murder under Section 304 of the Criminal Code. They pleaded not guilty to the charge and the voir dire trial ensued. After the ruling on voir dire in favour of the State, the trial proper commenced where the State called the first two witnesses. The accused, through their lawyer, have decided to change their plea of not guilty to a plea of guilty to a lesser charge of unlawfully causing grievous bodily harm, under Section 315 of the Criminal Code. The State has no objection since the grievous bodily charge was an alternative charge laid in the indictment to the attempted murder. And the State informed the court that the State was withdrawing the charge of attempted murder. The charge of attempted murder was then withdrawn. 

2.	The charge of causing grievous bodily harm was read to all the accused and they all pleaded guilty saying: "It is true". The defence counsel confirmed that the pleadings were consistent with their instruction and I entered a plea of guilty provisionally. 

3.	State tendered the depositions. I read the depositions and I was satisfied that it is safe to accept the plea of guilty by all the four accused. It is trite law that a Judge should only accept the plea of guilty if it is made in plain unambiguous and unmistakable terms: see The State v. Manga Kinjip [1976] PNGLR 86. And it is necessary that the defendant pleads unequivocally and admits to every element of the charge: see Wui Wapi v Ludwick Kembu [1980] PNGLR 7.

THE LAW

4.	Section 315 of the Criminal Code Act prescribes Acts intended to cause grievous bodily harm. 

Section 315

"A person who – with intent

(a)	 .... 

(b)	 to do some grievous bodily harm to any person; 

(c)	 ......

does any of the following things is guilty of a crime: - 

(d)	 unlawfully wounding or doing a grievous bodily harm to a person; 

 Penalty: Subject to Section 19, imprisonment for life". 

BRIEF FACTS 

5.	The accused Roga Rogoti and his three sons Kapaka, Kini and Alex Roga are from Kwaipo village of Kwikila, Central Province. On the 26th of April 2009, the accused Roga Rogosi and his three sons armed with bush knives and a factory made shotgun, entered Kore village in the morning. Roga Rogosi argued with the Mala family over a portion of land on which the accused had settled. At that time, the accused Kini Roga armed with a bush knife attacked Jonathan Mala, one of the members of the Mala family. They both fell to the ground with the accused Kini Roga sitting on top of Jonathan. The accused Kini Roga tried to stab Jonathan with the bush knife. On seeing that, Maka Mala intervened to assist Jonathan. The accused Kini Roga then swung his bush knife and cut Maka Mala on his left arm just above the elbow. He swung his bush knife the second time and Maka Mala raised his left hand to block of the knife and he was cut on his left thumb and on the head just above the left eyebrow. 

6.	The co-accused Kapaka Roga, Alex Roga and their father Roga Rogoti joined in the fight. Alex Roga hit Maka Mala on the head with a stone then he swung his bush knife and cut the victim on the head. The accused Kapaka Roga swung his bush knife and cut the victim on the back of his head. And the accused Roga Rogoti, their father, sliced the victim with a bush knife and inflicted two injuries on his back. The victim Maka Mala sustained serious multiple wounds to his body namely on his left arm, the forehead, the back of his head and on the back. The co-accused Kapaka Roga ran back to their relative Kopi Govena's house, got a shot gun and he threatened to shoot the members of the Mala family. The Mala family took cover and the accused left. The victim Maka Mala was later taken to Kwikila hospital in the evening that day. His left thumb was amputated at the hospital. He will now without his left thumb for the rest of his life.

7.	The accused Kini Roga is the principle offender under Section 7 (1) of the Criminal Code. His blow severed the victim's left thumb. He intended to cause grievous bodily harm to the victim Maka Mala. The three co-accused Kapaka, Alex and Roga Rogoti assisted the accused Kini Roga and they all inflicted injuries to the victim. They are also principle offenders or as accessories under Section 8 of the Criminal Code Act. 

A NTECEDENT REPORT

8.	Each of the accused have no prior criminal records. 

PERSONAL PARTICULARS 

9.	The personal particulars and the back grounds of the accused are as follows: 

Kapaka Roga: He is 43 years old. He is the member of the Christian Revival Centre faith. He was educated up to primary school level. He has no formal employment. He is a villager.

Roga Rogoti: He is 63 years old, married with 8 children and 25 grandchildren. He is a villager. He is the member of the United Church faith. 

Kini Roga: He is aged 41, married with 3 children, educated up to grade one (1) and he is the member of the United Church faith and a villager. 

Alex Roga: Age 29, married with 3 children, was educated up to Grade 10 at Kwikila High School. He is a villager. He is the member of the Christian Revival Centre faith. 

ALLOCUTUS: 

10.	On allocutus each of the accused said the following:

Kapaka Roga -"I have a lot of children. I ask if the court could sympathise on me. That is all".

Roga Rogoti - "I ask the court if I and my children be assisted". 

Kini Roga - "I have young children. I ask the court if the court could give me a chance". 

Alex Roga - I ask if the court could have mercy on me and my family and my future. I have three young children to look after". 

11.	None of the accused specifically expressed remorse. However their change of plea from not guilty to guilty is taken as their remorse. 

MITIGATING FACTORS

12.	The accused pleaded guilty to the charge. They have no prior criminal records. Their change of plea of not guilty to guilty saved both time and cost of running a trial. I give them some recognizance for pleading guilty to a very serious offence. 

AGGRAVATING FACTORS

13.	The accused used offensive weapons namely bush knives. It was a group attack on the victim. The victim sustained multiple wounds to his body. He has permanently lost the use of his left thumb. The accused walked from their settlement to the victim's village and inflicted the injuries on the victim. The co-accused Kakapa Roga used a shotgun and threatened the victim's family and relatives by pointing the gun at them. 

DEFENCE SUBMISSIONS

14.	The defence counsel submitted that in considering what would be the appropriate sentence to be imposed, it is in the discretion of the court in considering as to the availability of the mitigating and aggravating factors and what weight should be given to them, as per Manu Kovi v. The State (2005) SC789. There is only one mitigating factor and that is that the co-accused Roga Rogoti being very old man. 

15.	The defence counsel submitted that if the court is of the view that there are any express or implied doubts by the prisoners in the allocutus, confessional statements and the record of interview, the benefit should be accorded to the prisoners. The counsel relied on the doctrine of "most favourable versions of fact" as per the decision of the Supreme Court in the Public Prosecutor v. Tom Ake [1978] PNGLR 469, which is re-affirmed in Saperus Yalibakut v. The State (2006) SC 890, where the Supreme Court said: 

"If there are significant issues of facts arising from the depositions or the allocutus that were not in the summary of the facts to which the accused pleaded guilty, the court should generally act on the version of the facts, which, within the bounds of possibility, is most favourable to the accused...."

16.	In considering the principle of "the most favourable version of fact", the defence counsel submitted that the head sentence to be imposed on the prisoners would be: 3 years for the accused Kini Roga and 1 year each for the other accused – Roga Rogoti, Kapaka Roga and Alex Roga. And the counsel submitted that a non-custodial sentence be imposed as per the decision in The State v. Attiok Ishmael (2001) N2294. If a non-custodial sentence is to be imposed, then some strict conditions shall be attached such as probation supervision. 

THE STATE SUBMISSIONS

17.	The prosecutor submitted that the grievous bodily harm inflicted by the prisoners were serious and has disrupted the complainant's life. The penalty for grievous bodily harm simpliciter is seven years under s.319 of the Code. However this is an offence under Section 315 (b)(d) of the Criminal Code for which the maximum penalty is life year imprisonment. Prosecutor cited number of decided cases of similar nature where sentences were imposed.

18.	In State v. Toluana [2011] PGNC 138 (Cannings J) sentenced the accused to 10 years where the victim was attacked by the accused and one other with a bush knife following an argument while the victim was walking towards his vehicle. The victim was cut on the left side of his head, chin and jaw.

19.	In State v. Pepa [2010] PGNC 148 (David J), the victim sustained serious multiple bush knife wounds on his left face, right arm and right leg. The accused was the first time offender, he pleaded guilty, he was a lone attacker and permanent injuries sustained by the victim. He was sentenced to 6 years.

20.	In State v. Taroh [2004] PGNC 104 (Kandakasi J), the accused cut the victim's hands three times with a bush knife during a confrontation arising from a land dispute. He was sentenced to 8 years imprisonment. And Kandakasi J, said that sentence for GBH under Section 315 of the Criminal Code should be above the sentence of GBH under Section 319. 

DECISION OF THE COURT

21.	The facts established that the accused Kini Roga while armed with a bush knife wielded the knife above his head and he charged at Jonathan Mala. He knocked Jonathan down, sat on top of Jonathan and tried to stab him. By his action at the time of the offence, the accused Kini Roga intended to cause grievous bodily harm to Jonathan Mala. But when Maka Mala intervened, the accused Kini Roga left Jonathan, he turned to Maka Mala, swung his bush knife twice and cut Maka Mala before the three co-accused joined in and they also inflicted injuries on the victim. They then left the victim lying on the ground. They did not leave the victim because the members of the Mala family or the Kore community charged at the accused. Their actions showed that they all have the intention to cause grievous bodily harm to the victim Maka Mala but they did not intend to kill him. 

22.	The act intending to cause grievous bodily harm under Section 315 (b) (d) of the Criminal Code has a maximum prescribed penalty of life year imprisonment but subject to Section 19 (a) of the Criminal Code. This Court has the power under Section 19 (a) to impose a sentence lesser than the prescribed maximum sentence of life year imprisonment.

23.	It is a well established law that a maximum prescribed sentence is reserved for the worst category of offence under consideration before the court: see Goli Golu v. The State [1978] PNGLR 653; Avia Aihi (No.2) v. The State [1982] PNGLR 92 and Ure Hane v. The State [11984] PNGLR 105. 

24.	The question to be asked is, does this case fall into a worst category of the unlawful grievous bodily harm cases. All the accused were armed with offensive or dangerous weapons namely the bush knives. They walked from their place of residence to the victim's village that morning. There appeared to be a dispute over a piece of land between the two families where the accused had settled. There was no provocation exerted to the accused by the victim's family that morning. Each of the accused swung their bush knives and inflicted multiple severe wounds on the victim's left arm, head and back. One of those blows severed the victim's left thumb. The accused did not seem to use the existing law enforcing authorities established in their area like the village court or the land mediators to try to resolve the dispute. But they resorted to have a physical confrontation with the Mala family. When they attacked the victim, none of the members of the Mala family nor the people of Kore village intervened to fight against the accused. Taking all these into account there can be no doubt that this case falls into a worst category of unlawful grievous bodily harm cases. 

25.	The next question to be asked is whether a person convicted of an offence under Section 315 of the Criminal Code for grievous bodily harm may be sentenced to any lesser offence? The Section 542 (2) of the Criminal Code states that:

"On an indictment charging a person with an offence of which an intention to cause some specific result is an element, he may be convicted of an offence that is established by the evidence and of which the unlawful causing of that result is an element".

26.	The element under Section 315 (b) is "with intent to cause some grievous bodily harm". And the element under Section 542 (2) is "an offence of which an intention to cause some specific result". It is therefore clear that under Section 542 (2) of the Code, a person charged under Section 315 may be convicted under Section 319 of the Criminal Code for unlawfully causing grievous bodily harm if the evidence establishes it: see R v. Meauri [1969-1970] PNGLR 254 at 259 by Clarkson J. It is therefore open for the court to enter a conviction under Section 319 of the Criminal Code. 

27.	However, having considered the seriousness of the offence where the victim was attacked by a mob of four people all armed with offensive weapons and he was attacked at his own home in front of his family and relatives, I do not intend to impose sentences under Section 319 of the Code. The defence counsel perhaps did not realize that his clients were charged under Section 315 of the Code and made submissions on sentence under section 319 of the Code. 

28.	Since the prisoners are charged and convicted under Section 315, I would follow the decision of His Honour Kandakasi J, in the State v. Taroh (above) that a sentence for grievous bodily harm under Section 315 should be above the sentencing guideline under Section 319 of the Code. 

29.	The accused Kini Roga is the main character in this crime. He swung his bush knife twice and inflicted the wounds on the left arm, the severing of the left thumb and a cut on the left eye brow. These injuries may not be life threatening, however the victim sustained a permanent injury that resulted in the effective use if his left thumb for the rest of his life. When the co-accused joined in the attack he did not get involved again. I consider a sentence of eight (8) years is not too excessive in the circumstances. 

30.	The co-accused Kapaka Roga cut the victim only once on the head. The co-accused Alex Roga first hit the victim with a stone on the head then he cut him on the head with a bush knife. The injuries inflicted by the co-accused Kapaka Roga and Alex Roga were no doubt life threatening since the cuts were on a vital part of the body. I consider a sentence of eight (8) years is not too excessive in the circumstances. 

31.	 The co-accused Roga Rogoti sliced the victim on the back twice using a bush knife. Those injuries inflicted by Roga Rogoti were not life threatening. It was a mob attack on the victim but the injuries inflicted by this victim were not life threatening. I also take into consideration that he is an old man age 63 years. I impose a sentence of four years imprisonment on Roga Rogoti. 

32.	Should the sentences be suspended in whole or in part? Sentencing has three purposes and these are a punitive, deterrence or rehabilitation. The purpose of a punitive sentence is to punish the offender for the crime he has committed and for the safety of the community. The purpose of a deterrence sentence is to deter or warn future like offenders from committing similar offences. While the purpose of rehabilitative sentence is to reform the offender from his criminal ways to become a good citizen. 

33.	The accused are all first time offenders and they all pleaded guilty to the charge. They are all family men. The accused and the victim and his family are from the neighbouring villages. In determining whether or not to suspend the sentence either wholly or partially, the court should also bear in mind of maintaining peace and harmony between the neighbouring villages or families. But on the other hand it must not be overlooked that this is one of the prevalent offences. I consider that partial suspension of sentence is appropriate for the prisoners Kini, Kapaka and Alex Roga. As for the prisoner Roga Rogoti, due to his old age, I do apply the doctrine of "most favourable version of fact" in that his sentence be wholly suspended with conditions. 

34.	Should compensation be ordered? Compensation may be ordered by the court, pursuant to the relevant provisions of the Criminal Law (Compensation) Act 1991. Payment of compensation is not a form of punishment. Under this statutory law compensation can only be ordered upon the presentation of a means assessment report from the Chief Probation Officer to the court. The prisoners have not indicated if they are intending to pay compensation. The defence counsel has not requested for means assessment report. The prisoners are all villagers, I doubt if they have the means to afford compensation. I would therefore not consider imposing compensation upon them. 

SENTENCE

35.	The prisoners are convicted and I sentence them as follows: 

KINI ROGA: Sentenced to Eight (8) Years IHL. After serving Four (4) Years, the balance of the sentence will be suspended on conditions as below.

KAKAPA ROGA: Sentenced to Eight (8) Years IHL. After serving Four (4) Years, the balance of the sentence be suspended on conditions as below. 

ALEX ROGA: Sentenced to Eight (8) Years IHL. After serving Four (4) Years, the balance of the sentence be suspended with conditions as below. 

ROGA ROGOTI: Sentenced to Four (4) Years IHL. Whole of the sentence suspended on conditions as below. 

BAILS: Be refunded. 

CONDITIONS ON SUSPENDED SENTENCES

36. The conditions of suspended sentence are as follows:

1.	Prisoners will enter into their own recognizance to keep the peace and be of good behaviour for the period of their suspended sentences without surety.

2.	Each of the prisoners must reside in Kwaipo village and nowhere else during the period of the suspended sentence except with the written approval of the National Court. 

3.	They must not re-offend.

4.	They must not consume alcohol. 

5.	They must not harass, interfere, threat or assault any members of the Mala family of Kore village. 

6.	They must report to the Waigani National Court Registry every first Monday of each calendar month between 9.00am and 3.00pm and sign the register during the currency of their suspended sentence.

7.	Should a prisoner breach any of these conditions, he be arrested and returned to prison to serve out his suspended term of sentence. 

______________________________________________
Public Prosecutor: Lawyers for the State
Paul Paraka Lawyers: Lawyers for the Accused