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State v Lilei [2023] PGNC 166; N10318 (9 June 2023)

N10318

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 892 OF 2022

BEWEEN
THE STATE

AND
MARUM LILEI

Kokopo: Tusais J
2023: 27^th April, 09^th June

CRIMINAL LAW – Assault occasioning bodily harm, s 340 Criminal Code- Plea- Serious injuries – Attack on foreign worker in logging camp – Case serious – Matters for consideration on sentence – Attacks on foreign workers and visitors becoming prevalent – Need for deterrence - Sentence of 2 years 6 months appropriate.

Cases Cited
Avia Aihi vs the State (No 3) [1982] PNGLR 92
Goli Golu v the State [1979] PNGLR 653
Supreme Court Reference No 1 of 1984 [1984] PNGLR 418
Saperus Yalibakut v The State (2006) SC890
Public Prosecutor v Tardrew [1986] PNGLR 91
State v Kogen [2016] N6211
State v Wamingi [2013] N5723
State v Dusava [2021] N9117

Counsel
Ms J Batil, for the State
Mr Loloma, for the Accused

SENTENCE

09^th June, 2023

1. TUSAIS J: The prisoner pleaded guilty to assault occasioning bodily harm, an offence contrary to section 340 of the Criminal Code Act. This is the court’s decision on sentence.
   
2. The offender assaulted his work supervisor, an Indonesian man named Jupri Aco. Both of them were employed by a logging company called KKCL at Lasul Bay, Gazelle District, East New Britain Province. On the morning of 24^th March 2022, the prisoner was waiting for Jupri Aco on the road and stopped the car but Jupri did not stop. Jupri drove on, dropped off some workers and returned. When he drove back the offender picked up a piece of hardened clay and threw it at Jupri. It landed on the victim’s head and caused a deep cut above his left eye brow causing heavy bleeding.
   
3. The issue for the court to decide is the penalty to impose on the prisoner. The punishment prescribed under section 340 is a term of imprisonment not exceeding 3 years.
   
4. Maximum sentence for any offence is usually reserved for those crimes described as the worst of its kind. I refer to the cases of Avia Aihi vs the State (No 3) [1982] PNGLR 92, Goli Golu v the State (1979) PNGLR 653 and Supreme Court Reference No 1 of 1984 [1984] PNGLR 418.
   
5. The Prisoner is 26 years of age and comes from Vunadawai Village, Livuan Reimber LLG, Gazelle District, East New Britain. Both his parents are still alive and are in the village. The Prisoner did his Primary education from Grades 1-8 at Lungalunga Primary School and has had no further education since then. He is a self-taught carpenter. He was employed with KKC Logging Company at Lassul Baining as a log tally keeper where he usually earned K250 per fortnight. The Prisoner is singe. He has no prior convictions. He attends the Seventh Day Adventist church.
   
6. According to the Probation PSR, the offender was employed as a tally clerk with a Chinese Logging Company at Lassul Bay but left his job due to this current offence. The offender worked for three years with the company and then he was put off the payroll for about 3 months. Several approaches were made to fix his wages but the company failed to pay him so he assaulted his supervisor.
   
7. Defence lawyer asked the court to take note of the following mitigating factors.
   
   1. The Prisoner has no prior convictions.
   2. He cooperated throughout investigations.
   100. He made admissions in his Record of Interview and had pleaded guilty to the offence.
   4. This was an isolated incident.
   5. There were no permanent injuries.
   6. There was some form of provocation in the non-legal sense by the victim when he failed to pay the Prisoner his wages and avoided giving the Prisoner the reason behind the non-payment of wages.
   7. He is a first-time offender.
   8. He acted alone;
      
   9. The Offender expressed remorse before the court for what he has done. In allocutus he said:
      

“I would like to say sorry for what I did...I say sorry to my province. I say sorry because it is my first time to stand in court. ... I say sorry because it is my first time to commit this offence. I promise that I will never commit this trouble again. I ask court for mercy and ask to be placed on good behaviour bond ”

8. I do take into account some of those factors as submitted by the defence lawyer. I accept that he pleaded guilty and in fact cooperated with the police when first apprehended. He has no prior convictions.
   
9. I also take note of the sentiments expressed in his allocutus. I note that he has not expressed any regret for attacking the victim or apologised for the serious harm he gave to him. There are also factors which I consider to be very serious aggravating factors in this case.
   
10. Firstly, there was strong intention to cause harm. Victim statement revealed that the offender after striking him with the hardened clay, swore at him and ordered him out of the car. Then he got in the drivers seat and was trying to drive over him but someone stopped him. Offender left the car some distance away and then left the scene.
    
11. This is an alcohol abuse-related offence. The offender was drunk at the time of the offending and stood on the road waiting for the victim.
    
12. The victim sustained a deep wound over his left eye. He bled profusely and was taken to Nonga hospital where he was admitted. Photographs taken show deep cut above his left eyebrow. Medical report states that skull bone was exposed but no fracture found.
    
13. I consider as aggravating the fact that the attack was done to a foreigner who was lawfully in this country to work and bring development to the economy. I take judicial notice of the increasing trend and alarming frequency of attacks against foreign nationals who come to PNG for work or to visit as tourists. Foreigners seem to be fair game for every Tom, Dick and Harry in PNG to attack and molest. Just last week a Chinese woman was shot dead in Port Moresby during an armed robbery in her shop. That same week, two German tourists were attacked in Southern Highlands while bird watching. Three weeks ago, a Korean man was shot dead at point blank by a group of man who followed him to his house in Port Moresby.
    
14. In East New Britain Province we have had our fair share of attacks. Last year a Taiwanese agricultural advisor was murdered in his home at Kabakaul near Kokopo. More recently, a Chinese couple were shot and injured at Napapar no 5 village while they were driving from Kerevat to Kokopo. One of them had to be medevacked to Moresby. In neighbouring New Ireland Province, an American woman was raped at a local Island resort by criminals from Kavieng town. The list goes on. Courts must impose very tough sentences as a warning to others who contemplate harming foreigners. Visitors to our country usually come here with good intentions and all of them contribute to our economic wellbeing. They all have the right to full protection of the law under our constitution section 37. Courts have a duty to ensure that this right is extended to non Papua New Guineans. Offenders like Marum Lilei send a very bad and shameful image of Papua New Guinea to the international community.
    
15. Assaults including GBH and Assault occasioning bodily harm are becoming very Prevalant. There is far too many cases of assault and violence in East New Britain and the rest of Papua New Guinea. Severe sentences must be imposed to deter further offending.
    
16. I do not fully accept the prisoner’s reasons for striking the victim and causing such serious injury. The offender says that he was angry with the victim for not paying K4000 owed for several fortnights of work. The victim was not an executive or owner of the company. There is also a report provided to the court by the Probation service and I note the comments of Tan Ling Kuok, Operation Manager and the victim’s supervisor. He said that the victim had left the country to his home village in Indonesia after he received injuries to his body. He stated that the offender was terminated after he was seen entering the expatriates’’ room without permission given and at times seen sleeping and going to work. Offender was warned many times but he never complied with the directives given to vacate the rooms and sleep at home.
    
17. Mr Kuok said that the offender had already got his finish pay but later was working again without the company approval. He said that an expatriate had taken him to work without the company’s knowledge and so his pay was not done. Before the victim received injuries, the offender was seen drinking alcohol all night till morning when everyone was ready to go to work. Mr Kuok assisted the victim and took him to the hospital to receive medical treatment.
    
18. In guilty plea matters, it is the accepted practice that courts must give the benefit of doubt and act on the version of facts as stated by the offender, Saperus Yalibakut v The State (2006) SC890. However, those facts must not be beyond the bounds of common sense and credibility. I accept that the offender felt a sense of grievance about his non payment of salary and compensation for injury to his finger. However I do not accept that the victim was the person directly responsible for denying him his entitlements because the victim himself was under the supervision of others like Mr Luok.
    
19. I refer to the following cases submitted by defence counsel. A range of sentence between 18 months to two years is shown in the following cases.
    
20. In the State v Wamingi [2013] N5723, the Offender pleaded guilty to one count of assault occasioning bodily harm. During a fight with her sister in-law, the offender completely bit off two-thirds of the right-side outer ear. Justice Cannings stated that a starting point of 18 months was appropriate for guilty pleas in cases of assault occasioning bodily harm and imposed that term less time spent on remand. None of the sentence was suspended.
    
21. In State v Kogen [2016] N6211 the offender hit the victim with a piece of wood and fractured her arm. She was angry after seeing the victim hold her child. There was no lawful justification. The victim did not want compensation. The court said the views of the victim must be taken into consideration. Cannings J sentenced her to 2 years imprisonment. Time spent in custody was deducted. None of the remaining sentence was suspended.
    
22. In State v Dusava [2021] N9117 the offender pleaded guilty to the assault of a medical doctor. He punched the doctor and one of his friends threw a bottle of beer on the doctor’s head. The doctor sustained injuries to his eye. His other friends then assaulted the doctor as well. Offender was sentenced to 18 months imprisonment. Time spent in custody was deducted and the balance was ordered to be served.
    
23. I consider that this is a serious case of assault occasioning bodily harm. The main reason is the extent of the injuries sustained. I also consider that the case is aggravated because it was done while the offender was drunk. Finally, the victim was an innocent foreigner who was not responsible for the offenders grievances. In those circumstances I sentence the offender to two years six months as deterrence against further attacks like this on foreigners.
    
24. Should the court suspend the whole or part of the sentence as suggested by defence counsel? In Public Prosecutor v Tardrew [1986] PNGLR 91 the Supreme Court held that suspension of part of a sentence under s 19(6) of the Criminal Code may be appropriate in three broad categories. The categories are not exhaustive. First is where suspension will promote the personal deterrence, reformation or rehabilitation of the offender. Second reason is if suspension of sentence will encourage or lead to repayment or restitution of stolen money or goods. Finally suspended sentence is to avoid excessive degree of suffering to the particular offender, for example because of his bad physical or mental health.
    
25. Suspension of sentence in this case would be to encourage reconciliation between the prisoner and the victim. Probation Report states that the victim has already left the country after he was attacked. I will however suspend only part of the sentence to encourage rehabilitation and deterrence of the offender himself from committing further trouble.
    
26. I note that the offender does not have any prior convictions. I accept the submissions made by his lawyer and do take into account some of the mitigating factors that were submitted. I also take into account the Probation report. The PSR is favourable to the offender and does recommend that he is a suitable candidate for probation.
    
27. In all the circumstances, I impose a sentence of 2 years 6 months in hard labour on the offender. I deduct one year he spent in custody. I suspend 6 months of the remaining sentence because he has pleaded guilty and because the probation report is favourable to him on condition that he promises to be of good behaviour for one year after he is released from prison. He is to serve 1 year at Kerevat jail before he is released.
    

SENTENCE

1. 2 years 6 month IHL
2. Less 1 year for time on remand
3. 6 months suspended on condition he is of good behavior for 12 months after release
4. To serve remaining 1year IHL
   

Sentenced accordingly.

________________________________________________________________
Office of the Public Prosecutor: Lawyers for the State
Office of the Public Solicitor: Lawyers for the Accused