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State v Welisai [2023] PGNC 275; N10439 (17 August 2023)

N10439

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 868 & 869 OF 2020

THE STATE

V

VINCENT WELISAI & NOAH KURAU

Aitape: Miviri J
2023: 08^th August

CRIMINAL LAW – PRACTICE AND PROCEDURE – GBH S319 CCAx2x2 – Plea x2x2 – 1^st Victim Left Eye Sustained Pellet Wound – Left Eye Removed – 1 eyed Victim – 2^nd Victim Chest Wall, Right Hand & Forearm, Cheeks & Chin – Pallets Palpable Dislodged Within – Xray Confirmation – Shotgun Used – Retaliated Against Stones Thrown – Fighting – Unlawful Use of Dangerous Weapon – Attempted Murder Reduced Plea Bargaining – First Offenders – Protection of the Law – Deterrent Sentences.

Facts
Both Accused with fellow villagers attacked in a fight fired with a shotgun that was in the direction of where the victims were. One sustained injury to his left eye removed as a result leaving victim one eyed. The other received pellets to his right forearm and hand, chest and face. He has pellets still dislodged within.

Held
Plea of guiltyx2x2
First offenderx2x2
Would not have acted if no fight from other side.
residual and permanent injuries
Deterrent Sentences

Cases Cited:
Aihi v The State (No 3) [1982] PNGLR 92
Tardrew, Public Prosecutor v [1986] PNGLR 91
Public Prosecutor v Hale [1998] PGSC 26; SC564
The State v Irowen [2002] PGNC 99; N2239
The State v Ogi Songe [2017] N6759
The State v Philip Piapia [2017] N6763
The State v Steven Tumu [2017] N6768
State v Kapen [2013] PGNC 300; N5133
State v Kara [2012] PGNC 19; N4663
State v Lisio [2017] PGNC 323; N6961
The State v Jeptha Felix [2022] N10352
Kerua and Kerua, Public Prosecutor v [1985] PNGLR 85

Counsel:
D. Mark, for the State
P. Moses, for the Defendant

SENTENCE

17^th August 2023

1. MIVIRI J: This is the sentence of two men who had pleaded guilty that they fired a shotgun in a fight that injured both victims, one in the left eye, and the other to the right hand, chest and face.
   
2. The Prisoners were involved in a fight with the victims and their people from Yakamul villagers. And it was over an incident where several drunken youths had damaged the residence of the Local level Government Manager one John Awas the day before. And it was alleged that it was done by the youths of Poltulul.
   
3. On arraignment both prisoners were alleged to have on the 25^th February 2020 here in Aitape unlawfully caused grievous bodily to befall, firstly Hauda Haiyak 18 years old, when they shot him with the shotgun through his right forearm, chest, cheeks, chin, and the forehead. The pellets are palpable and still dislodged within. It is therefore a permanent injury caused by their actions contrary to section 319 of the Code. The same charge is pursued against both prisoners for the second victim Peter Aipi 55 years old male, he suffered the loss of his left eye when he was shot through it with a pellet from the gun that was fired by the prisoner Vincent Welisai assisted by Noah Kurau. Both prisoners will therefore each be sentence for two counts each of Grievous bodily harm pursuant to section 319 of the Code.
   
4. The charge is in the following terms, “A person who unlawfully does grievous bodily harm to another person is guilty of a crime.
   

Penalty: Imprisonment for a term not exceeding seven years.”

5. Both Prisoners are looking at the maximum sentence of seven years imprisonment. Which is the maximum usually reserved for the worst kind of Grievous Bodily harm: Aihi v The State (No 3) [1982] PNGLR 92. The read of their facts and circumstances do not depict that it is indeed the worst case of grievous bodily harm. Notably each has pleaded guilty to the offence. And by that fact accepted the wrong they have committed in the eyes of the law. Each has not shied away, nor did they put up a fight against. This is reflected in their records of interview. Both must be commended in this way because it is the first step to amending their criminal behaviour. Not only that but payment has been made of “Bel Kol” money in the sum of K 5000 in cash. That according to the presentence report of the prisoner Vincent Welisai is K 15, 157. 00 in cash and kind paid to the Yakamul. It is really in their favour because it makes the guilty pleas genuine on their part.
   
6. In my view when prisoners take it upon themselves in this way to make good a wrong without the hand of the law, but by the same way they have committed the wrong on others, to take the initiative without court supervision to do as is the case here, it must find favour in the sentence that is passed upon them. It is in my view a strong mitigating factor, because these are overt of the intentions to make good a right and start a new in their lives. And in the same way if there is acceptance of their gesture from the side wronged, it must be strong basis to sentence aligning with that course. Sentencing is not about punishment only, but reformation of the prisoner including deterrence of the offence not only from the prisoner himself, but the Community at large. To go one way or combined is really determination of the facts and circumstances peculiar to a case: Tardrew, Public Prosecutor v [1986] PNGLR 91 and that will drive whether a suspended sentence is meted out or not. But it must be guided by a presentence report from the Community to see out, Public Prosecutor v Hale [1998] PGSC 26; SC564 (27 August 1998).
   
7. Vincent Welisai, 47 years old originally from Maltik village, says he did not start the original problem because during the night the Yakamul People came with bush knives and grass knives and nearly chopped me, question, and answer 22 record of interview conducted 1^st July 2020 with Police. He confirms and identifies the subject gun photographed and before the court. A factory-made shotgun with a single barrel. In the presentence report that was ordered and filed 16^th August 2023 in both cases, he says that he knew what dangers were, when he fired the subject shot gun. But it was in his view not aimed at his victims but into the air deflected by the rain tree into the victims. Hence injuries that have not led to immediate death in both cases, but serious grievous injuries. He accepts responsibility and despite the payment of the bel kol, has expressed willingness to assist the victim seek further medical attention or compensation in the sum of K 5000. Personally, he suffers from Pancreas disease preventing him from doing heavy work. It is not evidenced by medical evidence, so it is not clear what it is, how serious it is, and for all it is worth it is by itself self-serving. So, for all intent and purposes he will be treated as if he is fit to take charge of manual duty in satisfaction of the sentence that is imposed upon him.
   
8. Noah Kurau has also taken responsibility in the offence that was perpetrated against the victims. His role is depicted out in that he reloaded and re-discharged that same gun in the direction of the victims. It is an act that has now costed the lives of both victims. He is a first offender with no prior criminal behaviour recorded to his account. Originally from Poltulul village he is married with a son aged 8 months old. And is of the Assembly of God Church Poltulul. He was educated to grade one Aitape Primary School 1995 and did not continue further after the passing of his father. He has no formal employment history. He contributed to the initial bel kol K5000 that was paid to the relatives of the victims and all who came on that day of the allegation. He does not have any health issues.
   
9. In the community the town mayor Honourable Ian Smith deposes that Both are of good character. And leaders in church currently involved in the building of a church building and the pastors house there for Noah Kurau. And Vincent Welisai building of an early Childhood Centre at Ward 8 and is also the school Treasurer. He had no part to the initiation of the original trouble but was caught up amid it. Because the Yakamul villagers were armed with bush knives, wire catapult and fishing guns. They were in a public area looking for anyone who was from Poltulul village and took it out on the prisoners. They retaliated to save themselves from rocks that were hurled prompting the prisoners to act as they did.
   
10. One of the victim Peter Aipi says he will be relieved with the further payment of K 5000 as he did not receive the original payment made of that amount as bel kol. He will be content with a part custodial sentence. There is nothing in the presentence report on the views of the second victim Hauda Haiyak. But appropriate determination will be made given his circumstances evidenced by the medical report. Another referee is Canisius Apai who is the president of the Ward 8 Councillor Aitape East Local Level Government. He confirms the confrontation as it happened that it was after settlement was made at the police Station. And upon exit the Yakamul ignited this matter leading to the injuries that were committed by the Prisoners. He says both are no troublemakers but respected members of the Community. Both have strong advocacy behind them to ensure law and order is maintained here. Which is also confirmed in all material particulars by Carl Maso Ward 8 Aitape Local Level Government village Court Magistrate at Yani village Court area. He confirms this information. Which is further confirmed by the Criminal Investigation Arresting Officer Ekis Tusen Aitape Police Station. Both are active members who support the police in maintaining law and order in Aitape. The police Force is small and people in the make of the prisoners have contributed well to help the police. The local Senior Pastor of the Church Rose Malken Assembly of God church Aitape describes the offender Noah Kurau as obedient honest and reliable of sober habits. He has good leadership quality and fights against bad habits and behaviour.
    
11. This is the general reference of both prisoners meted out by the presentence report that has been filed. Both prisoners by that report has recommended each on probation with conditions for community service and compensation to the victims. That report details in the case of Vincent Welisai, resident of Ward 8 Aitape East Local Level Government, Poltulul village that he admits he fired the subject weapon on that day twice and it was not Noah Kurau who is responsible, he is responsible as he discharged it twice leading to the injuries that emanated. He explains that it was deflected from the rain tree branches into the victims injuring both. That had he fired directly at the people there would be death including the victims. But it was deflection and therefore they were able to survive. Which is common sense at that range he was with the victims parallel to where he stood. And his reaction is not instigating the matter as it were, it had been attended to at the Police Station and appeased. But was ignited by the Youth from his area on the other side as they passed where they met the opposing side. Stones were thrown reacting the prisoners and persons from their village to act as they did. This is coupled with that which is his explanation for the way that he acted set out above.
    
12. A married man originally from Poltulul village with eight (8) children is the brother of the current Mayor Ian Smith. And is educated to grade 6 in Aitape Primary School in 1988 but did not continue to advance his education because of his academic results not meeting the standard. He was briefly employed with Jester Pacific Security Limited here. He says that a total of K 15, 157. 00 in cash and kind was paid out to the Yakamul. It eased the tension that was there leading to the offence.
    
13. Grievous bodily harm is associated with murder charge being one of its primary elements. It is by that fact a very serious offence. Particularly when a dangerous and offensive weapon, a shotgun is discharged in the direction of where the victims are. And it is not discharged without any reason at the discretion of the prisoner. Because the facts disclose that the prisoner Vincent Welisai was earlier on in the night the subject of an attack by the persons originating from Yakamul. The facts set out here do not depict the imposition of the maximum sentence. And relevant in this regard are all I set out above. Including primarily that both pleaded guilty and have expressed remorse and willingness to compensate the victims for the injury caused them. Without a formal order of this Court compensation, “Bel Kol” has been paid in the sum of K 5000. That is fulfilling the Criminal Law Compensation Act Section 5 Compensation Orders:

“(1) Upon receipt of the means assessment report or the Chief Probation Officer’s advice under Section 4(2), the court may, after taking into account the factors specified in Section 3–

(a) order the offender to pay, within such period and in such manner as the court determines, compensation to a person or group of persons specified in the order; and
(b) direct the Chief Probation Officer to supervise compliance with the compensation order.

(2) Subject to Subsection (3), compensation may be ordered in the form of cash, goods, services or any other kind or method of compensation which the court considers appropriate.

(3) No compensation ordered under this Act–

(a) shall include the use or payment of alcohol; and
(b) whether in the form of cash, goods, services or any other kind or method of compensation shall exceed in value K5,000.00,

and the value of any form of compensation other than cash shall be as determined by the court.”

14. So, for all intent and purposes compensation cannot be visited by the read of this law set out above. In this regard I note the desires of the victim to undergo treatment in Indonesia but that will not be a subject of any order by the dictate of the law set out above. He will have to seek civil proceedings using this courts judgement to convince that he is entitled to more than what was paid.
    
15. The eye is the soul of a human being because no one lives without sight. This victim will live for the rest of his life without a second eyesight. The maximum sentence is seven (7) years imprisonment. That was imposed in the case of State v Irowen [2002] PGNC 99; N2239 (23 May 2002) where both wives were cut with a bush knife almost killing them, but they survived because they were taken quickly to the hospital but came out with serious residual injuries. That is the extreme which isn’t the case here. It was made cumulative so that it was 14 years upon the prisoner there. That is not our facts here though there are two victims because of that discharge of the gun. It is aggravating when two shots were fired from that gun with two victims resulting. Both of whom have serious residual injuries. One has pellets lodged within his body, and the other has one eye only. No amount of sentence imposed will bring the left eye back for the victim. Nor would the pellets be removed in the body of the second victim.
    
16. But the law must protect both the victims and all in the Community from violence. No man should take the law into their own hands as was the case here in a public frequented area. Especially as here where reconciliation and peace had been attained in that mediation at the Police Station. That ought to have been respected. The escalation of violence into the injuries must be punished and stopped. Yes, both prisoners are respected and responsible members of the community and would not have committed the offence had not been where they were. Part of the fault lies on the people from where the victims were from no matter whose fault it was, the process of law should have been followed.
    
17. The range of sentence in this offence primarily has been at mid-range of 3 to 4 years part custodial and part suspension in each case illustrated for instance State v Ogi Songe [2017] N6759 (27^th May 2017): State v Philip Piapia [2017] N6763 (17 May 2017); and State v Steven Tumu [2017] N6768 (23 May 2017). A similar use of a firearm by a policeman charged with section 319 was sentenced to 5 years imprisonment, State v Kapen [2013] PGNC 300; N5133 (5 April 2013). That was with a police issued firearm against youth on the side of the road. Here it is in a situation of a fight where each is fighting against the other. The use of a firearm or gun turns the fighting to another level. It is therefore serious factor against both prisoners. Use of the bush knife came out with a 4-year imprisonment part of which was suspended in State v Kara [2012] PGNC 19; N4663 (10 May 2012). And similarly in State v Lisio [ 2017] PGNC 323; N6961 (19 May 2017) and The State v Jeptha Felix [2022] CR 1012 of 2022; N10352 (2 December 2022).
    
18. Here I determine that the just and proportionate sentence given all set out above is 3 years IHL and I so impose that upon the prisoners Vincent Welisai and Noah Kurau for the crime of grievous bodily harm committed upon Peter Sokap Aipi contrary to section 319 of the Code on the 25^th February 2020.
    
19. Further I determine that for the crime of grievous bodily harm committed by the prisoners Vincent Welisai and Noah Kurau upon Hauda Haiyaka on the 25^th February 2020, both are sentenced to 3 years IHL. And I so impose that sentence upon the prisoners forthwith.
    
20. Because the offences were committed at the same time on the same day, I order that both will be served concurrently: Kerua and Kerua, Public Prosecutor v [1985] PNGLR 85. So that is an effective sentence of 3 years IHL for both prisoners for both offences. And further in the exercise of my discretion pursuant to section 19 (6) after consideration of the presentence report in each case I order that the 3 years IHL will be suspended on the following conditions:
    
    • (i) You both Vincent Welisai and Noah Kurau shall enter into a

probation order for 3 years on conditions; -

(ii) You both Vincent Welisai and Noah Kurau shall within 48 hours report to the Probation Officer.

(iii) You Vincent Welisai and Noah Kurau shall be resident at Poltulul Ward 8 Aitape East Local Level Government at all times in the course of your probation period.

(iv) You Vincent Welisai and Noah Kurau shall be resident at Poltulul Ward 8 Aitape East Local Level Government and shall not without leave of this court during the course of your probation period leave Aitape or your residence.

(v) You Vincent Welisai and Noah Kurau shall perform 600 hours of community work at a worksite to be approved by the Probation Office.

(vi) You Vincent Welisai and Noah Kurau shall keep the peace and be of good behaviour at all times.

(vii) You Vincent Welisai and Noah Kurau shall not take liquor or any form of intoxicating substance or drugs during the period of your probation.

(viii) You Vincent Welisai and Noah Kurau shall attend your local PNG Revival Church for you Vincent Welisai and for your Noah Kurau the Assembly of God Church every Sunday for service and worship whilst on probation.
(ix) You Vincent Welisai and Noah Kurau shall undergo counselling from your local pastor of your respective churches PNG Revival Church for you Vincent Welisai and for your Noah Kurau the Assembly of God Church for number of times as may be determined by the counsellor.

(x) You Vincent Welisai and Noah Kurau shall within 4 months as of the date of this order make restitution to Peter Sokap Aipi and Hauda Haiyaka in the sum of K 2000 cash each a total of K 4000 and some garden food to the value of K 400 and a live pig valued at K600.

(xi) The restitution shall be witnessed by your probation officer, the police informant, Pastor of your respective Churches and Aitape Town Mayor Honourable Ian Smith and Ward 8 Aitape East Village Court Magistrate.

(xii) The Probation Officer shall file a report on the responses and progress of the probationer every four months and at any other time or interval as the National Court may order upon application.

(xiii) In a breach of any of these Probation Orders your Probation shall lapse and you shall be arrested to serve the whole term of your sentence.

Ordered Accordingly.

__________________________________________________________________

Public Prosecutor: Lawyers for the State

Public Solicitor : Lawyers for the Defendant