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State v Bubura [2004] PGNC 194; N2577 (28 April 2004)

N2577

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 623 of 2004

THE STATE

-V-

REDFORD BUBURA

WEWAK: KANDAKASI, J.
2004: 21st and 28th April

CRIMINAL LAW – PRACTICE & PROCEDURE – Alternative charges– Guilty plead to lesser charge – State choosing to abandon serious charge – Court bound to take into account whole circumstances of the case to determine appropriate sentence.

CRIMINAL LAW - Sentence – Grievous bodily harm – Victim speared at abdomen – Near death – Further surgery – Guilty plea – First time offender – Provocation in the none legal sense – No expression of remorse and payment of any compensation - Concerned only about own family report recommending compensation only - Sentence of 7 years imposed – Criminal Code ss. 19 and 319.

Cases cited:
The State v. Nickson Pari (N0.2) (10/01/00) N2033.
The State v. Joe Ivoro & Gemora Yavura [1980] PNGLR 1.
Lakau v. The State [1981] PNGLR 350.
The State v. Sari [1990] PNGLR 48.
Dinge Damane v. The State [1991] PNGLR 244.
The State v. Abel Airi (28/11/00) N2007.
The State v. Isaac Wapuri [1994] PNGLR 271.
The State v. Philip Susuve Raepa [1994] PNGLR 459.
The State v. Apa Kuman (20/12/00) N2047.
The State v. Darius Taulo (15/12/00) N2034.
The State v. Rueben Irowen (24/05/02) N2239.
The State v Henry Idab (17/12/01) N2172.
The State v. James Gurave Guba (19/12/99) N2020.
The State v. Lucas Yovura (Unreported judgment delivered on 29/04/03) N2366.
The State v. Attiock Ishmel (Unreported judgment delivered on 12/10/01) N2294.
The State v Joseph Ping (Unreported judgment delivered on 17/12/01) N2169.

Counsels:
P. Kaluwini for the State
P. Kumo for the Prisoner

28th April 2004

KANDAKASI J: The State presented an indictment against you, charging you with one charge of attempted murder under s. 304 and in the alternative, a charge of grievous bodily harm under s. 319 of the Criminal Code. You pleaded guilty to the charge of grievous bodily harm and denied the attempted murder charge.

The State had to choose between either, running a trial on the charge of attempted murder or accept your guilty plea and abandon the attempted murder charge. The latter was the option opted for. The State then tendered into evidence with your consent, the committal depositions. The Court read them and found that, there was a possible defence of provocation so it raised that with your lawyer. Your lawyer informed the Court that, he had your instructions to take that up in submissions as a mitigating factor. Given that, the Court confirmed your guilty plea and proceeded to administer your allocatus.

In your allocutus, you tried to tell the Court the whole of your side of the story. The Court therefore, took time to explain to you that, the full circumstances in which you committed the offence were before the Court, including your possible defence of provocation. The Court also explained to you that, your possible defence of provocation was raised with your counsel and counsel informed the Court that, that will be taken up in your submissions as a mitigating factor. At the end of the explanation by the Court, the Court asked you to address the Court on your sentence and you did mainly raising concerns and questions over the welfare and the well-being of your family. You also raised concerns and questions in relation to your children’s education.

In allowing and taking the above approach, I had regard to what I said in The State v. Nickson Pari (No 1) (Unreported judgment delivered on 14/12/00) N2037 after having regard to a number of authorities as follows:

"These lines of cases make it very clear that, once a trial judge finds something inconsistent with a guilty plea either from a perusal of the depositions or in the accused person's allocutus, the plea should be changed to a not guilty plea. That must happen whether or not the defence counsel makes an application under s.563 of the Code in order to accord to the accused his constitutional rights and or guarantees. Once a guilty plea is changed to a not guilty plea, the trial judge must disqualify from conducting a trial of the case. There is than a prerogative for the prosecuting counsel to decide whether or not to proceed with an alternative charge that may be available and supported by the depositions and one which accords well with the accused's statement in allocutus if that stage has been reached. If the prosecution takes that option, the accused must be re-arraigned on the alternative charge and be dealt with in the normal way."

The authorities I had regard to where amongst others were The State v. Joe Ivoro & Gemora Yavura [1980] PNGLR 1, Lakau v. The State [1981] PNGLR 350, In The State v. Sari [1990] PNGLR 48 and Dinge Damane v. The State [1991] PNGLR 244.

In your case, there was no need to change your guilty plea, because the charge proffered and its alternative were set out in the indictment and you pleaded guilty to the lesser and alternative count. Even then, I considered it necessary to ensure that, it was safe to accept your guilty plea. As such, I took the position I took. At the end of that process, I was satisfied that, it was safe to proceed on the basis of your guilty plea and we have.

Relevant facts

The facts giving rise to the charge against you as put to you during your arraignment and as emerging from the witness statements and your record of interview with the police are these. At about 6:00 p.m. on 5th October 2003, the victim of your offence a Dominic Maigo came over to your house to show his frustration over a land dispute he had with you. You and your victim are cousin brothers. Dominic’s wife followed him as he came to your premises. He argued with you over the land dispute issue and broke the wall of your house and tipped a cooking pot with food on the fire. He then chased you and your family. Thereafter, he went to your younger brother, Donald’s house, came back to you, and argued with you again. From there, he proceeded to your uncle Johnstarford’s house and assaulted his wife, Ethol. At this time, you decided to defend your family, got a spear, and speared Dominic.

The spear is in evidence. It is out of a palm tree with a knife as its teeth or blade. When you threw this weapon at Dominic, he tried to avoid it but it was too late. The spear reached him on the left side of his stomach, penetrating through the other side of his body. He quickly pulled the spear out, held it on his hands, and remained on his feet for a little while when you ran over and quickly pulled the spear away from him. Your other brothers joined you and assaulted the victim further, using other objects such as stones to hit the victim. The victim could not bear it any longer and so he fell to the ground.

You left the victim there and went away. His wife and another person helped him to the hospital. He received medical treatment and recovered but is undergoing a further surgery this month, in fact as we speak now.

According to the medical report, the spear entered the abdomen epigastric area and exited from the left loin. It just missed the spleen and kidney but cut through the large intestine and stomach. This caused the bowel to protrude through both wounds and associated with massive blood loss. That required an emergency surgery to repair the bowel and have it cleaned out which was done but did not result in any good recovery thereby requiring further surgery. The victim was discharged with an almost healing wound. His prognosis was a good recovery with a permanent large scar on his abdomen wall but the events have taken over in which further surgery has become necessary.

I find this was clearly case of a near death experience for the victim. The spear, you used is in evidence. I note that it is heavy and the blade is not that of a small knife. Instead, it is the size of a standard bush knife but shortened. I find that, the victim is truly fortunate that he did not die.

The Offence and Sentencing Trend

Section 319 of the Criminal Code creates the offence of grievous bodily harm and prescribes the penalty of imprisonment of a term not exceeding seven (7) years. There are a large number of judgments on this particular offence. This demonstrates a prevalence of the offence and the imposition of varying sentences. This, I believe has been the case because, as I said in The State v. Abel Airi (Unreported judgment delivered on 28/11/00) N2007, 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.

One such case is, The State v. Isaac Wapuri [1994] PNGLR 271. That was a case in which the prisoner hit his sister in-law with a motor 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 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. He received 18 months in hard labour with 5 months deducted because of time spent in custody with the balance 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.

Another is, The State v. Philip Susuve Raepa [1994] PNGLR 459. There, the victim suffered brain damage out of a drunken brawl and after a skull operation to remove internal bleeding. The Court ordered K5,000 compensation and placed the prisoner on good behaviour bond on his own recognizance with a surety of K300.00 with judgment deferred to future sittings of the court and for the prisoner to abstain from alcoholic drinks for 12 months until further orders.

Later, in The State v. Apa Kuman (Unreported judgment delivered on 20/12/00) N2047, the Court imposed a sentence of three (3) years. There, the prisoner after having raped the victim, cut her across her stomach to prevent her from calling out for help. That caused substantial damage to her left and right lobes, which bled profusely into the abdomen. Quick admission to the hospital prevented further bleeding and saved her from death due to loss of blood. The prisoner there was a young first time offender.

On my part, in The State v. Nickson Pari (N0.2) (supra) N2033, I imposed a term of 4 years and suspended part of it on terms, inclusive of good behaviour bond. There, the prisoner shot at and injured the victim on his left arm in the course of and in furtherance of an armed robbery. He was also a first time young offender.

At about the same time in The State v. Darius Taulo (15/12/00) N2034, I imposed a wholly suspended three (3) years sentence on strict terms as an alternative form of punishment outside the prison system. That was in the face of genuine remorse being expressed coupled with compensation already paid for by the prisoner himself, a preparedness to undergo his wife’s (the victim’s) traditional form of compensation and restoring the relationship and a willingness to truly change his ways under supervision. Further, the victim’s preference to compensation and the interest of the children of the marriage persuaded me to arrive at that sentence. Furthermore, there was a pre-sentence report supporting that sentence. I also noted that, the prisoner was a grown up man and not a danger to the society and that the society through a pre-sentence report was prepared to help him to rehabilitate.

In all of these cases, the prisoners pleaded guilty and that they were first time offenders. They all involved a single victim. Further, there was a good explanation for the commission of the offences although not all permitted by law. In the first case, it was a case of a sister-in-law provoking the prisoner after failing to secure a sexual intercourse from him. In the second and last cases, they were cases of drunken behaviour. As for the third case, the offence was committed to conceal another offence based on which the case could be considered more serious, inexcusable and one that warranted a more severe penalty. Finally, in the fourth case, it was a case of furtherance of the commission of another offence. This brings your case closer to the third case. The sentences were lenient in the first, second and last cases because of compensation payment or orders for payment of compensation.

A more serious case of grievous bodily harm is The State v. Rueben Irowen (Unreported judgment 24/05/02) N2239. In that 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. I imposed a cumulative sentence of seven (7) years each for the harm he had occasioned to the victims.

In a case earlier than the above, The State v Henry Idab (Unreported judgment delivered on 17/12/01) N2172, a group of men attacked another group mistakenly taking them to be the ones responsible for verbally assaulting one of the attacking group member’s mother. The victims 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 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.

Your Case

In your case, I note that, the victim is a cousin brother to you. You had an ongoing land dispute with him and that led to the attack on him. The victim was not happy with your conduct in relation to that dispute and he came over to your place and picked up arguments with you and your other immediate relatives. You attacked him as he was arguing with another person. Therefore, you through counsel correctly did not raise the defence of provocation or self-defence. There is no evidence however, of the victim attacking you or any of the members of your immediate family with a spear, a bush knife or any other weapon. Yet, you picked up a very heavy and dangerous weapon after he had finished arguing with you and left. You therefore speared him when there was no immediate threat to your life or that of any other person.

There is no evidence of you having any second thoughts before spearing the victim. Going by the nature of the injuries and the particular circumstances in which you committed this offence including the weapon you used suggests to my mind an intention to kill or cause substantial bodily injury to the victim.

As I said in The State v. James Gurave Guba (Unreported judgment delivered on 19/12/99) N2020:

"... [T]here should be no restriction as to the use of the depositions to determine the appropriate sentence simply because there has been a plea bargain. This is because an indictment is presented and an accused person pleads on the basis of facts presented which are in turn based on facts set out in the depositions and only after reading the depositions can a court decided whether or not to confirm a guilty plea and record a conviction before proceeding to sentence the offender."

That, in my view, means the Court must be free to draw such inferences as may be supported by the undisputed primary facts. Accordingly, I am of the view that, you speared the victim with such a dangerous weapon and force because you wanted to kill him, given the land dispute with him.

In order to determine an appropriate sentence for you, I take into account the fact that you pleaded guilty. That saved the State time and money as well as this Court extra time and costs in running a trial. It also saved the victim the agony of coming into Court and recounting events leading to and the actual spearing of him and the physical and mental pain he has gone through.

Nevertheless, I note that, there is no evidence of you having said sorry to the victim or making it up to him. In our society, this is usually demonstrated by a payment of compensation in addition to verbal expressions of remorse of it. There is no evidence of you having done either of these. Your position was confirmed in Court when you were given the opportunity to address the Court. All you were interested in was your own immediate family, particularly your children. I wonder whether you had any thoughts about the damage you were likely to cause, which had the potential of causing the victim’s death, which in turn could have resulted in the loss of a father and their dependence by the victim’s children.

It is now clear law that pleas for leniency because of family needs or concerns of an offender are the direct consequences of his offence. As such, such factors cannot be factors in the mitigation of an offender. A recent statement of that law is in my own judgment in The State v. Lucas Yovura (Unreported judgment delivered on 29/04/03) N2366, in these terms:

"Indeed I note what the Supreme Court in Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000 said is relevant. In that case, the Court observed that an offender should consider his background first before committing any offence. Implicit in that is the fact that, it is a little too late to talk about an offenders personal background including the needs of his family concerns once he is proven guilty according to law. His background and concerns should have little or no weight against the need to impose a sentence or punishment that best befits an offence he has committed in the particular circumstances in which the offence was committed.

I followed this principle in a number of cases already. An example of that is the case of The State v. Raphael Kimba Aki (No.2) (28/03/01) N2082. Following this line of authorities and the reasoning behind them, your plea for leniency to avoid suffering to you family has no place. If at all, that plea has little or no weight in determining an appropriate sentence for you"

In the particular circumstances of this case, I am of the view that this is a serious case of grievous bodily harm. The State was right in initially proffering the charge of attempted murder. However, on your guilty plea to the lesser charge of grievous bodily harm, it decided to accept your guilty plea. When that is the case, there is no justification for a further reduction of the sentence under the lesser charge. This is because, as I said in The State v. Attiock Ishmel (Unreported judgment delivered on 12/10/01) N2294:

"No doubt by reason of a plea-bargaining resulting in the dropping of a more serious offence to a less serious one drastically reduces the kind of penalty an offender should receive. Given that, in my view, there exists no reason or basis for a further reduction of any sentence. The society quite rightly expects the courts to impose on their behalf a sentence that best reflects its disapproval of the kind of conduct the offender has engaged him or herself in. That expectation should always be borne in mind by a sentencing authority when considering an appropriate sentence to impose in any case. It would be a disservice to the society’s legitimate expectation, if sentences prescribed under a lesser offence were further reduced."

Following this line of reasoning, I imposed the maximum prescribed penalty of three (3) years in the case of The State v Joseph Ping (Unreported judgment delivered on 17/12/01) N2169. That was in a case of unlawful wounding, which was a downgrading from a possible charge of attempted murder or even grievous bodily harm.

I note yet again, that what I have noted in many cases already as in The State v Joseph Ping (supra), our society is becoming unsafe because of people like you who take the law into their own hands. They become jury, judge and executioners all at the same time in a summary manner without a proper trial and establishing of any guilt. The fight in this case could have ended without the use of dangerous weapons like the spear you used. Yet, you chose to use such a weapon against a close relative causing him serious injuries and almost took his life, save for the timely medical intervention. This places your case in the worse category of grievous bodily harm. It is this very kind of conduct that is contributing to a breakdown in law and order today. Stern punishments are therefore called for to deter others from repeating what you did.

I therefore consider it appropriate that the maximum prescribed sentence of seven (7) years is called for. Accordingly, I imposed that sentence on you, less the time you have already spent in custody awaiting your trial and sentence. You were arrested and held in custody since 21st October 2003. That calculates to about 5 months and 7 days. I order a deduction of that period from the head sentence, leaving you with the balance of six (6) years, six (6) months and 22 days. I order you to serve that in hard labour at the Biru Correction Service.
________________________________________________________________________
Lawyers for the State: The Public Prosecutor
Lawyers for the Accused: The Public Solicitor