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State v Muru [2007] PGNC 117; CR 1632 of 2006 (19 April 2007)

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1632 OF 2006

THE STATE

v

MARTIN MURU
Prisoner

Kimbe: Davani J
2007: 18, 19 April

Counsel
A. Kupmain, for the State
P. Kapi, for the Prisoner

SENTENCE

19 April, 2007

1. DAVANI J: On 18 April, 2007, the accused pleaded guilty to one (1) count of acts intended to cause grievous bodily harm or prevent apprehension, charge laid under s.315 (a) and (d) of the Criminal Code Act (‘CCA’). This provision reads:

"A person who, with intent—
(a) to maim, disfigure, or disable any person; or

(d) unlawfully wounding or doing a grievous bodily harm to a person;
Penalty: Subject to Section 19, imprisonment for life".

Evidence

2. The facts to which the prisoner pleaded guilty to were that on the 14 July 2006 at 5pm at the Hela Plantation Compound in Kimbe, he was at his house together with his wife and parents in-law. The complainant or victim, one David Mara (victim) was there, him being the prisoner’s father in law, his wife’s father. The prisoner had an argument with his wife, then fought her. This was when the victim intervened and tried to stop the fight. It was whilst he was doing this, that the prisoner then threw a stone at the victim, which hit him in the left leg. It broke as a result.

Charge

3. Defence Counsel raised concern that the Prosecutor had tendered an indictment containing a more serious charge than that he believed his client was charged with, i.e s.315 instead of s.319. But he raised these after I had arraigned the accused and after he pleaded guilty to the charge. No submissions were made by Defence Counsel as to the vacating of the plea but an acceptance of the fact that the Public Prosecutor had the power to lay indictment based on the evidence i.e s.525(1)(a) of the Criminal Code Act (‘CCA’).

4. I pointed out to both counsel that I would sentence based on the evidence before me in consideration of elements in both s.315 and s.319, bearing in mind that s.315 carried the element of intention to harm.

Mitigating factors

5. The prisoner showed a lot of remorse whilst standing there in the dock. I observed that in his face and in his body language. This is also his first offence. I heard also that K1,000.00 was paid to the victim as ‘belkol’ money

Aggravating factors

6. The stone which the prisoner threw broke the victim’s tibia and fibula in his left leg. It means he threw the stone with a lot of force to be able to break both bones. This is confirmed by the medical reports which I will refer to later below.

Discussion on the evidence

7. The prisoner has demonstrated his genuine regret and remorse by immediately organizing, with the help of his relatives, payment of K1,000.00, which the State referred to as ‘belkol’ money, which I assume are instructions for the victim.

8. Having said that, the prisoner told the court, on allocutus, that it was whilst his wife and him were arguing, that his in-law, being the victim and his wife, joined in. I can only imagine what happened, a scenario very common to a lot of homes, where, when in-laws take sides, the man is usually left to fend for himself, sometimes resulting in more serious consequences than this.

9. But it appears the prisoner was drunk when this incident occurred, refusing to listen to reason and of course resorting to violence. The injury suffered by the victim was serious. There are 2 medical reports before me which confirm the nature of the injury. These are;

1. Report signed by Surgical Registrar Dr Chris Mungras dated 21 July, 2006 (‘first report’);
2. Report signed by Surgical Registrar Dr Chris Mungras dated 28 August, 2006 (‘second report’).
   

10. The first report confirms the victim sustained compound fracture to the left tibia and fibula after which his leg was placed in plaster cast to stabilize the fracture. The second report states that the fracture had to be realigned because of complication. This occurred a month after. Complications are inevitable, especially where the injured person is old. The complications would have occurred only because the leg was not properly rested. There is no medical report before me stating how the complications occurred. Furthermore, there is no report before me stating the extent of disabilities, if any. Although I saw the victim in court, that is no indication of disabilities. I am not a medical expert and am unable to estimate. But I saw the victim walk normally toward his lawyer, then walk to his relatives normally to get his walking stick. That speaks for itself. His leg has healed.

11. Both counsel referred me to several authorities to assist me reach a just sentence. Mr Kapi cited State v Patrick Kimat N2947 dated 24 November, 2005 by Lay J and State v Nixon Pari (No. 2) N2033 dated 10 January 2000 by Kandakasi J. Mr Kupmain cited State v So-on Taroh N2675 dated 22nd September, 2004 by Kandakasi J.

12. Patrick Kimat (supra) and Nixon Pari (supra) were cases involving guilty pleas to offences under s.319 of the Criminal Code Act (‘CCA’). So-on Taroh (supra) however, involved a trial on a charge under s.315 of the Criminal Code Act (‘CCA’), the same charges the prisoner is presently charged with.

13. The difference between s.315 and s.319 is that s.315 is the more serious offence, carrying a penalty of life imprisonment whereas s.319 is the less serious offence, carrying a penalty of a term not exceeding seven (7) years.

14. The cases cited by Mr Kapi, although involve charges under s.319, are relevant in so far as the injuries sustained by the victims are concerned. However, the difference being that s.315 carries the element of intending to maim, disfigure, disable, to do grievous bodily harm or to prevent lawful arrest or detention, and the offender does various things outlined. Whereas, for a s.319 offence, the State need only prove that the offender ‘unlawfully’ did grievous bodily harm to another. So-on Taroh (supra) was a trial on a s.319 charge. This matter is a guilty plea. What is the appropriate sentence then?

15. The factor most aggravating in the amount of force applied by the prisoner when he hurled the stone, which was able to break two bones in the accused’s left leg. This happened during an argument, not a situation where the accused picked up the stone and walked to the scene of the crime, hence the distinction between s.315 and s.319. The prisoner’s guilty plea, show of remorse and payment of K1,000.00 overrides the aggravating factors. Mr Kupmain submits that it was not the prisoner but his relatives who paid the K1,000.00. The affidavit of Philip Dende sworn on 17 April, 2007 deposes that NBPOL’s security organized for the payment of compensation which they handed over to the victim’s son which the victim’s son accepted as compensation from the prisoner. This affidavit confirms that it was not the prisoner but others who contributed and paid the compensation.

16. Having heard that, I was learning towards requesting a Means Assessment Report (‘MAR’) under the Criminal Law (Compensation) Act 1991 but was advised by the Probation Officer who was in Court, a Mrs Elizabeth Passingan, that she could not produce a report by 4:06 pm tomorrow (20 April) because first, she did not have the materials with which to immediately produce such a report and more importantly, she was leaving Kimbe. For the court to decide whether or not compensation should be ordered it must order a MAR because the MAR will disclose whether the offender has the means to meet a compensation order. What the benefit of an MAR, I am unable to determine if the Prisoner has the means to meet an order for compensation. Additionally, the evidence is that other people paid the compensation. But from evidence, the prisoner is now demoted to the position of a fruit picker, because of the incident. I did not hear in submission how much he makes.

But compensation is not and cannot be a substitute for criminal penalty. It is relevant as a factor in mitigation, (see State v Rex Lialu [1988-89] PNGLR 449) and should only be a factor in mitigation. Although others paid the compensation, I do not think the prisoner was in a position to be able to immediately pay the K1,000.00 as demanded by the victim. I am sure he can still find the money if ordered to do so, as long as it is a reasonable amount.

17. I also am of the view that the prisoner has suffered enough by the demotion.

18. Considering the injuries sustained in the cases cited to me by Messrs Kapi and Kupmain, (Nixon Pari (supra) – victim shot in the arm in the course of a robbery; 4 years, less time spent in custody, 2 years suspended and Patrick Kimat (supra) – victim cut in the head during an argument; 12 months in hard labour, less time spent in custody), the aggravating and mitigating factors, I find that the prisoner should be sentenced to a term of years but it be suspended on him entering into a recognizance. I say this because of the fact that although the prisoner pleaded guilty to a s.315 offence, the evidence shows that he did not have the intention of maiming the victim. It was during an argument that he threw a stone at the victim. It may have been a number of stones but the fact is that he did not walk over to the victim’s house with the intention of hurting the victim. That evidence suggests to me that sentence must reflect the evidence to which he pleaded guilty to. (see Kereng Mark -v- The State SCR 18 of 2006 dated 29.2.07 per Sakora, Davani, Cannings .JJ).

19. I therefore sentence the prisoner to 3 years in hard labour, but to be wholly suspended on him entering into a recognizance to do the following;

1. He will be on good behaviour for the duration of that period;
2. He will not consume alcohol or any intoxicating substances;
3. Within a month from today, on or before Monday 21 May, 2007, he shall meet with his parents in laws at a neutral location and shall give to them cooked food, including one (1) pig and K1,000.00 to enable reconciliation between the families.
4. He shall seek the assistance of the Probation Officer in relation to order no. 3;
5. Together with the resident Probation Officer, he shall report back to the court before the circuit judge on Friday 25 May, 2007 at 9:30 am where he will present a report signed by the Probation Officer confirming that he has complied with order no. 3.
6. The Public Prosecutor is at liberty to make the appropriate application in the event any of the above orders are not complied with.
   

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner