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State v Mapah [2008] PGNC 296; N3869 (18 November 2008)

N3869

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 602 of 2008

THE STATE

-V-

NATHANIEL MAPAH

Buka: Kandakasi, J.
2008: 12th And 18th November

CRIMINAL LAW - Sentence – Particular offence – Grievous bodily harm - Drunkard relative claiming victim have sexual affairs to a number of men – Prisoner cutting victim with bush knife causing multiple wounds – Victim likely to suffer post traumatic distress disorder - Guilty plea – First time offender – Principles for criminal sentencing in Bougainville – Peace and reconciliation using tradition justice systems called for – Whether there is a customary form of punishment to be first inquiry –Customary justice system or form of punishment can be combined with formal introduced system - Sections 319 and 19 of the Criminal Code – Section Bougainville Constitution.

Cases cited:

The State v. Lawrence Mattau CR 960 of 2006

The State v. Isaac Wapuri [1994] PNGLR 271

The State v. Philip Susuve Raepa [1994] PNGLR 459
The State v. Nickson Pari (No.2) (10/01/00) N2033
The State v. Darius Taulo
The State v. Rueben Irowen
The State v. Eddie John Naopa
The State v Patrick Kimat
Acting Public Prosecutor v. Don Hale (1998) SC 564
The State v. Frank Kagi [1987] PNGLR 320
The State v. Nyama [1991] PNGLR 127

Counsel:

L.Rangan, for the State
P. Kaluwin, for the Accused

DECISION ON SENTENCE

18th November, 2008

1. KANDAKASI J: Nathaniel Mapah, you pleaded guilty to unlawfully wounding another person, Batsepa Amere on 26th December 2007 at Hukoha Village, in the Siwai area of Bougainville. You used a bush knife to effect multiple wound to her face, left hand and forearm.

2. The main issue for this Court to decide is what is an appropriate punishment for you? As I noted in the decision I just hand down today in the matter of The State v. Lawrence Mattau CR 960 of 2006, this is usually the main issue in all cases of criminal sentencing. In order to determine that issue, the Courts often have to address the following subsidiary issues:

(1) What are the relevant facts or the particular circumstances in which the offence was committed?
(2) What is the nature of the offence with which the offender has been charged with and its relevant sentencing trend?
(3) What are the factors in aggravation and mitigation of the offender?
(4) Are there any special feature attending the commission of the offence?
(5) After carefully considering all of the relevant factors, what should be the appropriate sentence? and
(6) Whether the whole or any part of the sentence should be suspended and if so on what terms?

3. Again as I observed in the Lawrence Mattau case, any special feature attending the commission of an offence could either be a factor in mitigation or aggravation. Therefore, if there is any special feature attending the commission of the offence under consideration, it would appropriately be considered within the context of the factors operating for or against the offender. Given that, it would be inappropriate to deal with the fourth issue as an issue on its own.

4. With that clarification, I now turn to a consideration of the issues outlined above. I start with, what are the relevant facts or the particular circumstances in which the offence was committed?
   

What are the Relevant Facts or Circumstances in which the offence was Committed?

5. On 26th December 2007 around 4:00pm, you were drunk and were standing between Mainoita and O'so junction and Ma'ahakakoru Village with a bush knife. Your victim, Batsepa Amere came along after attending church. She is your niece. You were not too happy with her because you claimed that she was sleeping around with a number of men. So when she came to where you were, you attacked her using the bush knife. You effected multiple wounds to here face, hand and arm areas, resulting in the severance of a number of tendons. The medical evidence describes here injuries as serious and the prognosis was that, she will suffer from post traumatic stress disorder in future.
   

What is the Nature of the Offence and its Sentencing Trend?

6. Turning to the offence and its sentencing trend, I note that s. 319 of the Criminal Code creates and prescribes the penalty for the offence of grievous bodily harm. This provision provides for a penalty not exceeding 7 years. A number of judgments have already been dealt with the offence under this section before imposing a variety of sentences.
   

10. The earlier cases such as The State v. Isaac Wapuri[1] and The State v. Philip Susuve Raepa[2] date back some eleven years. These cases imposed sentences from a few months to 1 or 2 years. Since then, the offence has not declined but has increased over the years. Sentences have therefore, started to increase to reflect the increase and prevalence of the offence.

11. In The State v. Nickson Pari (No.2),[3] I imposed a sentence of 4 years and suspended part of it on terms, inclusive of good behaviour bond. That was a case in which the prisoner was 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.

12. Later in The State v. Darius Taulo, I imposed a wholly suspended 3 year sentence on strict terms as an alternative form of punishment outside the prison system. That was in the case of a guilty plea and genuine remorse being expressed with compensation already been paid for by the prisoner himself, a preparedness to undergo his wife's (the victim's) traditional form of compensation and restoring a broken relationship and a willingness to truly change his ways under supervision. The persuasion there was the fact that, the victim preferred compensation. Further, a pre-sentence report supported such a sentence. I also noted that, the prisoner was an adult, was not a danger to the society and that the society through a pre-sentence report was prepared to help him to rehabilitate.

13. A more serious case was the case of The State v. Rueben Irowen. In that case, the prisoner forced his two wives (victims) to strip down naked and he 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 the maximum sentence of 7 years cumulative for the harm he had caused his victims.

14. Subsequently, in The State v. Eddie John Naopa, I imposed a sentence of 5 years part suspended because of a guilty plea and an order for compensation. The victim in that case lost one of her eyes completely from a slingshot.

15. Last year, Justice Lay had before him a case similar to your case. That was the case of The State v Patrick Kimat. In that case, the prisoner was with his in-law consuming alcohol. The victim was drunk and would not listen to the prisoner so the prisoner cut the victim on his head with the use of a bush knife, causing him serious injuries. At the time of sentencing in that case, the prisoner was living with the victim in one house, they share meals together and there was no problem between them. His Honour imposed a sentence of 12 months wholly suspended on conditions after referring to some of the above cases and other cases, mostly my decisions.

16. As already noted, the offence of grievous bodily harm is a very prevalent offence. Therefore sentences have gone up. The reasons behind the commission of this particular offence are really silly reasons. They have been committed in situations where they could have been easily avoided. In most cases the offence is being committed with a ready use of offensive and or dangerous weapons such as kitchen knives and bush knives, even against close relations as in your case.

Present Case
What are the Factors Operating Against You?

7. Allowing myself to be guided by the foregoing discussion on the offence and its sentencing trend as well as the relevant facts in your case, I now proceed to give consideration to the factors operating for and against you, starting with those against you first.
   
8. The first factor against you is the use of the bush knife. The courts have been repeatedly saying that bush knives and such other objects have fast become dangerous killer weapons. As such, anyone who uses such a weapon ought to be dealt with severely than one who does not. Over the years, there have been increases in cases of people using bush knives to even attack their own relatives, resulting in either serious injuries or even deaths.
   
9. Secondly, you used the bush knife to cause serious injuries or wounds to the victim. The injuries you inflicted were multiple around her face and hand areas. They were thus very painful and required hospital treatment. The medical report says, she will suffer post traumatic distress disorder. This will be ongoing and so your victim will be suffering for the rest of her life. This is to be contrasted with any of the punishment you receive will be short lived, given the prescribed maximum sentence of 7 years imprisonment.
   
10. Thirdly, you gave the victim no warming or anything like that, so she could find ways to protect herself or otherwise minimize the kind of injuries you inflicted upon her. This was in addition to you picking on a female who is comparatively speaking, not as strong as a male or man. In other words, you did not pick your own size or strength. It was hence an unfair and one side violation of a female person by a male and a stronger person.
    

What are the Factors in You Favour?

11. Against the above aggravating factors, I note there are number of factors in your mitigation or in your favour. Firstly, I note that, your conviction came on your guilty plea. That saved the State the time and money it could have spent on running a trial. I note in particular that, it is very difficult for the State to ensure the attendance of all witnesses in nearly all of the case in this Region because of logistical difficulties. Many offenders are at large and are yet to be brought to justice. This is confirmed by the large number of people that are on bench warrants list, which at the start of this circuit was up to 139 and now it has increased to over 143. You, could have easily avoided being apprehended and avoid being brought to justice. Fortunately, you did not choose that path. As I said in Lawrence Mattau's case, a guilty in this kind of setting must be contrasted with a case in which the State would have easily arrested, called witnesses and secured a conviction. For a guilty plea in a case where the State has difficulty arresting and bring offenders to justice, in my view, amounts to a serious help to the State and hence the society. It also reflects, in my view, an offender's genuine admission of guilt and taking of responsibility for his or her actions. This is in addition to saving the Court much time and effort hearing and coming to a decision on an offender's guilt or innocence.
    
12. Secondly, I note that, this is your first ever conviction. That means, until the commission of the offence for which you are in Court, you have been a good law abiding citizen. You are young single man aged 19 years. You come from Kukoha Village in the Siwai District of Bougainville. Your parents are alive and that, you have two sisters for sibling. Education wise you were doing grade 9 at Tonu High School.
    
13. The pre-sentence report has a good reference from your Village Court Magistrate, Mr. Paul Tansi, who is also the Volunteer, Community Based Correction in your area. He has vouched for you in terms of confirming that, you have paid customary compensation of K1,000 and also giving a piece of land. He also confirms your undertaking to go through a customary reconciliation ceremony to bring about lasting peace between your side and the victim's side. The victim and her people are waiting for your return to the village so the reconciliation can take place.
    
14. Finally, I note and take into account the fact that, appreciating what you have done was wrong, you said sorry in your allocatus. This is not something you said in your allocutus as do some other offenders merely to argue for a lenient sentence. As I have already noted, there is evidence through the pre-sentence report that, you have already met obligations imposed upon you by custom to immediately pay for what you did through a customary ceremony which has ensured no consequential trouble or conflicts or disputes or difference arising between you and the victim's sides. On the basis of that, all parties to the problem are waiting your release from lawful custody to complete the customary process with a reconciliation ceremony.
    
15. As I have already noted in the Lawrence Mattau case, the Bougainville Constitution mandates the recognition and strengthening of the clan structure and customary leadership of Bougainvillean communities. This includes recognition of the authority, roles and responsibilities of traditional chiefs and other traditional leaders as well as the family and clan units and a use of "the customary system of justice in Bougainville based on the restoration of peace through restoration of harmony in relationships between people" which is to be "recognized and reinforced to the extent not contrary to Christian principles."
    
16. Further, as I again noted in the Lawrence Mattau case, the intention of the Bougainville people through their Constitution is very clearly. They made a deliberate decision to make their customary system of justice, which is based on the family, clan and traditional chieftain and other system of traditional leadership and the family which is aimed at ensuring the peaceful and harmonious existence of human relationships, an integral part of the formal justice system in Bougainville.
    

What is the Appropriate Sentence for You?

17. Bearing the above discussion in mind, the question then is, what is an appropriate sentence for you, which is the main issue for determination in your case. A consideration of this question requires the Court to carefully consider and weigh the factors operating for and against you. I accept that you committed a violent and serious offence. However, I find that, you committed the offence in a bid to stop the victim from sexual promiscuity at a time when sexual transmitted decease are on the rise and HIV/AIDS is a serious scare. That combined with the other mitigating factors I outlined above, mitigates the severity of the offence you have committed.
    
18. Once again, I note as I did in the Lawrence Mattau case that, a criminal law policy is yet to be developed in accordance with the requirements of s. 45 (1) and (2) of the Bougainville Constitution. Notwithstanding that, I am of the view, that there is sufficient pronouncement by the people of Bougainville that their traditional justice system based on their customs that are not inconsistent with internationally accepted norms of human rights, fairness and justice should drive such a policy. Similarly, I find that, there is sufficient expression of the will of the Bougainville people through their Constitution that, that system of justice should be the main guiding principle for the resolution of conflicts or disputes in Bougainville. Accordingly, I am of the view that, a critically first inquiry should be, is there a form of customary punishment that can be adopted and applied either on its own, whether with or without any modification or in combination with the introduced system of justice.
    
19. Applying the view I have just expressed, I have in the Lawrence Mattau case asked the question, is there a form of customary punishment that can be adopted with or without modification or in combination with the introduce system of justice? I had that question answered in the affirmative and the same applies here. Custom in the present case requires the performance of ceremony in which you will express your remorse, offer your apology and seek the forgiveness and acceptance by Batesepa and her side. They are prepared and will be happy to accept such gestures and will continue to allow for and strengthen the peaceful co-existence between your side and that of Batsepa's.
    
20. I remind myself as I did in the Lawrence Mattau case that, most of the National case law makes the point that, the payment of customary compensation is only a mitigating factor and is not a total exoneration of criminal responsibility, for fear of offender's paying their way out of criminal responsibility for those who can afford it and those who cannot face imprisonment. I reiterate my view however that, an appropriately package sentence can take care of that concern and also allow for a customary form of punishment to fully apply because more importantly, a customary form of punishment looks at restoring broken human relations and enables offenders and their people with victims and their people to live in peace rather than in animosity. Any term of imprisonment hardly promotes any peaceful co-existence between offenders' and their victims' people. The reason for this is simple; imprisonment is undoubtedly a form of violence because it forcefully removes an offender from society and locks him or her away from his or her family and community or society. The people of Bougainville realized this fact through their experiences, culminating in the peaceful resolution of the more than a decade's conflict. Based on their useful experience they have deliberately stipulated in s. 15 of the Bougainville Constitution that:
    

"(1) In order to achieve and maintain peace at all times, mediation, reconciliation and harmony shall at all times be pursued as means of resolving disputes, and the use of violence shall be avoided."

21. Again as I observed in the Lawrence Mattau case, the provisions made in the National Constitution and those in the Bougainville Constitution, in my view, signal a need for us to seriously reconsider the way in which the criminal sentencing has been approached in our country. Following the lead provided by the provisions in question, I have expressed the view, and I reiterate that, of all of the purposes of criminal sentencing, rehabilitation should be the main aim and focus of criminal sentencing, if we are to rid our communities of criminal activities and promote peaceful co-existence of our culturally diverse peoples. Indeed I note that, our traditional societies did not have a police force, a correction service and a court system removed from the direct involvement of the community affected by an offence. Apart from immediate retribution that were often meted out to offenders failing any compensation, there were no law and order and social problems coming any where near the levels we as a nation along with the rest of the world are experiencing today. Our police force is stretched to their ultimate limits with our prisons being filled way beyond their limits and the other peace loving and law abiding citizens are living in fear of criminals. As the Supreme Court noted in the Thress Kumbamong case, this is the result of the State using the force of law to deal with social problems rather finding ways and means of using positive and peaceful means which are powerful agents for peace to deal with our criminal problems to promote peaceful, lawful and orderly co-existence of our people.
    
22. Again as I noted in the Lawrence Mattau case, section 19 of the Criminal Code already vests the courts with a wider discretion to deal with offenders as recently re-affirmed by the Supreme Court decision in the Thress Kumbamong case. In the case of criminal sentencing in Bougainville, the Bougainville Constitution emphasis the need for greater use of customary ways of resolving conflicts. I repeat my observation there that, this was not merely an academic exercise. It was the good customary principles and practices that formed the foundation to restore peace and good order on Bougainville and hence lead to the Peace Agreement and the eventual return to peace and normalcy in Bougainville. The Bougainville peoples' (which, in my view, is representative of most of Melanesia), ability to overcome death and other atrocities committed during the Bougainville conflict through offers of genuine expression of remorse and apologies accompanied with compensation as a physical sign of such expressions by offenders and the ready acceptance of such offers by the victims was the catalyst for the Peace Agreement and actual return to peace on Bougainville. The experience on the ground now is commendable. Although there are areas in Bougainville that are yet to see a full return to peace and normalcy, most of Bougainville, unlike most other places in the country, has all the hallmarks of peace. A very good example is the fact that, nearly all houses and properties on Bougainville have no high rise corrugated iron fences, which has else where in the country become the every day prison for the peace loving majority of our people.
    
23. Further, I repeat my observation that, given the foregoing, the Bougainville experience is a good lesson not only for the rest of our country but the world over and should form the foundation for a review and reform of our criminal justice system and sentencing. Accordingly, I am of the view that, in the exercise of the wide discretion vested in the courts by s. 19 of the Criminal Code, this Court has the necessary power to choose the way of peace to promote peace, rather than a ready resort to imprisonment. Imprisonment should be reserved as a last resort and for the hard core or hardened criminal and those who are likely to re-offend and not one off offenders.
    
24. Having regard to the particular circumstance of this case as we have noted above, I consider starting with a head sentence of 4 years is appropriate. Of that, the period of 10 months, 2 weeks and 2 days you have spent in pretrial and pre-sentence custody is deducted. That leaves you with the balance of 3 years, 1 month, 1 week and 5 days yet to serve. Stopping at that, would not sufficiently accommodate what we have suggested in the foregoing. Accordingly, we need to look at the question of suspending either the whole or part of that sentence and make provision for the application of the customary forms of restoring the relations that have been broken by your one off bad conduct. That question is the subject of the last and remaining issues for this Court to resolve. Accordingly, I turn to a consideration of that issue now.
    

Whether the whole or part of the Sentence should be Suspended?

25. The pre-sentence report after noting the views of the members of the community recommends that, you be given a suspended sentence. Going by the authority of the Supreme Court per its decision in Acting Public Prosecutor v. Don Hale (1998) SC 564, I have expressed the view in a number of cases[4] already that, criminal sentencing is a community responsibility. Therefore the courts must seriously take into account the views of the community expressed through a pre-sentence report when called on to exercise the sentencing discretion vested in the courts by s. 19 of the Criminal Code. Also, going by the much earlier cases authorities like that of The State v. Frank Kagi [1987] PNGLR 320 and The State v. Nyama [1991] PNGLR 127, I have repeatedly stated in a number of cases[5] that, suspending either the whole or part of a sentence is not an exercise in leniency. It is however, a form of punishment, aimed at serving one of the important purposes of criminal sentencing, namely rehabilitating an offender turn him or her into a useful peace loving and law abiding member of the community, which a prison sentence might not be able to deliver.
    
26. I am inclined to imposing a wholly suspended sentence here because there is nothing to suggest and I do not believe that, you are a hardened and repeat offender and a danger to society, warranting your imprisonment for the safety of the community. I am firmly of the view that, you have learned your lesson well during the period you have spent in custody and I accept that you have voluntarily accepted responsibility for what you have done and that you are prepared to do what your society requires of you to correct the wrong you have brought upon yourself, the victim and your society. Suspending your sentence is also the right thing to do, given that you are still a very young man and I do not believe that sending you to prison will return you to society at the end of your sentence a well rehabilitated or changed person. The chances of any rehabilitation are outside the prison system.
    
27. The suspension must however be on strict terms to convey the message that, this is not an easy let off but a form of punishment for the serious offence you committed. Hence, I consider the following conditions appropriate and order that, they be the conditions on which your remaining part of the sentence of 3 years, 1 month, 1 week and 5 days is suspended. You shall:
    
    • (1) Immediately enter into your own recognizance, with the surety specified in term (2) below, to keep the peace and be of good behaviour for a period of the whole of the period suspended;
    • (2) Within 3 months from today, pay into Court a sum of K300.00 as surety which shall be forfeited on breach of any of the conditions herein from (1) to (7);
    • (3) Within 6 months from today, undertake and complete an appropriate customary ceremony as may be determined appropriate by your village chiefs under which, you shall express your unconditional remorse, offer your apology and reconcile with your victim and her parents and relatives.
    • (4) Be home bound between the hours of 6:00pm and 6:00am;
    • (5) No consumption of any form of alcohol, including any form of home brew.
    • (6) Not to leave the Autonomous Region of Bougainville without first obtaining the leave of the Court;
    • (7) Render four hours free physical labour each week to a public institution, be it a school or a hospital or any other public institution which shall be specified by the Probation service in consultation with your village chiefs, one of who may supervise you;
    • (8) For the purposes of term (6), the Probation Service here in Buka shall in consultation with you, your victims people and the village chiefs or leaders specify the kind of work or service you shall undertake and furnish a work schedule to the Court for the Courts endorsement within 7 days from today;
    • (9) Allow for and permit Probation Services to visit your home on a regular basis to monitor this compliance of these terms and to make such recommendations, as they consider appropriate either for a variation or an implementation of these terms;
    • (10) The Probation Service will attend on you each quarter to do a comprehensive review and report to this court of your compliance of these terms commencing with the first one by or before 19th February 2009;
    • (11) If for whatever reason you breach any of these terms, you will serve the remaining term of your suspended sentence as of the date of the breach;
    • (12) Provided you faithfully and satisfactorily comply with all of the foregoing conditions, you shall be at liberty to apply for a review and or variation of any of these terms with the support of appropriate evidence or material.
      

____________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner

^[1] [1994] PNGLR 271.
^[2] [1994] PNGLR 459.
^[3] (10/01/00) N2033.
^[4] See for example my decision in The State v Allan Nareti and Amstrong Kupe (2004) N2582 and The State v Gibson Haulai (2004) N2555.
^[5] See for example my decisions in The State -v- Abel Airi (2000) N2007 and The State v Micky John Lausi (2001) N2073