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State v Wak [2014] PGNC 72; N5598 (19 May 2014)

N5598

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No.1290 of 2013

BETWEEN:

THE STATE

AND:

OPA BRAS WAK
Prisoner

Mt. Hagen: David, J
2014: 13 & 14 February; 9 & 19 May

CRIMINAL LAW – sentence – grievous bodily harm – prisoner a candidate in Local-level Government elections – victim policeman – prisoner drunk - prisoner threatening staff of hotel while armed with pistol – victim on his way out of hotel intervened to stop prisoner – prisoner punched victim on mouth – victim lost a lower left canine – permanent injury - sentence of 2 years in hard labour – non-custodial sentence – fine - Criminal Code, Sections 19 and 319.

Cases cited

Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State (No 3) [1982] PNGLR 92
Public Prosecutor v Thomas Vola [1981] PNGLR 412
Ure Hane v the State [1984] PNGLR 105
Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91
The State v Frank Kagai [1987] PNGLR 320
Kesino Apo v The State [1988] PNGLR 182
Mase v The State [1991] PNGLR 88
Lawrence Simbe v The State [1994] PNGLR 38
Public Prosecutor v Don Hale (1998) SC564
Edmund Gima and Siune Arnold v The State (2003) SC730
The State v David Carol (2009) N3762
The State v Abel City Ya Kund, The State v Wali Pyakai (2011) N4262
The State v Carol Peter (2011) N4320
The State v Peter Jai (2011) N4391
The State v Paul Jumbugu (2012) N4627

Counsel:

Joe Kesan, for the State
Philip L. Kapi, for the prisoner

SENTENCE

19th May, 2014

1. DAVID, J: The prisoner, Opa Bras Wak of Poimund village, Mt. Hagen in the Western Highlands Province was convicted of unlawfully doing grievous bodily harm to one Ak Kukuma on 7th of September 2013 at Kimininga Hotel in Mt. Hagen under Section 319 of the Criminal Code following his plea of guilty.
   
2. The maximum penalty prescribed for this offence is, subject to Section 19 of the Code, imprisonment for a term not exceeding 7 years. The maximum penalty for the offence prescribed by Parliament demonstrates the seriousness of the offence: Public Prosecutor v Vangu'u Ame [1983] PNGLR 424.
   
3. The short facts presented by the prosecution for the purposes of arraignment were these. On 7th of September 2013 at about 10:30 pm in the evening, the prisoner was drunk and drove into the Kimininga Hotel in Mt. Hagen. At the same time, he was armed with a 9mm magnum pistol. At the time, he used the pistol to threaten security guards and went to the reception area of the hotel. At the reception area, he argued with staff working there and threatened them as well. Whilst he was doing that a policeman namely Ak Kukuma was also at the reception area and he tried to intervene and stop what the prisoner was doing. A scuffle developed between the prisoner and the victim. In the process, the prisoner punched the victim on his mouth and the victim suffered a fractured lower tooth which was removed eventually. As a result, the victim suffered grievous bodily harm.
   
4. The Medical Report provided by Dr. Allan Kulunga of the Kintip Surgery, Mt. Hagen dated 10th September 2013 reports that the victim; sustained a laceration of his left lower lip and was sutured with three stitches; sustained a fracture with the loss of the left lower canine; had a tender and swellings around the lower lips and gums.
   
5. The prisoner has no prior convictions.
   
6. For purposes of his allocutus, the prisoner produced a two page affidavit he swore setting out in detail, amongst others, the events leading up to the incident, his arrest and detention which he read from the dock.
   
7. He started off by apologizing to the victim, his family, friends and workmates for breaking the law and then gave details of his marital status and members of his nuclear family. He was a candidate contesting the seat for the President of the Mt. Hagen Local-level Government at the last Local-level Government elections held last year. He deposed that during polling and scrutiny when he was running third entering the elimination round, he was attacked three times and nearly killed by supporters of the former Deputy Governor and President, Mr. Wai Rapa. The worst of these attacks was when he and two other candidates were attacked by supporters of Mr. Rapa who were armed with stones, bush knives, axes and firearms and actually shot at in the vicinity of the Mt. Hagen Court House. On the evening of 7th of September 2013, he left a function he attended in town under the influence of liquor with his wife and driver and went to the Kimininga Hotel to drink some beer. He saw Mr. Rapa's security guards at the gate of the hotel so he stopped his vehicle, got out and had an altercation with them about nearly being killed by them in those attacks. The victim arrived at the scene also under the influence of liquor and was trying to stop him when the victim grabbed him and tore his shirt. His mind was disordered by intoxication so not knowing what he was doing, he punched the victim. Upon hearing the victim saying that he had broken his tooth, he left his wife, driver and vehicle and fled the scene.
   
8. Later that evening, the victim mobilized his men who were also under the influence of liquor and fully armed and drove to his house and terrorized his family. They fired at his house when his children and babysitters were asleep inside and also punched and booted his wife and took her bilum (bag) containing about K3,000.00 cash. He forgave the victim for that incident because he was an innocent person brought into the fray from his initial mistake.
   
9. The next day on 8th of September 2013, he sent his uncle, a former diplomat and head of a government Department and a brother who was a policeman and member of the Mobile Squad to see the victim. The two men met the victim and gave him K1,500.00 and also relayed to him his message that he was sorry for everything that had happened with an invitation for the victim to go to his house where he would personally say sorry to him and also present him with K10,000.00 cash and two pigs. The victim received the K1,500.00 from the two men he had sent to him, but refused the victim's invitation preferring that the law take its own course.
   
10. He voluntarily surrendered to the police on 9th of September 2013 and was subsequently arrested, charged and detained. He was admitted to bail three days later.
    
11. He pleaded with the Court for mercy and a lenient sentence. He asked the Court take into consideration when considering an appropriate sentence for him that; he and the victim had a good relationship and he treated him as his "father" before the incident; and it was his first time to be in Court.
    
12. In addition to matters raised in the affidavit, he said that his offer to pay compensation to the victim was still there if he were willing to accept it otherwise the Court was at liberty to make a compensation order.
    
13. At the request of the prisoner through his counsel, Mr. Kapi, I ordered a Pre-sentence Report and a Means Assessment Report to be compiled and filed by the Probation Service, Mt. Hagen Branch. These reports were duly filed and I commend Ms. Theresa Puk, Probation Officer for her efforts. Both reports speak highly of the prisoner. He is reported to be an educated person, a well established local business entrepreneur and community leader who is actively involved in peace negotiations and other community and family affairs and out of his benevolence has offered a portion of his land for a church to be built on, assists the church financially; helps community members with school fees; participates in payments of bride price and other community obligations. It is recommended that a non-custodial sentence on terms including payment of compensation be imposed. These reports stress the importance of the payment of compensation which was supported by leaders of the community and church although refused by the victim owing to the nature and seriousness of the offence and permanent nature of the injury suffered by the victim as a result of the commission of the offence as it would encourage reconciliation, restore and mend broken relationships and restore peace and normalcy in the community as both the victim and the prisoner were from the same community
    

14. The prisoner is from Poimund village, Mt. Hagen in the Western Highlands Province and is now aged 34 years and self employed. He is married and has 5 children whose ages range from 1 year to 8 years. His parents are deceased. There are only 2 male siblings in the family and he is the second born. He holds a diploma in accounting from the Institute of Business Studies. He is a baptized member of the Seventh Day Adventist denomination. His last employment in the formal sector was as the Highlands Regional Manager with Bemobile Limited. The prisoner was arrested and detained on 9th of September 2013 and was admitted to bail 3 days later on 12th of September 2013. He was committed to stand trial in the National Court on 22nd of November 2013 for unlawful doing grievous bodily harm.

15. The factors which mitigate the offence are:

1. a single punch was thrown;
2. the prisoner voluntarily surrendered to the police;
3. the prisoner pleaded guilty;
4. the prisoner has no prior convictions hence a first offender;
5. the prisoner expressed genuine remorse and contrition;
6. the prisoner co-operated with the police by making early admissions;
7. some compensation in the sum of K1,500.00 was paid to the victim the next day although the prisoner's offer to pay a higher amount of compensation of K10,000.00 and two pigs was rejected by the victim;
8. there was no high degree of intention to harm the victim, but was done on a spur of the moment;
9. there was no pre-planning;
10. it was an isolated incident;
11. the prisoner was the sole attacker;
12. the prisoner did not use any weapon;
13. until the offence, the prisoner was of previous good character.
    

16. Mr. Kapi submitted that the prisoner committed the offence when he was not in the right frame of mind because he was under the influence of alcohol so that should be treated as a mitigating factor. I will reject the submission because it has been consistently held by the courts over many years in this jurisdiction that self-induced intoxication is not a mitigating factor unless, of course, it is shown that a person has not intentionally become intoxicated: Kesino Apo v The State [1988] PNGLR 182; Mase v The State [1991] PNGLR 88.

17. Mr. Kapi also submitted that the victim was under the influence of liquor when he grabbed the prisoner and tore his shirt so that amounts to a moderate amount of de-facto provocation which should be treated as a mitigating factor. The depositions particularly the Record of Interview do not support that contention. Questions/Answers 28 to 34 of the Record of Interview particularly are relevant because they relate to the prisoner's altercation with the victim and assault that ensued and furthermore, that was the opportunity for the prisoner to raise the subject and I set them out below:

"Q28.Did you see policeman Ak Kukuma at the hotel car park area that night?

Ans. Yes.

Q29. Ak Kukuma said he saw you holding your magnum pistol. Why did you say that everybody were telling lies that you were holding a pistol?

Ans. Because I have no gun and I did not hold a pistol?

Q30. Did you talk with Ak Kukuma at the hotel car park area that night?

Ans. Yes.

Q31. What did you say to the policeman Ak Kukuma?

Ans. I said Wai's clansmen almost killed me so I came to stop them from working.

Q32.Ak Kukuma was injured on his mouth and two of his teeth were broken. How did Kukuma receive this injuries?

Ans. I punched him.

Q33. Why did you hit Ak Kukuma?

Ans. He held my shirt and I hit him.

Q34. What were you doing there when Kukuma held your shirt?

Ans. I was talking to the securities there." (sic)

For this reason, I will reject the submission.

18. It was further submitted by Mr. Kapi that pressures of the election and the prevailing political situation influenced his conduct so that should be treated as a mitigating factor. I will treat this as a neutral factor however.

19. The factors which aggravate the offence are:

1. the victim sustained a permanent loss of a lower canine;
2. the victim was a law enforcer holding the rank of Sergeant and was the Commander of Squad 07 of the Highlands Mobile Group;
3. the prisoner was armed with a pistol although not used;
4. the prisoner's conduct was unbecoming of a leader;
5. the offence was committed or the victim suffered humiliation or debasement in the eyes of others;
6. the offence was committed at a hotel frequented by tourists, patrons and other members of the public;
7. the prisoner resisted the lawful intervention of the victim to use all necessary or reasonable force to prevent trouble because he was in possession of a 9 mm Magnum pistol which resulted in his shirt being torn;
8. the prisoner is an educated adult who should tell what is right from wrong;
9. the offence was prevalent.
   

20. The prisoner urged the Court to accept the recommendation of the Pre-sentence report by imposing a non-custodial sentence of two years less the pre-sentence custody period.

21. Mr. Kesan for the prosecution submitted that the presence of serious aggravating factors warranted the Court to impose a sentence that was appropriate and fitting to the crime.

22. In considering an appropriate sentence for the prisoner, I have considered The State v David Carol (2009) N3762; The State v Abel City Ya Kund, The State v Wali Pyakai (2011) N4262; The State v Carol Peter (2011) N4320; The State v Peter Jai (2011) N4391.

23. In David Carol, the prisoner returning from work in the evening punched his wife over her mouth with a folded fist for not answering his calls to her mobile phone during the day. She lost four of her upper teeth as a result. On a plea of guilty to a charge of unlawfully doing grievous bodily harm under Section 319 of the Code, a sentence of 12 months was imposed which was wholly suspended on terms.

24. In Abel City Ya Kund, two prisoners pleaded guilty to one count of unlawfully doing grievous bodily harm under Section 319 of the Code. The victim was talking with the daughter of their relative who was a victim of a previous rape incident about midnight and having mistaken him for a rascal or the person who raped her attacked him. The victim suffered multiple bruises and swelling all over his body and lost three teeth. Substantial compensation was paid to the victim. A sentence of 2 years was imposed. The pre-sentence period in custody for each prisoner was deducted and the balance of their sentences were suspended on terms.

25. In Carol Peter, the prisoner was charged with unlawfully doing grievous bodily harm to the complainant by striking her on the face with an agricultural implement causing severe pain and suffering and loss of a tooth under Section 319 of the Code. After a trial, the prisoner was convicted of assault occasioning bodily harm contrary to Section 340 of the Code. A sentence of 2 years was imposed.

26. In Peter Jai, the prisoner pleaded guilty to assault occasioning bodily harm under Section 340 of the Code. The victim was a female neighbour with whom the offender had a series of differences over neighbourhood issues. The prisoner struck the victim her over the head with an iron bar causing the loss of two front teeth. A sentence of two years was imposed. The pre-sentence period in custody was deducted and the balance of the sentence was suspended.

27. The maximum penalty is usually reserved for the worst sort of cases of unlawful doing grievous bodily harm: see Goli Golu v The State [1979] PNGLR 653, Avia Aihi v The State (No 3) [1982] PNGLR 92 and Ure Hane v the State [1984] PNGLR 105.

28. It is also settled law that each case must be decided on its own facts: see Lawrence Simbe v The State [1994] PNGLR 38.

29. In the present case, the factors in mitigation far outweigh those in aggravation. I am satisfied therefore that the present case does not fall within the worst category of unlawful doing grievous bodily harm cases.

30. What is the appropriate sentence for the prisoner? Taking into account all the circumstances of the present case and guided by the aforementioned comparable sentences, I think the appropriate sentence for the prisoner is 2 years imprisonment in hard labour.

31. I will deduct from the head sentence 3 days for pre-trial confinement period leaving the prisoner 1 year, 11 months and 25 days (the remaining term) to serve.

32. The prisoner will serve the remaining term at the Baisu Correctional Institution.

33. Should I suspend the whole or any part of the remaining term? The power to suspend a sentence conferred by Section 19(1)(d) of the Code is discretionary and should be exercised upon some proper basis: Public Prosecutor v Thomas Vola [1981] PNGLR 412. Some of these principles are set out in Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91, The State v Frank Kagai [1987] PNGLR 320, Public Prosecutor v Don Hale (1998) SC564, Edmund Gima and Siune Arnold v The State (2003) SC730 and Richard Liri v The State (2007) SC883 which I have considered.

34. I have mentioned already that the pre-sentence report recommends that a non-custodial sentence be imposed on terms which I accept. In the exercise of my sentencing discretion under Section 19 of the Code, I will suspend the remaining term in its entirety on terms which I will impose shortly. I consider that suspension will promote the personal deterrence, reformation or rehabilitation of the prisoner and the compensation order I propose to make will serve the interest of justice of the present case: The State v Paul Jumbugu (2012) N4627.

35. The following conditions shall apply:

1. The prisoner shall enter into his own recognizance without surety to keep the peace and be of good behaviour for 2 years.
   
2. The prisoner shall pay compensation to the victim comprising K2,500.00 cash and a pig valued at not more than K1,000.00 by or before 4:00 pm on Monday, 16th of June 2014.
   
3. The prisoner shall pay a fine of K2,000.00. The total cash bail of K2,000.00 inclusive of surety monies is converted and shall be applied towards the payment of the fine.
   

36. A warrant of commitment shall issue forthwith.

Sentenced accordingly.
__________________________________________________

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