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State v Wartoto [2017] PGNC 123; N6762 (20 April 2017)

N6762


PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR NOs. 1317 & 1318 OF 2016


BETWEEN

THE STATE

AND

TONY WARTOTO

AND

TITO ISANA


Kimbe: Miviri AJ

2017: 23rd March, 10th, 18th, 19th & 20thApril

CRIMINAL LAW - plea-GBH-defendant both in company-victim on main road -defendant demand mobile telephone-victim not submitting-defendant swing bush knife at victim hips-saved by belt-three times more swung cutting victim on left and right hand-helped by bystanders to Valoka health centre-referred to Kimbe General hospital-no serious residual injuries-compensation paid-PSR MAR probation act-appropriate sentence-equal participation-sentence equal against both.


Cases cited:

Joe Foe Leslie Leslie v The State (1998) SC561

Gimble v. The State [1998-99] PNGLR 271

R v Yofia Abone [1967-68] PNGLR 277

Public Prosecutor v Done Hale (1998) SC564

Urugitaru v The Queen [1974] PNGLR 283

Kagai, The State v [1987] PNGLR 320


Counsel:
C. Sambua, for the State
D. Kari, for the Defendant


20th April, 2017

DECISION

  1. MIVIRI AJ: Tony Wartoto of Kasia, Hoskin, West New Britain Province and Tito Isana of Taskul New Island Province you are both charged on indictment of Grievous Bodily Harm contrary to Section 319 that you Tony Wartoto and Tito Isana at about 6.30pm on the 15th April 2016 at Hoskins in Kimbe unlawfully caused grievous bodily harm upon one Roderick Benjamin.
  2. You both pleaded guilty confirming that on the 15th April 2016 at about 6.30pm at Hoskins Roderick Benjamin was returning along the road after buying a flex card at the road side market. He was walking back along the main highway to his house towards the airport, when you Tony Wartoto asked for his mobile telephone. Sensing your intentions he tried to run away but you held him by his collar. And pulled out a short bush knife and swung it at him aiming at the waist level, but the knife hit the belt protecting him. You swung the bush knife three more times cutting him on his right and left arm. You Tito Isana were with Tony Wartoto and assisted by hitting him with a stone as he tried to run away. He was calling for help and some by standers assisted him to Valoka health Centre and then to Kimbe General Hospital. When you attacked and caused injury you both intended and did cause grievous bodily harm in that both of his hands were cut by the bush knife. The injury was life threatening pursuant to section 319 of the Criminal Code.

Law


  1. Section 319 of the Criminal Code Act 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”
  2. You assaulted him within the terms of Section 244 of the Criminal Code. Further you inflicted injury with the bush knife that was life threatening. He was rushed to Valoka health Centre and then to the Kimbe General Hospital. See Chalmers Injia Criminal law and Practise in Papua New Guinea 3rd Edition and also R v Yofia Abone [1967-68] PNGLR 277 at 287

Equal Participation and sentence


  1. You both are charged equally for committing an offence with a common purpose and there is no difference in the criminal liability upon the both of you and this is clear by Section 7 and 8 of the Code, reinforced and made clear by Joe Foe Leslie Leslie v The State (1998) SC561. For purposes of sentencing I am guided by that case. That is you both were at the same place at the same time. Tony Wartoto you delivered the cuts that inflicted grievous bodily harm upon Roderick Benjamin and you Tito Isana assisted by throwing a stone at Roderick Benjamin preventing him from escaping from you both. Your presence at the scene was willed not an accident you were there to assist and did assist in the offence by throwing stone that prevented Roderick Benjamin from escaping.
  2. I am also guided by Gimble v. The State [1998-99] PNGLR 271 which sets out the guidelines on sentences for armed robbery applicable here as the intent was to get the mobile phone of Roderick Benjamin who resisted and suffered the injuries from a bush knife that was carried by you Tony Wartoto, and you Tito Isana threw the stone assisting in the offence. You Tito Isana did nothing to stop Tony Wartoto from delivering the blows with the bush knife that cut Roderick Benjamin. You ought to as a reasonable man know that what Tony Wartoto was doing was wrong yet you did nothing to stop him from doing what he was doing.
  3. I am also assisted by the case Andrew Uramani, John Yagindu, Gabriel Steven, Linus Kelly, and Jacob Wagi v The State [1996] PNGLR 287:

“In The Case Of Urugitaru v The Queen [1974] PNGLR 283, the Supreme Court held inter alia that the fact that one of the several co-accused jointly indicted has received too short a sentence is not a ground to lead a court necessarily to interfere with a longer sentence passed on another or others. What has to be shown is that the applicant on appeal has received too long a sentence or that there is a very considerate disparity between the sentences such that a justifiable feeling of dissatisfaction and sense of injustice will occur.


The trial court when determining sentences would ordinarily consider the part played by each of the co-accused. Where the conduct of a co-accused is such that a co-accused sentence should be lower than another co-accused the trial court is entitled to differentiate sentences of co-accused jointly indicted if in the public interest it is just to do so, taking into account the differences in character and antecedents and what part they have played in the commission of the crime. “


  1. Following the cases cited above there cannot be disparity or disproportionateness in the sentence of one from the other because the conduct of Tony Wartoto is not isolated from the presence of Tito Isana and his act of throwing the stone at Roderick Benjamin is a sequence to the eventual cutting of Roderick Benjamin. Each contributed to the final outcome and must be sentenced accordingly. Such that a justifiable feeling of dissatisfaction and sense of injustice will occur if treated differently one from the other.
  2. Had you Tito Isana not being there and did not throw the stone, Roderick Benjamin would have escaped, the blows with the bush knife that were delivered by Tony Wartoto.
  3. You are both charged under Section 319 of grievous bodily harm it was the end result of an attempt to get the phone of Roderick Benjamin. And it was on a public highway frequented by other person similar to Roderick Benjamin intent on helping themselves with life in one way or another. The sentence that I impose must deter persons like yourselves with intent to harass, intimidate, assault or steal from or commit criminal offences against those who use the road whether pedestrian or otherwise. It is also the road leading to the airport and I must take account that access to that is not affected in any way at all.
  4. Section 319 sets out imprisonment for a term not exceeding seven (7) years and armed robbery under Section 386 sets a maximum of life years. You are both before me to be sentenced as convicts under section 319 for grievous bodily harm that has a maximum sentence of seven (7) years. If the state wanted, it could have charged you both with attempted armed robbery and the sentence would have been higher as that Section sets the maximum there of fourteen years. Section 319 has only seven years maximum which is subtracted or added given the circumstances of your case.
  5. The sentence must also deter other young persons like yourselves intent on making lives by illegal or criminal means but it must also stress rehabilitation as an alternative to imprisonment outright in cases with special facts, reasons circumstances properly outlined by pre-sentence report including means assessment. Sentencing is a balancing act that must include all factors going for and against and all should be considered first after which an appropriate sentence or punishment should be arrived at. Because I am duty bound to consider the purpose of sentencing and the alternatives and settle on the one that best fits the facts and circumstances of the case here: Kagai, The State v [1987] PNGLR 320.
  6. The Supreme Court in Public Prosecutor v Done Hale (1998) SC 564 at 5 said:

“If a judge is to consider some leniency on sentence because of age it is incumbent on him to obtain the relevant report such as a pre-sentencing report especially around the age of 17 to 19. Age considerations may of course be more obvious to a judge if an offender is under the age of 16 years. Then for such a drastic suspension of sentence a further help to the court would be a community report from the community to which the offender belongs and whether the community seeing that the incident happened within that community, has any views on an appropriate punishment or whether the community is prepared to assist with any community management of any bond period. The courts are bound under the philosophy of the constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment for criminals definitely as an effect on the ordinary people. So community involvement with the punishment of offenders should be considered as firstly if the court wishes to return an offender to the community instead of imposing imprisonment. And we note here that the relevance of Criminal Law (Compensation) Act 1991. A return to the community should mean an appropriate report of the attitude of the community and whether the community is prepared to make some responsibility for their own offending members and supervise any alternate punishment.”


  1. The pre-sentence reports and the means assessment reports for you both are before me. I will consider and take account of all matters inscribed by these reports so as to determine an appropriate sentence for your cases.

Allocutus


  1. Tony Wartoto you said, “I apologise to the court. This is my first time to come into trouble with the law, after the incident we have made peace and reconciled with the victim and we have paid K500 cash money and some shell money. I ask this court to have mercy on us and consider probation”.
  2. Tito Isana you said, “I apologise to court for our deeds and we ask this court to have mercy, we have paid some cash including some shell money. I ask court to have mercy on me and to consider me for probation”.

Section 13 Probation Act


  1. Following your request in the allocutus for probation, an application by your lawyer under Section 13 of the Probation Act was granted by me and the matter was adjourned to 10th April 2017 and still to 18th and 19th April 2017 for the matter to return. This was when your probation and means assessment reports were to be furnished to me. Addresses on sentence by both counsels were made on Wednesday 19th April 2017 and the matter was adjourned overnight to today Thursday 20th April 2017 for sentence to be passed upon you both.

Personal Antecedents


  1. You are first time offenders. You Tony Wartoto is aged 19 years old and you Tito Isana 20 years old. Both of you are educated; you Tony Wartoto is educated to grade 8 and completed your education at Kwalakessi Primary School in 2013 with plans to upgrade your marks at the Kimbe Centre of FODE. And you Tito Isana completed grade 10 in 2012 at Utu Secondary School in Kavieng, New Ireland Province. And you have done a certificate course in welding and fabricating at Moramora Technical College Hoskins and graduated in 2013. You were not without knowledge of what was wrong and right given this background in education. You have not denied your involvement from the start and I find this in your favour as accepting responsibility for your actions and to correct yourselves properly before the law and the Community. This is a very good sign of maturity in your thinking of seeing and making amends with him who you both have wronged. You have demonstrated reliability and trustworthiness by coming to court at short notice from as far as Hoskins on your initiative. You continued to appear before the court despite being convicted, I allowed you bail because you demonstrated that the Court could trust you both to appear until today 20th April 2017 for your sentences. It shows your commitment to adhere to law and to comply with the law. These are in your favour in consideration of an appropriate penalty against the both of you today and which I do take into account.
  2. Both of you are single man and do not have history in paid employment or formal employment nor do you have financial means to self-sustain but are dependent on your immediate family circle to sustain yourselves. Yet you pose educational basis already to set your lives in order and the court must encourage this to be used to ensure you live good lives from now onwards. Your families were angry with you both individually but have now with time come to support you to ensure normalcy with the victim and relatives. You both do not have any record of any prior convictions. You Tito Isana attends church at the Hoskins United Church under Reverend Daniel Paraide that you are described as a very quiet person and that there are no serious objections to you being released back into the community.
  3. You Tony Wartoto are similar that you are not a danger to the community and to release you back into the community poses no problems as John Ropa the uncle of Roderick Benjamin confirms that he would not object to your release on probation. Mr Darius Haily community leader Hoskins Station and Kasia village stated that together with John Wartoto father of Tony Wartoto and mother Rufina Wartoto they are prepared to assist you pay compensation to Roderick Benjamin.
  4. The victim states that it was you Tony Wartoto who was the author of his injuries with the bush knife not you Tito Isana. And this is also the sentiments of John Ropa uncle of Roderick Benjamin the victim here. That there is no dispute if Tony Wartoto is released into the community on Probation.

Recommendation for Probation


  1. Probation officer Joseph Telkit in addition to the information above recommends you as being suitable for probation given that you have paid compensation in the sum of K250 and some shell money and are remorseful for the offence.
  2. You Tony Wartoto are also recommended by the Probation office per Joseph Telkit as suitable for probation. Again you too were remorseful and paid the compensation K250 plus some shell money. Your ability to pay compensation was made possible with your relatives help.
  3. Victim Roderick Benjamin is a grade 12 student at Hoskins Secondary School. He has no residual injuries and has fully recovered and is attending classes as confirmed by his uncle John Ropa with whom he was staying and this offence took place.
  4. You both appeared initially from Bail of K500 that you were each on even though your case was not on the formal list of the morning, when you were contacted by your lawyer. You were both residents in Hoskins but appeared. You are genuinely concerned to see your case out in the right way according to law. You both showed trust worthiness respect and obedience to the court and so I granted your lawyer’s application to have you continue on bail despite the fact that you were both convicted prisoners of the state to appear on the 10th April 2017. In any case it was consistent with both your application for probation and helped the probation officers locate you both also to speak with all your relatives relevant to the preparation of the report for the assistance of the court. You committed an offence and were prepared to make amends to correct and restore relationship because you went out of your way to pay compensation even before a formal order was made by the court.
  5. The court must take account of persons who wrong the law to take full responsibility upon themselves including their communities, their leaders, persons of influence within and immediate relatives to take the lead and not to wait for the court to settle their problems peacefully so as to foster co-existence in harmony there immediate from day one where the opportunity presents.
  6. You both have done that very well with your relatives and leaders within your community of Hoskins and Kasia in particular John Ropa uncle of victim Roderick Benjamin, Darius Haily Community leader Hoskins station and Kasia village, John Wartoto father of Tony Wartoto, Rufina Haily mother of Tony Wartoto, Mrs Elizabeth Passingan and the victim Roderick Benjamin. Your spirited work has seen peace and harmony maintained. The court must also thank the probation officer Joseph Telkit for a well prepared probation report that has helped very much the duties of the court to dispense justice here for all within the confines of the law. It is invaluable help and must be encouraged and commended with distinction.
  7. Your efforts has seen the payment of compensation in the sum of K500 and shell money, a valuable commodity to our society in particular the society where this problem comes from. I take that into account in both your favour that you have not sat back and waited for the court but have shown your genuineness in settling this matter peacefully and harmoniously amongst yourselves. And bringing that evidence to the court and show that you take full responsibility and are prepared to amend your ways within and together with your community. That is a very serious matter that the court must take account of in both your favours and I do that here now.
  8. On Monday the 10th April 2017 you both appeared before me from bail and pre-sentence and means Assessment reports were furnished before the court. Counsel on both sides asked to see the report and to make appropriate submissions on Tuesday 11th April 2017. I granted the application and the matter was formally adjourned accordingly. You both pleaded guilty to the charge that was presented of grievous bodily harm. You Tony Wartoto was the lead in the crime as it was you who asked Roderick Benjamin for his mobile telephone and when he did not adhere as you sought, you took to inflicting him blows repeatedly with the bush knife not once but three times. One blow initially was rendered ineffective but the others that followed caused the injury to Roderick Benjamin particulars of which are set out in the medical report excerpts of which have been set out in my judgement here later on.
  9. And seeing all these before you, Tito Isana you were not content and passive rather you took a stone and threw it you both aided each other in the attack eventually leading to Roderick Benjamin being injured in both his hands. Then you both left him there with his injuries and ran away. You Tito Isana or Tony Wartoto did not turn around to help Roderick Benjamin after you both did this to him but left him by the road side injured and bleeding from both his hands and ran away. Blood keeps the human body functioning and alive. You both did nothing there and then to correct what you did there. It was fortunate that there were persons there who assisted him quickly to Valoka health Centre and then to Kimbe General Hospital. Had he bled to his death you both would have been charged and now dealt with for homicide. This is the extent of the seriousness of this matter, it was not simply a case of trying to take a mobile phone off another human being but an injury that was life threatening that culminated on a public road.


Medical Report Roderick Benjamin


  1. A medical report dated the 8th April 2016 made by Doctor James Apamumu headed medical report Benjamin Roderick. It reads:

“Mr. Benjamin Roderick was admitted to this hospital from March 16th to 23rd 2016. He suffered from multiple bush knife wounds to his hand after allegedly being held up by street thugs.


Examination in the operating theatre on 22nd March 2016 revealed 2nd & 3rd extensors of left hand and 1st & 2nd extensors right hand. Tendon repair was done and patient discharged the following day.


Review on 4th April showed good wound healing with minimal puss. He needs regular physiotherapy to fully recover functions of his wounded fingers. This may take a couple of months. Prognosis is good provided the wound heals up.”


  1. This medical report shows admission into the surgical ward from 16th to 23rd March 2016, one week or seven days admission, the extent of the injuries including what work was done to medically repair and discharge Roderick Benjamin the next day. But for the wounded fingers to become fully functioning he would have to submit to regular physiotherapy. The prognosis was good. A mobile phone can be easily replaced not a human beings life or limb.
  2. You had no reason to attack him except greed. You were both lazy and wanted to take the mobile phone of Roderick Benjamin off him. You were in full control of your actions on that day. You had the choice to be right or wrong there. You are both literate and educated enough to know right and wrong observance of care and concern for other persons. In the statement of Pastor Daniel Paraide and his wife Elli Daniel you both appeared to smell strongly of consumption of alcohol. This is not an excuse and will not be an excuse or disguise to commit a criminal offence. It will be no barrier to treating you both differently from a sober person. Self-induced intoxication is not an excuse nor is it a defence against criminal responsibility. You must respect the property and rights of other people and persons such as Roderick Benjamin here. The Public must feel free and safe to use the Hoskins road from persons such as you. A Bush knife is meant to be used in the bush and not on human beings as is the case with you here. Roderick Benjamin did not need to be assaulted and cut up with a bush knife in the way that you both did. If there were a report on him with residual injuries emanating from your attack, it was clear that you were not out to feel what Christ did for us all.

Defence submission


  1. Your lawyer has submitted that you are both first-time offenders. That you had both cooperated with police and now in court where you admitted the charge against you. Your plea has saved the court time and resources to run a trial. And that you were remorseful. That you had both reconciled with victim and in so doing had paid each K250 a total amount of K500 cash and shell money to the victim. He also had recovered from his injury. Further Tito Isana did not attack and cut Roderick Benjamin and should be treated differently. That this wasn’t the worst case and therefore three years IHL was appropriate given all facts here.

Prosecution submission


  1. The Prosecution submitted that it was a prevalent offence and then a term of imprisonment in the vicinity of three to four years IHL. That there was no difference between one who cut the victim and the other as he was not at the scene innocently but was there aiding and abetting his principle. And therefore as a form of punishment another amount be placed on top to be paid in addition to what was paid already.
  2. I have fully considered that there was no need for the use of the bush knife upon Roderick Benjamin by Tony Wartoto and assisted by Tito Isana. That Tito Isana was not just an innocent by stander but an active participant in the crime, as his presence encouraged the commission of the crime. In fact he threw a stone preventing escape from the attack by Roderick Benjamin. I consider the use of the bush knife upon Roderick Benjamin as aggravating the offence. It was swung four or more times upon him. He was unarmed and in no position to avoid the injury. I find as a fact that a person in their right mind would not have persisted as you Tony Wartoto did with the continuous swinging of the bush knife climaxing in the injuries to Roderick Benjamin. And I find as a fact that a reasonable person would not have simply stood watch over the attack as you Tito Isana did on this day without stopping the assault preventing the injuries sustained. You are equally to blame and bear responsible for the crime of Grievous bodily harm pursuant to Section 319 of the Code.
  3. I have also fully considered that both defendants have asked for a probation a report of which is before me with a means assessment report. The report is favourable to both of you endorsing a non-custodial sentence. And also I have considered the relevant laws and authorities including cases decided earlier for our viewing here some of which I have set out with excerpts from their Judgements setting out the basis of non- custodial sentence in particular probation.
  4. In total the facts, circumstances, law coupled with the probation reports and the means assessment report and your particular circumstances, the facts for and against weighed together with sentences imposed of like offences sums up that you must be sentenced to reflect that there must be deterrence against yourselves and others with similar inclination in committing the offence. Attacking another person with a weapon such as a bush knife without respect for the life and limb of that other person, or the observance of the rule of law must be curtailed with a strong sentence reflecting community abhorrence of such behaviour and offences. Public Properties such as roads and other public facilities must be accessible to all persons. Crime must not prevent the safe access and use of public properties such as roads.
  5. Young offenders offending against the law must be sentenced to reflect the gravity of the offence and the criminality of the offence they have committed but at the same time emphasize that they have a long life to live and live according to law and in compliance of the law as productive and useful citizens of the Communities and the country and that the role that the community and the society plays to rehabilitate offenders must be stressed and portrayed. Community must be a part and parcel of the rehabilitative process of a young offender to refit back into the communities and normalize.
  6. These are very pertinent and underpinning basis upon which I take into account in your favours and which I stress in the sentence and the orders I now make in your cases.
  7. The formal orders of the court are:

Orders Accordingly

__________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant

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