State v Lombei [2017] PGNC 280; N6995 (10 October 2017)

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BARTHOLEMEW LOMBEI, ALOISE KOHOU LOMBEI
& GABRIEL MOHEI LOMBEI
Prisoners

CRIMINAL LAW – Guilty Plea – Alois Kohou Lombei - Grievous bodily harm with intent, section 315 (b) (d) Criminal Code - Victim attacked with a bush knife which resulted in the amputation of his left forearm.

CRIMINAL LAW – Sentence – Alois Kohou Lombei - Sentenced to 8 years. Maximum compensation of K5000 ordered under the Criminal Law (Compensation Act) 1991.

CRIMINAL LAW – Guilty Plea – Bartholomew Lombei and Gabriel Mohe Lombei - Common assault section 335 Criminal Code.

CRIMINAL LAW – Sentence - Bartholomew Lombei and Gabriel Mohe Lombei –Sentenced to 12 months each with varying compensation orders from K1500 and K2500 based on degree of involvement and wounds inflicted on the victim - Criminal Law (Compensation Act) 1991 invoked.

1. GEITA J: The prisoners all pleaded guilty to one count of causing grievous bodily harm and another count of common assault. The offences come under Sections 315 (b) (d) and 335 of the Criminal Code and attracts a maximum penalty of life imprisonment and 12 months respectively however Section 19 (1) (a) (b) of the Criminal Code gives Courts powers to impose lesser sentences.

2. The relevant facts put to you during your arraignment and the agreed facts by the prosecution and your lawyer on the depositions for your plea of guilty on both counts with your consent are these. On Sunday 26 July 2015 at about 4.00pm Gabriel Saleu Micky approached the accused Gabriel Mohe Lombei and questioned him if he was the person who chopped down his betel nut and sago trees. An argument erupted and you both fought each other. The accused went to his house and returned with a bush knife. He was joined by his father Bartholomew and his brother Alois Lombei as they all chased Gabriel Saleu and his relative Gerard Ko-ou.

3. During the chase Alois Lombei removed the bush knife from Gabriel Lombei and chased Gerard Ko-ou. He caught up with him and cut him on his upper left back, his right elbow and forearm area almost completely severing the victim’s hand as he attempted to defend himself. As the victim fell down and lay helpless on the ground, Bartholomew and Gabriel joined in the attack. Bartholomew kicked the victim several times whilst Gabriel hit the victim on the head several times with a piece of wood. The victim was assisted to Lorengau General Hospital where his right hand was surgically removed.

5. During the administration of the allocutus or when you were given the opportunity to speak on the question of penalty you told Court as follows:

Bartholomew Lombei	I agree with the charge. I ask for leniency for what has happened in front of my house, area. I say sorry to the families and to the victims.
Alois Kohou Lombei	I am sorry to the Court and to the victims. I ask for leniency and ask to be put on Probation. I also ask for family reconciliation.
Gabriel Mohei Lombei	I am sorry for what had happened. I say sorry to Court and to God and say sorry to the victims. I ask for leniency and ask to be put on probation.

6. 1. Guilty plea
2. No prior convictions, first time offenders
3. Co-operated with police during the investigations
4. Expressed remorse in allocutus
5. Element of de facto provocation
6. Spur of the moment attack as opposed to planned attack
7. Victim’s desire for compensation

7. 1. Dangerous weapon, knife and timber used in the attacks
2. Permanent disability
3. The attacks were vicious

8. Two separate submissions were presented; One for Bartholomew Lombei and Gabriel Lombei and another for Alois Kohou Lombei. Defence Lawyer Emma Wurr submitted that the prisoners recorded early guilty pleas and cooperated well with Police during investigations and therefore were entitled to favourable mitigation considerations. She submitted that s.355 of the Criminal Code provides that an offender is guilty of common assault is guilty of a misdemeanour, with maximum 12 months prison terms. Since prisoners Bartholomew and Gabriel have been in pre-trial custody period for over 2 years and 4 months before bail was allowed, such period be deducted from their head sentence. She submitted that the prisoner retaliated in the way he did after he was attacked by the two victims. Furthermore since the prisoners pleaded guilty they should be given the benefit of doubt on mitigating factors raised in the deposition, and their allocutus in submissions. All factors not contested by State. In support of her arguments your Lawyer referred me to the case of Saperus Yalikabut v The State
(2006) SC 890 which supports these propositions. Ms. Wurr also submitted that in view of the victim’s desire for compensation the Court should also be guided by the victim’s desire for compensation.

9. As to what should be the appropriate sentence in the case of prisoner Alois Kohou Lombei, Ms. Wurr pointed this Court to questions and answers 14 & 20 of the record of interview and the pre-sentence report: The prisoner reacted at a spur of the moment when he saw that his brother Gabriel was assaulted by the victim and Gabriel Saleu with tree branches. Two other cases were referred to the court: State vs Dua [2013] PGNC 8; N4957 and The State v Gera Aret [2015] PGNC 202; N6103. The prisoner in Dua’s case pleaded guilty of unlawful grievous bodily harm as a result of his wife’s extra marital affairs. He was sentenced to 5 years imprisonment which was wholly suspended with conditions on the strength of a favourable pre-sentence report and the victim’s desire for compensation ahead of a custodial sentence. In the case of Gera two victims received life threatening injuries by use of a bush knife for two counts of grievous bodily harm with intent. The prisoner was sentenced to 6 years and 8 years respectively less pre-trial custody periods. A pre-sentence report recommend a custodial instead.

10. Ms. Wurr also submitted on behalf of the prisoners that these crimes stemmed from an ongoing land disputes between the two families, hence the need for suitable orders for reconciliation and compensation under the circumstances.

11. Mr. Raphael Lumen for the State conceded to the prisoner’s early guilty plea and their favourable mitigating factors. He however urged Court not to lose sight of the following aggravating factors: offensive weapons were used, bush knife and timber, the victim’s injuries remain permanent with lifelong hardships, and the victim was not the person that assaulted his brother Gabriel Mohei Lombei. Furthermore he said the prisoners’ expression of remorse were not genuine in that since the attack, no attempts were made to pay any form of compensation to the victim and they have not reconciled, although they were all related.

12. Mr. Lumen submitted that the current trend for grievous bodily harm cases under s.319 attract sentences ranging from a low 3 to 4 years in cases were injuries inflicted are considered not so serious. The sentences of high 5 years to maximum 7 years in serious injuries including permanent injuries.

13. In the present case the State, after a successful plea bargaining dropped the charge from attempted murder, s. 304 to s. 315, and the lesser grievous bodily harm charge and submitted that a head sentence exceeding 7 years be considered. Any adjustments to be considered according to the peculiar circumstances of this case.

14. The State Prosecutor referred the Court to the case of the State v Norbert Waimba: CR No. 689/2015 in which the prisoner was sentenced to 8 years imprisonment. The prisoner pleaded guilty to one count of Grievous Bodily Harm under s.315 (b) & (d) Criminal Code. The victim’s left eye was slashed with a bush knife resulting in 100% loss off of function of the left eye. Mr. Lumen submitted that in the present case prisoners Bartholomew and Gabriel should be sentenced to a head sentence of between 5 – 7 years. I am sure this was an oversight on his part and he has since corrected that to me maximum 12 months sentence. The main perpetrator in this crime prisoner Alois should be sentenced to between 8 – 9 years in prison. He submitted that any considerations for a suspended sentence be made conditional to the full payment of compensation and entry into Probation with conditions.

15. A pre-sentence has been prepared on your behalf and I must thank Nancy Poli, Senior Provincial Probation Officer for the report. She has covered lots of important areas including the victim’s desire for some compensation for his injuries sustained. Furthermore a desire that the prisoners be made to perform community work orders tailored to his specific needs. I will comment on this a little later. I also note a strong recommendation for your rehabilitation by way of some compensation and community work in view of your inability to pay monetary compensation.

Bartholomew Lombei	56 years; Tulu 1 village, married with 6 children aged 21 years up to 37 years, unemployed, villager, educated up to grade 6.
Alois Kohou Lombei	25 years, Tulu 1 village, Lives with parents, comes from a family of six children, single man, and unemployed, educated up to grade 6.
Gabriel Mohei Lombei	21 years, Tulu 1 village, Adopted into Bartholomew family and lives with them, single man, unemployed, educated up to grade 8 but did not sit for exams, wants to continue education.

17. The victim is permanently disabled with the loss of his limb. He has a wife and three adopted children to look after. He is of advanced age, 50 years and now greatly handicapped. He now cannot fully perform fatherly duties for instance beating sago, paddling canoe to islands to sell his garden food and sago, gardening etc. He now depends on his wife and other family members for his survival. He fears for his life as the prisoners still roam freely in the village carrying their bush knives.

18. In deciding the sentence I should impose on you and whether parts of your sentence should be suspended, I have had the benefit to reading through the case of all the cases that were referred to me. Although the crimes were very serious in nature I did not think they warrant the application of a maximum sentence as those are best reserved for ‘worst type category of cases: (Ure Hane v The State [1984] PNGLR 105).

19. Out of the three of you it is clear to me from evidence that Alois Kohou Lombei inflicted the most severe injuries to the victim with intent. I am satisfied that the degree and nature of any personal injury suffered by the victim warrants a maximum compensation under the law. As to the appropriateness of sentence for Alois Kohou Lombei, I consider the case of the State v Norbert Waimba most appropriate and will be guided by it. In this case the victim suffered 100% permanent loss to his right hand below the elbow, affecting his lifestyle permanently. Prisoners Bartholomew and Gabriel Lombei inflicted the least amount of injuries to the victim. Nonetheless your actions were unlawful. It follows that any compensation considerations the Court makes will reflect your involvement and participation in the attack on the victim. I will use the case of Dua as a guide to in so far as it relates to the years of sentence and orders for compensation.

20. Notwithstanding the absence of a means assessment which is required by the relevant law I exercise my inherent power, taking into account the seriousness and nature of injuries and invoke powers given to the Court under the Criminal Law (Compensation Act) 1991. Therefore a deterrence sentences with orders for some restitution in my view are considered appropriate. The pre-sentence report is suggestive of the fact that Gerard Ko-ou’s injuries are permanent and will impact on his lifestyle and livelihood. It follows that Gerard who is now partially handicapped should be properly compensated in my view.

21. The victim has expressed great desire for the prisoners to do specific community work tailored to his needs to compensate for the loss of his limb in his pre-sentence report. Although his concerns are genuine and noteworthy I am not sure if our laws will allow for such practices. Our laws are silent save work to be done which are community related, to be identified by the Minister and gazetted: Here is what is stated in section 199A of the District Courts Act:

(1) Where, under any law a Court may, after conviction, impose a fine or imprisonment for an offence, it may, as well as imposing a fine, or instead of imposing a fine or imprisonment, order the defendant to perform specified work for community purposes of a kind and in a manner approved by the Minister by notice in the National Gazette. (Emphasis mine)
(2) Where a Court makes an order under Subsection (1), the work ordered to be performed shall not exceed—
(a) eight hours in any one day; and
(b) six days in any one week,
over a period not exceeding three months.
(3) Where a person fails to comply with an order under Subsection (1), the Court may order the person to be imprisoned for a term not exceeding two days for every day on which he fails to comply with the order.
(4) An order under Subsection (1) may include an anticipatory order under Subsection (3).

It follows that the courts has no powers to order specific work orders tailored to individual needs. For now I am satisfied that the monetary compensation to be ordered will ease some of his burdens.

22. After the benefit which I have had on the cases presented before me and the most helpful arguments for and against, I have come to the conclusion that the appropriate sentence to be imposed upon the three of you for three counts is as follows. Your change of heart to plead guilty has been taken into account with any and all consideration for your respective mitigating factors. However in your case I am of the view that the aggravating factors outweigh your mitigating factors. It follows that your eventual sentence will be reflected in the Court’s sentence as follows:-

Bartholomew Lombei	Count 1 – Common assault on Gerard Ko-ou.(Kicked the victim several times)	12 months
Gabriel Mohe Lombei	Count 1 – Common assault on Gerard Ko-ou. (Hit victim on head several times with a piece of timber.Also armed with bush knife)	12 months
Alois Kohou Lombei	Count 2 – Acts intended to cause GBH with intent on Gerard Ko-ou, (Gave chase - removed bush knife from his brother and slashed victim on several places on his head, neck area, back and cut forearm resulting in amputation surgically).	8 years

Bartholomew Lombei	Compensation K1500
Gabriel Mohe Lombei	Compensation K2500
Alois Kohou Lombei	Compensation K5000

Orders and sentenced accordingly,
_____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoners

National Court of Papua New Guinea

State v Lombei [2017] PGNC 280; N6995 (10 October 2017)