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State v Nakamani [2022] PGNC 266; N9691 (15 June 2022)

N9691

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 982, 983, & 984 OF 2021

THE STATE

V

LEAH NAKAMANI & NARAU KANAWI & STEPHANIE WALLY

Wewak: Miviri J
2022: 03^rd, 15^th June

CRIMINAL LAW – PRACTICE AND PROCEDURE – Assault occasioning bodily harm S340 – Plea – Guilty – offence committed Upon In-law – Serious Bodily injuries – first offenders – Large Compensation Paid – Favourable PSR MAR – Break down of Rule of Law – No Respect for Law Enforcing Authorities – Public Servants Should be Models Observing Rule of Law – Mob Attack – No Verification of Damages By Owners of Subject Properties – Sentence Not Effected –Prevalence of offence – Strong & Deterrent Sentence.

Facts
Accused aided and abetted each other in assaulting the victim who suffered serious bodily harm.

Held
Plea
Prevalent Offence
Compensation paid
First time offenders
Favourable PSR MAR.
Continued Persistent Attack
Mob attack
Strong deterrent sentence.
18 months IHL x3.

Cases Cited:
Allan Peter Utieng v. The State Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000.
The State v Kapul Jerom John; CR No. 297 OF 2020 [2^nd June 2022].
Aihi v The State (No 1) [1981] PNGLR 81
State v Gurua [2002] PGNC 41 N2313
Gimble v State [1988-89] PNGLR 271
Acting Public Prosecutor v Mailai [1981] PNGLR 258
State v Hagei [2005] PGNC 60; N2913
Kumbamong v State [2008] PGSC 51; SC1017
Simbe v The State [1994] PNGLR 38
State v Malala [2018] PGNC 357; N7445
State v Penge [2002] PGNC 90; N2244
State v Sinowi [2001] PGNC 35; N2175
State v Oa (No. 2) [2021] PGNC 527; N9385

Counsel:

F. K. Popeu, for the State
A. Kana, for the Defendant

SENTENCE

15^th June, 2022

1. MIVIRI J: This is the sentence upon Leah Nakamani and Narau Kanawi and Stephanie Wally all of Kiarifu, Yangoru Sausia, East Sepik Province who pleaded guilty that they on the 03^rd day of January 2021 at Kiarifu village unlawfully assaulted Jacintha Maragau occasioning bodily harm upon her.
   
2. They were charged pursuant to section 340 assaults occasioning bodily harm “(1) A person who unlawfully assaults another and by doing so does him bodily harm is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years.”

3. So, by this penalty prescribed they are liable to be sentenced to imprisonment not exceeding three years. That is the maximum due under that provision and like all other offences, it is reserved for the worst offence of its kind. And at the outset this is not the worst case of its kind in the case of each of the three prisoners. So a determinate term of years is in view against all. All pleaded guilty confirming the evidence collected on file against them. Narau Kanawi was silent in her record of interview conducted on the 05^th May 2021. Leah Nakamani tried to explain to lower her role in the assault upon the victim deceased. She tried to protect the other defendants in her record of interview conducted on the 15^th April 2021. In the case of Stephanie Wally record of interview conducted on the 16^th February 2021, she elected to remain silent. But the evidence collected of eyewitnesses to the brutal assault was overwhelming. On trial the State would have endured no problems securing conviction. It was therefore confirmed on the depositions tendered and each were convicted accordingly. The victim was brutally kicked by one of their Siblings who led them in the assault upon her causing severe injuries to the left lung from which she died despite being rushed to the Yangoru Health Centre. Initially all were committed to stand trial for Murder but were reduced on plea to the lessor charge of Assault Occasioning Bodily harm pursuant to the section set out above. So the sentence is for the offence of assault occasioning bodily harm not any more, any less.
   
4. In allocutus Stephanie Wally stated; “I want to say sorry for my sister-in-law who died. I say sorry to her family and also immediate family of mine who have lost their properties as a result. I say sorry to God in Heaven and to the Court. Thank you for hearing my case. We paid compensation and 13 of our houses were burnt down by the relatives of the deceased and destroyed our properties. After compensation 3 days later, they went and burn down. I am married with five children and I have left all of them. The first child is 13 years old in grade 8. The second child is 9 years old in grade 4. And the third is 6 years old and the fourth is 4 years old. The fifth is 11 months old. I am a Senior Health Extension Officer based at the accident and emergency and take lead there. I am very sorry for what happened. I ask the court for mercy”
   
5. In the allocutus of Narau Kanawi she stated; “I am sorry for what happened. I am sorry to my two children and husband of the deceased. I say sorry to the Court. I also say sorry to my family, and family and parents of the deceased. I am a housewife with children ages 16 years who is in grade 9, and 14-years old boy who is in grade 5 and 13 years old who is in grade 1. I say sorry to my immediate family. I say sorry to God in Heaven and I say sorry to this high court. I am a single parent. I am sorry and ask for the mercy of the Court to put me on probation.”
   
6. In the allocutus of Leah Nakamani she stated; “I say sorry to the immediate family of Jacintha Maragau and her two children and husband and parents. My immediate family for loosing all of their properties. I say sorry to God in Heaven. I say sorry to Court for hearing my case. I am a primary School teacher. I am in jail with my husband and baby 1 year old. Three other children are outside, 14 years in grade 7, 10 years old in grade 2, and 3 years old. I ask for mercy. K 25, 000.00 in cash was paid. Our 13 houses were burnt down.”
   
7. Realization has set in upon the prisoners that there is no escape from the long arm of the law. No consideration was given to their respective lives and those who were immediately of their families on either side. They were self-centred in the commission of the offence against the deceased. The consequences that have arisen have been such that they themselves invited by their actions and understandably at the hands of the relatives of the deceased. In this respect there is no independent verification of the assertions that they make. The presentence report contains photographs that are not the subject of independent verification supporting the presentence report filed in respect of each prisoner on the application made by counsel as to who had their houses burnt down. What was lost in the burning? Photographs have been taken and produced as part of the presentence report. The law of evidence is that this is not verified by those who have lost the properties. So, for all it is worth it is photos displaying a burnt site and no more than that. It will not be seriously cast out in the sentence to be dished against all.
   
8. This was a group attack on a lone woman who had no successful defence against this three prisoners who were accompanied by and who were aided by two of their male siblings of Kanawi Wally and Gideon Wally husband of Leah Nakamani. In my view all are educated to college level especially in the cases of Leah Nakamani and her husband and Stephanie Wally who has sworn the Hippocratic Oath to serve and to save lives as a medical person. She has defied by taking part in a severe and serious assault that has led to very severe injuries suffered by the victim. When the attack is as here in a group and in a pack, it is clearly a very serious matter. And the assailants cannot put up their personal circumstances to avoid the force of the law upon them, Allan Peter Utieng v. The State Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000. That ought to have set them not to do what they set out to do. Here it is unacceptable for the majority of the defendants who are college educated to have desisted from the conduct.
   
9. Victim was foaming and very bubbly at the mouth gasping for air after their combined compounded assault upon her. She stood no chance to defend herself against all combined against her. It was in broad day light undeterred. And one of the spouse of the prisoners prevented the victim from seeking help at the police Station at Yangoru. If she was allowed, she would be surviving now. He is responsible also for her suffering at the hands of the prisoners. All are first offenders but the gravity of their combined concerted actions left grave injuries upon the victim. All have pleaded guilty and have been remorseful. Each has pleaded for the mercy of the Court which they did not give the victim at all that day. They persistently assaulted her. They left no room for her to be reprieved from their actions.
   
10. All contend that they have made good with the compensation payment of K 25, 000. 00 in cash which is disputed by the parents of the deceased, stating they have not received as all moneys went to her funeral expenses. I state that the haves cannot pay their way out of the grasp of the law. If that is the difference where is the justice upon those who do not have the means to pay? Should they endure the impact of the prescription set out for the crime by the legislature? They is one in the application of the law against all, whether one has or does not have the means to pay compensation. Compensation is by itself reflective of peace and reconciliation a token of that fact, and not a dictate to relinquish the penalty prescribed by law. Here it is maximum sentence of imprisonment not exceeding 3 years.
    
11. I take due account that this is a very prevalent offence here in Wewak, and the surrounding districts including Yangoru. Sentences passed have simply not deterred this crime and other very serious criminal offences. And in this circuit alone the respect for law and order has decayed so much that the town of Wewak becomes a ghost town after the hour has struck 5.00pm. In this circuit number of cases were adjourned further because witnesses could not be brought into Town for the case. There was fighting that had spilled onto the public highway, Sepik highway accessing into Wewak hence the lack of witnesses. Lawlessness in all forms was rift and the rule of law was non-existent as here were supposed educated persons to college were no different from the others. In the recent case of

CR No. 297 OF 2020-The State v Kapul Jerom John [2^nd June 2022] I observed fighting within the precincts of the court. Armed men with bush knifes makeshift iron rods and pieces of timber chased each other as if in the wild somewhere out. But here right outside the court as it sat and heard and dealt with cases. There was no respect for the authority of the law and its rule here in East Sepik Province. And this is an escalation of an alcohol related action that has culminated without patience and wait on the local village magistrate to attend to the matter. All prisoners have been led by one of their co accused to assault as if there was no law order and the rule of law in that particular area, 44 years after the independence of this Country led by Sir Michael Thomas Somare who lies in rest here in Wewak Kreer heights.

12. In my view it is not a simple matter of taking account of the personal antecedents of the prisoners coupled with whatever pain they have endured. Crime is committed against the subject of the State like them the victim. She must be accorded protection like any other in the Province and the State from mob attacks as here. Especially where civil servants’ public servants, here Stephanie Wally a health Extension officer, and Leah Nakamani a community School Teacher are at the helm with another who is also a schoolteacher. They would by their oath as public servants be the first persons to show observance of the rule of law. And will be examples of the observance of the law and its rule. They are role models in the community setting the standard for all citizens, be they teachers doctors policeman lawyers. By their oath they are leaders in the community between what is right and what is wrong and against the law. They should not be with the rest of the pack dismantling the rule of law. East Sepik Province has immense potential to be a leader and an economic force in the country but for this kind of attitude that is eating dismantling it from its roots. And this is evident in the shutdown of the town to a ghost town at 5.00pm each day since my arrival here on this circuit.
    
13. I take serious note of the fact that the matter was before the village magistrate for a settlement in law not allowed. Which in my view must stop and the process of law must be adhered to and allowed to play out. Likened to Aihi v The State (No 1) [1981] PNGLR 81 (27 March 1981) their behaviour is seriously viewed. The Courts, law enforcement authorities must be allowed freedom to do what is called upon them by law. Persons who have brought their grievances to these authorities must allow that process out to its finality. There are no shortcuts nor taking the law into one’s own hands as here by all prisoners.
    
14. The rule of law is for all to observe as in the other parts of the country, no exception to East Sepik Province and Wewak as headquarters, and Yangoru and all other outer laying districts villages alike. The Constitution is for the Nation not excluding East Sepik Province and its citizens. And therefore, it is not a light matter to concede that imprisonment is not in order. All will be sentenced in similar and likeness one from the other as there is no parity here either by their personal circumstances and antecedents or the role that they each played in the crime. All played roles that will not differentiate as was the case of State v Gurua [2002] PGNC 41 N2313 (11 December 2002). Whatever sentence is passed upon will be the same upon all. And this will be consistent with Gimble v State [1988-89] PNGLR 271. That is, it will be not the case that the court will not consider specifically and differentiate whether a particular prisoner held the gun, a bar, or a knife and held up the victims but that all played an active part in the commission of the crime and therefore all are equally to blame for the outcome of the crime. That is the case here all prisoners were present and actively participated in the assault occasioning bodily harm upon the victim and therefore are equally to blame and will be sentenced similarly and equally.
    
15. I do not view the payment of K 25,000. 00 compensation as an exceptional case for the reasons amplified in Acting Public Prosecutor v Mailai [1981] PNGLR 258 (31^st July 1981), that there is no special treatment because of that fact because they ignited its origins and must make amends but that does not in my view take away what the legislature has imprinted upon the consequences of the breach. It is one of the matters weighed with all I have set out above. In my view it does not draw the balance in the terms argued by the defendants. It is the aggregate gravity of the offence that calls for nothing less than a custodial sentence in respect of all prisoners. And there are no exceptional or extenuating circumstances as observed in State v Hagei [2005] PGNC 60; N2913 (21 September 2005).
    
16. I am not shackled in my sentencing discretion which is the dictate of the Legislature for all intent and purposes open given. Shackling the discretion of the Court by this means is with the greatest respect amounting to legislating. And the courts are not by law in that domain. Application of the law to a given set of situation or circumstances is indeed the domain of a court. I am not alone in this regard with reference to Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008). From which I draw that all facts in the presentence report must be given their proper weight not lip service. And that I do here in the consideration of this sentence under the various heads of the sentence. It is good practise to take account of similar facts and circumstances in sentencing, but the overall driver should be the immediate facts circumstances at hand in an offence Simbe v The State [1994] PNGLR 38 (2 March 1994).
    
17. Where the attack is compounded vicious and, in a mob, the sentence has reflected for the simple human reason, that no one person can adequately defend themselves from an attack by a mob as was the case here, State v Malala [2018] PGNC 357; N7445 (10 September 2018). Deceased was attacked in a mob eventually leading to him being cut up all over his body and he died as a result. This is not a homicide case, it is assault occasioning bodily harm, but the principle of the attack in a mob and sentence to reflect that fact is there. It is applicable here against the sentence of the prisoners. And I apply in the determination of an appropriate sentence against the prisoners.
    
18. In the determination of sentence, it is a complete weighing out, both for and against, and the appropriate sentence will come from the balance that is tilted by the evidence led including the views of the victim and the general circumstances laying out leading to the offence, State v Penge [2002] PGNC 90; N2244 (24 May 2002). So, whether a non-custodial term is given or not is a determination of the facts and circumstances not without, State v Sinowi [2001] PGNC 35; N2175 (13 December 2001) evidence that fact including State v Oa (No. 2) [2021] PGNC 527; N9385 (31 December 2021). All do not set out a code of the type of sentences that can be imposed but evidence of the wide-ranging discretion that the court has in passing sentence that would be proportionate to the fact’s circumstances of each case.
    
19. Three years imprisonment is the maximum sentence under section 340 assault occasioning bodily harm. After due consideration of all the matters discussed considered above, the sentence proportionate to the gravity of the offence is 18 months IHL for the assault occasioning bodily harm committed upon the victim by all three prisoners, Stephanie Wally, Narau Kanawi and Leah Nakamani .
    
20. The sentence of the court is 18 months IHL upon all prisoners. Any time in custody will be deducted against all the prisoners and the balance will be served in hard labour in jail. I make no order as to suspension considering all above.
    

Orders Accordingly

Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant