State v Johnston (No 2) [2004] PGNC 185; N2586 (30 April 2004)

N2586

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 988, 1184 & 1556 of 2003

THE STATE

-V-

FRANK JOHNSTON
MURRAY WILLIAM and
MOSES WILLIAM
(No.2)

POPONDETTA: KANDAKASI, J.
2004: 29th and 30th April

DECISION ON SENTENCE[∗]

CRIMINAL LAW – Sentencing – Prisoner failing to turn up for hearing of defence case, decision on verdict, address and decision on sentence –Effect of - Court not obliged to adjourn or wait for accused – Court can proceed in accused and prisoner’s absence – Criminal Code s. 571.

CRIMINAL LAW - Sentence – Attempted murder by a group - Conviction after trial –First time youthful offenders - Prisoners armed with weapons – Attempt to cut victim by bush knife missed – Victim shot with stone with intend to kill using a sling shot – Injury to victim’s eye resulting in total loss of one eye – Attacked over alleged break, enter and stealing by victim – Criminal Code s. 304

Cases cited:
Michael Gende v. The State (Unreported judgment delivered on 26/08/99) SC626.
Joe Foe Leslie Leslie v. The State (Unreported judgment delivered on 07/08/98) SC560.
The State v. Elizah Ute (judgment delivered yesterday (29/04/04)) N2550.
Peter Naibiri and Kutoi Soti Apia v. The State (Unreported judgment delivered on 25/10/78), SC137.
Acting Public Prosecutor v. Don Hale (Unreported judgment delivered on 27/08/98) SC564.
The State v. Rex Lialu [1988-89] PNGLR 449.
The State v. Michael Kamban Mani (Unreported judgment delivered on 21/05/02) N2246.
The State v. Paul Yepei (No.2) (Unreported judgment delivered on 26/03/04) N2571.
The State v. Robin Warren & Ors. (No 2) (Unreported judgment delivered on 20/06/03) N2418.
The State v. Ennie Mathew Ors (No. 2) (Unreported judgment delivered on 29/10/03) N2563.

Counsel:
P. Kaluwin for the State
P. Kumo for the Prisoner

30th April 2004.

KANDAKASI J: The Court found you all guilty of attempting to murder one Wikinson Orotu at Ambene village, here in the Oro Province, on 10th September 2003 after a trial.

Facts

The relevant facts are set out in full in the judgment on verdict (The State v. Murry Mosess & 2 Ors (No.1)) delivered 28th of this instant. But, for the purposes of sentencing, I note the following facts are relevant:

• You acted in the company of each other;
• You were all armed, Frank Johnston had a grass king, Murray William had slingshot and Moses William had a bush knife;
• Frank Johnston tried to cut the victim with the grass knife but Mr. Grayson came in between the two of them and managed to prevent it;
• Murray William, you then used the slingshot to shot at the victim with a stone and the shot hit the victim on his right eye and he fell down;
• Moses William you only encouraged your brother, Murray to kill the victim;
• The victim has now lost his right eye completely thereby seriously reducing his vision. He has the risk of total blindness if his remaining eye is injured or damaged.
  

Address on Sentence

After having found you guilty, I administered your right to address the Court and you did yesterday. Both of you said sorry to the Court, God, your parents and the victim for what you have done. You also said this is your first ever offence and that you will not re-offend. Therefore, you asked for leniency and probation to enable you to return to your village and pay compensation.

As for Frank Johnston, he failed to turn up for his address on sentence. This continued from his failure to attend the rest of the proceedings after the close of the State’s case. The Court therefore decided to proceed in his absence pursuant to s. 571 of the Criminal Code. That continues to be the case. For the purposes of sentencing, I am of the view that by his own conduct, he decided not to address the Court. Therefore, unless, he his able to show very good reason why this should be re-visited the Court’s decision on sentence herein will also apply to him. For I am of the view that, one can only claim his right if he is prepared to exercise it at the relevant time. If there is a failure to do that, it amounts to an acceptance by his conduct that he will accept whatever orders or decisions the Court will arrive at. The people through the State do not have money readily available to throw away in such circumstances. Likewise, the Court does not have the luxury of more time to reconvene for such a person when he fails without good cause, to exercise his or her rights at scheduled Court hearings after having participated in the initial part of the proceedings, particularly in circuit setting such as this.

I now note that, the Supreme Court in Michael Gende v. The State (Unreported judgment delivered on 26/08/99) SC626 had the occasion to consider amongst others a prisoner’s right to address the Court before his sentence. In that case, the National Court did not give the appellant an opportunity to address the Court before his sentence. The Supreme Court agreed and therefore found that, the learned trial judge erred in his judgment.

In the present case, the Court was ready to give Frank Johnston, his right and opportunity to address the Court on sentence before a decision on his sentence. However, Frank Johnston by failing to turn up in Court and address it on his sentence, he in fact, in my view, decided to accept by his conduct whatever decision the Court arrives at for his sentence.

Lawyers Submissions

As for the two of you in addition to what you told the Court, your lawyer, Mr. Kumo told the Court that, Murray William, you are 16 years old while your brother Moses William is 14 years old. I note, Frank Johnston is of similar age as you both are. You belong to the Anglican Church. As for your parents, only your mother, who is very old, is alive, while your father is deceased. The authorities took you into custody on 11th November 2002. Finally, this is your first ever offence, which is confirmed by your respective antecedent reports, tendered into evidence by the State.

Your lawyer ably submitted on your behalf that your case does not fall in the worse category of attempted murder as in Joe Foe Leslie Leslie v. The State (Unreported judgment delivered on 07/08/98) SC560. He also submitted that your case is not closer to the case of The State v. Elizah Ute (judgment delivered yesterday (29/04/04)) N2550. He then submitted that, an appropriate sentence for you should be five (5) years.

Mr. Kaluwin of counsel for the State pointed out the aggravating factors that the Court should take into account before a decision on your sentence. These are the fact that, this was a group attack of an unarmed man, the injuries you caused to the victim has resulted in total loss of his right eye and the victim has the risk of total blindness, should something adverse happens to his good and remaining eye.

The Offence and Sentence

Section 304 of the Criminal Code creates the offence of attempted murder and prescribes its penalty in the following terms:

"304. Attempted murder, etc.

A person who—

(a) attempts unlawfully to kill another person; or

(b) with intent unlawfully to kill another person does any act, or omits to do any act that it is his duty to do, the act or omission being of such a nature as to be likely to endanger human life,

is guilty of a crime.

Penalty: Subject to Section 19, imprisonment for life."

In The State v. Elizah Ute (supra), I noted that the only reported case on sentencing in attempted murder cases is the decision of the Supreme Court in Joe Foe Leslie Leslie v. The State (supra). There, the appellant was a prisoner on the run after escaping. Police received a tip-off of the whereabouts of appellant and they mounted an operation to arrest him. Police surrounded the house where the appellant was hiding. A police officer involved in the operation then proceeded up the steps of the house and called out if there was anyone in the house. There was no response so he pushed the door open and found the appellant lying on the floor with a sawn-off shotgun, which he used to shot at that police officer, injuring him on the right shoulder. The injured police officer ran out and was taken to the hospital for medical treatment.

Meanwhile, other police officers who had surrounded the house fired shots into the house to force the appellant out but he did not come out. The police then fired a gas canister into the house and still the appellant did not come out. During this time, he fired another shot at the police officers outside but fortunately did not injure anyone. A fire started from the gas canister fired earlier on, which caused the appellant to come out of the house whereupon police shot him on the leg and apprehended him.
The medical report on the injured policeman confirmed that he recovered from the injury but with an estimated ten percent permanent loss of the efficient use of his right shoulder. It also confirmed that the victim suffered from constant arthritic pain in his right shoulder.

The trial judge considered this case to be amongst the worse type of attempted murder and imposed life imprisonment. In his reasons for judgment, the trial judge took into account what the Supreme Court has said regarding violence against police in the course of performing their duties and referred to the judgment in Peter Naibiri and Kutoi Soti Apia v. The State (Unreported judgment delivered on 25/10/78), SC 137. He then concluded that it was a very serious offence as it involved the shooting of a police officer in the course of his duties.

The Supreme Court agreed with the National Court that it was a worse case of attempted murder and confirmed the sentence. In so doing, in its own words the Supreme Court found that:

"... [T]he appellant in this case was determined to fight even though the house was surrounded by armed policemen. He showed no respect for the law and the value of human life. We find that this case falls into the category of worst type of this class of offences. In the circumstances, we find that the trial judge correctly imposed life imprisonment."

As I said in The State v. Elizah Ute yesterday, this case did not lay down any sentencing guidelines for attempted murder. Nevertheless, it is clear that committing the offence against a police officer in the course of his duty is a serious offence. Accordingly, it requires a stiffer penalty to reflect that seriousness. To that, I accepted and added, based on the Supreme Court judgment in Acting Public Prosecutor v. Don Hale (Unreported judgment delivered on 27/08/98) SC564, that the use of a fire arm to commit the offence makes the offence a very serious one. I also accepted and added, based on the Supreme Court judgment in The State v. Rex Lialu [1988-89] PNGLR 449, the crime of attempted murder is serious compared to a case of manslaughter. This is because there is in the former, an intention to kill whereas in the later, that is absent. As such, the sentence for attempted murder may be appropriately beyond those imposed in manslaughter cases.

I also said it is appropriate to add to the list of factors for consideration what I have said in a number of cases, for example in The State v. Michael Kamban Mani (Unreported judgment delivered on 21/05/02) N2246. There, I have expressed the view that where an offence affects the provision of a service to the community, it calls for a sterner punishment. There, I said:

"If the impact of the offence deprives the community of a vital service such as health services, important research work which as the potential of greater benefit to the society, the sentence should be sterner to reflect such impacts on the society. After all, criminal sentencing is a duty being discharged by the Courts on behalf of the community."

Bearing this in mind, I am of the view that, what the Supreme Court said about an offence of violence against a police officer, in Joe Foe Leslie Leslie v. The State (supra) should also apply for the protection of all other persons providing a vital service to the community.

I further added that where the offender is in a position of responsibility such as a District Administrator or is a member of any of the disciplined forces, makes his or her cases more serious than others. That was based on my recent decision in The State v. Paul Yepei (No.2) (Unreported judgment delivered on 26/03/04) N2571, and my earlier decisions in The State v. Robin Warren & Ors. (No 2) (Unreported judgment delivered on 20/06/03) N2418 and The State v. Ennie Mathew Ors (No. 2) (Unreported judgment delivered on 29/10/03) N2563.

Finally, I said the well-accepted principle of the maximum penalty must be reserved for the worse category of the offence under consideration applies. The case of Foe Leslie Leslie v. The State is a good example of such a case.

Your Case

For the purposes of determining an appropriate sentence for you, I note that, you acted in the company of each other whilst armed against an unarmed man. Frank Johnston had a grass knife, which he used to try to cut the victim. He could have cut the victim had it not been for Hobert Grayson who stopped him. Murray, you had a slingshot, which you used to execute the fatal blow to the victim. The shot from the slingshot injured the victim’s right eye. That has now resulted in a total loss of that eye. Finally, Moses had a bush knife but there is no evidence that, you used it to attack the victim except to encourage your brother, Murray.

Whilst there is no information on Frank Johnston’s background, I note that both of you are relatively young. Murray, you are 16 years old whilst Moses, you are 14 years old. You father is deceased and your mother is now very old is alive. You have been to primary education and this is your first ever offence.

Given these, your case is clearly distinguishable from that of Foe Leslie Leslie v. The State (supra). The offender in that case, had a prior conviction and was on the run after escaping from prison. He had an opportunity to surrender but chose to have a shoot out with police who were in the course of their duty. In the process, he almost killed one police officer and shoot at another as well but fortunately missed killing or injuring him.

Your case is also distinguishable from the case of The State v. Elizah Ute (supra). The offender in that case was a member of the disciplined forces, namely the Correction Services. He was better educated and exposed to the rule of law. He used a firearm to take deliberate aim and shot at his victim and missed him by a fraction of an inch. The victim was an employee of a health centre here in the Oro Province. Following the attempted murder on him, he left his employment with the health centre. That obviously meant the disruption of vital services to the community.

Your case is not in the worse category as in Foe Leslie Leslie v. The State (supra). However, I find your case coming closer to that of The State v. Elizah Ute (supra), except for the use of a firearm by a member of the disciplined forces. This does not, in my view, render your case less serious than that case. This is because, there were three of you here all armed against one unarmed man. You could have killed him if Hobert Grayson did not stop you. The victim has suffered a serious injury, the total loss of one of his eyes. That will last with him forever. If something happens to the other eye, there is the risk of him being rendered blind. The victim in The State v. Elizah Ute (supra) did not sustain any serious physical injuries. In these circumstances, I am of the view that your sentence should be closer to the sentence imposed in that, case but lower because of your personal, education, work and other backgrounds and the kind of weapons used.

Finally, I note once again that, there is so much violence in this province and the rest of the country. People are not turning to the law to settle their differences or problems. Instead, they are becoming judge, jury and executioners all at the same time. In your case, you claimed that you attacked the victim because he broke into your house and stole some of you properties. You also said you reported the matter to a village leader who you said failed to resolve the matter quickly so you attacked the victim the next day after you reported the matter.

You only had an allegation of the victim doing the things you claim he did. You went into evidence during the trial. In the trial, you did not produce any evidence establishing your allegations against the victim. In these circumstances, I find that, you did in fact act, as judge, jury and executioner in your own complaint. When you did that, you showed total disrespect for the law and more importantly, your village leaders and their ability to deal with your allegation. No doubt, this kind of conduct is making our otherwise beautiful country a bad place to live in. Accordingly, a sterner sentence is called for with a view to deterring both you and other like-minded persons in your own community, this province and the country.

Taking all of the above into account, I am of the view that a sentence of 20 years is appropriate and impose that against Murray because you executed the fatal blow leading to the injury and the eventual total lost of the victim’s right eye. As for Moses, I consider a sentence of 17 years is appropriate and I impose it, given the fact that there is no evidence of you attacking the victim with the weapon you carried. However, your presence did give strength and encouragement to your brother to do what he did. As for Frank Johnston, he did use the grass knife but fortunately, he missed his target because of Mr. Grayson’s intervention. Therefore, I consider a sentence of 19 years is appropriate for him and I impose it. Whenever he is recaptured, he will serve that sentence from the time he is arrested. Of these sentences, I order a deduction of the period each of you has spent in custody awaiting trial. I order a warrant of commitment in these terms be issued forthwith.
__________________________________________________________________
Lawyers for the State: Public Prosecutor
Lawyer for the Prisoner: Public Solicitor

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^[∗] I read this judgment in draft and indicated that I would have it corrected and improved upon then make it available to the parties. This is the final and improved judgment.