State v Bagitogu [2007] PGNC 116; CR 814, 815, 816 of 2005 (18 April 2007)

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 816 OF 2005

THE STATE

V

JUNIOR GANO BAGITOGU
-Accused-

CR 815 OF 2005

STATE

V

SELIO BAGITOGU
-Accused-

CR 814 OF 2005

STATE

V

GANO BAGITOGU
-Accused-

Kimbe: Davani, J
2007: 12 & 18 April

Counsel:
A. Kupmain, for the State
P. Kapi, for the Accused

SENTENCE

17 April, 2007

1. DAVANI J: On 12 April 2007, the State presented an indictment charging JUNIOR GANO BAGITOGU, SELIO BAGITOGU and GANO BAGITOGU (all accused) with one (1) count each of intention to cause grievous bodily harm, charge laid under s. 315 (a) (e) of the Criminal Code Act (‘CCA’) and one (1) count of deprivation of liberty, charge laid under s. 355 of the CCA. These provisions read;

"315. Acts intended to cause grievous bodily harm or prevent apprehension.

A person who, with intent –

(a) to maim, disfigure, or disable any person;

...

Does any of the following things is guilty of a crime –

...

(e) unlawfully attempting to strike a person with projectile;

...

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

"355. Deprivation of liberty

A person who unlawfully –

(a) confines or detains another in any place against his will; or

(b) deprives another of his personal liberty,

is guilty of a misdemeanour.

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

2. Upon arraignment, all accused pleaded not guilty to the intention to cause grievous bodily harm charge and guilty to the deprivation of liberty charge. I decided that I would deal with the plea matter but will adjourn the matter which the accused pleaded not guilty to, to the next circuit when another judge will deal with it.

Facts and evidence

3. The facts to which all accused pleaded guilty to were that on 18 January, 2005, at approximately 9am, at block No. 40, Galai No. 1, all accused had chased one DAVID MARA to portion 43 where he sought refuge in the home of one Paino. All accused surrounded the house and kept watch, all the while, telling David Mara that if he tried to leave, that they would assault him. David Mara stayed indoors from 9am to 4pm and thereafter, somehow, managed to escape.

4. On allocatus, accused persons said this;

"Gano – True, we caused this trouble. I am sorry. My first time to do this.

Selio – True, we did trouble. There is a reason, there was a problem over the block amongst us brothers. The problem would not have occurred if he had not cut our little brother. That is why we did that. He used weapons to cut our brother. That is why when he ran to the house, we blocked him there.

Junior – Noga toktok (nothing to say)."

Aggravating factors

5. The prisoners all chased the victim to a house, which they surrounded and refused to let him out.

6. He was kept captive in there for about 4 hours.

Mitigating factors

7. The prisoners all pleaded guilty. This is their first offence. They are all of good character.

Analysis of evidence and the law

8. The prisoner Gano is aged 46 from Guarip village, Maprik in the East Sepik Province. He is educated to Grade 6 and does not hold any formal employment. He is also married with 6 children. He was in custody on remand from 21 January 2005 to 20 July 2005, a period of about 6 months.

9. The prisoner Gano Junior is the older Gano’s son. He is aged 19 and was educated to grade 10. He is currently not in school and is not married. He was in custody on remand from 2 February 2005 to 20 July 2005.

10. The prisoner Selio is Gano’s son. He is married with 2 children and was also educated to grade 10. He presently does not have any formal employment. He was held in custody on remand from 2 February 2005 to 20 July 2005.

11. The maximum penalty for this offence is 3 years. I heard from Defence counsel that a custodial sentence is not appropriate because the victim instigated the whole episode by inflicting injury upon all accuseds’ brother. The State submits that the victim’s constitutional right to liberty were violated when he was prevented from leaving the house. As a deterring measure, he submits that the court should impose a short, sharp custodial sentence.

12. The evidence is that the victim was prevented from leaving the house from about 9am to 4pm of the same day. There was some de facto provocation which led to the victim’s incarceration, the de facto provocation being that the victim had earlier attacked and cut a young man who was the prisoner’s brother.

13. The prisoners are all related to the victim. This was in effect, a family feud, which is all too common in many societies. Each case must be treated on its own merits. In this case, the victim was chased because he attacked and inflicted an injury on the prisoners’ brother. The charge in relation to the prisoners’ attempt to cause grievous bodily harm upon the victim is still pending.

14. Defence counsel has asked that I consider ordering a pre-sentence report (PSR), with a view to issuing a non-custodial sentence e.g payment of compensation. I must weigh this against the pending charges. I ask myself whether I would be exercising the correct option if I were to order a PSR and ultimately, compensation, considering the pending criminal charges. If I were to do so, there is a strong likelihood that these monies may be used as a means of appeasing the victim, .leading to the possible withdrawal of the other charges which of course, is highly irregular. And I am sure the prisoners do not want to be accused of this.

15. Which then leaves me with the custodial option. The prisoners are here in court because of their violent actions upon a family member. A short sharp sentence is in order. I say short because the victim was kept indoors for about 8 to 9 hours or less. I find a term of 5 months to be appropriate under the circumstances. This period can be deducted from time spent in custody on remand. I set out the computation for each prisoner;

1.Gano:	21.1.05 to 20.7.05 = 6 months
2.Junior Gano:	2.2.05 to 20.7.05 = 5 months, 18 days
3.Selio Gano:	2.2.05 to 20.7.05 = 5 months, 18 days

16. Each prisoner has served 5 months in custody.

17. The term for each prisoner as calculated above is now applied towards sentence imposed. The figures demonstrate that each prisoner has served 5 months which effectively means they need not be incarcerated because they have served their time. Bail monies of K200 each is refunded forthwith to be paid to persons who paid bail, upon production of the receipts.

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