State v Akiwa [2017] PGNC 106; N6746 (24 May 2017)

N6746

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 683 OF 2013

BETWEEN

STATE

V

HANGU AKIWA

Offender

Tari: Ipang, J

2017: 2 & 24 May

CRIMINAL LAW – Sentence – Criminal Code Act section 319 – the prisoner had argument with his wife – suspecting her to be unfaithful to him – removed all his children from his wife’s village and took them to his village – met his mother in-law along a bush track – got frustrated with his mother-in-law for taking his wife around – attacked his mother in-law with a bush knife – the mother in-law sustained bodily injuries.

CRIMINAL LAW – PRACTICE & PROCEDURE - Escape from lawful custody – offence created both under the Criminal Code Act and Summary Offences Act – Escapes by summary offences, prisoners ought to be charged under the Summary Offences Act and indictable offences, prisoners ought be charged under the Criminal Code Act – Tari District Court imprisoning the prisoner to 6 months imprisonment bench warrant for an indictable offence is beyond its jurisdiction.

Cases cited:

Papua New Guinea Cases

Aiva Aihi v. The State (No. 3) [1982] PNGLR 92.
Brian Laki v. The State [2005] PGSC 42; SC 783; (28 April, 2005).
Edward Gima v. Independent State of Papua New Guinea [2003] PGSC 3; SC730 (03 October, 2003)
Goli Golu-v-The State [1979] PNGLR 635
Gima v. The State [2003] PGSC 3; SC 730; (3 October, 2003)
Hane v. The State [1984] PNGLR 105
Laki v. The State [2005] PGSC 42; SC 783 (28 April, 2005)
Patterson v. Lawyers Statutory Committee (2005) SC 822
State v. Nandex Wepo [2016] PGNC 164; N6356
State v. Bill Kora (2012) N4663
The State v. Martin Konos (2010) N4157
The State v. Tovita Mann (2007) N4028
The State v. Veronica Kulina (2010) N5403
The State v. Francis Kurufher (2008) N3364
The State v. Wapuri [1994] PNGLR 271

Overseas case

Haldkinson v. Haldkison [1952] 2 All E. R 567
Chuck v. Cremen (1846) 1 Coop T Cott 205: [1846] Eng R 924; 47 ER 820:

Counsel:

T. Ai & R. Galama, for the State
S. Inisi, for the Accused

DECISION ON SENTENCE

24^th May, 2017

1. IPANG J: The prisoner pleaded guilty to one (1) count of causing unlawful grievous bodily harm contrary to section 319 of the Criminal Code Act. This is the decision on sentence for the prisoner.
   
2. The brief facts as found are as follows; on the 24^th July, 2013 along Palimali bush track, the prisoner chopped the victim Jane Tapale. Earlier the prisoner and his wife had an argument where the prisoner suspected his wife to be unfaithful to him. The victim in this case is not his wife but his mother in-law. So the prisoner went and took his children from his wife’s village and headed to his village. The victim at that time finished buying chicken feed at Tari Town and was heading home along Palimali bush track when the prisoner approached her. The prisoner was in possession of a bush knife. The victim assumed the prisoner was collecting firewood so spoke to him. The prisoner then raised his voice and asked the victim why she was taking his wife around in public during a funeral. The prisoner then swung the bush knife onto the victim’s shoulder. Then the prisoner swung the bush knife the second time at the victim’s neck but the bush knife struck the chicken feed bag. The victim fell down and the prisoner left the scene.
3. The Medical Report dated 12^th September, 2013 by Dr. H. Hewali revealed the victim sustained a compound fracture to her right ulna and radius. The three quarter of her left forearm was chopped by the bush knife. She was in so much pain and losing more blood. She was in shock when admitted to the hospital. On review, her right forearm was wasted, unable to flex and extend her fingers and forearm. She will not be able to cook food, make gardens or work with her right forearm. She has a permanent 90% disability to her right forearm at this stage.
4. The section 319 of the Criminal Code Act Reads:
   

“319 Grievous Bodily Harm

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”.

5. It is the sentencing practice that the maximum penalty is reserved for the worst types of cases. The maximum penalty for this offence is imprisonment for seven years. See Goli Golu-v-The State [1979] PNGLR 635; Hane v. The State [1984] PNGLR 105 and Aiva Aihi v. The State (No. 3) [1982] PNGLR 92.
   
6. The antecedent report tendered recorded no prior conviction. In allocutus the prisoner expressed remorse to his mother in-law the victim. He has five (5) children from marriage with his wife. He wants to pay compensation to the victim in the form of four (4) mature live pigs and four (4) middle live pigs. He said sorry to CIS Officers. He escaped from custody and surrendered, he said sorry for that.
   

MITIGATING FACTORS

7. The following are mitigating factors;
   • First time offender
   • Entered a plea of guilty
   • Expressed remorse
   • Co-operated and surrendered
   • Defector provocation in a non-legal sense
     

AGGRAVATING FACTORS

8. The following are aggravating factors;
   1. An offensive weapon, a bush knife was used.
   2. The victim sustained bodily injury.
   3. The prevalence of the offence.
      

Submission by the Defence

9. Mr. Inisi submitted that the prisoner is willing to pay compensation to the victim as per the Criminal Law (Compensation Act). The prisoner is a disable person and therefore he is not a threat to the community. Mr. Inisi proposed a two (2) year imprisonment and that this custodial sentence be wholly suspended with conditions.
10. Mr. Inisi also submitted that the prisoner was arrested for the offence of causing grievous bodily harm (s.319 of the Criminal Code Act) on the 25^th March, 2013. He escaped from custody in 2014 after being in custody for one (1) year. He voluntarily surrendered in March, 2017. The Tari District Court Magistrate Vincent Eralia sentenced the prisoner to six (6) months imprisonment on the 23.03.2017 for unlawful escape. The decision by Tari District Court which sentenced the prisoner to six (6) months imprisonment has raised serious legal issues. Mr. Inisi argued that the Bench Warrant issued for the arrest of the prisoner was by the National Court for the indictable offence of causing grievous bodily harm contrary to section 319 of the Criminal Code Act. Thus, Mr. Inisi argued that the Tari District Court acted beyond its jurisdiction and sentenced the prisoner to six (6) months imprisonment on a National Court Bench Warrant. Inisi submitted that the National Court uses its unlimited jurisdiction pursuant to section 155(4) of the Constitution and quash the Tari District Court’s sentence of six (6) months imprisonment.
    

Submission by the State

11. Mr. Galama for the State submitted that an offensive weapon which is a bush knife was used and that the victim sustained some form of injury. State also agreed that there was presence of de factor – provocation in a non-legal sense. State proposed for two (2) years imprisonment term.
12. In relation to sentence of six (6) months imprisonment imposed by the Tari District Court on a Bench Warrant issued by the Tari National Court, the State agreed with the Defence that Tari District Court acted beyond its jurisdiction. State relied on two (2) Supreme Court cases of Edward Gima v. Independent State of Papua New Guinea [2003] PGSC 3; SC730 (03 October, 2003) and Brian Laki v. The State [2005] PGSC 42; SC 783; (28 April, 2005).
13. The head notes in Edward Gima (supra) reads;

Escape from lawful custody offence created both under the Criminal Code and Summary Offences Act (SOA) – Policy behind that and its practical meaning – Escapes by Summary Offences prisoners ought to be charged under the Summary Offences Act and indictable offences prisoners ought to be charged under the Criminal Code Act. Police has no choice but to go by the policy behind the legislation – Summary Offences Act, Chapter 264 s.22 and Criminal Code Act s.139.

14. The Supreme Court in Brian Laki (supra) confirmed the position in Edward Gima (supra) and held that;
    2. “Since the judgement of Edward Gima v. The State and Siune Arnold v. The State (unreported judgement delivered on 03.10.03) SC 730, the law clearly is that, where a person is in lawful custody in relation to an indictable offence he must be dealt with under the Criminal Code while one held in lawful custody in relation to a Summary Offence, must be dealt with under the Summary Offences Act.
    3. It would therefore be illegal to proceed with a charge under the Summary Offences Act, if the escapee’s initial detention or imprisonment was in relation to an indictable offence and the same applies to a case in which an escapee was held in custody for Summary Offence and he is charged under the Criminal Code.”
15. The State submitted that the National Court should not interfere with the Tari District’s Court’s decision unless the prisoner appeals the conviction and sentence. That is the correct process or on the other hand the National Court can correct the injustice by quashing the Tari District Court decision of six (6) months imprisonment.

COURT’S ANALYSIS

16. I will address the issue of Tari District Court’s sentencing of the prisoner to six (6) months imprisonment first and the sentence of causing unlawful grievous bodily harm (s.319 of the Code) later. The two (2) judgements by the Supreme Court in Edmund Gima (supra) and Brian Laki (supra) clearly reveal that the Tari District Court’s decision by SPM Vincent Eralia is out of touch with law. Magistrate Eralia acted beyond his jurisdiction and assumed the jurisdiction of the National Court.
17. The question before me is that do I have the jurisdiction to quash the decision of Tari District Court. Both the Defence counsel and the State Prosecutor agreed I have invoke s.155 (4) of the Constitution to quash the decision by the Tari District Court. I am also reminded that it is a trite law that a court order is a court order whether it is obtained regular or irregular and must be complied with at all times unless it is stayed or set aside. The Supreme Court in Patterson v. Lawyers Statutory Committee (2005) SC 822 emphasized that;

The law is clear that unless set aside by a Court of competent jurisdiction, the order remained. That is the common law position, which we have observed in the jurisdiction according to the Court of Appeal decision in Haldkinson v. Haldkison [1952] 2 All E. R 567 which states (per Lomer LJ) at P.569:

“It is plain and unqualified obligation of every person against or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. This uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. Lord Cottenham LC, said in Chuck v. Cremen (1846) 1 Coop T Cott 205: [1846] Eng R 924; 47 ER 820: “A party who knows of an order whether null or void, regular or irregular, cannot be permitted to disobey it. It would be most dangerous to hold that the suitors or their solicitors, could themselves judge whether an order was null and void or whether it was regular or irregular. That they should come to the Court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be affected by it was plain. He should apply to the Court that it might be discharged. As long as it existed it must not be disobeyed.

18. The proper process in my view would be for the prisoner to appeal the decision of Tari District Court against his conviction and sentence of six (6) month imprisonment. However, I am also mindful of the fact that the Tari District Court sentenced him on the 23^rd March, 2017. The required 40 days period of appeal has lapsed. By the time the prisoner takes necessary steps seeking leave to file his appeal out of time, his six (6) months imprisonment sentence would almost be served out. Where is justice for the prisoner? I will therefore, exercise my discretion under s.155(4) of the Constitution, quash the conviction and sentence of six (6) months imposed on the prisoner by the Tari District Court on 23^rd March, 2017.

PRISONER’S SENTENCE

19. As for the prisoner’s sentence for causing grievous bodily harm (s.319 of the Code), I take into account the prisoner’s antecedent report, his allocutus, the mitigating and aggravating factors and the following precedents;
    1. In the case of State v. Nandex Wepo [2016] PGNC 164; N6356 bush knife was used to slice the left hand in-between the pointer and middle finger which has now caused the 80% loss of the pointer finger to the first victim which was the brother in law of the offender and to the second victim, she sustained a broken arm and scars to her body, she was the wife of the offender. Court sentenced the offender to four (4) years imprisonment for the second count. Sentence to be served concurrent, one (1) year and 8 months was deducted for the time spent in custody awaiting trial and the balance of one (1) year was suspended. One (1) year 4 months was to be served in custody.
    2. In the State v. Bill Kora (2012) N4663, the accused pleaded guilty to Unlawfully doing grievous bodily harm to his female neighbour in an urban setting, cutting her on the face with a bush knife, inflicting an eye injury and superficial injuries requiring seven (7) stiches. His Honour Cannings J sentenced him to 4 years and fully suspended the term in view of a favourable pre-sentence report and his preparedness to pay further compensation.
    3. In the case of The State v. Martin Konos (2010) N4157, the accused pleaded guilty to Unlawfully doing grievous bodily harm to his nephew by attacking him with a piece of timber, fracturing his knee and inflicting many other superficial injuries by multiple blows. His Honour Cannings J sentenced the prisoner to 3 years. The sentence was fully suspended with stringent conditions.
    4. In the case of The State v. Tovita Mann (2007) N4028, the offender pleaded guilty to unlawfully doing Grievous Bodily Harm to the victim. The victim was holding a baby when accused cut him on the right shoulder and inflicted a deep and extensive cut. His Honour Injia CJ sentenced him to 5 years reduced by the pre-trial custodial term and order to serve the remaining term of 2 years 11 months 12 days.
    5. In the case of The State v. Veronica Kulina (2010) N5403, the accused during a domestic argument used a knife and inflicted injuries on victims fingers and caused fractures to his fingers. A sentence of one (1) year imprisonment was imposed with time spent in custody deducted and the balance wholly suspended on conditions.
    6. In the case of The State v. Francis Kurufher (2008) N3364, the accused struck a young man in the back with a coconut palm frond. The victim sustained a broken rib. The accused was sentenced to 3 years imprisonment. The sentence was wholly suspended with conditions.
    7. In the case of The State v. Wapuri [1994] PNGLR 271, the accused pleaded guilty to a charge of doing grievous bodily harm. The accused struck the face of wife of his cousin using a motor vehicle handbrake cable. The assault left the victim with 90% loss of vision in her left eye. The court imposed a sentence o 18 months, deducted 5 months for pre-trial custodial term and suspended the balance of the term and placed the accused on good behaviour bond for 12 months. In addition the court made orders for accused to pay compensation to the victim in the form of K500.00 cash, five (5) pigs. In default of payment, the accused was liable for 2 months imprisonment. The orders were made after considering a Means Assessment Report and evidence of custom and compensation payments made in the area at that time.
20. In considering an appropriate sentence for the prisoner, I take note of the following;
    1. He pleaded guilty, thus saves Court’s time and State’s cost for putting up a trial.
    2. He is first time offender.
    3. He co-operated with the police.
    4. He did express remorse to the victim.
    5. He expressed his willingness to pay compensation of four (4) matured pigs and four (4) medium live pigs.
21. The aggravating factors considered against the prisoner are that; a dangerous weapon was used and the victim sustained some form of injuries; the victim was not expecting the attack and there was an intention to harm the victim. The offence of causing grievous bodily harm is common and prevalent.
22. The victim in this case is the prisoner’s mother in-law. In many cultures and traditions in Papua New Guinea, the in-laws are always treated with respect. What you did to your mother in-law, in my mind is unthinkable and I was thinking to myself; are you insane? The attack on your mother in-law was a shocking attack. Your actions demonstrated that you’re a very violent person and you have no hesitation at all to use the bush knife to attack your mother in-law.
23. I consider an appropriate sentence for you would be three (3) years imprisonment. I minus the time spent in custody which is one (1) year. This will leave the balance of two (2) years imprisonment to be served. You will only serve three (3) months imprisonment and the balance of the sentence is suspended and you be placed on two (2) years good behaviour bond with the following conditions;
    1. Twelve (12) months into your two (2) years on good behaviour bond and you shall compensate the victim with four (4) matured pigs and K4 000.00 cash money. The compensation payment shall be witnessed by CBC officer – Hela and the Arresting Officer.
    2. You shall keep peace and be of good behaviour towards the victim.
    3. Not to commit any offence whilst on two (2) years good behaviour bond.
    4. To attend regular church service and counselling.
       

_________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Prisoner