State v Makapu [2017] PGNC 118; N6761 (19 May 2017)

N6761

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1328 OF 2014

THE STATE

V

DANIEL MAKAPU

Kimbe: Miviri AJ
2017: 18^th April, 15^th &19^th May

CRIMINAL LAW - Plea- GBH 315 CCA –bush knife attack- multiple injuries to head – cut right hand- cut left leg-allegation of sorcery –permanent disability left leg and right hand-prevalent offence- presentence Report-Means Assessment Report-custodial –non custodial sentence.

Cases cited:

In State v Idab [2001] N2172

In State v Tony Wartoto and Tito Isana CR NO 1317 & 1318 OF 2016

Thress Kumbamong v The State (2008) SC 1017

State v Blasius Bana (2004) N2863

State v Clifford Rangit CR NO 413 OF 2013

State v Hianu [2006] N4482

State v Idab [2001] N2172

State v Irowen [2002] N2239

State v Naiwa [2004] N2710

The State v Augustine Lopulopu [2016] N6393

The State v Fhryle Aliu CR 1233 of 2014

The State v Philip Piapia CR NO 1099 OF 2014

Counsel:
R. Luman, for the State
B. Popeu, for the Defendants

DECISION ON SENTENCE

19^th May, 2017

1. MIVIRI AJ: On the 31^st December 2013 at Section 42 Settlement, Daniel Makapu of Banivera Village, South Nomane Chimbu Province with intent to do grievous bodily harm unlawfully did grievous bodily harm to Hano David contrary to Section 315 of the Criminal Code.

Brief Facts on arraignment

2. On the 31^st December 2013 at Section 42 Squatter Settlement Kimbe, Accused was at house with relatives, the victim Hano David came to the house to speak to him and his relatives over an allegation of sorcery against him. Accused and relatives talked in their language and attacked and cut another person with Hano David who ran away. Then as the other relatives of his held Hano David down the accused cut him with the bush knife on his left leg causing him to sit in pain and as he did the relatives pulled the right hand out and the defendant cut him there completely where the hand was just hanging with the skin only. The accused had intended to cause grievous bodily harm as the hand and the leg were both amputated. The accused and another dragged Hano David to where they throw rubbish and left him there to die. One Joe Jack saw Hano David there and assisted him to the hospital where he was treated but his leg was completely severed including his hands. Both were amputated leaving him permanently disabled.

Section 315. ACTS INTENDED TO CAUSE GRIEVOUS BODILY HARM OR PREVENT APPREHENSION.

A person who, with intent–

(a) to maim, disfigure, or disable any person; or
(b) to do some grievous bodily harm to any person; or

• (c) to resist or prevent the lawful arrest or detention of any person, does any of the following things is guilty of a crime:–
• (d) unlawfully wounding or doing a grievous bodily harm to a person;

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

• (f) unlawfully causing an explosive substance to explode;
• (g) sending or delivering an explosive substance or other dangerous or noxious thing to a person;
• (h) causing any substance or thing referred to in Paragraph (g) to be taken or received by a person;
• (i) puts a corrosive fluid or destructive or explosive substance in any place;
• (j) unlawfully casts or throws a fluid or substance referred to in Paragraph (i) at or on a person, or otherwise applies any such fluid or substance to the person of a person.
  

Penalty: Subject to Section 19, imprisonment for life.

5. The State invokes section 315 (b) (d) of the Criminal Code Act against you the defendant. There is no doubt that you intended to cause grievous bodily harm as is seen from the cuts itself, inflicted by a bush knife without warning to Hano David, first on the leg rendering him unable to escape. Then followed by his right hand leaving him bleeding at a refused dump away from where he could be saved. But he was saved by a Good Samaritan and now lives with permanent disabilities. A human being is not a complete person without the full functions of their body. The hand and the leg are an integral part of the body which makes us what we are human beings so that we can survive by our own means. Disability means Hano David will depend on able bodied persons to see out his survival. We need a pair of hands and legs to be able to move to seek out what life offers to ensure our survival. You have reduced that for Hano David over an allegation of sorcery.

6. The allegation of sorcery is unfounded and is mere talk of a drunken person which you took personally and out of proportion which prompted you to attack with a lethal weapon, a bush knife. The bush knife is readily available in any house hold and can at an instinct be a deadly or maiming weapon as is demonstrated here and which I have had to see out all of this week and last week and still the committing are comings of its deadly use by ordinary citizens without haste or second thoughts. There are almost 15 plus committals that came through last week alone here and which have come before me.

7. The sentence that I pass here must be a deterrent knowing that the bush knife is accessible to all in the community and can be turned from a very useful cutting tool into a weapon at the instinct instantly of a human being. It is not an expensive tool therefore accessible for evil at the hands of citizens in the towns or cities or in the villages or hamlets country wide. It is also in every hand that commits armed aggravated robbery and all other cases of homicide before the courts now.

8. As a sentence is passed, I consider this as very fundamental basis upon which the Sentence must seriously reflect and address to deter and also as punitive measure against you for the way you have acted against Hano David. The bush knife must have been very sharp to be able to cut through the bones in both the leg and the hand to leave barely the skin holding after it had gone through. Or the use of the force must have been with vendetta or vengeance to not only inflict pain and suffering but death as it was carefully executed. Firstly without any warning to Hano David and getting any assistance or help away and then disabling his chances of escaping with the legs incapacitated and then followed to the hand for any self-defence therefrom.

9. The probation report does not contain the views of Hano David as he is no longer at the last known location he was at. He is nowhere to be found to assist in the sentence that is passed which itself is very serious against you where you have requested probation and non-custodial portion of sentence on conditions of restitution or compensation though it may not bring back the leg and the hand at a minimum you pay to him some measure to comfort ease the tension in his life.

10. It means that the court is left with no option to consider a non-custodial sentence against you. You must realize that you will come out of the prison sentence with your legs and hands intact and not Hano David, even after your sentence he will remain a disabled person without his left leg and right hand for the rest of his life. This goes to all who commit this crime and all who have similar inclination that you are a complete person, a human being complete as your mother gave birth to you, not the person you have used the bush knife upon, he or she is sentenced to life as a disabled person. It will not change or no amount of compensation or restitution will change that fact.

11. You may have pleaded guilty but your guilty plea is sand in the water melted and dissolves when all the above is considered at length, the court must not pass sentence in an abstract or vacuum or in academia there are real life and real human issues touching every life as a human being. Practise of Christianity as enshrined in the Constitution must be the cornerstone of any sentence passed.

12. You are a Christian of the United Pentecostal church, the word Pentecostal reflecting speaking of the Holy Spirit the third person in the Holy Trinity that is God. You have not acted with the spirit of God in the way that you believed in sorcery not God, and then armed yourself with a bush knife against an unsuspecting fellow human being who was affected by alcohol, in no position to defend themselves against you in any way or form. You out numbered him with your relatives three in all supporting you against him, an unarmed single individual after you had cut and chased away the other who was with him.

13. This sentence must reflect and instil that Papua New Guinea is a Christian country, your behaviour must reflect that whether now or after your term in prison. And must be reflective of that to the Community, the Province, the country, to others with similar inclinations that the courts will not be light against those who so defy as here.

14. It must also reflect that you do not recourse immediately to the bush knife or any weapon for that matter in a dispute that you resolve disputes with regard to the law and the process of law or as intelligent normal ordinary human being with reason and intellect.

Guilty Plea

15. You pleaded guilty to the indictment and the facts alleged. The reading of the depositions that were tendered confirmed the plea of Grievous Bodily Harm pursuant to Section 315 of the Criminal Code which is more serious than Section 319 of the Code. And seeing the evidence clearly demonstrated that careful thought and reasoning was apparent in the matter because of the gravity demonstrated and apparently identifiable. It was not safe and satisfactory in law to deal with you like any other case of grievous bodily harm that had come before me this week. You acted because of your belief in sorcery and you resorted with grievous disabling violence over and above what was given the circumstances there and then prevailing. It is therefore and cannot be a light matter against you.

Allocutus

16. “This trouble I committed because they suspected me a sorcerer before they place me in custody. I apologise to the court I broke the law of the country, I promise not to do it again. I ask for the mercy of the court to place me on good behaviour bond and probation. Thank you your honour”

Submission Defence Lawyer

17. Your lawyer reiterated your call for a probation report to be furnished and so I ordered that a probation report be made to the court for the consideration of an appropriate sentence to be passed after consideration thereafter.

18. The report was produced and submitted to court including your lawyer and the public prosecutor who both made submissions on the 15^th May 2017. Your lawyer submitted and urged that you pleaded guilty with intent to cause Grievous Bodily Harm under section 315. That you were 23 years old single residing at section 11 Bush Camp originally from Banivera village South Nomane, Kundiawa, Simbu Province.

19. He submitted that the offence was prevalent and the nature of the injuries were that they were permanent. And they were multiple wounds. A bush knife was used. You were a first-time offender, you had pleaded guilty to the matter. He said there was extenuating circumstances in that there was de facto provocation. That you were accused of sorcery and you reacted in the way that you did. The victim drank alcohol and proceeded to you and your relatives and it appears he accused you over sorcery and witchcraft.

Prosecution Submission

20. Prosecution addressed that you used a bush knife and inflicted permanent and multiple injuries to the right hand which was amputated. The Left leg was also amputated. There were additional injuries to the head. The L3 spinal cord was also injured in the process.

21. Medical report dated the 30^th January 2014 from the surgical ward Department of Health, Kimbe General Hospital, Medical report on injury for Mr. Amos David Hano, reads: “Amos was allegedly assaulted by known person with bush knife on the 31^st December 2013. He was slashed on the head, both hands left hand and the back. He lost a lot of blood was in shock and given 2 units of blood at the emergency Department. On examination, he had:

(1) Multiple knife wounds to the head
(2) Amputated right hand
(3) Amputated left ankle joint
(4) Spinal injury at L3 spinal level

He was admitted to the surgical ward admission number 7500, currently in the ward.

He had sustained a very life threatening injury that has resulted in him sustaining permanent disability.

Dr. Cherubim Kapanombo

Surgical Registrar.”

22. This is very serious life threatening injuries that were inflicted upon Amos David Hano by you. And it was over the fact that Amos David Hano suspected you and your relatives of sorcery upon his relatives. You become furious over this fact and chopped him.

23. You are educated to grade eleven in 2014 and yet you acted without that intelligence. You acted without restraint against an unarmed person who was affected by alcohol. You did not accept that he was in no position to hurt you or cause any harm upon you. You acted in concert with the others who were there who held down Amos David Hano whilst you cut off his leg from under him causing him to fall and then you proceeded to cut his hand which was held down by your relatives. You acted as if he was an animal or a domestic animal being prepared for consumption as food. You were not in an uncivilized society untouched by the modern age of technology and the 21 century and beyond. Kimbe is sophisticated now and on par with the rest of Papua New Guinea and the world. What you did was within Kimbe town, you still hinged and chained on to your belief of sorcery in modern Kimbe and Papua New Guinea. Sorcery has destroyed many parts of Papua New Guinea where people accused of sorcery are slaughtered, torched or murdered without trial. That is the main reason why Parliament has had to amend the homicide offences to make homicide associated with sorcery as drawing the penalty of death.

24. Here after you had cut up the victim you dragged him to a refuse rubbish pit and left him discarded like waste material not a fellow human being. You left him for dead at the area where rubbish is dumped. You left Amos David Hano to bleed to his death but by the grace of God he was saved and taken to the hospital where he endured medical treatment for three long months after which he came out on the 17^th March 2014. He is now 100 percent disabled in his left leg and right hand. And that is life long sentence by your hands.

25. In The State v Philip Piapia CR NO 1099 of 2014 the court stated:

“This is one of the most prevalent offences in this Province West New Britain Province, in this week alone I have had to deal with almost 15 cases involving the use of bush knives with grievous results upon the victim predominately with residual injuries after the best medical hands here at the Kimbe General Hospital. This is a drain on the logistics, resources and manpower of the hospital caused by individuals like you. The hospital should be using its resources, time, energy, manpower for genuine cases of illness, not violence as is the case here. There are also cases of murder and wilful murder that are also before this court here in Kimbe alone which are the end result of the use of bush knives upon the deceased there. There is not a week that goes by without a committal to this court of this offence of Grievous Bodily Harm as perpetrated here with Bush knives. The minimum in a week as I have noted here and which I have had to deal with before my court is almost 10 to 15 in a week. It is therefore a very serious matter which must be addressed and reflected in the sentence that I impose upon your case. The deterrent effect to you and others similar must be stressed in the sentence that is passed upon here.”

26. In State v Idab [2001] PGNC 39; N2172 (17 December 2001) Justice Kandakasi had this to say to a man who was being sentenced before him:

“For Our Constitution and our nation are built on the Christian principles. Those principles are founded in the "Holy Bible", which we accept as the words of God. One of the important principles of Christianity is no retaliation when someone does something wrong against you. Indeed Jesus said if someone hits you on the one side; allow him to hit the other side as well. You did not do that, instead you retaliated to an extent more serious than any harm that may have been brought upon your mother by a mere verbal abuse, not demonstrated to have come from the victim. History has shown that people or nations that have not lived according to the words of God in the bible have been destroyed either by God himself or by other forces. The punishment God warns of for people like you unless you repent is death. This is something you and everybody else in the country and the world over seriously need to consider every day of our lives and do as his words ask us to do to avoid his punishment.”

27. The maximum penalty under Section 315 is life years in jail. The maximum penalty is always reserved for the worse case. Each case is depended on its own facts in the sentence that is passed upon it. But there is always a common range or tariff that the court imposes and these are material considerations which are taken into account in the passing of sentence. No one case is the same on all facts or the application in sentence but fairness and justice demands a safe satisfactory sentence is passed.

28. I am in agreement with Justice Kandakasi who state in State v Irowen [2002] PGNC 99; N2239 (23 May 2002):

“in the exercising of the sentencing discretion in a sentencing judge is not a matter of mathematics. Instead, it requires an exercise of judicial discretion in such a way to do justice in the circumstances of a particular case by reason of which there might be differences of sentences”

29. In the State v Hianu [2006] N4482 Justice Cannings in Buka sentenced the defendant to 4 years IHL for smashing a full bottle of beer on the face of the victim who suffered the permanent loss of his other eye as a result. Two years was imposed in custody and 2 years was suspended on a non-custodial term with conditions for payment of compensation.

30. In the State v Clifford Rangit CR NO 413 of 2013, I sentenced the defendant, a policeman to 4 years IHL for shooting the victim with a police issued gun at close range grievously injuring his foot with residual injuries whilst drunk. Two years IHL in jail whilst 2 years IHL was suspended on conditions that compensation be paid to the victim even though he did not want compensation to be paid.

31. In State v Naiwa [2004] N2710, Justice Kandakasi in Wewak imposed a custodial term of 5 years IHL where the defendant was charged with grievous bodily harm of his sister in law where he cut off her hand with a bush knife rendering her left hand useless. He had pleaded guilty and was a first time offender. No compensation was paid and the defendant did not have the means to pay compensation if ordered.

32. In State v Irowen [2002] N2239, a case in Wewak, Justice Kandakasi sentenced the defendant to 7 years IHL for the first count of Grievous bodily harm pursuant to section 319 for injuries on the first wife and imposed the same for injuries on the second wife, both sentences to be served cumulatively hence a total sentence of 14 years IHL. In this case, the defendant stripped both his wives naked and then cut the first wife on the shoulder almost severing the hand, and then cut the second wife on both legs left ring and small finger. Both were admitted after they sustained life threatening injuries. They could have died had it not been for a pastor and his wife who saved them. The first wife suffered 25 percent permanent disability to the shoulder. The second wife could not be assessed as to her disability as at the time of judgement, she was still being treated at the hospital.

33. In State v Tony Wartoto and Tito Isana CR NO 1317 & 1318 of 2016 on the 20^th April 2017, after a guilty plea to Grievous Bodily harm under section 319 of the Criminal Code, I imposed a sentence of 3 years IHL which was wholly suspended on a 3 year Probation order on conditions that compensation was paid to the victim and the defendants do free community work supervised by the probation officer and a pastor of the United Church in the locality. Pertinently because of the age of the defendants, and also because there were no residual injuries to the victim who had since fully recovered from the bush knife attack by the defendants.

34. In The State v Augustine Lopulopu CR 45 of 2016, His Honour Justice Kangwia noted that it was a case involving grievous bodily harm, an offence under section 319 of the Criminal Code. In this case, the prisoner came in the night into the bed of the victim and aimed a bush knife at his head and swang and cut the victim in the jaw as he lay unsuspecting and sleeping. The court considered that the maximum penalty under section 319 of seven years was appropriate given the seriousness of the offence and imposed accordingly.

35. The State v Fhryle Aliu CR 1233 of 2014 is another decision by Justice Kangwia in Kavieng where the prisoner had an argument with his wife and assaulted her. She sought refuge behind the victim and despite the prisoner asking the victim to let go the wife, he did not as his hands were tied by the grasp of the wife from the back. The prisoner punched the victim in the mouth and hit him with a blunt object in the eye causing him to fall to the ground; he suffered a permanent loss of sight to the left eye and three teeth. The court on the guilty plea of the defendant under Section 319 with grievous bodily harm sentenced him to 5 years IHL but suspended the whole sentence on probation with conditions for payment of compensation to the victim.

36. All cases cited above are determined given their individual facts, circumstances and the sentence that comes out reflects accordingly. No one case is the same one from the other and cannot be tied as each is depended on its own situation prevailing and before the court. Each must accord with its own peculiar situation as sentencing is not a formula tied or rigid as the sentencing power like all other powers of the court are not fettered but compliance within the law is the pillar at the end of all.

37. Thress Kumbamong v The State (2008) SC1017 answers this question very well stating that the sentencing discretion is never fettered or dictated in a certain direction or position, all matters raised in a case must be considered to the full extent due in law relevant with all other matters that are before it to arrive at a just sentence. The wishes expression of the victim are part and parcel of and together with all other matters that are placed before court will be given due weight according to law the facts and circumstances to arrive at a just sentence in law. Sentencing is not dictated or tied down by tariff or range but dependent on the facts and circumstances and tariff or range will be part of the process and will be considered on the level due to it: State v Clifford Rangit CR NO 413 OF 2013

38. I make the following orders after considering all the facts, the circumstances, previous sentences, cited helpfully by your lawyer and State’s counsel, and decisions of this court in similar instances previously, the general sentencing trend in crimes of violence and grievous bodily harm against the person, and I am of the strong view that a strong deterrent and punitive sentence be imposed upon you for the crime with intent to do grievous bodily harm and did cause grievous bodily harm contrary to Section 315 of the Criminal Code against Hano David.

39. The position of the victim is in fact given special consideration by statute. Section 21A of the Criminal Code (as amended by Criminal Code (Sexual Offences and crimes Against Children Act 2002 (No. 27 of 2002), s.4) requires the Court to consider any victim impact statement that may have been prepared by the victim of crime. In a case where the victim is dead, ill or incapable of giving evidence, “victim” includes the relatives of the deceased: Section 21A provides:

“21A. Victim Impact Statements

(1) For the purposes of determining the sentence to be imposed on an offender, the court shall consider any statement that may have been prepared in accordance with Subsection (2) of a victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence.

(2) A statement referred to in Subsection (1) must be—

(a) prepared in writing in the form and in accordance with the procedures established for that purpose; and

(b) filed with the court.

(3) A statement of the victim of an offence prepared and filed in accordance with Subsection (2) does not prevent the court from considering any other evidence concerning any victim of the offence for the purpose of determining the sentence to be imposed on the offender.

(4) For the purposes of this section, “Victim”, in relation to any offence—

(a) means the person to whom harm was done or who suffered physical or emotional loss as a result of the commission of the offence; and
(b) where the person described in Paragraph (a) is dead, ill or otherwise incapable of making a statement referred to in Subsection (1), includes the spouse or any other relative of that person, anyone who has in law or fact the custody of that person or is responsible for the case (sic. The word “care” was intended) or support of that person or any dependent of that person.”

Section 21A applies to all offences in the Criminal Code including murder offences: e.g. see State v Blasius Bana (2004) N2863.

‘I consider that section 21A cited (supra) is applicable here as was done in State v Blasius Bana (supra) as your victim of your crime, accordingly I take the probation report and the means assessment report as assisting in this regard here though they may not necessarily be termed victim impact statements within the definition of the section here. But the scopes of both documents reports are serving the intent of this section and I am guided to take account in sentencing.” State v Clifford Rangit, CR No 413 of 2013.

40. I do not have the benefit of a victim impact statement in accordance with the law above and make my assessment here on the basis of the medical report that has been given by Doctor Cherubim Kapanombo, Surgical Registrar. That is the highest I can take to accord the victim justice according to law with the evidence that is before me.

42. The Means Assessment Report predominately from you as its source states that you paid a total of K1, 000 to the victim in his medical expenses. There is no independent verification of this fact by other evidence and is a bare assertion self-serving from you and does not extend beyond that to effect the sentence here. It would make a lot of difference if there was material other than yourself to back it up and give credence to it. This is a court of law and it is trite that the court is bound by evidence and law not emotions. In any case your probation report states that your parents will help, that is not you, and in the Means Assessment Report you use the term you think your parents will assist, that is not the same as your parents will assist. Even if they did the victim cannot be located and that is confirmed by the probation report. So who is going to be paid compensation for the wrong you have committed. Compensation must be real not imaginary and tangible putting at ease and at rest the matter before the court. I do not find that here with the evidence and the report by the probation office both the means assessment as well as the probation report. There are no other materials to assist the court and therefore court is bound by the evidence it has before it and accordingly will make orders for sentence in the following manner.

43. Accordingly you Daniel Makapu of Banivera Village, South Nomane, Chimbu Province for the crime of with intent to do grievous bodily harm unlawfully did grievous bodily harm to Hano David contrary to Section 315 of the Criminal Code are sentenced to 8 years IHL.

44. The time spent in custody of 3 years 1 month 1 week is deducted forthwith.

45. You will serve the remainder which is 4 years 10 months 3 weeks IHL in Lakiemata CIS.

Orders Accordingly,

__________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defendant