State v Rangit [2017] PGNC 142; N6767 (5 May 2017)

N6767

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR NO 413 OF 2013

THE STATE

V

CLIFFORD RANGIT
Kimbe: Miviri, AJ
2017: 23^rd March, 10^th, 11^th April 05^th May

CRIMINAL LAW - plea-GBH Section 319-defendant policeman-drunk-punched victim fell-- no self-defence- no provocation- police issued weapon fired at victim close quarters-on foot-serious injury-taken to hospital-residual injury-pre sentence & means assessment report- compensation and non-custodial sentence-victim refusing compensation-serving policeman good recommendation from supervisor-15 year record of service without disciplinary offence-appropriate sentence

Cases cited:

Allan Peter Utieng v. The State (Unreported judgment), SCR 15 of 2000

Kule v State [2011] PGSC 47; SC1138

Public Prosecutor v Done Hale (1998) SC 564

R v. Yofia Abone [1967-1968] PNGLR 277

State v Maip [2015] PGNC 195; N6091

SCRA 29 OF 2007 Thress Kumbamong v The State (2008) SC1017

State v Wanimba [2005] PGNC 108; N2863

The State v. Danny Makao (2005) N2996

Tapea Kwapena v The State [1978] PNGLR 316

Legislation

Criminal code Act

Constitution of the independent State of Papua New Guinea.

Criminal law and practise of Papua New Guinea 3rd edition

Police Act

Counsel:
C. Sambua, for the State
D. Kari, for the Defendant

DECISION

05^th May, 2017

1. MIVIRI AJ: Clifford Rangit of Fangalawa, New Ireland Province was charged on indictment of grievous bodily harm contrary to section 319, that he between 1 O’clock and 2 O’clock on the 19^th day of October 2011, at section 10 Lot 91 in Kimbe unlawfully caused grievous bodily harm upon one Robert Kalaki.
   
2. You Clifford Rangit were a policeman driving a police vehicle following another vehicle a Toyota Hilux 5^th Element which was driven by one Axon a security guard with Orion Security Company. This vehicle stopped where Robert Kalaki, George Topogo security guard with Kimbe Tours guest house, and others were. Axon who was drunk was mouthing off obscenities and was armed with a gun. You Clifford joined him also with a police issued gun.
   
3. You both were questioning Robert Kalaki, George Topogo and others at the scene as to who had tried to rape Vanessa wife of Axon. Robert Kalaki tried to explain that they were trying to help Vanessa, but was punched by you Clifford Rangit and fell down on the ground. You got the police issued firearm XM15 Sporter Rifle-serial No. 009454 and pointed it from his head down to his feet and fired it. Robert Kalaki was shot on his right leg. You ordered Robert Kalaki to be put on the vehicle and to be taken to the Kimbe General hospital. You intended to cause grievous bodily harm and did so cause by shooting him on his right leg.
   
4. You pleaded guilty and I confirmed after reading the committal file that was tendered convicting you of the crime of Grievous Bodily Harm pursuant to Section 319 of the Criminal Code.
   

Law

5. Section 319 of the Criminal Code is in the following terms:
   

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.

6. Grievous Bodily Harm is defined by Section 1 of the Code,” means any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health”.
   
7. I adopt and am in agreement with the learned authors of Criminal law and practise of Papua New Guinea, Third Edition, that there is a duty of care upon the offender for example under Section 287, breach of which leads to the offence. Those who are in charge of dangerous things for example a gun as is the case here. Or those who by omission or action or inaction not excused or justified not authorized by law as is the case of an assault, which is also the case here where you have assaulted Robert Kalaki by punching him and he falls and you discharge a gun at his foot: R v. Yofia Abone [1967-1968] PNGLR 277 at 287 would come within the ambit of this section.
   
8. I am fortified that your actions amounted to the criminal offence of an assault in accordance with the terms of Section 244 of the Code when you punched Robert Kalaki who fell and you pointed the police issued gun XM15 Sporter Rifle-serial No. 009454 at him from his head to toe and then fired at his foot injuring him. In so doing you acted in breach of a duty imposed upon those who have the care and custody of dangerous things such as a gun here. Not only that but you discharged the gun recklessly without due regard for human life protection of life. Your intentions are calculated where the gun XM15 Sporter Rifle-serial No. 009454 is pointed at the head of Robert Kalaki as he is on the ground right to his foot and then discharged. You could not miss at that distance and at that angle. He was on the ground and in no position to be considered a threat to you or anyone there.
   
9. Further this Police issued firearm has been confirmed as XM15 Sporter Rifle-serial No. 009454 as the fired 5.56 calibre shell collected at Masalai Street section 10 lot 9 Kimbe was handed by Petrus Kalaki on the 16^th April 2012 to Senior Sergeant Thomas Ombul who forwarded to Senior Sergeant Joseph Numbos at Gordons Police Forensic who confirmed by Ballistic examination that the firearm was XM15 Sporter Rifle-serial No. 009454 as the fired cartridge compared with the test fired and both matched as having come from the XM15 Sporter Rifle-serial No. 009454.
   
10. I find as a fact that this Police issued firearm XM15 Sporter Rifle-serial No. 009454 was in your possession in the early hours between 1.00am to 2.00am, on the 19^th October 2011 when you attended at Masalai Street at section 10 lot 9. That this was the firearm XM15 Sporter Rifle-serial No. 009454 that you took out with you from the Police vehicle and confronted Robert Kalaki. In the description by Dorothy Manjobi, “He Axon Tapas walked up straight to the boys and he picked up Robert Kalaki and pulled him to the front and punched him with his fists and Robert cried and fell to the ground and sat in a sitting position. That is when the drunkard policeman, Clifford walked up and corked his rifle than pointed or aiming the gun at Robert Kalaki from his head down to his chest and right down to his legs and in a close range he fired a shot and seriously injuring Robert’s foot.
    
11. “We all cried and stood there in panic and scaring and at the same time Robert’s parents came too and the father, Petrus Kalaki scolded at the drunken cop, Clifford of why did he shoot our well behaved boy. Our boys then lifted Robert and placed him in Orion security guard car and my son, Samson Manjobi jumped on with the parents of the victim and they went to the hospital.
    
12. This is one of the bad experiences that it occurred right in my eyes by this drunken cop, Clifford committing this crime. It is a very simple thing that if both Clifford and Axon are in sober condition than they should have understood but because they were in drunk condition that is why they acted offensively and Clifford shot an innocent good behaved son of our Masalai street.
    
13. To end my statement I wish to tell this court that, Cops are not above the laws of our nation. I do not think that the laws are permitting the cops who are in drunk condition should be armed with guns and to discriminately shoot at any members of public.
    
14. These cops should have taken Robert to the police station and interviewed him regarding what they are accusing him for. Instead this person Clifford has no respect for a human being and he just went aggressive and shot our well behaved son.
    
15. I now beg the courts to seriously deal with such offending cop, so that it would send a signal down to other offending cops who would respect the laws within our country properly.”
    
16. This is the first hand observation made by Dorothy Manjobi who was at the scene. She is one of nine (9) witnesses who were immediately at the scene of the shooting. All observe and recount that there were no confrontation by anyone at the scene except for you Clifford and Axon. All recount that Robert Kalaki was punched by Axon and as a result he fell to the ground you followed suit with cocking your gun pointing him on his face and head down to his foot and then shooting him on his foot. All also conclude that had you not being drunk you would not have done what you did. You were drunk and were in no position to reason right or wrong you simply acted there and then and shot Robert Kalaki on his foot seriously grievously wounding him.
    
17. You are a trained policeman having being at Police College 2001 for 6 months successfully passing out and then posted to Madang Province and posted here to Kimbe now serving for over 15 years since. No doubt you are familiar with the police code of ethics the use of police weapons especially firearms when and how to use or not to use.
    
18. This point is well set out by Justice David in the case State v Maip [2015] PGNC 195; N6091 (6 October 2015 helpfully drawn to this court by State Prosecutor Augustus Bray. There the court in considering the sentence of a policemen a senior constable rural police station commander who had shot and injured the victim with three gunshot wounds to the left leg which included; left lower thigh with stable fracture of the femur; left knee with proximal tibia head fracture; and left foot with soft tissue injury with no bone involvement.
    
19. His honour recounted: In the present case a serving policeman is involved in the commission of the offence. The primary functions of the Police Force is to preserve peace and good order in the country and to maintain as necessary to enforce the law in an impartial manner : Constitution, section 197. A member of the police Force is vested with powers to carry out these functions. So before a member of the police force is appointed, he or she is required to make and subscribe to an appropriate oath or affirmation undertaking to well and truly serve the country and its people as a policeman or policewoman without favour or affection, malice or ill will until discharged and that he or she will seek and cause the peace to be kept and preserved, and will prevent, to the best of his or her power, all offences against the peace, and that, he or she will, to the best of his or her skill and knowledge, discharge all the duties vested in him or her faithfully according to law: Police Act, Section 4.
    

His honour continued and observed, “In carrying out Police functions, a member of the police force needs to be disciplined as force may be used in situations that warrant it. It must be reasonable force however. That is why the police Force is described as a disciplined force. Members of all ranks must accord themselves with proper restraint and professionalism in carrying out these functions. See also Kule v State [2011] PGSC 47; SC1138 (6 December 2011); State v Blasius Bana (2004) N2863.

20. I consider and hold this as applicable to the case here involving you a policeman squarely in all respects set out. You were a serving policeman. You no doubt were bound by the oath that you took particulars which have been set out above. You ought to exercise restraint and maintain discipline. But you chose the contrary, you acted without restraint and observation of professionalism. You used force without warrant given the facts set out here. You abused your office as a policeman. You acted totally with contempt for your oath as a policeman. You committed an assault and then went on to shoot a man who was in no way threatening to you or any others there. He was on his back or in a position where he could have been easily taken into custody at the police station questioned in regard to whatever it was that was complained off. In your drunken condition your sense of reasoning was impaired so much so that you were in no fit and proper position with intelligence and reasoning to attend to the matter diligently with regard for your office and oath as a policeman.
    

No self-defence Provocation

21. You were not acting in self-defence or for the defence of another fellow human being as a policeman but in direct defiance of the law. Nor were you acting in the protection of property of another person. Nor where you acting in contrast and consistent with the oath of office as a policeman, rather you were acting in defiance intolerance indifference to the oath clearly out of sphere with the Constitutional call of duty bestowed upon you as a law officer.
    
22. The file tendered did not contain evidence of a person who was in dire need or immediate need to be assisted to stop an imminent and apparent action of criminality perpetrated there and then continuing so that your use of the force was justified and the further use of the police issued gun was legalized or made lawful and in compliance of adherence to law.
    
23. You acted way out of the bounds excused by law and your charge fitted the facts of your case. And so the application of s319 of the Criminal Code grievous bodily harm was square with the facts of your case and your plea was consistent and I confirmed the guilty plea in law and I convicted you accordingly of unlawfully doing grievous bodily harm of Robert Kalaki.
    
24. Even if there was a threat to your life or limb it was not spelt out by evidence at the scene on the file that was put before me for consideration of the plea that you made admitting. The force was inconsistent and disproportionate if ever there was any provocation in fact or law. Even in self- defence you were not excused or derailed from the criminal liability due to you on the facts and in law. And here also the facts circumstances the evidence do not support or firm this in your case. There is no case of you acting in self-defence of yourself or another in peril of imminent immediate threat to life and limb here. See sections 268, 269, 270 and also the case of Tapea Kwapena v The State [1978] PNGLR 316, where it was held, “that where the appellant was in fear of his life, being confronted with a shotgun which he believed to have been loaded, it was unreasonable to expect him to have retreated before he could raise self-defence. Faced with such a weapon, the possibility of retreating even a few feet might well have put him in greater jeopardy. If you are attacked with a deadly weapon you can defend yourself with a deadly weapon or with or with any other weapon which may protect your life. The law does not concern itself with niceties in such matters. A person in such a situation cannot weigh with the exact measure of the necessary defensive action.
    

If:

(a) the assault on the accused had been such as to cause reasonable apprehension of death or grievous bodily harm, and

(b) the accused believed on reasonable grounds that he could not defend himself otherwise than by using the force that he in fact used,

It is unnecessary then to consider a third question, namely whether the force used was in fact necessary for defence,”

Probation report

25. In the probation report you told the probation officer, “that the scene was surrounded by youths and you noticed that the victim was reaching for a knife under his trousers, you reacted and aimed to shoot only to disable the victim’s foot and let go off the security guards firearm and the knife he was in possession of. You said that you saw danger that any two would lose their life. And in seeing that you aimed at the foot so to let go off the knife he was in possession of.”
    
26. The problem with your story here is it is, “recent in time never disclosed to police initially in the record of interview, or even pursued as your defence which no doubt if credible would have set you free or discounted the charge. Yes you had your rights in law to be silent of the matter, but common sense and logic determines that you disclose your defence case at the first given opportunity especially where it is a basis in law to run a defence. No doubt your lawyer would have pursued it before me if it was indeed a genuine defence credible in law. It was not there and so the election not to pursue before me. It is therefore a very serious matter of credibility against you where the court is asked to take account of a defence which was not pursued by you the defendant a policeman experienced both in police and to a certain extent law, who elected to remain silent in a record of interview on the 12^th July 2012 and who does not pursue on trial but admits the charge and then raises in a probation report dated the 10^th April, 2017.
    
27. There is no ring of truth in what you say now and seriously effects your credibility as a person who is true and should be treated with leniency in the sentence that is passed against you. Because you are painting scenes that are not and were not there in your favour to consider as what you are doing is trying to distort to avoid the full impact of the law that is due to you on the facts applying the law here. There cannot be and is no self-defence here given the facts that have been presented by the State before me. There is no evidence from the supposed security guard here. I am bound by the evidence before me and accordingly on its basis there is only one finding in law that I am entitled to make and that is to confirm your guilty plea of grievous bodily harm pursuant to section 319 of the Criminal Code.
    
28. The plea is therefore consistent with the law under Section 319 of Grievous Bodily Harm and I convict you accordingly as indicted.
    
29. Simply put you exceeded your authority as a policeman you were no longer acting and within your discretion as a policeman, but a criminal in police uniform, a disgrace to the uniform and three other siblings and your own mother who are policemen in their own right. Abusing that authority and office put there by the People under the Constitution. You could not be seen to be protecting life, limb and property given the facts there. And so your plea was parallel with the evidence and it was very wise and professional advice of your lawyer which made you see the truth that was glaring there.
    
30. You must consider yourself fortunate that your lawyer had got a very good plea bargain for you from the state who could have easily charged you with Attempted Murder under section 304 and you could have been looking at the possibility of imprisonment at the minimum of 14 years IHL or more and maximum of life years of course discounted down with mitigation and increased with aggravation.
    
31. In the light of rampant police brutality and massive claims of civil suit pursued against police and the State to an extent where the office of the Solicitor General has set up a specific police torts team headed by a Principle legal officer to curb and curtail there, your action is very aggravated and is not easily condoned. This is not to say that you are a scape goat of those who abuse authority as policemen. Your case is not generalized with them in any way or form, you are judged according to the facts and circumstances in law pertaining and relevant to your case here. The court must exercise its discretion within the confines of the circumstances before it taking account of the needs of society that must be addressed by law. See for example State v Wanimba [2005]PBNC 108 ; N2863 (23 June 2005)
    
32. Here I draw from the words of the Supreme Court in Public Prosecutor v Done Hale (1998) SC 564 at 5:
    

“If a judge is to consider some leniency on sentence because of age it is incumbent on him to obtain the relevant report such as a pre-sentencing report especially around the age of 17 to 19. Age considerations may of course be more obvious to a judge if an offender is under the age of 16 years. Then for such a drastic suspension of sentence a further help to the court would be a community report from the community to which the offender belongs and whether the community seeing that the incident happened within that community, has any views on an appropriate punishment or whether the community is prepared to assist with any community management of any bond period. The courts are bound under the philosophy of the constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment for criminals definitely as an effect on the ordinary people. So community involvement with the punishment of offenders should be considered as firstly if the court wishes to return an offender to the community instead of imposing imprisonment. And we note here that the relevance of Criminal Law (Compensation) Act 1991. A return to the community should mean an appropriate report of the attitude of the community and whether the community is prepared to make some responsibility for their own offending members and supervise any alternate punishment.”

33. In your case you may not be a very young offender but a policeman since 2001 when you passed out from Bomana Police College after 6 months training, so up to now you have 15 years experience working as a policeman, but a Probation report has been ordered including a means assessment report. Up to the time of the offence you had ten years’ experience working as a policeman. Both documents were ably prepared and presented for the assistance of the court in considering an appropriate sentence against you by a very efficient probation officer Mrs Christine Robe. Echoing the words of Gimble’s case (supra) the aspirations and the attitude of the People of Papua New Guinea must be considered as punishment must be in touch with the People because after all the offender is a member of that community and will return into society after serving what is due to him on the facts, circumstances and the law. It is therefore important to hear the call of the community in the sentencing process here for you.
    
34. I do consider that here in your case with the probation report dated the 10^th April 2017 together with the means assessment report dated also the 10^th April 2017. I am duty bound to weigh all in arriving at a just sentence for you according to the facts, circumstances and the law here. Accordingly, I consider all matters that are presented in that probation report and give due weight relevant for and against in arriving at a sentence fitting your case. I will stress and except where it needs to be set out in the course of this judgement.
    
35. Police must protect lives, limb and property first and foremost. State funds, resources and time is used when police is deviated from its original mandate and made to investigate and charge its own members as is the case here. Money that must be used to curb general law and order is used for the purposes of investigating and charging its own members. And where the charge sustains with a conviction the member as a consequence is either sent to Jail or as a result dismissed from the Police which is yet another loss to the State, because the money resources that have been used to train and maintain the policeman is lost. For the Policeman he loses his employment and his innocent wife children and immediate family suffer through no fault of theirs.
    

Allocutus

36. “I apologise to this court and for this court to be lenient on me,” is all that you stated in reply to the court giving you an opportunity to say anything in your sentence.
    
37. Your apology in the allocutus to the court is shallow and pictures you at the forefront and bears no responsibility to be the author of your actions. You do not see the consequences of your actions as effecting the lives of another human being in your allocutus. Your plea is for leniency to be exercised upon you. It would have been more meaningful to say sorry to the victim to whom you have wronged. He has a permanent reminder affixed to his body by your criminality for as long as he lives. Yes you saved the court time and money but the fact of the matter is that the evidence for the prosecution was beyond all reasonable doubt if a trial was run.
    

Personal antecedents

38. You are 36 years old and the third child in a family of four siblings. Your father is from Fangalawa, Kavieng, New Ireland Province and mother from Gloucester West New Britain Province. You are educated to grade 12 at Hoskins Secondary School in 1999. You passed out successfully in 2001 from the Bomana Police College. You have served in the police force now for 15 years initially in Madang and here.
    
39. These are details that have been furnished by way of the probation report that has been so prudently detailed out to the court for consideration in an appropriate sentence. And I commend the probation officer Mrs Christine Robe for a well prepared probation report and means assessment report. Particularly when logistics and upkeep of that office is lacking and long overdue, but despite that to get a report as yours must be commended. And there are further excerpts of this report that I have considered in this judgment to arrive at a sentence at the end.
    

Work as Policeman

40. You are in the Public Safety section and this is confirmed by your coordinator there Chief Sergeant Koniel Tangi. He has voiced that in the event that the court imposes compensation as a mode of payment orders are made so that the money is deducted automatically from your fortnightly pay. Chief Sergeant Koniel Tangi attributes the commission of the crime to pressure due to lack of manpower given that the workload is high and that there are three of you in the shift in that section. He has also voiced that he is prepared to supervise you in any sentence out of court that the court imposes upon you. He states that you do not have any record of discipline since joining the police up to the time of the crime here that you are a good policeman. He acknowledges that you have served the section well and that to send you to jail would be a loss for that section as you attend to criminal matters summary and civil matters and also traffic matters. He is also concerned about your family, your wife and five year old daughter. He is not concerned at his supervision in the matter culminating in a criminal charge against you and the blatant disregard for law and order and ill-discipline displayed here. Rather he is concerned about a non-custodial sentence for you and supervision thereof.
    
41. But he does not state what the effect of your offence has had on fellow police officers all around the country that is very good and disciplined officers making the name of the Constabulary a face of law and order at first glance. Whether your actions can be summed as of the normal behaviour acceptable to police hierarchy and whether your continued service in the police with a conviction and a sentence hanging over your head is good for the image of the whole police force he does not state as your immediate supervisor.
    

Section 33 Police Act Persons convicted criminal offence

42. He does not state too that section 33 of the Police Act, Persons convicted of criminal offence, where it is stated that,” no person who has been convicted in any court of an offence involving dishonesty or for which a term of imprisonment is imposed shall be appointed or reappointed to the Force”
    
43. In the light of this section where does that leave you as a convicted prisoner of the state with a prison sentence whether non-custodial or custodial, could you still serve and make payment of any compensation that is ordered and still wear the uniform of a policeman. Could you continue without any questions set against the police as a whole that it had criminals within its ranks despite court conviction and sentence still serving?
    
44. In the Supreme Court case of Allan Peter Utieng v. The State Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000, it was held that:
    

“It is now settled law that, an offender should consider his or her personal and family backgrounds and needs before committing an offence. It follows therefore that, once a person is found guilty of committing an offence, it is a little too late for the offenders to raise their personal and family backgrounds and needs with a view to getting a more lenient sentence. This has been so which has been followed in a long list of National Court judgments including the recent decision in The State v. Danny Makao (2005) N2996”.

No distinction in law policemen or citizen

45. I am bound sitting as a national court to take into account this law and which I now do and by its authority I hold that your personal antecedents circumstances including your wife and daughter, your mother, your job as a shift member in the public safety headed by chief Sergeant Koniel Tangi were your immediate concern before you even took to committing this crime. They ought to have there and then effected what and how you conducted yourself there and then. For the present when the offence has been committed they will not be a way to avoid the sentence that is due on the facts and circumstances to you. Every person is the same unto the law including Robert Kalaki and his family. There should never be any distinction in law against one or the other let alone your case here. Your antecedents including your family immediate and extended will be given due consideration not over and beyond what is due to you in law not more or less. Your family including; your wife, children, your mother and your immediate family do not take precedence over and above that of Robert Kalaki, his parents, siblings and immediate family. No one is over and above the law. But the fact is clear in law that they will not come between what sentence is appropriate and due to you considering all before the court given the facts, circumstances and law range of sentences tariff thereof to arrive at a just sentence that befits your criminality.
    

Titere Kalaki mother of Victim

46. Titere Kalaki is the mother of Robert Kalaki. She lives at section 10 allotment 91 Kimbe. She stated when interviewed by the Probation officer that you with the security guard Axon were fully drunk at the time that you attended at the incident. She wants her son to be compensated but leaves the discretion to the court. She said she witnessed the shooting as being dangerous and that the police are trained to arrest and not to shoot and charge. Who else would not see a gun as a dangerous weapon used in the way that you did here. By its nature it is a dangerous weapon unto itself and various sections of the Criminal Code see so. Section 386 armed robbery for example state it in no uncertain terms.
    

Robert Kalaki Victim

47. Robert Kalaki is the victim who was shot by you on his right foot and disabled for three years. That the disability disturbed his education and he refuses to receive any compensation from you. He said that he did nothing wrong against the wife of the security guard who was a friend and neighbour to his family and he only tried to assist her as it was very late in the night. He states that you should have made enquiries but you punched him and when he fell you pointed the gun at him from his face right down to his foot and shot him. He refused any compensation and wants you to go to Jail. He repeated that life is more important than compensation payment. He values his life more than compensation.
    
48. He is the person most effected by your actions. His demise was at your hands. He felt the pain and suffered as a consequence. He wants justice be served to him. He considers life more important than money that is common sense because no amount of money will revert him as a person to the time and date before he was shot by you. The court will not ignore his call and wish but will consider it amongst the other factors that have been placed before the court to determine and to arrive at a sentence that best fits the crime.

Is the court bound by the victim’s plea for a custodial term and not compensation?

49. Should therefore the court follow what the victim has stated that custodial term of imprisonment be imposed and that compensation should not be ordered here? Is the court bound by the wishes of the one who has taken his matter here for justice? Is the discretion of the court fettered in its sentencing here where a victim has in a probation report asked specifically for a custodial term against the offender who has committed the crime against him?
    
50. SCRA 29 OF 2007 Thress Kumbamong v The State( 2008) SC 1017 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 and 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. 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.
    
51. 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.

52. I consider that section 21A 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.
    
53. Your immediate family’s concern (your wife and mother) are that you be not sent to a custodial sentence, that you be allowed to serve your sentence outside with payment of compensation to the victim. That is the same for your supervisor at work. And to an extent the mother of Robert Kalaki who was the person shot by you.
    
54. Your mother Carol Aigilo when interviewed by the probation officer mentioned that you grew up without your father because he left when you were small. That you are well disciplined child and that your upbringing is good, and although married you still serve and help your mother. She stated that she is prepared to assist you with compensation but does not want you to be incarcerated. That she will suffer your absence as well as your wife and only daughter.
    
55. The court must balance and take account that the parents, siblings, immediate relatives and family of Robert Kalaki also suffered, want justice which they have placed before the court. The court must see both sides of the case and arrive at a sentence fitting the crime. To place too much emphasis on your side and to ignore the victim and his immediate relatives would be injustice in sentencing.
    

Aggravation

56. You were in police uniform in a police vehicle when you attended at the scene. And when you came to the scene of the shooting and grievous bodily harm, you came out with the XM15 Sporter Rifle-serial No. 009454. Yes you were a policemen attending at a scene of an allegation. You were observed to be drunk or under the influence of alcohol or liquor. Certainly you were not sober as described by the witnesses at the scene including Robert Kalaki. Immediately before the press of the trigger of your police issued gun, Robert Kalaki was on his back on the ground in no position of harm either to you or to anyone immediately there. He was in that position because you had assaulted him. There is no evidence that he was in a position where your life including anyone else’s was threatened.
    
57. Pointing a gun loaded at an unarmed defenceless person in no position to threaten or to harm or injure another person is a very serious matter including a criminal offence. From the facts here you were not in any danger from Robert Kalaki or anyone else at that location at that time at 2.00 am in the morning. And for you as a policeman in public Safety in that line of duty as a policeman for fifteen (15) years is not a small matter against you. The lessons and the experience of fifteen (15) years under your belt ought to have made you wiser and resilient to ensure discipline of the highest level.

Police Brief Medical reports

58. The police brief that is part of the committal file tendered before me details you as drunk and possessing a police issued high powered firearm XM15 Sporter Rifle-serial No. 009454 shooting Robert Kalaki on his foot causing severe injury. This fact is consistent with the reports by Doctors Sanoh Tahon dated the 10^th November 2011 of a police shooting of the victim Robert Kalaki on the 19^th October 2011 at 1.00am. The examination shows sustaining bullet wound to the foot with smashed metatarsal bones from pellets. Due to smash metatarsal admittance of POP was not possible and the plan only for the wound to heal which meant that he will no longer use his right foot to walk unassisted. “Therefore this patient suffered loss of right foot as a result of gunshot wound by police.”
    
59. The second medical report is by Doctor Joseph Nale Director of Health, Division of Rural Health Services, Department of West New Britain Provincial administration dated the 11^th July 2012 almost 10 months after the shooting. It describes the first attendance of the injury and management at the hospital initially. The following are notable for the purposes of this judgement in determining an appropriate sentence;- “ “Upon initially presentation at the hospital soon after the injuries were inflicted, the following were noted;
    
    • - A profusely bleeding right leg,
    • - Patient in obvious distress from excruciating pain from the bleeding limb,
    • - A small wound( entry wound) on the plantar surface, 2cm x2cm, smooth edged, with minimal blood oozing through,
    • - A horrible looking, jaggedly shaped wound (exit wound) at the palmer surface, mostly around the posterior aspect, 11-15 cm off the right heal (calcaneal tip), see pictorial attached)
    • - These ghastly looking wound measures (in three dimensions), 15cm x 22cmx8cm deep, with skin tags noted laterally, skin undermined at the inferior edges and further medially.
      

Other Remarks

- Robert was taken into theatre for debridement and further examination under anaesthesia.
- Due to its status as an infected wound and its location, the management of fractured bones (navicular, medial cuneiform and cuboid) was left deferred until the wound has completely healed. Then any fractured issues can be attended to.
- The course of the bullet would mean involvement of the above said bones including the calcaneus.
- The rugged nature of the wound was created by the exploding bullet upon exit.
- The patient will be lucky to retain his normal gait and regain his posture. Activities involving use of the lower limbs will be effected significantly.
- Mr. Robert Kalaki is sure to live with this physical and emotional trauma for the rest of his life.”

60. It is important to set these medical observations out as it correlates to the evidence of Robert Kalaki and all who were at the scene at that time immediately when you pointed the gun at him from his head to his foot before you fired at very close quarters with the velocity and impact consistent with the injuries seen by the Doctor.
    

Colour photos of injury

61. The veracity of the actions by you are well set out by three colour photographs that were taken on the 22^nd October 2011 which is just two and half days after the shooting showing the soles of the feet blown with jagged injuries measured as the doctor has set out above in the medical report. Indeed movement of Robert Kalaki was restricted by your criminal and ill-discipline actions unspeakable of a policeman of your experience and background.
    
62. In fact aggravated grossly by the fact elicited by the Probation report that from your own lips that you are the third of four children and all four of you are serving members of the police force. That whilst the three of you are serving here in Kimbe one is serving the police force in NCD Port Moresby. You are a disgrace to the police Force as a whole and to your family for the way that you behaved here. As such you really had no place in the police upon the entry of the conviction here and the sentence flowing.
    
63. The photographs show that it was a life threatening injury because the wound could not be covered as there were internal fractures of the bone. To cover up the wound would have caused and encouraged infection as put by the doctor captioning the photos tendered before me with the medical reports.
    
64. Inspected one week later it had become infected and offensive in odour and there was already signs of wound break down on those areas sutured.
    

Police Firearms officer

65. Firearms officer In Charge at Kimbe Police Station Tau Archie states that he demanded from you the firearm XM15 Sporter Rifle serial number 009454 a number of times but you gave excuses that you were tasked for duties that required continued possession of the gun. You produced no disposition sheet or authorization that your continued possession of the firearm was necessary as part of the tasking and deployment made and continuing. Ill-discipline here has led to influx in the number of very serious misuses of police weapons and must be stopped. Policemen must listen to and adhere to the officer in charge of firearms at each location as he is the authorized delegate of the Commissioner of Police who makes sure that weapons and police firearms, projectiles and ammunition are taken stock of and accounted in their use and movement so that weapons are not at the mercy of the policemen but their use is disciplined to give effect to the constitutional call of duty of the police taking account of public safety law and order.
    
66. In your record of interview conducted on the 12^th July 2012 you elected to remain silent in all the questions that were posed off you relating to the allegations raised. You made a very wise decision to enter a guilty plea in respect of the charges as the evidence of witnesses at the scene who saw you did what you did is overwhelming and on a trial it would have sustained against you.
    
67. Policemen are the protectors of life and property by the Constitution section 197 yet your case shows a blatant running into the mud of that fact in law. Your mother does not want to see you behind bars yet you did not do the same for Petrus Kalaki and his wife Titere for their son Robert Kalaki in whose presence and before whose eyes you were prepared to shoot their son in the foot despite the plea of Petrus Kalaki himself a reserve policeman voicing that he was not a criminal and you did this to him.
    
68. These are all the facts for and against that I must take into account in determining what is an appropriate penalty for the crime that you have now being convicted off which is grievous bodily harm.
    

Defence lawyer cases support

69. In this regard your lawyer Bernard Popeu has referred me to a number of cases that he submits are in your favour for an appropriate sentence given the facts of your case which I must consider and I do consider here. You are a policeman and were in a police vehicle armed with a police issued gun at 1.30 to 2.00am in where the police issued gun was illegally used in discharging a shot at very close quarters to the foot details of the injury are set out in this judgement as said by the Doctor above it is safe to say that the injury was, “These ghastly looking wound measures (in three dimensions), 15cm x 22cmx8cm deep, with skin tags noted laterally, skin undermined at the inferior edges and further medially.” .... Mr. Robert Kalaki is sure to live with this physical and emotional trauma for the rest of his life.”
    
70. Your lawyer submitted that injury was not to the most vulnerable part of the body. The use of the word vulnerable means weak defenceless exposed in danger at risk. That was what the foot of Robert Kalaki was on this day at 1.30 to 2.00am defenceless weak exposed at risk of injury from that gun you discharged. There was no way in the world injury would have been avoided if you postured as you did discharging the firearm. It is vulnerable as to survive one must move and step with ones feet to be able to attend to needs in life necessary to sustain oneself. Effectively you deprived Robert Kalaki of that fact. He could have easily bled to his death as a result of the injury.
    
71. Your lawyer has helpfully submitted various cases of Grievous bodily harm starting with State v Tupulit (2015) N6185 where the offender was charged under section 315 of the Code, which is a more serious charge than the present according to your lawyer. He recounted the facts as the prisoner approaching the victim asking him as to why he was reported by the victim. He chopped victim on the head with a bush knife. It was a trial and self-defence was raised but not made out. A conviction was returned with a sentence of 5 years IHL wholly suspended with compensation to the victim.
    
72. Yet another case he cited was State v Kangi (2016) NC6357 where the charge was laid under section 315. A factory made shotgun was used in vengeance. The victim was approached by the prisoner who shot him with the pellet wounds to the face causing injury to the left eye. Five years was wholly suspended with a hefty compensation that was paid.
    
73. Still another case your lawyer relied on was the case of State v Sheekiot (2011) N4454 where the defendant had pleaded guilty to cutting his cousin sister on the neck with a bush knife. He made early admissions to the offence. It was a lethal weapon and the cut was to the neck and the cheek. He had a prior conviction. The court suspended 4 years IHL on a probation order after report was furnished including a Means Assessment Report.
    
74. Another case your lawyer helpfully submitted for my consideration was State v Kara (2012) N4663 where in an urban setting, the victim was cut on the face with injury to his eye by a female neighbour. There were 7 stitches, a lethal weapon was used, 4 years IHL suspended after a presentence report and a Means Assessment report were furnished to the court.
    
75. Another case was that of State v Elliot (2014) N6524 where Justice Batari on a guilty plea under section 315 where the husband had severed the wife’s left arm with a bush knife over marital differences. It was a permanent loss of the limb. He imposed 4 years IHL suspended with orders to pay compensation.
    
76. Yet another case submitted for consideration was State v Ambi (2014) N6535 where the defendant punched the victim and then cut him with a bush knife on the right arm and leg. Charge was under section 315 serious but victim had fully recovered 4 years IHL suspended on strict conditions observed. There was no permanent disability flowing.
    
77. Prosecution counsel has cited State v Joe Ngotngot [2016] N6364 where this court sitting in Kokopo imposed 5 years IHL but suspended with orders for the prisoner both policemen to pay the victim compensation in the sum of K6000 cash together with 200 fathoms of shell money because the victim wanted compensation. Both policemen had assaulted and beat up the victim with softball bat and fan belt to an extent where she suffered extensively and continued to bear the physical and emotional scars at the time of the judgement. The matter was a trial as opposed to the present where the prisoner has pleaded guilty. Weapons used were not as lethal and as deadly as a high powered police rifle here. But both were in police uniform and in full view of the community there which is the same here.
    
78. I am inclined to impose custodial sentence to reflect the seriousness of the offence, its prevalence especially perpetrated by policemen who are prepared to abuse their authority of office, time and again and to shield behind the curtain of master and servant.
    

Distinction in the cases sited in support defence.

79. None of the cases that your lawyer has cited relates to policeman in full police uniform and on duty using police vehicle firearm and that position as a policeman to cause grievous bodily harm upon another. All are ordinary citizens in their everyday life using bush knife predominately to cause serious grievous bodily harm upon the various victims. Policemen are officers of the law and ought to know what is right and wrong in law from the ordinary citizen the various cases that your lawyer has cited. It is therefore insignificant where they are to be compared with the ordinary citizen as they are trained in the law and in weapons use of care of and therefore it is a case where comparisons with an ordinary citizen will aggravate rather than mitigate in consideration of an appropriate sentence.
    
80. Accordingly, I hold that the cases that your lawyer has submitted aggravates your case in that, if the court dealt with an ordinary citizen in this way, with sentences as follows where does that leave a policeman not off duty out of uniform, but on duty in uniform using the equipment the state has paid for, a police vehicle with clear police markings, a police issued weapon firearm XM15 Sporter Rifle serial number 009454 discharging in the public in full view of all at a person who is in no position to fight or cause anything against the law in any way in the position he was and to fire at will causing the injuries, is really aggravation more than mitigation and that is the way I will treat the cases that your lawyer has drawn to me.
    
81. I acknowledge the sentences that were imposed there ranging from 4 years wholly suspended to 5 years wholly suspended with conditions of compensation settlement. But the fact is that whether it is an assault without any aggravation with or without any weapon dangerous or offensive used, unlawful assault with intent to cause grievous bodily harm, grievous bodily harm, or attempted murder all are the stepping stone to manslaughter, murder, wilful murder. They lead onto the various homicide offences and as such if the sentences that are imposed in these homicide cases have risen since and are rising, it would be in accordance to also increase the sentences for the offences of assault with or without weapons, unlawful assault with intent to cause grievous bodily harm, grievous bodily harm, or attempted murder. It is the duty of the court as the sentencing authority to foresee and to prevent and to deter and to be on par with its sentencing tariff and trend at all frontiers of criminal offences. Sentencing is not static and cannot ignore the plea of the Community and the society.
    
82. You are no ordinary member of society but a policeman looked upon by all in the community for the maintenance of law and order. State v Wanimba Paul Gabi & Blasius Bana [2005] N2863 his honour Justice Jalina was dealing with policemen who had taken a defendant into custody at the Wewak Police Station beating him to such an extent that he suffered internal injuries to the head for which when admitted to the Boram hospital the next day he died. Each of the policemen defendants were sentenced to 24 years, 10 months and 1 week in hard labour
    
83. His Honour made observations which are relevant here considering your case of Grievous bodily harm which may easily have become manslaughter murder or wilful murder and with respect I endorse in full what his honour stated as clear trend in the increases in sentences for murder and homicide offences, “Sentences for murder have increased over the years from 8 or so years suggested in The State v Laura (No. 2) [1994] PNGLR 38 a sentence of 14 years was imposed on the prisoner who killed the deceased by cutting open the (deceased’s) rib-cage after he caught the deceased trying to entice his wife to have sexual relation with her. In The State v Steven Hino (2002) N2218, a sentence of 15 years was imposed on the prisoner who killed the deceased by stabbing him in the chest area with a grass knife.
    
84. In The State v Kore Ase (2001) N2220, the prisoner was sentenced to 15 years imprisonment for killing the deceased upon hearing news of the deceased killing his first cousin and he hunted the deceased down and inflicted severe injuries on the deceased’s body where some of the body parts were completely severed. In The State v Nickson Sambura and Trophimus Sambura (2002)N2219, two brothers were sentenced to 18 and 20 years respectively for shooting an old man with a gun in an ambush which was in retaliation for the death of their father from sorcery allegedly performed by the deceased.
    
85. In The State v Kepa Wanega, unreported National Court Judgment in CR242 of 2001 and dated 9th April, 2003, the prisoner was sentenced to 20 years imprisonment for the murder of the deceased by cutting him on the head with an axe during an argument over a piece of land, the ownership of which was disputed between them. That sentence I believe has been confirmed by the Supreme Court last year in Mt Hagen. There have also been a number of high sentences for murder which the Supreme Court has upheld. For instance in Pauline Painuk v The State (SCRA 54 of 2000) un-numbered judgment dated 2001, an 18 year sentence on the female appellant who murdered a young school girl by stabbing her twice following an argument was upheld by the Supreme Court on appeal. In dismissing the appellant’s appeal and confirming the 18 year sentence, the Supreme Court said that the sentence "was well within the range if not somewhat lenient."
    
86. In Max Java v The State (2002) SC701, the Supreme Court confirmed a sentence of 20 years which was imposed by the trial judge after a plea of guilty to murder. In dismissing the appeal the Supreme Court said at the bottom of page 3 to top of page 4 of its judgment that "having regard to the prevalence of violent offences in the community, we cannot conclude that the sentence is manifestly excessive."
    
87. Recently in Mary Bomai Michael vs The State (2004) SC737, unreported judgment dated 1st April, 2004, the Supreme Court in dismissing an appeal against a sentence of 12 years for murder by stabbing her husband with a knife, severely criticized the Public Prosecutor for failing to file an appeal against such a sentence which appeared to be too lenient for such a serious crime.
    
88. Apart from the case of Mary Bomai Michael (supra) which was after conviction following a trial, the other murder sentences were imposed following a guilty plea by the offender. It follows therefore that a sentence for murder on conviction following a trial would warrant a higher sentence. In other words, sentences for murder after conviction following a trial can quite justifiably attract a sentence in excess of 20 years and where circumstances warrant it, even a life sentence would be in order.”
    
89. Here before me is a case of grievous bodily harm pursuant to Section 319 of the Criminal Code by you but I consider that having viewed that the homicide offences have their sentences being increased, it should not be the case that offences such as the present of Grievous bodily harm remain as they are static or stationary and not increase too, bearing in mind the premise that homicide offences are the ultimatum or summit of assault, an assault with intent to cause grievous bodily harm or attempted murder. That their deterrence and prevention is as important as saving the life or limb of a person. His Honour was passing judgement on the 21^st June 2005. It is now the 5^th May 2017 it is 12 years since and what the court said then is still relevant today and applicable here in your case. You are not charged with homicide but the offence of grievous bodily harm may just as easily become one, and as such I am duty bound to take into account to pass a sentence that will be a deterrent to yourself and others with like or similar inclination to desist and refrain.
    
90. Accordingly the sentence of the court against you Clifford Rangit of Fangalawa New Ireland for the conviction and crime of intent to cause Grievous Bodily Harm contrary to Section 319 of the Criminal Code as amended you are hereby sentenced to 4 years IHL.
    
91. You will spend 2 years IHL in jail at Lakiemata Corrective Institution as of today 5^th May 2017.
    
92. You will serve a further 2 years IHL suspended on a 2 years’ Probation Order commencing upon release from the custodial term on the following conditions:
    
    • (1) That the 2 years IHL is wholly suspended on you Clifford Rangit of Fangalawa, New Ireland Province entering into a Probation order for 2 years.
      
    • (2) Upon release after service of the custodial part of this sentence you shall reside at Kimbe Police Barracks with your mother Carol Aigilo where you will be contacted by a Probation Officer.
      
    • (3) You shall reside at all times in the course of the probation order with your mother Carol Aigilo at the Kimbe Police barracks Kimbe West New Britain.
      
    • (4) You shall report to a Probation Officer as and when you are required by the Probation Officer to do so.
      
    • (5) You shall keep the peace and be of good behaviour bond for the period of your probation and for which purpose you shall immediately enter into a good behaviour bond.
      
    • (6) You are directed not to change your address after release unless you have given reasonable notice of that intention with reasons for the proposed change, to the National court.
      
    • (7) You shall comply with such directions or requests as may be made by a Probation Officer for the purposes of this probation order including the entering of your homes during reasonable hours.
      
    • (8) You shall pay to the victim, Mr. Robert Kalaki compensation a sum total of K 2000 in cash within 08 months after service of your term in custody. And which payment shall be witnessed by the Probation officer Christine Robe or another Probation officer who shall file evidence of the payment made in court.
      
    • (9) You shall be refunded your bail moneys of K1, 0000 cash forthwith.
      
    • (10) During the period of your probation order you shall faithfully attend church services every Sunday at Kimbe Saint Peter and Paul Catholic Church.
      
    • (11) You shall render free community services to a public institution in Kimbe town at the rate of 5 hours a week under the supervision of a probation officer.
      
    • (12) You shall allow for probation services to closely supervise and monitor your compliance of these terms and report the same to this court on a quarterly basis starting initially on the 05^th May 2019 and thereafter every quarterly as and when due on the calendar.
      
    • (13) The referees and or guarantors namely Chief Sergeant Koniel Tangi shall jointly and severally ensure and see to the prisoner Clifford Rangit to comply with these terms and a failure to do so will amount to contempt of court and they will be appropriately dealt with, including imprisonment for such terms as this Court deems fit.
      
    • (14) At the expiry of the Probation Order the probation period the prisoner Clifford Rangit will return to this court for review and sentencing.
      
    • (15) In the event of breach of any or all of the probation order and its duration you shall be called to be sentenced and the suspended sentence takes effect upon evidence of breach.
      

Orders Accordingly.

_________________________________________________________________
Public Prosecutor : Lawyer for the State

Public Solicitor : Lawyer for the Defendant