State v Marinduo [2017] PGNC 350; N7036 (14 December 2017)

N7036

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 82, 83, 86, 87 OF 2016

THE STATE

V

LAIET MARINDUO & REX YAWI

Kimbe: Miviri AJ
2017 : 13^th December

CRIMINAL LAW – PRACTICE AND PROCEDURE – Assault occasioning bodily harm S340 – Plea-Guilty-offence committed in prison-no residual injuries-first offenders-prisoners right to the protection of the law-sentenced to time in custody on remand-suspended sentence.

CRIMINAL LAW – PRACTICE AND PROCEDURE – Rape S347 – Not guilty-No evidence offered-Not Guilty-acquitted and discharged.

Facts
The Accused were on remand in prison and attacked the victims also prisoners assaulting them sustaining swollen faces. And then committed anal rape upon them.

Held
Assault occasioning bodily harm
Plea
Safety of prison and prisoners
Protection of law
2 years 4 months 18 days IHL
No evidence offered rape
Acquitted and discharged.

Cases:
Acting Public Prosecutor v Haha [1981] PNGLR 205
Amaiu v Commissioner of Corrective Institution [1983] PGNC 19; [1983] PNGLR 87.

Gimble v State [1988-89] PNGLR 271.
Pauta & Susuve v Commissioner of Corrective Institution, ors [1982] PNGLR 7
State v Gurua [2002] PGNC 41 N2313

Counsel:

A. Bray, for the State
R. Bellie, for the Defendant

SENTENCE

14^th December, 2017

1. MIVIRI AJ: Laiet Marinduo of Habuke, and Rex Yawi of Tangori, both in Kubalia, East Sepik Province were charged that they on the 5^th August 2015 at Lakiemata Corrective Institution in Kimbe unlawfully assaulted Issac Pitok and Simon John occasioning bodily harm upon them. Then they were both further charged that they committed rape upon both victims Issac Pitok and Simon John by penetrating their penis into their anus and having sexual intercourse with them.
   

Charges

2. The charges were laid pursuant to firstly two counts contrary to section 340 assaults occasioning bodily harm with maximum penalty of 3 years imprisonment and section 347 rapes against both accused. In total there were four counts that were pursued of assaulting occasioning bodily harm and rape.
   
3. Both pleaded guilty to the assault occasioning bodily harm and not guilty to rape.
   
4. The state did not offer any evidence in respect of the rape charges and both defendants were acquitted and discharged of the rape charges.
   
5. After reading the committal depositions tendered, I confirmed the two accused guilty pleas to the two counts of assaults occasioning bodily harm and convicted both accordingly.
   

Allocutus

6. Laiet Marinduo had the following to say: “I am sorry for what I did have mercy give me penalty outside on probation”
   
7. Rex Yawi had the following to say: “Sorry for what I did to the two boys I apologise give me probation’
   

Aggravation

8. The offences were committed in prison by the prisoners remanded for murder upon the victims who themselves were serving sentences for breaking entering and stealing. The victims were asked if they broke entered and stole from the house of the mother of the prisoners. And then were assaulted sustaining swollen faces as a result.
   
9. Medical affidavit dated the 30^th September 2015 annexing medical evidence by Doctor Samson Vava of the Kimbe General Hospital of an examination of Simon John on the 7^th August 2015 confirmed obvious left peri-orbital haematoma a centimetre long abrasion on left eyebrow and right peri-orbital, he had a black eye and swelling of the face. It also attached the medical statement on the examination of Issac Pito on the 7^th August 2015 establishing that there was a right peri-orbital haematoma a centimetre long abrasion below the left eye, tender swelling above the right eye brow and slight swelling of the knuckles of the left hand. By this evidence it was clear there was bodily harm upon both victims Simon John and Issac Pito. There were no residual injuries as at the date of this sentence. In the record of interview both prisoners admitted the assaults upon the two victims. The case was serious in that it was an offence that was committed in the jail Lakiemata. The victims had since been discharged and were no longer in the prison.
   

Antecedents

10. The prisoner Rex Yawi is 21 years old from Tangori, Kubalia, Yangoru, East Sepik Province and resides at Buvussi Community, Kimbe, West New Britain. His father is alive and mother deceased. He is the first of three children and is educated to grade 9 at the Hoskins Secondary school in 2014. He has no prior criminal history. He has been in custody for this offence for 2 years, 3 months 18 days.
    
11. The prisoner Laiet Marinduo is 25 years old and not married. His father left him when he was only 8 years old and he was raised by his mother. He is the first of two siblings and educated to grade 11 at the Hoskins Secondary School. He was in custody for 5 months until he was granted bail in the sum of K1000.
    
12. Both had pleaded guilty except for Rex Yawi convicted for escaping from lawful custody sentence that he had since served as of 7^th October 2016, Laiet Marinduo was a first offender. The offence was committed in the prison and was serious as it defied that there was no protection of law in there for the prisoners. That being prisoners was not a license to commit criminal offences within the four walls of the prison either against fellow prisoners or any others within. All in the prison compound were there by the process of law and were citizens like any other in the country covered by the same Constitution including all the rights and protection of the law accorded they did not lose any of these upon entry into the prison compound as here at Lakiemata Corrective Institution. Like all others who end up, there are in there by law and therefore are not orphans without the parenting of the law: Pauta & Susuve v Commissioner of Corrective Institution, ors [1982] PNGLR 7; Amaiu v Commissioner of Corrective Institution [1983] PGNC 19; [1983]PNGLR 87.
    
13. The sentence here was intended to protect and deter others who had similar inclinations and to ensure that the rule of law was observed in within the confines of the prison compound by all in and within. It was a group attack and there were multiple injuries that emanated but in favour of the prisoners they both pleaded guilty expressing remorse and this was genuine considering the fact that the victims had since served their time in prison and were released to locations unknown. So it could have been denial and no evidence offered and for them to go scot free but they chose to face the consequences of their actions true. It is reflective of realisation that crime does not pay well and must be abandoned for good citizenship. This will be reflected in their sentences.
    
14. Both will be sentenced in similar and likeness one from the other as there is no parity here either by their personal circumstances and antecedents or the role that they each played in the crime. Both are not teenagers but in their 20’s and therefore age will not differentiate as was the case in State v Gurua [2002] PGNC 41 N2313. Whatever sentence is passed upon Laiet Marinduo will be the same upon Rex Yawi. And this will be consistent with Gimble v State [1988-89] PNGLR 271. That is it will not be the case that the court will not consider specifically and differentiate whether a particular prisoner held the gun, a bar, or a knife and held up the victims but that all played an active part in the commission of the crime and therefore all are equally to blame for the outcome of the crime. That is the case here both prisoners were present and actively participated in the assault occasioning bodily harm upon the two victims and therefore are equally to blame and will be sentenced similarly and equally. The offences also took place at the same time, same place on the same date and cannot be differentiated one from the other. Therefore for purposes of sentencing will be treated as the one transaction rule Acting Public Prosecutor v Haha [1981] PNGLR 205 and therefore any sentence imposed will be concurrent as opposed to cumulative.
    
15. Three years imprisonment is the maximum sentence under section 340 assault occasioning bodily harm. After due consideration of all the matters discussed and considered above, the sentence proportionate to the gravity of offence is 2 years 3 months 18 days IHL concurrently for the assault occasioning bodily harm committed upon firstly Issac Pitok in the first count and secondly upon Simon John in the second count. And I so pass upon the prisoners Laiet Marinduo of Habuke, and Rex Yawi of Tangori, both in Kubalia, East Sepik Province.
    
16. Rex Yawi has served his term on remand and will be discharged forthwith when the court rises for the day now. Laiet Marinduo will have the period in custody on remand of 5 months deducted forthwith and the balance remaining will be suspended on a 12 months good behaviour bond with pledge of surety in the sum of K1000 to be paid should he breach the Good behaviour bond and activation of the suspended sentence.
    
17. Rex Yawi is sentenced to the rising of the court. Laiet Marinduo is sentenced to 2 years 3 months 18 days IHL. Five (5) months is deducted for remand. 10 months 18 days IHL suspended on 12 months GBB with pledge of surety in the sum of K1000.
    
18. Bail money of Laiet Marinduo is ordered to be refunded forthwith
    

Orders Accordingly

__________________________________________________________________Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant