State v Romohawa [2022] PGNC 360; N9772 (24 June 2022)

N9772

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1236 OF 2018

THE STATE

V

JUNIAS ROMOHAWA

Wewak: Miviri J
2022: 09^th & 24^th June

CRIMINAL LAW – PRACTICE AND PROCEDURE – GBH S315 CCA – Plea – 2 Victims – 1^st Victim Chopped on Right Shoulder – 2^nd Victim Left Wrist cut Tendons Bone Chipped – Intent to Cause GBH – residual injuries – Attack on Policemen – Retaliation Over an Earlier Attack – Planned Attack – Law Into Own Hands – Prevalent Offence – Plea – First Offender – Expression of Remorse – Favourable PSR MAR – Deterrent Sentence.

Facts
Accused armed with a bush knife accompanied by others grievously cut the two victim policemen in the barracks over earlier assault by Police.

Held
Plea of guilty
First offender
Law into own hands
residual injuries
Favourable PSR MAR
14 years IHL.

Cases Cited
Public Prosecutor v Hale [1998] PGSC 26; SC564
State v Makapu [2017] PGNC 118; N6761
State v Arua Maraga Hariki [2003] PGNC 140; N2332
State v Ben Simakot Simbu (No.2) [2004] N2548
State v Gregory Kiapkot, Martin Bigit, Tobung Paraide, Peter Taul, Bothia Agena [2011] PGNC 314; N4241
State v Lombei [2017] PGNC 280
Aubuku v The State [1987] PNGLR 267
Acting Public Prosecutor v Haha [1981] PNGLR 205
Kerua and Kerua, Public Prosecutor v [1985] PNGLR 85

Counsel:

F. K. Popeu, for the State
A. Kana, for the Defendant

SENTENCE

24^th June, 2022

1. MIVIRI J: This is the sentence of Junias Romohawa of Harua, Kanauki, East Sepik Province who was charged with intent to cause grievous bodily harm and did cause grievous bodily harm of two policemen victims.
   
2. On Saturday 24^th day of March 2018 at Yawasoro Police Barracks, there was a confrontation between two policemen and the accused with a couple of youths resulting in one of the two Policemen assaulting the accused causing injuries to his head. Both the policemen and the Accused were under the influence of liquor. The accused was taken to the Boram hospital and received treatment and then called one Robin Wamane who had a 15-seater Bus registered number P1861K white in Colour to assist them with transport. Robin came and took them and they went to the Viaq Police Station in town around 7.00pm to report the matter but were told as it was a complaint against the policemen, it was better to come back on Monday to report the matter to the appropriate person, the Internal Investigation Unit, (IIU). Accused was not satisfied and decided to take the matter into his own hands.
   
3. So, between 7.00pm and 8.00pm Robin drove his bus to Yawasoro Police Station and dropped off the Accused and three youths on the road outside the Police barracks, whilst he drove slowly into the Barracks and stopped the vehicle facing the barracks, where the Policemen were sitting around with their families outside their respective residences. Jerry Ape and Charlie Saungali with the wife of Charlie Saungali were sitting outside near the house of Charlie Saungali having a drink. Robin Wamane the driver of the bus put the headlight on high beam that temporarily blinded them. In that instant Junias Romohawa and the youths who had been dropped off rushed in with Bush knives and swung the knives at Jerry Ape and Charlie Saungali. Being blinded Charlie Saungali tried to avoid a bush knife swung by the Accused Junias Romohawa at his neck and received a bush knife would to his right shoulder that nearly severed his arm off completely. Jerry was cut on his left wrist cutting off his tendons and chipping the bones as he tried to protect himself and received a deep wound to his right thigh and a cut to his right ankle. Junias Romohawa and his three friends ran away into the dark whilst Robin drove out to his house which was in the area where the barracks is located. When Junias Romohawa attacked the complainants in this manner, he intended to cause grievous bodily harm and did cause them grievous bodily harm.
   
4. The charge was laid pursuant Section to 315 of the Criminal Code that, Acts Intended to Cause Grievous Bodily Harm or Prevent Apprehension. It was in the following; “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. Prisoner pleaded guilty confirming his admissions to police. Which was confirmed when the file was tendered. He appreciated the gravity of his actions and that was evident in his allocutus made in the following terms to the Court when invited; “Thank you to the Honourable Court for its time to hear my case. My name is Junias Romohawa from Harua village. I am married with two children both females. The Second daughters is 8 years old and the first is 9 years old. I work as an Electrician and refrigerator air condition mechanic. I feed my two children and wife. My mother and my deaf brother also live with me and I look after them. I want to say sorry to the honourable Court. I want to say sorry to God Creator. I want to say sorry to the two victims and their families. I want to say sorry to the innocent brother where police raided that night and killed him in his house. I say sorry to his family. I want to say sorry to my wife and children for what I did which has given them a lot to worry about. I want to say thank your honour and Court to hear my case. Thank you, my lawyer. I am a first offender. I stand before big court like this. I ask the honourable Court for mercy to give me lenient sentence to serve. I realize my mistake so I won’t do it again. Mercy on me give me probation please let me go out with respect.”
   
6. This prompted the application by defence counsel for presentence and means assessment reports under the Probation Act to be furnished in particular to confirm if both victim and prisoner had settled the matter amongst themselves. That report has been filed now 24^th June 2022 and is before me today Friday 24^th June 2022 upon the basis of which the parties have made submission for the consideration of the court in determining an appropriate sentence for his case. It recommends probation for the prisoner.
   
7. By the presentence reaffirming the antecedent report, the Prisoner was born on the 16^th March 1987 and therefore at the time of the crime was 31 years old. And today at sentence he is 35 years old. Originally from Harua, Kanauki, East Sepik Province. He was married to Ruth out of which they had two girls, Melani 9 years old, and Lizah 6 years old. He was of the SDA Christian Faith and had no prior conviction. He comes from a family of three brothers and has a surviving brother who is a deaf and dumb for who he cares for with his old mother. As their father is deceased since. He was educated to grade 10 in 2005. And from 2005 to 2008 he attended the Yawasoro vocational centre training in field of Electrical, refrigeration and air conditioning. He applied for further studies to Port Moresby Technical College in 2017 when he was involved in this crime missing out on the entry test for the same.
   
8. He has employment experience with a National Certificate1. From 2009 to 2011 he worked with Kosaye Electrical Limited in Madang. And left the job and worked with South Seas Tuna here in Wewak from 2012 to June 2014. From July 2014 to December 2014, he worked with another company Dieter service Mechanical Workshop in Wewak. From 2015 to 2016 he worked with RD Tuna Factory in Madang. In 2017 he went to Port Moresby and applied for the Port Moresby Technical college to do a diploma course in line with his line of duties and experience, and whilst waiting for the entry test was working with Coral Sea Hotels at 7 mile. At the end of 2017 his elder brother died so he returned home in accordance and got involved whilst here with the offence.
   
9. He does not have any savings nor money or the means to settle the conviction in any form of compensation to the victims. In the case of the victims one Jerry Apeh has died the family have gone back home to the highlands and so there is no feed back in the presentence report to highlight the views of the victim. The surviving victim Sergeant Charlie Saungali has stated that he has been a policemen for many years and is an enforcer of the law and when attacked in this manner the issue of out of court settlement must never be entertained. And on this occasion, he was sitting with his wife at the veranda of their house in the Yawasoro Police Barracks when the accused Robin Wamane drove in and blinded them with his head lights giving access to defendant to do what he did. He did not know what happened with Jerry Apeh the instigator of the incident to which the prisoner become the victim. He had returned from work and was simply with his family sitting out after. And therefore, he does not want any compensation for the actions of the prisoner.
   
10. Pastor John Wamane of the Save Mission Church Wewak said he had spoken to all the family members to pay compensation to the victim with K5000 within six months. Because Prisoner is married to the daughter of John Wamane’s elder brother. The offender is remorseful for his conduct and has been recommended as being suitable for probation upon consideration of the payment of compensation in the sum of K5000.00. I do take account of the references by his employers formally relating to his employment conduct not the criminal conduct now under scrutiny for an appropriate sentence for his crime. He is noted as a changed person from his past in the character reference by the Boram Corrective Institution by Zacharias Huasimbi Senior Inspector Acting Manager Operations/ OIC Projects.
    
11. The prisoner will be sentenced by his own facts and circumstances depicted out by the file that was tendered into court upon the guilty plea that he entered. After attempted murder this is the next most serious charge relating to aggravated assaults on the person. It is aggravated as there is an intent to cause grievous bodily harm which intent is attained in the assault. The victim were almost killed here in the bush knife attacks on them both policemen who were in the barracks, resting and relaxing with family. Both did not suspect and did they think that they would be assaulted gravely in the confines of their home, their dwelling house. Especially as Policemen who were in the Barracks resting after work serving the State and the People of East Sepik Province. And the attack was at night-time, and specifically they were blinded purposely to give effect to the attack upon them. Without sight all man are blind, here that was the intention of the lights on high beam into their eyes. And sure, enough it had that effect with both victims and wife of the one of the victims blinded giving cover to the prisoner and accomplices to attack as they did. It was in the dwelling house at night-time. It is aggravated and very serious in that regard. And would in my view fall squarely with the views of the Supreme Court when it remarked:
    

“We first of all find that the trial judge erred in considering the appropriate tariff to start with in considering the appropriate sentence. Gimble’s case suggests starting with 7 years but the trial judge started even lower than that. We find that with the prevalence of violent crime involving the use of guns the ranges of sentences recommended in Gimble’ case are having no effect and are no longer relevant. Gimble’s case was decided in 1989 and crimes of violence have definitely increased with the use of guns being more prevalent and the community is calling for heavier punishments as a deterrence. We feel that the starting point to an appropriate sentence involving the robbery of homeowners at night with the use of firearms to threaten victims should be 10 years,” Public Prosecutor v Hale [1998] PGSC 26; SC564 (27 August 1998).

12. This is not an armed robbery but is a crime of violence that also carries the maximum penalty of life imprisonment and relevant to be considered in the determination of sentence appropriate. The offence here was committed in the dwelling house of the Policemen who were off duty after service as servants of the State. They deserved to be protected from any criminal behaviour and attacks upon their premises, barracks of Policemen. The law was there if there were grievances to be aired to follow that process. Life was not served with taking the law into one’s hands as here. He was an educated person who was advancing in life in his achievement that is evidenced here. He did not display any reason to act as he did to take the law as he sought out here almost to the demise of both policemen. And in their home amongst their family who had no reason to be treated this way.
    
13. Both victims did not stand any chance of successful defence in the way the attack was perpetrated upon them by the prisoner and accomplices. Because it was aimed at the neck and persisted and continued to extreme results attained, grievous and life-threatening injuries upon both victims. The medical report of Charlie Saungali dated the 19^th June 2018 sets the date of his admission to hospital as 24^th March 2018. And the date he was discharged from hospital is 1^st April 2018. The history is claimed to have been cut by a known adult with a bush knife to right shoulder. The clinical findings were, deep bush knife right shoulder with signs of second stage hypovolemic shock. And the operative findings 26^th March 2018 were; Near amputation right shoulder; chip fracture lateral 3^rd Clavicle; head of humerus dislocated posteriorly; Joint capsule involved; brachial vessels plus nerve plexus intact; EUA/Suturing done in theatre.
    
14. Good wound healing; Good range of shoulder joint movement; slight pain upon full abduction and lateral rotation. Conclusion; Patient presented with deep bush knife wound right shoulder (near amputation) with second stage hypovolemic shock secondary to bush knife wound; Patient has about 95% function and range of movement to right shoulder currently. And it is under hand of Doctor Roy Bele surgical registrar of the Surgical Department of the East Sepik Provincial Health Authority.
    
15. In the case of the second victim, Jerry Apeh medical report dated the 19^th June 2018, his admission date is also 24^th March 2018 and he also discharged on 01^st April 2018. It is also made by Doctor Roy Bele surgical registrar of the surgical department also of the East Sepik Provincial Health Authority. The wounds that are detailed out in that medical report included; Right ankle wound 8cm wound with the bone involved. The right thigh wound involved 8cm wound posterior lateral, hamstring muscle partially severed, no major vessels and nerve laceration. And left wrist wound 12cm from posterior to medial aspect, chip fracture head of radius bone, lacerated extensor of retinaculum plus joint capsule, all exterior tendons severed and only EPB tendon spared. Superficial branch of radial nerve lacerated all repaired respectively. Patient presented with multiple bush knife wound. Patient will still have major disability and function to the injury sites, especially the left wrist.
    
16. Given all what is the appropriate sentence for the prisoner here?
    
17. The maximum penalty for the offence is subject to section 19 imprisonment for life. That would be in the extreme set of facts and circumstances. It is clear this is not the extreme case but it is a very serious offence because it is a pre-planned attack on Policemen who had no reason to prepare and to fear that an attack was imminent in revenge for an earlier confrontation in which the prisoner had suffered at the hands of two policemen. There was an intent shown by him to follow due process when he went to Viaq police station and reported. Had he waited for Monday for the Internal investigation unit, he would not be in court now.
    
18. It is in my view a much more serious case than the case presented in Kimbe of State v Makapu [2017] PGNC 118; N6761 (19 May 2017), that was a single victim. Here there are two victims both policemen off duty in the barracks who have nothing to do with the prisoner in the assault that he sustained and was injured. That should have gone down the road into Police internal affairs right to the end. It was a long road but that was the lawful road. He chose the destiny that has now landed him here. He is no uneducated person. He is reasonably well educated to college level. That is reflective of his intellectual capabilities and which if he had resorted to, he would not be standing today to receive sentence.
    
19. Multiple victims have seen very serious sentences-imposed State v Arua Maraga Hariki [2003] PGNC 140; N2332 (3 February 2003) which is a case of wilful murder. But it stresses the point of multiple victims where the court has sentenced to reflect the gravity. And it is a common trend that this court has seen out where the offence is grave State v Ben Simakot Simbu (No.2) [2004] N2548, and also State v Gregory Kiapkot, Martin Bigit, Tobung Paraide, Peter Taul, Bothia Agena [2011] PGNC 314; N4241 (4 April 2011). All are cases of wilful murder but this is a case of Grievous bodily harm with intent to cause grievous body harm and sustaining. The maximum penalty now amended of is equivalent to wilful murder is life imprisonment. It is therefore relevant to consider these cases as applicable here. Even though the victims survived now and are not dead. Here there is very strong will to give that injury not on one but two off duty policemen.
    
20. Policemen whether in uniform or out, on or off duty are the sign of law order and enforcement of it. They are servants who risk their lives to ensure there is the rule of law and order in the communities, towns, provinces, and the State. They offer their lives to serve without fear or favour. Attacking them in this manner without respect for the rule of law enforced by them, means their lives mean nothing to all that they serve. They must be protected so that they enforce without fear. Police Barracks house them after their day in the Stations and units assigned. It should be a place where they are safe from any attacks against as is the case here. There must be prevention of this ever again. Sentences that accord must accommodate that the rule of law is supreme, no men is above the law. And that will be reflected in the sentence that is meted out to the prisoner now. The facts of the present case are not the same as in State v Lombei [2017] PGNC 280; N6995 (10 October 2017) that was argument over betel nut and sago that culminated into violence where the prisoner cut off the hand of the victim including other parts of the body. They were relatives and there was payment of compensation so that part of the sentences were suspended and the principle was accorded 8 years imprisonment with part suspended. His co prisoners were sentenced to 12 months suspended on condition for payment of compensation.
    
21. The facts of that case are distinguished from the present in that this is an attack on Policemen who were off duty in their barracks relaxing with their families. It is very serious compared because of the fact that they are the backbone to law enforcement and must be protected. Allegations have been made for police retaliation that has led to damages and death. This is a court of law material that raise serious matters as these must be properly placed by evidence admissible under the Evidence Act. Reliance to sway sentence other that what is due must be in that form, not without. Proper affidavit material deposing so that appropriate considerations are taken in the sentence passed. There is therefore no material that will derail what is spoken proportionate here by the facts and circumstances due the prisoner.
    
22. Weighing both sides of the equilibrium the balance is in favour of an aggregate term of 10 years imprisonment for each count of intent to cause grievous bodily harm and grievous bodily harm caused is appropriate as it is a crime of violence, and as voiced in Aubuku v The State [1987] PNGLR 267 where there are aggravation that increases the sentence. Therefore, it would be not erroneous to take account of serious aggravation that would increase the sentence due an offender. Some of which are highlighted here which need not be repeated.
    
23. Further I take due account of the case of Acting Public Prosecutor v Haha [1981] PNGLR 205 in particular the principles of cumulative and concurrent sentences. Which is illuminated in this way:
    

“Where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent. Where the offences are different in character, or in relation to different victims, the sentences should normally be cumulative. When a court has arrived at appropriate sentences and decided whether they should be concurrent or cumulative, it must then look at the total sentence to see if it is just and appropriate. If it is not, it must vary one or more sentences to get a just total,” Kerua and Kerua, Public Prosecutor v [1985] PGSC 8; [1985] PNGLR 85 (1 April 1985).

24. And in the discretion here relating that will be accorded. There are two separate victims so there will be 10 years imprisonment for each count of intent to cause grievous bodily harm and grievous bodily harm. Both will be served cumulatively. That will give the total sentence of 20 years IHL. In my view that will be deducted by the totality principle by six (6) years imprisonment will be deducted because of the totality principle. Particularly with the fact of the guilty plea to the charges by the prisoner.
    
25. The balance is 14 years IHL that will be served in jail IHL. I make no order as to suspension of sentence.
    

Ordered Accordingly.

__________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant