State v Viambu [2022] PGNC 486; N9986 (23 June 2022)

N9986

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 360 0F 2022

THE STATE

V

FREDRICK VIAMBU
Prisoner

Popondetta: Sambua, AJ
2022: 6^th, 7^th, 14^th & 23^rd June

CRIMINAL LAW – Criminal Law – Unlawful wounding –prisoner a serving member of the police force – use of police issued firearm to assault the victim - guilty plea - what is the appropriate sentence – S.322 of the Criminal Code – retaliation for wife’s extra marital affair – was under influence of alcohol when committing the offence – 2 years imprisonment – K2500.00 compensation ordered – compensation to be paid within 1 month.

Cases Cited:

Goli Golu v The State [1979] PNGLR 653

Ure Hane v The State [1984] PNGLR 105

Avia Aihi v. The state (No. 3) [1982] PNGLR 92

State v Alphonse Polpolio & Jeffery Baru (2006) CR 701 & 865 of 2006

State v Kata Tulia [2016] N6479

State v Pricilla Kusan [2021] N8966

State v Jenny Tataki [2017] N6773

Lawrence Simbe v The State [1994] PNGLR 38

State v Sovou [1998] N1961

Lialu v The State [1990] PNGLR 487

State v. Kila Neko, CR 855 of 2006, Unreported Judgement dated 23^rd August, 2006

State v. Dominic Ken (2016) N6345

Texts:

Criminal Law and Practice in Papua New Guinea – 3^rd Edition by Chalmers, etc

Counsel:
Mr R Luman & Mr N Pare, for the State
Mr E Yavisa & Mr S Kuruwalo, for the Prisoner

22^nd June, 2022

1. SAMBUA, AJ. The prisoner pleaded guilty to one count of unlawful wounding contrary to Section 322 of the Criminal Code.
   

History of the Case

2. The State alleged that sometime between the hours of 3:00 p.m. and 4:00 p.m., on the afternoon of Friday, 01^st October 2021 the prisoner Fredrick Viambu drove in a motor vehicle along the main highway leading to Kokoda. As he drove past Jijimba Block he saw the victim Vincent Kaboir sitting on the grass consuming alcohol. The prisoner made a u-turn and drove back to Jijimba Block. The prisoner Fredrick Viambu armed himself with a pistol and walked straight to the victim Vincent Kaboir and began assaulting the victim by hitting him on his head with the pistol butt. The prisoner also used a rum and blueberry hard stuff bottle to hit the victim on his head and backside. The prisoner also discharged a shot from the pistol onto the ground in front of the victim. The victim bled heavily from his head as a result of the injuries inflicted on him by the prisoner. The prisoner stopped assaulting the victim and left after the victim's sister cried out and pleaded to the prisoner to stop assaulting the victim .

Law on unlawful wounding

3. The prisoner was charged with unlawful wounding pursuant to section 322 of the Criminal Code.

4. Section 322 of the Criminal Code provides:

S322. WOUNDING AND SIMILAR ACTS

(1) A person who–

(a) unlawfully wounds another person;

is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years.

5. It is trite law in this jurisdiction that the maximum sentences are reserved for the worst type of offences: Goli Golu v The state [1979] PNGLR 653, Ure Hane v The State [1984] PNGLR 105, Avia Aihi v. The state (No. 3) [1982] PNGLR 92.

The issue

6. What would be the appropriate penalty in the circumstances of this case? In considering what penalty the court should imposed, the court must take into account the sentencing factors such as the mitigating and aggravating factors, the prisoner’s statement in allocutus, and other relevant factors on sentence.

Mitigating Factors
7. The mitigating factors in the prisoner's favour are that he pleaded guilty and saved the courts time and was apologetic in his statement in allocutus. He has paid K400. 00 compensation with food and he is a first-time offender

Aggravating Factor

8. The aggravating factors are that he is a policeman and was drunk at that time and took the law into his own hand and became a judge and jury. He used a dangerous weapon namely a police issued pistol to hit the victim and a shot was discharged from the Police issued pistol. He also used a dark rum bottle to hit the victim with and the victim sustained serious injuries to his head (vulnerable part of the body. The offence is a prevalence offence in the community.

Personal Particulars of the Prisoners

9. The prisoner is 39 years old and married with no children. He hails from Hohorita village in Ward 4 of Higaturu LLG in Northern Province. He comes from a family of 7 siblings (3 male and 4 female). He is the third born in the family. His mother is still alive, and father is deceased. He went as far as Grade 12 in his education and thereafter joined the Police Force in 2011, and his first posting was to Mendi in Southern Highlands Province. After a year in Mendi, he was transferred to Popondetta in Northern Province. He has been in active service for more than 10 years now. He attends the Catholic Church.

Submissions by Counsels

10. Mr Yavisa, counsel for the prisoner submitted that the offence which the prisoner was convicted of carries a maximum penalty of 3 years. It is trite law in this jurisdiction that the maximum is reserved for the worst type of offences: Goli Golu v The state [1979] PNGLR 653, Ure Hane v The State [1984] PNGLR 105, Avia Aihi v. The state (No. 3) [1982] PNGLR 92.

11. In determining an appropriate sentence, the first issue is whether the maximum is warranted. In this case, although the victim suffered injuries and bled heavily, it is not a worst kind of unlawful wounding cases which would automatically attract the maximum penalty. So the next issue is then what would be the appropriate sentence to impose since the maximum is not warranted?

12. Sentencing is not an exact science. It is a discretionary process and discretion must be exercised according to the recognized principles of law: per Canning J in State v Alphonse Polpolio & Jeffery Baru (2006) CR 701 & 865 of 2006.

13. Mr Yavisa then referred to three case law authorities for purpose of comparison for the court to consider when determining penalty which included:

1. State v Kata Tulia [20161 N6479 (Auka, A.J): In that case the prisoner used a knife and cut the victim twice on her left forearm and the victim suffered knife wounds on her right wrist and left shoulder. The victim was taken to the hospital and appropriately treated and later discharged. State alleged that the accused was not authorised by law to do what she did. The prisoner pleaded guilty and was sentenced to 18 months, and the term was wholly suspended with conditions.
   
2. State v Pricilla Kusan [2021] N8966 (Rei AJ), In that case the prisoner used a bush knife and wounded the victim on her head causing a 4cm deep laceration. The prisoner pleaded guilty and was sentenced to 18 months and the whole term was suspended with conditions.
   
3. State v Jenny Tataki [2017] N6773 (Liosi AJ), in that case the accused grabbed a kitchen knife in the living room and stabbed the victim once on his left groin/thigh. He was taken to the hospital in the night and was subsequently admitted. The victim fully recovered and was released from the hospital a week later. The prisoner pleaded guilty to unlawful wounding and was sentenced to 2 years, and the term was wholly suspended with conditions.
   

14. He submitted further that following factors should be taken into account when deciding an appropriate penalty in the circumstances of this case. The aggravating factors obviously would include, the victim suffered injuries, and the prevalence of the offence. On the other hand, what is favouring the prisoner are his early admissions. His plea of guilty is a strong factor in mitigation because not only does it show regret and remorse and preparedness and inclination toward rehabilitation, but it has saved the Court time and the State’s time and resources which would have been used up and expended in conducting a trial. He has no prior criminal record and acted alone. The victim did not sustain permanent injuries and showed remorse by his action to the victim with some food and money. There was a de facto provocation by the victim having an extra marital affair with the prisoner’s wife.

15. He submitted that on the basis of the foregoing and considering that the mitigating factors outweigh the aggravating factors, a sentence of 18 months to be imposed subject to the court’s discretion under Section 19 of the Criminal Code. And that the penalty to be wholly suspended with conditions as the Pre-Sentence Report speaks for the Prisoner which recommended that the prisoner is a suitable candidate for Probation or a good behaviour bond.
Submission by The State

16. Mr Pare on behalf of the State submitted that it is trite law that the maximum penalty should be reserved for the most serious instances of an offense: Goli Golu v The State [1979] PNGLR 653

17. In Lawrence Simbe v The State [1994] PNGLR 38; per Sakora J in State v Sovou [1998] N1961, it is also well established that each case is determined on its own peculiar facts and circumstances.

18. Furthermore, the Court has a wide discretion under section 19 of the Criminal Code in determining the proper sentence as each case and its circumstance warrant. In Lialu v The State [19901 PNGLR 487 the Supreme Court (per Kapi DCJ) held that:

"This exercise of the sentencing discretion must be guided by proper principles. These include the characteristics of the offence or the offender which may aggravate or mitigate the seriousness of the crime taken together with all other relevant considerations. In this regard, it is desirable that the courts must be consistent in the application of these principles. These principles of sentence do not necessarily resolve the difficult task of fixing a particular term of sentence for any one particular case. The reason is clear and it has been pointed out in previous cases that there is no mathematical or scientific formula for arriving at a particular specific sentence from the general principles".

19. Mr Pare in his submission referred to two case law authorities to assist the court in its deliberation on sentence and these cases include:

1. In State v. Kila Neko, CR 855 of 2006, Unreported Judgement dated 23^rd August 2006, the accused pleaded guilty to one Count of Unlawfully wounding the victim Michael Simox. The accused during an argument with the victim used a pocketknife and stabbed the victim on his neck. He was taken to St. Mary's Hospital where he was appropriately treated and later discharged. He was sentenced to 2 years imprisonment. The sentence was fully suspended on condition that the accused shall enter into a recognizance to keep the peace for 2 years.
   
   2. In State v. Dominic Ken (2016) N6345, the accused pleaded guilty to Unlawful Wounding and was sentenced to 2 years however was wholly suspended on conditions that he enter into a recognizance to keep the peace for 2 years and that he pays K500.00 as compensation to the victim within 2 months from the date of sentence. In this case the accused was under the influence of alcohol and at the material time was with his wife and their child. An argument occurred and during the argument the accused picked up a stone about the size of a folded fist and threw it at his wife. However, the stone missed her and instead hit the infant victim on her forehead and caused a deep wound. Victim was rushed to the hospital and was treated and later discharged.
      

20. In consideration of the circumstances surrounding the case and the case authorities put forth, the State submitted that this was not the worst type of case that requires the maximum penalty, but a term of imprisonment would be appropriate in this case.

21. He submitted that the aggravating factors in this case are more serious in the sense that it involves an officer of the law enforcement agency (Police Force) who used a police issued firearm to assault the victim and then further went on using a dark rum bottle to break on the victim's head whilst he was not on duty at that time and the fact that the prisoner was also drunk at that time. The injuries sustained were on a vulnerable part of the body which is the head and if he was not stopped by the victim's sister the victim could have received more beating and injuries.

Submission on Pre- Sentence Report

22. Mr. Pare submitted that though the pre-sentence report is favourable to the prisoner showing that he had paid compensation of K400. 00, 2 live chicken and 2 bunch of bananas immediately after the incident to the victim and his family, that does not stop him from going to prison or pay some more amount if the court orders.

23. He submitted that the aggravating factors outweigh the mitigating factors and therefore there is need for a deterrent sentence for would be offenders who are likely to commit such offences, particularly police officers who are well vested with the law and submitted for a sentence between 1 to 2 years with no suspension but subject to the court's discretion under section 19 of the Criminal Code, Chapter 262.
The Sentence

24. I have taken into consideration submission by both lawyers, the prisoners personal particulars in that he has no prior convictions and the nature and type of injury inflicted on the victim in considering an appropriate penalty for this case.

25. I have also considered his statement in allocutus in which he requested for mercy and leniency from the court for a non-custodial sentence. However, I am inclined to agree with Mr Pare, counsel for the State that the aggravating factors in this case are far more serious in the sense that it involves an officer of the law enforcement agency (Police Force) who used a police issued firearm to assault the victim with whilst not on official duty at that time and he was also drunk. If he was not stopped by the victim's sister, the victim could have received more beating and injuries.

26. I am grateful to both counsels for referring to case law authorities in their respective submissions which have greatly assisted me arrive at the decision I am about to give.

27. However let me reiterate here that being a Police officer, it makes this case even more serious than that of a normal ordinary citizen. He knew the law. There were avenues available to resolve his issue but decided to take the law into his hands. He used a Police issued firearm to give him the power to attack and assault the victim whilst being intoxicated. He was a coward. He should have gone and attack the victim when he was sober and without being aided by a Police issued firearm.

28. The Government has established institutions and agencies that deal with issues that he had, yet he decided to take the law into his hands. He became a judge and a jury. Being a Policeman, he would have known which Government institution or agency deals with such issues.

29. This matter could have been easily resolved at the village court or at the District Court but being a Policeman, he felt so high and mighty that he decided to deal and resolve the issue in an uncivilized manner. Hence a severe and a hasher penalty was called for.

30. Therefore I consider that a sentence of two (2) years imprisonment term in hard labour is appropriate in the circumstances of this case

31. The court sentences the offender as follows:

1. The prisoner is sentenced to 2 years imprisonment IHL.
2. The whole 2 years sentence will be suspended, and he is placed on Probation for a period of 2 years with conditions that will be set by the Probation Officer Mrs. Robyn Surute Angavia
3. Apart from the conditions set by the Probation Officer, the Court imposes the following conditions:
   
   1. He will not consume alcohol during the 2 years of his suspended sentence
   2. He will attend the Catholic Church here in Popondetta every Sundays until the expiration of his 2 years suspended sentence and to ensure his attendance every Sundays he must report to the Catechist who will keep a record of his attendance and to be given to the Probation Officer for purposes of preparing the 6 monthly progressive report of his attendance
   100. He is to surrender the Police issue firearm immediately and he is not supposed to have in his possession any Police issued firearms during the period of his suspended sentence
4. Promise to be of good behaviour and to keep the peace and order for a period of 2 years; and
5. Pay K 2,500.00 compensation to the victim within 1 month of this order and the matter will return to this court in August 2022. Failure to pay the compensation within 1 month will result in the prisoner being committed to Biru CS to serve the full sentence of 2 years.

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Public Prosecutor : Lawyers for the State
Public Solicitor : Lawyers for the Prisoner