State v Robert [2024] PGNC 104; N10759 (24 April 2024)

N10759

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 446 OF 2023

THE STATE

V

PIKI ROBERT

Waigani: Miviri J
2024: 17^th & 24^th April

CRIMINAL LAW – PRACTICE AND PROCEDURE – GBH S315 CCA – Plea – Prisoner held up Stabbed at Bus stop – Waiting for Help to Go Retrieve Properties Robbed by Deceased & Accomplices – Saw Deceased Returning Alone on Opposite Side of Road – Punched Deceased to the Ground – Proceeded to Kick him all Over Body with Boots – Sustained Injuries to Spinal Code – Paralysed in Hospital – Discharged Paralysed for 9 months before Death – Law Into Own Hands – Prevalent Offence – Plea – First Offender – Expression of Remorse – Deterrent Sentence.

Facts
Accused a security guard was on shift from 12.00am to 8.00am waiting for pickup when held up by deceased and others. They stabbed him and got his bag. His small brother was also stabbed and robbed. Accused sent small brother to get help to retrieve bag and properties stolen. Saw the deceased as he was waiting punched him down. Proceeded to kick him. Sustaining the injuries that led him paralysed before he died 9 months later.

Held
Plea of guilty
First offender
Law into own hands
residual injuries
7 years IHL.

Cases Cited:
Bomal v Independent State of Papua New Guinea [2020] PGSC 115; SC2025 (2 November 2020)
State v Tasion [2013] PGNC 176; N5393 (23 August 2013)
State v Pendin [2012] PGNC 292; N4541 (26 March 2012)
State v Makapu [2017] PGNC 118; N6761 (19 May 2017)
State v Lombei [2017] PGNC 280
State v Idab [2001] PGNC 39; N2172 (17 December 2001)
State v Irowen [2002] PGNC 99; N2239 (23 May 2002)
State v Naiwa [2004] PGNC 58; N2710 (22 June 2004)
State v Pinda [2012] PGNC 291; N4872 (21 February 2012)
Lawrence Simbe v The State [1994] PNGLR 38
Kumbamong v The State [2008] PGSC 51; SC1017 (29 September 2008)
Goli Golu v The State [1979] PNGLR 653
Public Prosecutor v Bruce Tardrew [1986] PNGLR 91

Counsel:

J Batil, for the State
T. Yapao, for the Defendant

SENTENCE

24^th April 2024

1. MIVIRI J: This is the sentence of Piki Robert of Herikela, Ihu, Kerema, Gulf Province who was charged with intent to cause grievous bodily harm and did cause grievous bodily harm upon one Jacob Aukiri pursuant to section 315 of the Code.
   
2. The allegation on arraignment were that on the 31^st December 2020 at Kaugere Port Moresby Papua New Guinea prisoner accompanied by his small brother one Derole Mark were waiting there at the bus stop for his pick up vehicle to get him to work at Rapid Response security Company, where he was to work from 12am to 8.00am. Jacob Aukiri accompanied by five others held them up. He was recognized by the prisoner. The brother of the prisoner ran away whilst the prisoner was threatened to be stabbed with the knife in the possession of the deceased, so he released his bag to him. The prisoner’s brother was chased robbed and stabbed by the deceased and accomplices. After the deceased and accomplices had left, the prisoner sent his brother to fetch help from their house whilst he waited at that area. He saw the deceased return on the other side alone. The prisoner confronted him and without delay punched him on the face. Deceased fell backwards on the road. The prisoner followed through and kicked him with his work boots all over his body until he was helpless. Then he brought him across to the other side of the road and laid him down on the footpath. Where he was found by his family and taken to the Port Moresby general hospital. There he was found to be suffering from a spinal cord injury due to the assault by the prisoner. He was hospitalized for 8 weeks and released home. He was paralysed and bed ridden for 9 months until the 18^th September 2021 when he died.
   
3. Accused intended to cause grievous bodily harm to him when he punched and kicked him on his body causing grievous bodily harm contravening section 315 of the Criminal Code Act.
   
4. Which section is in the following terms:
   

“Acts Intended to Cause Grievous Bodily Harm or Prevent Apprehension. A person who, with intent–

(a) to maim, disfigure, or disable any person; or
(b) to do some grievous bodily harm to any person; or
(c) to resist or prevent the lawful arrest or detention of any person,

does any of the following things is guilty of a crime:–

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

Penalty: Subject to Section 19, imprisonment for life.

5. Prisoner pleaded guilty confirming his admissions to police. Which was confirmed when the file was tendered. He appreciated the gravity of his actions and in allocutus expressed remorse to all including the victim stating that it was his first offence. Asking for mercy in the sentence due him because he had pleaded guilty and saved the court time to hear a trial. It would be reflected in the time that was given in his sentence.
   
6. The words of the section clearly depict that it is one of the most serious offences after attempted murder. Because like that offence, manslaughter, murder, and wilful murder, it also entails life imprisonment as its maximum sentence. And what is described within clearly unfolds seriousness so the facts must depict for the charge to fall under it as is the case here. To plead guilty as the prisoner has done here is indeed acceptance of that fact by him. It is not a light matter of unlawful wounding under section 322 to come out with the maximum of three years imprisonment, let alone section 319 maximum of seven years imprisonment.
   
7. The deceased had brought the offence upon himself by his criminal conduct in holding up the prisoner with a knife stabbing him and then making off with his bag with all that was within it. He was in the company of five others and effected the same upon the brother of the prisoner. And the prisoner reacted when he saw him come back alone after committing the crime. In a way the deceased invited the prisoner to do what he did to him. The Constitution gives rights to every man, women, and child without distinction. It is the same in the protection of the law. The prisoner was a security guard who was on his way to work. He had no reason to be held up by the deceased accompanied by friends. Then to be stabbed and robbed of his belongings. And it was understandable in the way that prisoner behaved upon sighting the deceased.
   
8. In Bomal v Independent State of Papua New Guinea [2020] PGSC 115; SC2025 (2 November 2020) the Supreme Court confirmed 7 years imprisonment upon a policeman who had hit the victim with his gun butt on his head. He was charged and convicted of the same offence as the present case, with intent to caused grievous bodily harm upon the civilian. The Supreme Court remarked that the offence could have drawn 10 years imprisonment as it was a policeman who had abused his authority in assaulting the victim. But it would not disturb the sentence imposed as first instance because it was not excessive given. It confirmed that sentence.
   
9. And in yet another case involving a policeman who had aimed and shot the victim in the head with the police issued weapon the court sentenced him to 14 years imprisonment on a guilty plea to with intent to cause grievous bodily harm did cause grievous bodily harm. As a result of the injury inflicted the victim became wheelchair bound. He became a disabled person forfeiting his education he could not complete his education. The facts that gave rise were that he was drinking what appeared to be alcohol mixed with coke in a can. The prisoner got it and emptied the contents onto the head of the victim. And then attempted to take him into custody in the police vehicle marked out. But the victim pushed him away. The prisoner fired the rifle he had into the air. The victim than ran prompting the prisoner to aim at his head and to shoot him in the head injuring him grievously: State v Tasion [2013] PGNC 176; N5393 (23 August 2013) 12 years imprisonment in hard labour was imposed by this court upon the prisoner there.
   
10. This is not the use of a rifle, but the deceased is punched and booted suffering a spinal code injury bed ridden till his death 9 months later on. In State v Pendin [2012] PGNC 292; N4541 (26 March 2012) prisoner amputated the forearm of the victim from her hand. He persisted chasing her until he amputated her hand off. The Court observed that the knife was swung with such savagery and ferocity that it cut the victim just below her right forearm elbow joint. This savage and ferocious blow cut off her arm severing the hand from the limb completely. The severed hand and the plastic which she was carrying containing her family shopping fell onto the ground. The Court imposed 16 years imprisonment with hard labour there for the offence of with intent to cause grievous bodily harm caused grievous bodily harm contrary to section 315 (b) (d) as here.
    
11. 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 its facts set out above show that it is the deceased who brought the matter upon himself accompanied by accomplices. Life of ordinary Papua New Guineans as here who are trying to make ends meet, must be respected. He who seeks to steal and to divulge in illegal unlawful activities bears the blade that will cut him down of that fact. The deceased was such a person who invited the prisoner to do what he did. Time may have lapsed but that is not clear how long. Here it is immediate because the prisoner was waiting at that bus stop for his brother to fetch help so they could retrieve what was stolen by the deceased and accomplices. In my view it was immediate and therefore the prisoner in my view was excused, except for the amount of force he exerted. He would not have committed the offence had it not being for his fellow citizen also from Gulf Province.
    
12. 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), which was multiple bush knife cuts to the body of the victim over allegation of sorcery. That is not the case here. The prisoner attacks the deceased in the way he does because he is held up stabbed and robbed of his belongs by the deceased. The death is not immediate but over a period of almost 10 or 11 months. It is not immediately contributed to the assaults that the prisoner exerted upon the deceased. Medical report is not in those terms to pull out the prisoner square bearing in mind the time lapsed taken over to end in the death of the deceased. It is therefore not as serious 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 was 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.
    
13. What is depicted here is not the same as in State v Idab [2001] PGNC 39; N2172 (17 December 2001), Here the prisoner knows and singles out the deceased as stabbing him with the knife and stealing from him and his brother their properties and reacts in that manner. The reaction is almost immediate upon sighting the deceased after the stabbing and robbing. This is not similar to State v Irowen [2002] PGNC 99; N2239 (23 May 2002) where both wives of the prisoner were cut up badly by their common husband securing 7 years imprisonment in each case giving a total sentence cumulative of 14 years imprisonment. That was pursuant to section 319. This is pursuant to section 315. But the facts here do not par out with the case. Here in my view the reaction by the prisoner stems from the actions of the deceased. I consider that the blame is not entirely upon the prisoner. He should not be made to bear the brunt of the actions retaliatory to by the deceased. Death is not immediate but drawn out over 10 to 11 months and is not pinned down to his assaults. He is entitled to the benefit of the doubt in the sentence due him. But I consider that the penalty will reflect that the conviction is under section 315 not 319 as in State v Naiwa [2004] PGNC 58; N2710 (22 June 2004). It would not follow and equate the sentence in State v Pinda [2012] PGNC 291; N4872 (21 February 2012) because the facts here do not fit the facts there. I am swayed by the facts and circumstances following Lawrence Simbe v The State [1994] PNGLR 38 and in Kumbamong v The State [2008] PGSC 51; SC1017 (29 September 2008), that the trial Judge has very wide discretion to impose appropriate sentence. Because setting guidelines may amount to legislating and restricting a trial Judge's discretion. And in sentencing the basic principle is that the punishment must be proportionate to the gravity of the crime, Goli Golu v The State [1979] PNGLR 653.
    
14. I consider that a non-custodial term is appropriate after the deduction of time spent in custody. Because "suspension of sentence pursuant to section 19 (6) of the criminal code is, or maybe appropriate in three broad categories. The categories are not exhaustive (1) where suspension will promote the personal deterrence, reformation, or rehabilitation of the offender; (2) Where suspension will promote the repayment or restitution of the Stolen money or goods; (3) Where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of his bad physical or health,” Public Prosecutor v Bruce Tardrew [1986] PGSC 10 [1986] PNGLR 91 (2 April 1986). That it is appropriate given all that I have set out above that the sentence appropriate and proportionate here is 7 years imprisonment for the conviction pursuant to section 315 (b) (d) of the Code.
    
15. The sentence for the crime of section 315 (b) (d) of the Code against the prisoner is 7 years imprisonment IHL. I order that the time in custody of 2 years 7 months is deducted forthwith. The remainder of 4 years 5 months IHL is suspended on a good behaviour bond for that same period.
    
16. Because the material I set out above are basis that the suspension will promote personal deterrence and rehabilitation. The prisoner is not ultimately the cause of the demise of the deceased. I make no order as to compensation as he has discharged even before he got convicted by the payment of medical expenses.
    

Ordered Accordingly.

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