The State v Frank Johnston, Murray William and Moses William (No 2) (2004) N2586

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 30 April 2004
• Court: National Court
• Citation: (2004) N2586
• Year: 2004
• Judgement Number: N2586

Full Title: The State v Frank Johnston, Murray William and Moses William (No 2) (2004) N2586

National Court: Kandakasi J

Judgment Delivered: 30 April 2004

1 CRIMINAL LAW—Sentencing—Prisoner failing to turn up for hearing of defence case, decision on verdict, address and decision on sentence—Effect of—Court not obliged to adjourn or wait for accused—Court can proceed in accused and prisoner's absence—Criminal Code s571.

2 CRIMINAL LAW—Sentence—Attempted murder by a group—Conviction after trial—First time youthful offenders—Prisoners armed with weapons—Attempt to cut victim by bush knife missed—Victim shot with stone with intend to kill using a sling shot—Injury to victim's eye resulting in total loss of one eye—Attacked over alleged break, enter and stealing by victim—Criminal Code s304

3 Michael Gende v The State (Unreported judgment delivered on 26/08/99) SC626, Joe Foe Leslie Leslie v The State (1998) SC560, The State v Elizah Ute (2004) N2550, Peter Naibiri and Kutoi Soti Apia v The State (1978) SC137, Public Prosecutor v Don Hale (1998) SC564, The State v Rex Lialu [1988–89] PNGLR 449, The State v Michael Kamban Mani (2002) N2246, The State v Paul Yepei (No 2) (2004) N2571, The State v Robin Warren (No 2) (2003) N2418, The State v Enni Mathew (No 2) (2003) N2563 referred to

Decision on Sentence [I read this judgment in draft and indicated that I would have it corrected and improved upon then make it available to the parties. This is the final and improved judgment.]

___________________________

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 988, 1184 & 1556 of 2003

THE STATE

-V-

FRANK JOHNSTON

MURRAY WILLIAM and

MOSES WILLIAM

(No.2)

POPONDETTA: KANDAKASI, J.

2004: 29th and 30th April

DECISION ON SENTENCE

I read this judgment in draft and indicated that I would have it corrected and improved upon then make it available to the parties. This is the final and improved judgment.

1

CRIMINAL LAW – Sentencing – Prisoner failing to turn up for hearing of defence case, decision on verdict, address and decision on sentence –Effect of - Court not obliged to adjourn or wait for accused – Court can proceed in accused and prisoner’s absence – Criminal Code s. 571.

CRIMINAL LAW - Sentence – Attempted murder by a group - Conviction after trial –First time youthful offenders - Prisoners armed with weapons – Attempt to cut victim by bush knife missed – Victim shot with stone with intend to kill using a sling shot – Injury to victim’s eye resulting in total loss of one eye – Attacked over alleged break, enter and stealing by victim – Criminal Code s. 304

Cases cited:

Michael Gende v. The State (Unreported judgment delivered on 26/08/99) SC626.

Joe Foe Leslie Leslie v. The State (Unreported judgment delivered on 07/08/98) SC560.

The State v. Elizah Ute (judgment delivered yesterday (29/04/04)) N2550.

Peter Naibiri and Kutoi Soti Apia v. The State (Unreported judgment delivered on 25/10/78), SC 137.

Acting Public Prosecutor v. Don Hale (Unreported judgment delivered on 27/08/98) SC564.

The State v. Rex Lialu [1988-89] PNGLR 449.

The State v. Michael Kamban Mani (Unreported judgment delivered on 21/05/02) N2246.

The State v. Paul Yepei (No.2) (Unreported judgment delivered on 26/03/04) N2571.

The State v. Robin Warren & Ors. (No 2) (Unreported judgment delivered on 20/06/03) N2418.

The State v. Ennie Mathew Ors (No. 2) (Unreported judgment delivered on 29/10/03) N2563.

Counsels:

P. Kaluwin for the State

P. Kumo for the Prisoner

30th April 2004.

KANDAKASI J: The Court found you all guilty of attempting to murder one Wikinson Orotu at Ambene village, here in the Oro Province, on 10th September 2003 after a trial.

Facts

The relevant facts are setout in full in the judgment on verdict (The State v. Murry Mosess & 2 Ors (No.1)) delivered 28th of this instant. But, for the purposes of sentencing, I note the following facts are relevant:

·You acted in the company of each other;

·You were all armed, Frank Johnston had a grass king, Murray William had slingshot and Moses William had a bush knife;

·Frank Johnston tried to cut the victim with the grass knife but Mr. Grayson came in between the two of them and managed to prevent it;

·Murray William, you then used the slingshot to shot at the victim with a stone and the shot hit the victim on his right eye and he fell down;

·Moses William you only encouraged your brother, Murray to kill the victim;

·The victim has now lost his right eye completely thereby seriously reducing his vision. He has the risk of total blindness if his remaining eye is injured or damaged.

Address on Sentence

After having found you guilty, I administered your right to address the Court and you did yesterday. Both of you said sorry to the Court, God, your parents and the victim for what you have done. You also said this is your first ever offence and that you will not re-offend. Therefore, you asked for leniency and probation to enable you to return to your village and pay compensation.

As for Frank Johnston, he failed to turn up for his address on sentence. This continued from his failure to attend the rest of the proceedings after the close of the State’s case. The Court therefore decided to proceed in his absence pursuant to s. 571 of the Criminal Code. That continues to be the case. For the purposes of sentencing, I am of the view that by his own conduct, he decided not to address the Court. Therefore, unless, he his able to show very good reason why this should be re-visited the Court’s decision on sentence herein will also apply to him. For I am of the view that, one can only claim his right if he is prepared to exercise it at the relevant time. If there is a failure to do that, it amounts to an acceptance by his conduct that he will accept whatever orders or decisions the Court will arrive at. The people through the State do not have money readily available to throw away in such circumstances. Likewise, the Court does not have the luxury of more time to reconvene for such a person when he fails without good cause, to exercise his or her rights at scheduled Court hearings after having participated in the initial part of the proceedings, particularly in circuit setting such as this.

I now note that, the Supreme Court in Michael Gende v. The State (Unreported judgment delivered on 26/08/99) SC626 had the occasion to consider amongst others a prisoner’s right to address the Court before his sentence. In that case, the National Court did not give the appellant an opportunity to address the Court before his sentence. The Supreme Court agreed and therefore found that, the learned trial judge erred in his judgment.

In the present case, the Court was ready to give Frank Johnston, his right and opportunity to address the Court on sentence before a decision on his sentence. However, Frank Johnston by failing to turn up in Court and address it on his sentence, he in fact, in my view, decided to accept by his conduct whatever decision the Court arrives at for his sentence.

Lawyers Submissions

As for the two of you in addition to what you told the Court, your lawyer, Mr. Kumo told the Court that, Murray William, you are 16 years old while your brother Moses William is 14 years old. I note, Frank Johnston is of similar age as you both are. You belong to the Anglican Church. As for your parents, only your mother, who is very old, is alive, while your father is deceased. The authorities took you into custody on 11th November 2002. Finally, this is your first ever offence, which is confirmed by your respective antecedent reports, tendered into evidence by the State.

Your lawyer ably submitted on your behalf that your case does not fall in the worse category of attempted murder as in Joe Foe Leslie Leslie v. The State (Unreported judgment delivered on 07/08/98) SC560. He also submitted that your case is not closer to the case of The State v. Elizah Ute (judgment delivered yesterday (29/04/04)) N2550. He then submitted that, an appropriate sentence for you should be five (5) years.

Mr. Kaluwin of counsel for the State pointed out the aggravating factors that the Court should take into account before a decision on your sentence. These are the fact that, this was a group attack of an unarmed man, the injuries you caused to the victim has resulted in total loss of his right eye and the victim has the risk of total blindness, should something adverse happens to his good and remaining eye.

The Offence and Sentence

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