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

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: (2004) N2586
• Date: 30 April 2004
• Year: 2004

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.]

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Kandakasi J:

Facts

The relevant facts are setout in full in the judgment on verdict (The State v Murry Moses & 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 s571 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...