The State v Matthew Balu & Bernard Kavanamur Balu (2011) N4362

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 03 August 2011
• Citation: (2011) N4362
• Docket Number: CR. NO. 661 OF 2008, CR NO.300 OF 2010 & CR. NO. 261 OF 2011
• Year: 2011

Full Title: CR. NO. 661 OF 2008, CR NO.300 OF 2010 & CR. NO. 261 OF 2011; The State v Matthew Balu & Bernard Kavanamur Balu (2011) N4362

National Court: Maliku AJ

Judgment Delivered: 3 August 2011

CRIMINAL LAW - Attempted Murder—s304 - Arson—s436

Wilful Damage- s444

CRIMINAL LAW - Attempted murder—Sentence after a finding of guilty—sentencing principles—Matters for consideration- defendants first offenders - Arson—Sentencing after a finding of guilty—sentencing principles—Matters for consideration—defendants—first offenders - Wilful Damage—Sentencing after a finding of guilty—sentencing principles—Matters for consideration - defendants—first offenders -Whether worse type case—prescribed maximum penalties reserved for worse type case—Custodial Sentences Appropriate.

Cases cited:

Tremellan v R [1973] PNGLR 116; Goli Golu v The State [1979] PNGLR 653; Acting Public Prosecutor v Konis Haha [1981] PNGLR 205; Public Prosecutor v Sidney Kerua [1985] PNGLR 85; Gimble v The State [1988–89] PNGLR 271; Emil Kongian v The State (2007) SC928; The State v Frank Johnston (No 2) (2004) N2586; The State v James Wakis (2008) N3426; The State v Michael Waragu (2007) N3265; The State v Ipu Samuel Yomb [1992] PNGLR 261

SENTENCE

3rd August, 2011

1. MALIKU, AJ: The defendant Matthew Balu and Bernard Kavanamur Balu were each and severally charged with seven counts contravening certain sections of the Criminal Code Act. I have set out each charge below: The State had also invoked s7 and s8 of the Criminal Code Act.

(i) Charge One:

State alleges that defendant Matthew Balu and Bernard Kavanamur Balu each and severally wilfully and unlawfully set fire to a dwelling house belonging to Peter Tanel on the 24th February 2007 at Palnakaur village, Kokopo District, East New Britain Province, thereby contravening s436(a) of the Criminal Code Act

(ii) Charge Two:

State alleges that defendant Matthew Balu and Bernard Kavanamur Balu each and severally wilfully and unlawfully damaged water drums, cups, pots, fruit plants, betel nuts, cocoa plants and a dwelling house belonging to Julius Anton, Thomas Tue and others on the 24th February 2007 at Palnakaur village, Kokopo District, East New Britain Province, thereby contravening s444 of the Criminal Code Act.

(iii) Charge Three:

State alleges that defendant Matthew Balu and Bernard Kavanamur Balu each and severally unlawfully assaulted Julie Kavanamur on the 24th February 2007 at Palnakaur village, Kokopo District, East New Britain Province, thereby contravening s335 of the Criminal Code Act.

(iv) Charge Four:

State alleges that defendant Matthew Balu and Bernard Kavanamur Balu each and severally had unlawfully assaulted Martin Tiniu on the 24th February 2007 at Palnakaur village, Kokopo District, East New Britain Province, thereby contravening s335 of the Criminal Code Act.

(v) Charge Five:

State alleges that defendant Matthew Balu and Bernard Kavanamur Balu each and severally attempted to unlawfully kill Collin Ilde on the 24th February 2007 at Palnakaur village, Kokopo District, East New Britain Province, there by contravening s304 of the Criminal Code Act.

(vi) Charge Six:

State alleges that defendant Matthew Balu and Bernard Kavanamur Balu each and severally attempted to unlawfully kill Rose Alir on the 24th February 2007 at Palnakaur village, Kokopo District, East New Britain Province, thereby contravening s304 of the Criminal Code Act.

(vii) Charge Seven:

State alleges that defendant Matthew Balu and Bernard Kavanamur Balu each and severally attempted to unlawfully kill Thelma Ansila Thomas Buluram on the 24th February 2007 at Palnakaur village, Kokopo District, East New Britain Province, thereby contravening s304 of the Criminal Code Act.

2. The defendants pleaded not guilty to the seven charges, however during the trial and at the end of the prosecution case they were discharged from Charges 3 and 4 and were found guilty and convicted of Charges 1, 2, 5, 6 and 7 at the end of the trial.

Brief Fact

3. That on the 24th of February 2007 at Palnakaur village, Toma Area, East New Britain Province the defendants each and severally took part in a fight with other perpetrators, namely Martin, Raymond and Albert Girar who are still at large and Peter Tanel and his relatives.

4. It was a retaliatory fight by the defendants and the perpetrators who are still at large after Peter Tanel cut Martin - a perpetrator still at large with a bush knife in the early morning of Saturday the 24th of February 2007.

5. The cutting of Martin with a bush knife by Peter Tanel was a flow on from a fight which took place on Saturday the 23rd of February 2007 after a bride price ceremony was over in which Peter Tanel was badly assaulted by drunken men which included Martin, Raymond, Albert Girar and the two defendants. Evidence also shows that a large amount of alcohol was consumed during the bride price ceremony.

6. The evidence shows that during the fight on the 24th of February the defendants aided and abetted the other perpetrators by shouting “kilim ol” and “paitim ol” towards Peter Tanel and his relatives namely Collin Ilde Jerry, Rose Alir and Thelma Ansila, Julius Anton and Thomas Tue while running towards Thomas Tue’s house while being very angry and aggressive.

7. During the fight on Saturday the 24th of February Collin Ilde Jerry was cut on her left hand with a bush knife, Thelma Ansila was cut with a bush knife at the back of her neck. Rose Alir received severe and serious injuries from being hit with a piece of plank on the head and around the ear. Thelma Ansila was cut with a bush knife at the back of her neck. The three victims were admitted for treatment at Vunapope Hospital.

8. The fight also led to a house belonging to Peter Tanel set on fire and was completely destroyed, and a house each owned by Julius Anton and Thomas Tue were damaged and other properties alleged in the indictment were destroyed.

Allocutus

9. When the Court administered the allocates of each defendant pursuant to s593 of the Criminal Code Act which was carefully explained to them, they said that their lawyer will speak on their behalf later.

Antecedents

10. Mr Kuvi for State tendered the defendant’s antecedents which included what I have set out below.

(i) Background - Matthew Balu:

- Born at Vunapope General Hospital, date of birth not known.

- Defendant comes from Bitagalip village.

- Baptized Catholic Church member

- Attended Kabaleo Primary School, completed Grade 8 in 1998.

- Attended Raval Vocational Centre in 2001and obtained a certificate in plumbing.

- Was never employed up to the time he committed the offences.

- Married to Marang Balu and has three children from 1 to 3years old.

(ii) Background - Bernard Kavanamur Balu:

- Born in 1965 (about 46 years old) at Vunapope General Hospital.

- Baptized and attends Catholic Church Congregation at Raburbur village.

- Attended Vunavavar Primary School.

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