The State v Benjamin Makile

• Jurisdiction: Papua New Guinea
• Judge: Anis AJ
• Judgment Date: 19 April 2016
• Citation: (2016) N6251
• Court: National Court
• Year: 2016
• Judgement Number: N6251

Full : CR No. 345 of 2016; The State v Benjamin Makile (2016) N6251

National Court: Anis AJ

Judgment Delivered: 19 April 2016

N6251

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 345 OF 2016

THE STATE

V

BENJAMIN MAKILE

Kokopo: Anis AJ

2016: 21 March & 19 April

CRIMINAL LAW: Sentence - accused pleaded guilty to unlawful wounding under s.322(1)(a) of the Criminal Code - Considering law regarding use of court deposition when sentencing - 18 months starting point applied - custodial sentenced imposed

Facts:

The prisoner swung a bush knife several times at the victim. The victim used his left arm to block off the swings. The victim sustained injuries to various parts of his left arm. The victim lost blood, fell unconscious and was rushed to a clinic for treatment. The prisoner pleaded guilty to the offence of unlawful wounding.

Held:

1. In regard to evidence contained in a court deposition on a plea matter, unless:

(i) it is successfully objected to; or

(ii) it is contentious; or

(iii) it raises/contain facts outside those facts which the prisoner has admitted to at plea; or

(iv) it contains new allegation of an offence(s) against the prisoner regardless of whether it relates to the offence the prisoner has admitted to; or

(v) there is an existing arrangement between the parties that is tied to the prisoner's plea which may require consideration,

It may be available to the Court and the Court may use it to determine sentence after the court deposition is tendered by the prosecution.

Cases followed: Public Prosecutor v. Tom Ake [1978] PNGLR 469; Saperus Yalibakut v. State (2006) SC 890; Joe Nawa v The State (2007) SC1148; State v. Peter Yawoma (2001) N2032.

2. The injuries sustained by the victim were serious and life threatening.

3. The prisoner showed less remorse to the victim and for his actions.

4. The prisoner is sentenced to a total of 2 years imprisonment. He will serve the first year in custody. His second year shall be suspended after he serves his first year in custody in full. The suspension of the second year imprisonment is granted on the basis that the prisoner shall remain on good behaviour bond on his own recognizance for one year. During the suspended sentence period, the prisoner shall not consume alcohol or use abusive language in public or in private. If the prisoner is found to breach the terms imposed with his suspended sentence and if called on, he shall appear and receive judgment in respect of his service of the portion of the sentence.

Cases Cited:

(i) Joe Nawa v The State (2007) SC1148

(ii) Public Prosecutor v. Tom Ake [1978] PNGLR 469

(iii) Saperus Yalibakut v. State (2006) SC890

(iv) State v. Aine Petrus (2011) N4257

(v) State v. Arnold Ongkau (2007) N5488

(vi) State v. Jackam Lubiala (2014) N5779

(vii) State v. Joseph Ping (2001) N2169

(viii) State v. Owen Sangu (2008) N3950

(ix) State v. Peias Pangi (2014) N5587

(x) State v. Peter Yawoma (2001) N2032

(xi) State v. Philip Lekis (2007) N5029

Counsels:

Ms T. Aihi, for the State

Mr P. Kaluwin, for the Prisoner

SENTENCE

19th April, 2016

1. ANIS AJ: The trial commenced on 21 March 2016. The prisoner was charged with unlawful wounding under section 322(1)(a) of the Criminal Code Act Chapter No 262 (Criminal Code).

2. The prisoner pleaded guilty and I entered a provisional guilty plea.

3. The defence counsel confirmed shortly afterwards that the plea was consistent with his instructions.

4. Following that, I proceeded to and perused the court deposition, which the prosecution had tendered with leave of this Court. I was satisfied that the evidence contained in the court deposition was sufficient to sustain the charge of unlawful wounding.

5. I confirmed the prisoner's guilty plea and convicted the prisoner for the offence of unlawful wounding under section 322(1) (a) of the Criminal Code.

6. The prosecution tendered the Antecedent Report.

7. The Court administered allocatus to the prisoner. Following that, the defence and prosecution presented their submissions on sentence.

8. I reserved my ruling. The defence applied orally immediately after under section 10 of the Bail Act Chapter No. 340, for grant of bail for the prisoner. The prosecution did not object to the application. I granted bail to the prisoner for the duration of the pending decision on sentence.

9. This is my ruling.

Brief facts

10. I restate the facts as presented by the prosecution:

The accused on the 20th of March 2015, between 11:00pm to 12:00 midnight was at the residence of the complainant at Wairiki No. 2 village in Toma.

At that time he was under the influence of alcohol and used insulting words at the people present at the complainant's residence and others who came into the residence.

The complainant told the accused to stop. The accused was not happy and had a fight with the complainant. During the fight the accused's son came and punched the victim's face and he fell.

After a few minutes the complainant got up and drove his employer's vehicle to another place for safe keeping. He then walked back to his residence with one Pastor Benson Tomar.

At the complainant's residence, the accused came back and swung a bush knife at him. The complainant blocked the bush knife with his left arm and the bush knife cut the complainant's arm several times. The accused tried to continue but he was stopped by others.

The complainant received injuries to his arm that resulted in blood loss. He was unconscious and rushed to Paparatava Health Centre for medical treatment.

The actions of the accused contravened Section 322(1) (a) of the Criminal Code Act 1974.

11. Based on a medical report dated 24 March 2015 of OLSH Health Centre at Paparatava (medical report), which was tendered in the Court deposition, the complainant suffered these injuries:

(i) Swollen (black) eye;

(ii) Lacerations to the left arm:-

(a) Medial side upper arm cut measured at 8cm;

(b) Forearm laceration medial surface measured at 3.5cm;

(c) Abrasion medial surface (superficial) measured at 8 x 5cm.

(iii) Lacerations to the left hand/palm surface:-

(a) Base of thumb at 3.5cm;

(b) Index finger at 4cm;

(c) Base of 2nd index finger at 3cm;

(d) Lateral palm into wrist at 3.5 cm.

12. The report concluded with a note that there was no nerve or tendon injury.

Issues

13. The issues are:

(i) Can the Court consider court depositions tendered by consent of parties in plea matters to determine fitting punishment for prisoners, and if so, to what extent?

(ii) What would be the fitting punishment for the prisoner?

Criminal history

14. I turn to the Antecedent Reported tendered by the prosecution.

15. The prisoner has no prior convictions.

Personal details

16. The prisoner is 47 years old. He is from Wairiki village (Toma), Gazelle District of East New Britain Province. The prisoner completed primary education up to grade 6, which is his only educational qualification attained. He once worked as a chainsaw operator for 2 years but now lives and works as a subsistence farmer. He lives in his village, which is his permanent home.

17. The prisoner is married and has 5 children. The youngest is 15 years old. The Antecedent Report says he lives with and supports his wife and children.

18. The report did not give details of the age of the prisoner's other children but it is safe to assume that some may be 18 years old or over.

Allocatus

19. The prisoner gave a short statement and I summarise that here:

(i) he said he was sorry to the Court for the offence he committed; and

(ii) he said he was sorry to the victim calling him a brother.

20. At the end of his speech, the prisoner stated that he would not have cut the complainant if the complainant had not provoked him.

21. When he finished, I raised the issue of provocation with the defence counsel. Counsel clarified that what the prisoner meant was provocation in a non-legal sense.

Defence's submission on sentence

22. The defence submitted that (summary):

(i) the prisoner was a first time offender;

(ii) the prisoner pleaded guilty to the offence and thus saved the Court's time;

(iii) since the prisoner confessed right from the start and during the record of interview, more weight should be given in his favour;

(iv) there was provocation in the non-legal sense;

(v) the injuries sustained by the complainant were serious but not life threatening;

(vi) the fact that the prisoner was a blood relative of the complainant should be considered favourably in the prisoner's favour;

(vii) the normal sentence for offence such as this would be suspended sentence with imposed conditions;

(viii) a suspended sentence of 18 months with imposed conditions should be applied.

23. The defence did not give comparative verdicts or cite case law to support its submission.

Prosecution's submission on sentence

24. The prosecution submitted that (summary):

(i) the maximum penalty for the offence was 3 years which it said would...