The State v Elizah Ute (2004) N2550

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 29 April 2004
• Citation: (2004) N2550
• Court: National Court
• Year: 2004
• Judgement Number: N2550

Full Title: The State v Elizah Ute (2004) N2550

National Court: Kandakasi J

Judgment Delivered: 29 April 2004

1 CRIMINAL LAW—Sentence—Attempted murder—Use of a licensed firearm by member of a disciplined force with intend to kill—Provocation in non legal sense—Victim then acting officer of vital service institution for the community—Victim's service withdrawn following incident—Guilty plea by first time offender—Pleas of danger in prison and family welfare—Factors in aggravation outweighing those in mitigation—Sentence of 25 years imposed.

2 Public Prosecutor v Don Hale (1998) SC564, The State v Rex Lialu [1988–89] PNGLR 449, Joe Foe Leslie Leslie v The State (1998) SC560, Peter Naibiri and Kutoi Soti Apia v The State (1978) SC137, Ure Hane v The State [1984] PNGLR 105, 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, The State v Louise Paraka (2002) N2317, Anna Max Marangi v The State (2002) SC702, Sakarowa Koe v The State (2004) SC739, The State v Lucas Yovura (2003) N2366 referred to

Decision on Sentence

___________________________

N2550

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 259 of 2004

THE STATE

-V-

ELIZAH UTE

POPONDETTA: KANDAKASI, J.

2004: 15th and 29th April

DECISION ON SENTENCE

CRIMINAL LAW - Sentence – Attempted murder - Use of a licensed firearm by member of a disciplined force with intend to kill – Provocation in non legal sense – Victim then acting officer of vital service institution for the community – Victim’s service withdrawn following incident – Guilty plea by first time offender – Pleas of danger in prison and family welfare - Factors in aggravation outweighing those in mitigation – Sentence of 25 years imposed.

Cases cited:

Acting Public Prosecutor v. Don Hale (27/08/98) SC564.

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

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

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

Ure Hane v. The State [1984] PNGLR 105.

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

The State v. Paul Yepei (No.2). (Unreported and yet to be numbered CR No. 97 of 1998, delivered on 26th March 2004).

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

The State v. Ennie Mathew Ors (Unreported and yet to be numbered judgment delivered on 29/10/03, CR 1089 of 2002 & Ors).

The State v. Louise Paraka (Unreported judgment delivered on 24/01/02) N2317.

Anna Max Marangi v. The State (08/11/02) SC702 as modified by the recent Supreme Court judgment in The State v. Sakarowa Kewa (Unreported judgment delivered on 01/04/04) SC .

The State v. Lucas Yovura (unreported and judgment delivered 29/04/03) N2366.

Counsels:

P. Kaluwin for the State

P. Kumo for the Prisoner

29th April 2004.

KANDAKASI J: You pleaded guilty to one charge of attempting to murder a Keisi Kiri on 26th September 2003, at Saiho, here in the Oro Province. On being satisfied that the evidence in the committal deposition, admitted evidence with your consent, supported your guilty plea, I confirmed your guilty plea and had you convicted of the charge.

Relevant Facts

The facts giving rise to the charge and your guilty plea are as were put to you during arraignment and as set out in the committal depositions. That starts with going to the house of the then acting officer in charge of the Saiho Health Centre, a Keisi Kiri during the night of 26th September 2003. You went armed with a shotgun, licensed to you. Upon arrival at the victim’s house, you told the victim that, you had gone there to kill him because he had disturbed you, loading and cocking your gun as you spoke to him. That was over a removal of two electrical line supporting poles by your boys. The victim tried to reason with you by pointing out that the poles belonged to the State and invited you to sit on a chair at the veranda of his house to reason it out with you.

You refused to reason with the victim and take the invitation to sit down. You then pointed the loaded gun at him and said to him “Fucking say your last prayers and I’ll blow your head off now”. You repeated this three times and a fourth time with the question, “Have you finished your prayer.” You then took a step back from where you were, got your balance, took aim at the victim and shot at him. Miraculously, the bullet you fired from your gun missed the victim by a fraction of an inch. The impact of your shot however caused the victim fall to the floor covered in gunpowder from the shot you fired. The pallets from the bullet penetrated through the wall of his house and almost killed one of the victim’s family members. You then left the scene without saying a word thinking you had killed him.

This was not the first time you used your gun in such an illegal pursuit. You did use the gun to threaten the staff of the Health Centre over your wife’s medical treatment. That was in 2001, when a female staff of the Health Centre got on your wife for not being faithful to her medication even though she lived much closer to the Health Centre. You confronted the female stuff after getting drunk and discharged a live bullet from your gun. On your undertaking on the Bible not to repeat your actions, the police decided not to charge you. Notwithstanding your promise, you repeated your actions, getting drunk and using your gun to threaten staff of the Heath Centre on subsequent occasion and before the incident you are now in Court for. These events changed an otherwise prior very good relationship between you and the staff of the Heath Centre in which you helped them and they helped you in return.

Address on Sentence

After your guilty plea and eventual conviction, I administered your right to address the Court on the kind of sentence you should receive and you did address the Court. You said sorry to the State, the Court and the victim and his family. You also said you acted under frustration and because the victim blocked your house from receiving electricity supply from the Heath Centre from a generator donated by Mr. Skate who said the nearby community should receive such services. At that time, and prior to the commission of the offence, you had very good relations with the victim and the staff of the Health Centre. You provided them land for them to make gardens. You then asked for a lenient sentence, as a custodial sentence would be too risky for you, given the roles you played as an officer with the Correction Service over a number of years as a parole officer.

You then tried to admit into evidence an affidavit. You did not serve the State and your lawyer with a copy of that affidavit. I therefore asked you to provide them with a copy and directed your lawyer to seek your instruction and decide what to do as the State’s quick perusal of the affidavit revealed that you were saying things contrary to the guilty plea. The Court thus adjourned for a short while for you to instruct your lawyer. On resumption, you decided not to admit the affidavit, allowed the proceedings to continue, and concluded your address by asking for an order for compensation or non-custodial sentence.

Your lawyer reiterated most of what you said and added that, you come from the Awala village here in the Oro Province. You lived in your village which is next to the Heath Centre. The land on which the Health Centre is on was originally yours and that you have organized the community to clean the Health Centre and look after it. In terms of education, you have been up to grade 10. You then joined the Correction Service were since then based at Biru Correction Services. You have two wives and have 5 children out of these marriages. You have been remanded in custody since 1st October 2003 and since then, removed from the payroll.

Whilst appreciating that this a serious offence committed with the use of a firearm by a member of one of the discipline forces, your lawyer urged the Court to give you a lenient sentence. In so doing, he pointed to your guilty plea, you are a first time offender, you lost a good paying job and that no physical injuries resulted from your unlawful discharge of the firearm. He then asked the Court to impose a sentence of five (5) years.

The State through, its counsel, Mr. Kaluwin, on the other hand drew the Court’s attention to the Supreme...