The State v John Snake Stalus

• Jurisdiction: Papua New Guinea
• Judge: Liosi AJ
• Judgment Date: 29 August 2017
• Citation: (2017) N6927
• Court: National Court
• Year: 2017
• Judgement Number: N6927

Full : CR No 514 of 2013; The State v John Snake Stalus (2017) N6927

National Court: Liosi AJ

Judgment Delivered: 29 August 2017

N6927

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 514 OF 2013

THE STATE

V

JOHN SNAKE STALUS

Kundiawa: Liosi AJ

2017: 20th April & 29th August

CRIMINAL LAW – Sentence – 2 Counts of Grievous bodily harm – S.319 of the Criminal Code – Guilty Plea – No prior convictions – Plea of family suffering if custodial sentence imposed rejected as this is a natural consequence of committing the offence in the first place – Pre-Sentence Report recommended non-custodial sentence not followed in view of the seriousness of injuries inflicted.

Case Cited:

Goli Golu v. Bubura (2004) PGNC 194; N2577

State v. Lucas Yovura N2366

The State v. Irox Winston N2347

The State v. James Gurove N2020

The State v. Raphael Kimpa Aki (No.6) N2082

The State v. Attiock Ishmael N2294

The State v. James Gurave Guba N2020

The Acting Public Prosecutor v. Haha (1981) PNGLR 85

The State v. Winston (2003) N2347

Counsels:

Mr. Emmanuel Thomas, for the State

Mr. M. Yawip, for the Defence

DECISION ON SENTENCE

29th August, 2017

1. LIOSI AJ: The Accused is charged for two counts.

Charges

Count 1:

The accused is charged that he on the 30th day of June 2012 at Gondmakane Village Gembogl in Papua New Guinea unlawfully did Grievous bodily harm to one Melchior Meremba contrary to s. 319 of the Criminal Code.

Count 2:

And also the said John Snake Stalus is further charged that he on the 30th June 2012 at Gondmakane village, Gembogl in Papua New Guinea unlawfully did Grievous bodily harm to one Kawage Meremba contrary to s.319 for the Criminal Code.

Facts for Arraignment:

2. The accused and the two victims are all from Gondmakane village in Gembogl District, Simbu Province. Few years prior to the incident, there were two disputes and confrontations between 2 victim’s relatives and the accused’s relatives. On 30th June 2012 about 4 pm the fight erupted again.

Plea

3. The prisoner pleaded guilty to the 2 counts of Grievous bodily harm pursuant to s.319 of the Criminal Code.

Allocatus

4. On allocatus the offender said, “in the eyes of the Court and God I say sorry. I will not repeat. On the question of penalty, I am thinking of compensation. I have my wife and children and my mum and dad to worry about. I am unable to settle down properly in the village. I have to stay with them and I look after them. Whatever penalty, I want to pay compensation.”

Defence Submission

5. The offender has pleaded guilty to 2 count of Grievous bodily harm against Melchior and Kawage Meremba and the offence was committed at the same time. He is from Gondmakane Village and was educated up to Grade 6. He is married with 2 wives. He has two children from his first wife. The first child graduated from Chuave Secondary School in 2016 after completing Grade 12 at same school. From the second wife he has three other children at Community School.

6. The cause of problem is the land dispute. At the time of the incident he was assaulted and outnumbered by the victims so he resorted to use of a bushknife slashing the 2 victims. There is the issue of possible self-defence but the manner of assault does not help the offender. There was provocation in a non-legal sense but the force applied was disproportionate so he pleaded guilty.

7. The maximum penalty under s. 319 of the Criminal Code is 7 years subject to s. 19 of the Criminal Code. He submits this is not the worst case in its category. The two counts of Grievous bodily harm were also committed simultaneously. Consequently whatever sentences imposed should be served concurrently and not cumulatively. The offender also pleaded guilty which has saved a lot of courts time. He has no prior convictions and has expressed remorse in his allocatus. He has been in custody for 10 months.

8. In the Pre-Sentence Report the village court magistrate’s report must be considered as the offender acted in self-defence when he was attacked by the victims with a much more dangerous weapon namely a gun. He said the offender was alone when he was attacked by the victim and his supporters and would have been killed as he was outnumbered.

9. He submits in the circumstances a 3 year sentence for each count to be served concurrently is an appropriate penalty.

State Submission

10. The State submits the following. It notes the mitigating factors and the concerns raised by the village court magistrate. However he says there are also aggravating factors. There are two victims herein and the injuries were inflicted to vulnerable parts of the body which included multiple wounds to the head, hands and legs to the victims. The injuries were serious which indicated a strong intention to do Grievous bodily harm by looking at the wounds to where they were inflicted. Finally there has been no reconciliation at all.

11. On the issue of concurrent/cumulative sentencing, he cites the case of The State v. Irox Winston N2347. He submits it is a discretionary matter. The issue of whether a sentence should be concurrent or cumulative is governed by the following principles.

(a) 1 transaction rule

(b) Where the offences are so different

(c) The totality rule

(d)

Because there are 2 victims herein, he submits that a cumulative sentence
is appropriate and not a concurrent sentence.

12. The Pre-Sentence Report states that the offender cannot pay compensation as the offender has no capacity to pay. A short sharp sentence should assist the situation. He submits a sentence of 4–6 years should be appropriate in the circumstance for each count.

13. The maximum penalty under s.319 of the Criminal Code is 7 years subject to s.19 of the Criminal Code which allows the court to impose a lesser sentence. It is trite law that the maximum penalty is reserved for the worst cases–Goli Golu v. The State (1979) PNGLR 653. I find that the case does not fall in the worst case category.

14. In mitigation, counsel pointed out the following factors. The offender has pleaded guilty, has no prior convictions and has expressed remorse in his allocatus. Counsel has also submitted that the Court seriously considers and note that the offender only retaliated after being outnumbered and attacked over dispute over land. The circumstances of the offence should be mitigating in themselves. The State on the other hand submits this is a serious assault as injuries were inflicted on vulnerable parts of the body with no reconciliation.

Sentence

15. The issue now is what the appropriate sentence should be bearing in mind the mitigating and aggravating factors, your personal and family background and circumstances under which the killing happened. I will also need to discuss your case in light of the past decided cases I have referred to.

16. The range of sentences in Grievous bodily harm cases depending on the circumstances ranges from 3 – 5 years. But to answer the above I will need to address the following subsidiary issues:-

(i) What are the relevant facts or the particular circumstances in which the offence was committed?

(ii) What is the nature of the offence the offender has been charged with and its relevant sentencing trend?

(iii) What are the factors in aggravation and mitigation of the offender?

(iv) After carefully considering all of the relevant factors, what should be the appropriate sentence?

(v) Whether the whole or any part of the sentence should be suspended and if so on what terms?

17. What are the circumstances under which the offence was committed? The offender and the victims are all from Gondmakane Village in the Gembogl District of Simbu Province. Prior to this incident there had been disputes and confrontations between the offenders and victims’ relatives. Then on 30th June 2012 the fight erupted again.

18. The facts in the first count were that the first victim Melchior Meremba been a leader and elder of both factions tried to intervene to stop the confrontation when you and another person attacked him with bushknives. You chopped him on his head, left mid-calf area and the left leg where he suffered serious life threatening injuries including a fractured skull.

19. In the second count Kawage Meremba the son of the first victim ran in to help his father when you used the same bushknife to attack him by chopping him on the head and the left forearm. The second victim suffered a fracture of the skull and a fractured bone in the left forearm. They were life threatening injuries.

20. Section 319 creates the offence of Grievous bodily harm and prescribes the maximum penalty of 7 years subject to s.19 of the Criminal Code. In the exercise of that discretion the Courts have imposed varying sentences with the trend being 3 – 5 years including total suspension upon conditions.

21. What are the mitigating factors in favour of the offender? Apart from other matters in the Pre-Sentence Report and allocatus, the...