The State v Kapaka Roga Roga Rogoti Kini Roga & Alex Roga (2012) N4804

• Jurisdiction: Papua New Guinea
• Judge: Gauli AJ
• Judgment Date: 16 August 2012
• Court: National Court
• Citation: (2012) N4804
• Docket Number: CR. 1209—1212 OF 2009
• Year: 2012
• Judgement Number: N4804

Full Title: CR. 1209—1212 OF 2009; The State v Kapaka Roga Roga Rogoti Kini Roga & Alex Roga (2012) N4804

National Court: Gauli AJ

Judgment Delivered: 16 August 2012

N4804

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. 1209 – 1212 OF 2009

THE STATE

V

KAPAKA ROGA

ROGA ROGOTI

KINI ROGA &

ALEX ROGA

Bomana: Gauli AJ.

2012: 15 & 16 August

CRIMINAL LAW – Sentence – Plea - Guilty – Causing grievous bodily harm – Criminal Code, Section 315 – Used offensive weapons – Group attack – At the victim’s home village – Multiple wounds to the head, left hand and Back – Completely severed left thumb – Sentence be above sentence on GBH under Section 319 of the Code – No prior criminal records – Prevalent offence – Sentences imposed 8, 7,& 4 years respectively – Sentence partly suspended

Cases Cited:

The State v. Manga Kinjip [1971] PNGLR 86

Wui Wapiv Ludwick Kembu [1980] PNGLR 7

Manu Kovi v The State (2005) SC789

Public Prosecutor v Tome Ake [1978] PNGLR 469

Saperus Yalibakut v The State (2006) SC 890

The State v. Attiok Ishmael (2001) N2294

The State v. Toluana [2011] PGNC 138

The State v. Pepa [2010] PGNC 148

Goli Golu v The State [1978] PNGLR 653

Avia Aihi (No.2) v The State [1982] PNGLR 92

Ure Hane v The State [1984] PNGLR 105

R v. Meauri [1969 – 1970] PNGLR 254

Counsel

Mr. S. Collins, for the State

Mr. Kombri, for the Prisoner

SENTENCE

16 August, 2012

1. GAULI AJ: The four accused were originally charged for attempted murder under Section 304 of the Criminal Code. They pleaded not guilty to the charge and the voir dire trial ensued. After the ruling on voir dire in favour of the State, the trial proper commenced where the State called the first two witnesses. The accused, through their lawyer, have decided to change their plea of not guilty to a plea of guilty to a lesser charge of unlawfully causing grievous bodily harm, under Section 315 of the Criminal Code. The State has no objection since the grievous bodily charge was an alternative charge laid in the indictment to the attempted murder. And the State informed the court that the State was withdrawing the charge of attempted murder. The charge of attempted murder was then withdrawn.

2. The charge of causing grievous bodily harm was read to all the accused and they all pleaded guilty saying: “It is true”. The defence counsel confirmed that the pleadings were consistent with their instruction and I entered a plea of guilty provisionally.

3. State tendered the depositions. I read the depositions and I was satisfied that it is safe to accept the plea of guilty by all the four accused. It is trite law that a Judge should only accept the plea of guilty if it is made in plain unambiguous and unmistakable terms: see The State v. Manga Kinjip [1976] PNGLR 86. And it is necessary that the defendant pleads unequivocally and admits to every element of the charge: see Wui Wapi v Ludwick Kembu [1980] PNGLR 7.

THE LAW

4. Section 315 of the Criminal Code Act prescribes Acts intended to cause grievous bodily harm.

Section 315

“A person who – with intent

(a) ....

(b) to do some grievous bodily harm to any person;

(c) ......

does any of the following things is guilty of a crime: -

(d) unlawfully wounding or doing a grievous bodily harm to a person;

Penalty: Subject to Section 19, imprisonment for life”.

BRIEF FACTS

5. The accused Roga Rogoti and his three sons Kapaka, Kini and Alex Roga are from Kwaipo village of Kwikila, Central Province. On the 26th of April 2009, the accused Roga Rogosi and his three sons armed with bush knives and a factory made shotgun, entered Kore village in the morning. Roga Rogosi argued with the Mala family over a portion of land on which the accused had settled. At that time, the accused Kini Roga armed with a bush knife attacked Jonathan Mala, one of the members of the Mala family. They both fell to the ground with the accused Kini Roga sitting on top of Jonathan. The accused Kini Roga tried to stab Jonathan with the bush knife. On seeing that, Maka Mala intervened to assist Jonathan. The accused Kini Roga then swung his bush knife and cut Maka Mala on his left arm just above the elbow. He swung his bush knife the second time and Maka Mala raised his left hand to block of the knife and he was cut on his left thumb and on the head just above the left eyebrow.

6. The co-accused Kapaka Roga, Alex Roga and their father Roga Rogoti joined in the fight. Alex Roga hit Maka Mala on the head with a stone then he swung his bush knife and cut the victim on the head. The accused Kapaka Roga swung his bush knife and cut the victim on the back of his head. And the accused Roga Rogoti, their father, sliced the victim with a bush knife and inflicted two injuries on his back. The victim Maka Mala sustained serious multiple wounds to his body namely on his left arm, the forehead, the back of his head and on the back. The co-accused Kapaka Roga ran back to their relative Kopi Govena’s house, got a shot gun and he threatened to shoot the members of the Mala family. The Mala family took cover and the accused left. The victim Maka Mala was later taken to Kwikila hospital in the evening that day. His left thumb was amputated at the hospital. He will now without his left thumb for the rest of his life.

7. The accused Kini Roga is the principle offender under Section 7 (1) of the Criminal Code. His blow severed the victim’s left thumb. He intended to cause grievous bodily harm to the victim Maka Mala. The three co-accused Kapaka, Alex and Roga Rogoti assisted the accused Kini Roga and they all inflicted injuries to the victim. They are also principle offenders or as accessories under Section 8 of the Criminal Code Act.

A NTECEDENT REPORT

8. Each of the accused have no prior criminal records.

PERSONAL PARTICULARS

9. The personal particulars and the back grounds of the accused are as follows:

Kapaka Roga: He is 43 years old. He is the member of the Christian Revival Centre faith. He was educated up to primary school level. He has no formal employment. He is a villager.

Roga Rogoti: He is 63 years old, married with 8 children and 25 grandchildren. He is a villager. He is the member of the United Church faith.

Kini Roga: He is aged 41, married with 3 children, educated up to grade one (1) and he is the member of the United Church faith and a villager.

Alex Roga: Age 29, married with 3 children, was educated up to Grade 10 at Kwikila High School. He is a villager. He is the member of the Christian Revival Centre faith.

ALLOCUTUS:

10. On allocutus each of the accused said the following:

Kapaka Roga -“I have a lot of children. I ask if the court could sympathise on me. That is all”.

Roga Rogoti - “I ask the court if I and my children be assisted”.

Kini Roga - “I have young children. I ask the court if the court could give me a chance”.

Alex Roga - I ask if the court could have mercy on me and my family and my future. I have three young children to look after”.

11. None of the accused specifically expressed remorse. However their change of plea from not guilty to guilty is taken as their remorse.

MITIGATING FACTORS

12. The accused pleaded guilty to the charge. They have no prior criminal records. Their change of plea of not guilty to guilty saved both time and cost of running a trial. I give them some recognizance for pleading guilty to a very serious offence.

AGGRAVATING FACTORS

13. The accused used offensive weapons namely bush knives. It was a group attack on the victim. The victim sustained multiple wounds to his body. He has permanently lost the use of his left thumb. The accused walked from their settlement to the victim’s village and inflicted the injuries on the victim. The co-accused Kakapa Roga used a shotgun and threatened the victim’s family and relatives by pointing the gun at them.

DEFENCE SUBMISSIONS

14. The defence counsel submitted that in considering what would be the appropriate sentence to be imposed, it is in the discretion of the court in considering as to the availability of the mitigating and aggravating factors and what weight should be given to them, as per Manu Kovi v. The State (2005) SC789. There is only one mitigating factor and that is that the co-accused Roga Rogoti being very old man.

15. The defence counsel submitted that if the court is of the view that there are any express or implied doubts by the prisoners in the allocutus, confessional statements and the record of interview, the benefit should be accorded to the prisoners. The counsel relied on the doctrine of “most favourable versions of fact” as per the decision of the Supreme Court in the Public Prosecutor v. Tom Ake [1978] PNGLR 469, which is re-affirmed in Saperus Yalibakut v. The State (2006) SC 890, where the Supreme Court said:

“If there are significant issues of facts arising from the depositions or the allocutus that were not in the summary of the facts to which the accused pleaded guilty, the court should generally act on the version of the facts, which, within the bounds of possibility, is most favourable to the accused....”

16. In...