The State v Makis Lunge Kraningi (2005) N2934

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 26 September 2005
• Citation: (2005) N2934
• Docket Number: CR No 1481 of 2005
• Court: National Court
• Year: 2005
• Judgement Number: N2934

Full Title: CR No 1481 of 2005; The State v Makis Lunge Kraningi (2005) N2934

National Court: Kandakasi J

Judgment Delivered: 26 September 2005

N2934

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1481 of 2005

THE STATE

-V-

MAKIS LUNGE KRANINGI

WEWAK: KANDAKASI, J.

2005: 22nd and 26th September

CRIMINAL LAW — Sentence – Grievous bodily harm without intent – Scuffle with auxiliary policemen in course of their duty – Accused first to throw punches – Victim retaliating – Accused then using piece of stick to assault auxiliary policeman – Both accused and victim sustaining personal injuries – Provocation in the non-legal sense – Guilty plea – First time offender – 5 years custodial sentence imposed.

Cases cited:

The State v. David Saun (02/05/03) N2409.

The State v. Abel Airi (28/11/00) N2007.

The State v. Isaac Wapuri [1994] PNGLR 271.

The State v. Rueben Irowen (24/05/02) N2239.

The State v. Henry Idab (17/12/01) N2172.

The State v. Vincent Simbango ( CR 438 of 1999).

The State v. Kerowa Kana, (16/08/03) N2376.

The State v. Peter Malihombu (29/04/03) N2365.

The State v. Cosmos Kutau Kitawal & Christopher Kutau (No 1) (15/0502) N2266.

The State v. Vincent Naiwa (22/06/04) N2710.

The State v. Bob Wali (11/06/04) N2580.

Counsels:

Mr. A. Kupmain for the State.

Mr. J. Mesa for the Prisoner.

DECISION ON SENTENCE

26th September 2005

KANDAKASI J: You pleaded guilty to one charge of causing grievous bodily harm to another person, namely, Jehu Nahau, an auxiliary policeman (victim) at Ambukanja Village, Yangoru, East Sepik Province on 21st March 2005. Upon being satisfied that there was sufficient evidence supporting your guilty plea, I accepted your guilty plea and had you convicted of the charge. That came about after I raised with your counsel a disclosure of a possible defence of provocation.

Relevant Facts

The relevant facts are straightforward. On Monday 21st March 2005 around 10:00am, at Ambukanja Village, the victim, with two of his fellow auxiliary policemen went looking for signs of marijuana plants and cultivation in the area. They went passed your house and then to a trade store where they bought a packet of biscuits and as they were trying to buy some more, you confronted them. You effectively asked them as to where they were coming from, what right did they have to do what they did, what kind of college they have been and what kind of education they received and then threatened them saying, if you went to prison, one of them will die on your return from prison. The victim responded with a challenge for you to stand in front of the village and make your point.

Thereafter, you approached the victim and his colleagues, started to push the victim, and threw punches at him. You hit the victim on his chest twice. The victim responded by punching you to the ground. When you got up, he punched you again to the ground. He repeated this a third time after which, you got a piece of stick and hit the victim on the head causing him to fall on the ground unconscious.

The victim was taken to the Yangoru Health Centre and from there to the Wewak General Hospital at Boram, where he had 9 days of hospital admission, and received appropriate medical treatment. The hospital discharged him with a prognosis that he recovered with no residual disability.

There is a medical report from the Wewak General Hospital dated 6th April 2005. It states that, the victim was admitted with a bruised, painful and swollen cheek. An X ray revealed a fractured zygomatic bone. He complained of an inability open his jaw or mouth fully. A dental examination did not reveal any abnormality.

You produced evidence, and the State accepts that you also sustained injuries to you fingers. You received medical treatment for those injuries. The evidence does not go further to suggest that you suffer from any residual disability. Other evidence you produced establishes that you paid customary compensation of K500.00 in cash and a further K500 worth of shell money, which the victim refused to accept.

Allocatus and Submissions

In your address on sentence, you asked the Court to note that this is your first time to be in Court and convicted of an offence. You also asked the Court’s exercise mercy toward you by placing you on probation or on good behaviour bond.

Your lawyer then made submissions on your behalf. He asked the Court to note your guilty plea, you being a first time offender and that you acted in a situation where there was defacto provocation. He then drew the Court’s attention to my judgment in the case of The State v. David Saun,

1 (02/05/03) N2409.

1 where I imposed a wholly suspended three years sentence. The States, lawyer, highlighted the factors operating against you and agreed with your lawyer’s submission in relation to the appropriate sentence

The Offence and Sentencing Trend

You have been charged under s. 319 of the Criminal Code. That section creates the offence of grievous bodily harm and directs that anyone who does such harm to another must be punished by imprisoned to a term not exceeding 7 years. A number of judgments have already dealt with the offence under this section before imposing a variety of sentences. This, I believe has been the case because as I said in The State v. Abel Airi,

2 (28/11/00) N2007.

2 the exercising of the sentencing discretion in a sentencing judge is not a matter of mathematics. Instead, it requires an exercise of judicial discretion in such a way to do justice in the circumstances of a particular case because of which there might well be differences of sentences.

In the case of The State v. David Saun,

3 Opt Cit. note 1.

3 I reviewed the various cases on grievous bodily harm. That started with the judgment in The State v. Isaac Wapuri,

4 [1994] PNGLR 271.

4 where a sentence of 18 months in hard labour with 5 months deducted on account of time spent in custody was given. The balance of the sentence was suspended on condition of good behaviour bond and compensation of K500 cash and pigs to the value of K800 in accordance with the victim and the offender’s custom.

That was a case in which the prisoner hit his sister-in-law with a vehicle hand brake cable on one of her eyes resulting in a 90% residual disability. This was supposedly after the victim failed to get the prisoner to have sexual intercourse with him and she scattered all of his clothes all over the place. The prisoner thought that was in retaliation for his refusal and so he reacted in the way he did.

My review of the cases ended with my own judgments in the more serious case of grievous bodily harm in The State v. Rueben Irowen

5 (24/05/02) N2239.

5 and The State v. Henry Idab.

6 (17/12/01) N2172.

6 In former case, the prisoner caused his two wives (victims) to strip down naked and caused serious bodily harm to them. That included the use of a bush knife to inflict serious cuts to their bodies resulting in the loss of a lot of blood rendering both of them unconscious. They had to run out of the house naked for help. If it were not for their running out and the help of third parties, they could have died. The prisoner was given the maximum prescribed sentence of 7 years each for the harm he had occasioned to the victims to be served cumulatively.

In the later case, a group of men attacked another group mistakenly taken to be the ones responsible for verbally assaulting one of the attacking group member’s mother. The group that was attacked included a village court magistrate. He was the victim of the attack. He suffered serious bush knife wound injuries to both of his hands, resulting in an estimated 85% loss of efficient use of his hands and restricted to only light work.

I imposed a sentence of 5 years, part of which was suspended on strict terms including community work. At the discretion of the village court magistrate, I left room in the judgment for the prisoner to render services free of charge to his victim.

At the end of that review and after taking into account the particular circumstances in which the prisoner committed the offence in The State v. David Saun, I imposed a sentence of 3 years wholly suspended on strict conditions as an alternative to imprisonment. I was persuaded to arrive at that sentence because the facts disclosed a possible case of acting in self-defence but the prisoner chose not to take that up. Instead, he chose to proceed to a plea of guilty. I also noted that he paid compensation and was prepared to pay additional compensation if the Court so ordered. Accordingly, I found that he expressed genuine remorse in Court. Further, I noted that he had no prior record of any conviction or being a violent man. Furthermore, a pre-sentence report,...