The State v Matthew Balu & Bernard Kavanamur Balu (2011) N4362

• Jurisdiction: Papua New Guinea
• Judge: Maliku AJ
• Judgment Date: 03 August 2011
• Court: National Court
• Docket Number: CR. NO. 661 OF 2008, CR NO.300 OF 2010 & CR. NO. 261 OF 2011
• Citation: (2011) N4362
• Year: 2011
• Judgement Number: N4362

Full Title: CR. NO. 661 OF 2008, CR NO.300 OF 2010 & CR. NO. 261 OF 2011; The State v Matthew Balu & Bernard Kavanamur Balu (2011) N4362

National Court: Maliku AJ

Judgment Delivered: 3 August 2011

N4362

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 661 OF 2008,

CR NO.300 OF 2010

&

CR. NO. 261 OF 2011

THE STATE

V

MATTHEW BALU & BERNARD KAVANAMUR BALU

Kokopo: Maliku AJ

2011: .07th, 08th, 09th, 15th, 28th, July& 03rd August

.

CRIMINAL LAW - Attempted Murder – s. 304 - Arson – s 436

Wilful Damage- s 444

CRIMINAL LAW - Attempted murder – Sentence after a finding of guilty – sentencing principles – Matters for consideration- defendants first offenders - Arson – Sentencing after a finding of guilty – sentencing principles – Matters for consideration – defendants – first offenders - Wilful Damage – Sentencing after a finding of guilty – sentencing principles – Matters for consideration - defendants – first offenders -Whether worse type case – prescribed maximum penalties reserved for worse type case – Custodial Sentences Appropriate.

Cases cited:

Tremellan –v-The Queen [1973] PNGLR 116

Goli Golu-v- The State [1979] PNGLR 653

Acting Public Prosecutor-v- Kanis Haha [1981] PNGLR 205

The State-v- Sydney Kerua & Ors [1985] PNGLR 85

Gimble-v- The State [1988-89] PNGLR 271

Emil Kongian and 7ors- v- The State (2007) SC928

The State –v –Frank Johnston Murray William & Moses (2004) N2586

The State-v- James Wakis (2008) N3426

The State-v- Michael Waragu (2007) N3265

The State-v- Ipu Samuel Yomb [1992] PNGLR 26

Counsels:

Mr N. Miviri and Mr Kuvi, for the State

Mr N. Motuwe, for the defendants

SENTENCE

3rd August, 2011

1. MALIKU, AJ: The defendant Matthew Balu and Bernard Kavanamur

Balu were each and severally charged with seven counts contravening certain sections of the Criminal Code Act. I have set out each charge below: The State had also invoked Sections 7 and 8 of the Criminal Code Act.

(i) Charge One:

State alleges that defendant Matthew Balu and Bernard Kavanamur Balu each and severally wilfully and unlawfully set fire to a dwelling house belonging to Peter Tanel on the 24th February 2007 at Palnakaur village, Kokopo District, East New Britain Province, thereby contravening Section 436(a) of the Criminal Code Act

(ii) Charge Two:

State alleges that defendant Matthew Balu and Bernard Kavanamur Balu each and severally wilfully and unlawfully damaged water drums, cups, pots, fruit plants, betel nuts, cocoa plants and a dwelling house belonging to Julius Anton, Thomas Tue and others on the 24th February 2007 at Palnakaur village, Kokopo District, East New Britain Province, thereby contravening Section 444 of the Criminal Code Act.

(iii) Charge Three:

State alleges that defendant Matthew Balu and Bernard Kavanamur Balu each and severally unlawfully assaulted Julie Kavanamur on the 24th February 2007 at Palnakaur village, Kokopo District, East New Britain Province, thereby contravening section 335 of the Criminal Code Act.

(iv) Charge Four:

State alleges that defendant Matthew Balu and Bernard Kavanamur Balu each and severally had unlawfully assaulted Martin Tiniu on the 24th February 2007 at Palnakaur village, Kokopo District, East New Britain Province, thereby contravening Section 335 of the Criminal Code Act.

(v) Charge Five:

State alleges that defendant Matthew Balu and Bernard Kavanamur Balu each and severally attempted to unlawfully kill Collin Ilde on the 24th February 2007 at Palnakaur village, Kokopo District, East New Britain Province, there by contravening Section 304 of the Criminal Code Act.

(vi) Charge Six:

State alleges that defendant Matthew Balu and Bernard Kavanamur Balu each and severally attempted to unlawfully kill Rose Alir on the 24th February 2007 at Palnakaur village, Kokopo District, East New Britain Province, thereby contravening Section 304 of the Criminal Code Act.

(vii) Charge Seven:

State alleges that defendant Matthew Balu and Bernard Kavanamur Balu each and severally attempted to unlawfully kill Thelma Ansila Thomas Buluram on the 24th February 2007 at Palnakaur village, Kokopo District, East New Britain Province, thereby contravening Section 304 of the Criminal Code Act.

2. The defendants pleaded not guilty to the seven charges, however during

the trial and at the end of the prosecution case they were discharged from Charges 3 and 4 and were found guilty and convicted of Charges 1, 2, 5, 6 and 7 at the end of the trial.

Brief Fact

3. That on the 24th of February 2007 at Palnakaur village, Toma Area, East

New Britain Province the defendants each and severally took part in a fight with other perpetrators, namely Martin, Raymond and Albert Girar who are still at large and Peter Tanel and his relatives.

4. It was a retaliatory fight by the defendants and the perpetrators who are

still at large after Peter Tanel cut Martin - a perpetrator still at large with a bush knife in the early morning of Saturday the 24th of February 2007.

5. The cutting of Martin with a bush knife by Peter Tanel was a flow on

from a fight which took place on Saturday the 23rd of February 2007 after a bride price ceremony was over in which Peter Tanel was badly assaulted by drunken men which included Martin, Raymond, Albert Girar and the two defendants. Evidence also shows that a large amount of alcohol was consumed during the bride price ceremony.

6. The evidence shows that during the fight on the 24th of February the

defendants aided and abetted the other perpetrators by shouting “kilim ol” and “paitim ol” towards Peter Tanel and his relatives namely Collin Ilde Jerry, Rose Alir and Thelma Ansila, Julius Anton and Thomas Tue while running towards Thomas Tue’s house while being very angry and aggressive.

7. During the fight on Saturday the 24th of February Collin Ilde Jerry was

cut on her left hand with a bush knife, Thelma Ansila was cut with a bush knife at the back of her neck. Rose Alir received severe and serious injuries from being hit with a piece of plank on the head and around the ear. Thelma Ansila was cut with a bush knife at the back of her neck. The three victims were admitted for treatment at Vunapope Hospital.

8. The fight also led to a house belonging to Peter Tanel set on fire and was

completely destroyed, and a house each owned by Julius Anton and Thomas Tue were damaged and other properties alleged in the indictment were destroyed.

Allocutus

9. When the Court administered the allocates of each defendant pursuant to

section 593 of the Criminal Code Act which was carefully explained to them, they said that their lawyer will speak on their behalf later.

Antecedents

10. Mr Kuvi for State tendered the defendant’s antecedents which included

what I have set out below.

(i) Background - Matthew Balu:

- Born at Vunapope General Hospital, date of birth not known.

- Defendant comes from Bitagalip village.

- Baptized Catholic Church member

- Attended Kabaleo Primary School, completed Grade 8 in 1998.

- Attended Raval Vocational Centre in 2001and obtained a certificate in plumbing.

- Was never employed up to the time he committed the offences.

- Married to Marang Balu and has three children from 1 to 3years old.

(ii) Background - Bernard Kavanamur Balu:

- Born in 1965 (about 46 years old) at Vunapope General Hospital.

- Baptized and attends Catholic Church Congregation at Raburbur village.

- Attended Vunavavar Primary School.

- Attended Vunamami Vocational Centre where he attained a certificate in mechanic.

- Married to Martha Toubar and has two children aged between 1 and 3 years old.

- Was employed as mechanic with logging companies from 1985 to 1987 and was employed as mechanic with Dalmain Enterprise Ltd from 2007 to 2009 and earned K250.00. He was self employed at the time he committed the offences charged with.

Prior Convictions: State pleaded no prior convictions for both

defendants.

Submission on Sentence - State

11. The State began its submission apart from the preliminary matters by

submitting three issues for the Court to consider in assessing the appropriate sentences to be imposed on the defendants. These issues are:

i. What is the appropriate sentence for each charge?

ii. Should each defendant be sentenced according to the role each played in the commission of the crime (s)?

iii. Should the sentences be concurrent or cumulative?

12. Mr Kuvi then in order to assist the Court arrive at the appropriate

sentences presents for consideration a number of case laws on the offences the defendants were charged with. He submits that the principles on sentencing is settled in the case of Goli Golu-v- The State [1979] PNGLR 653, that maximum prescribed penalty for an offence is always reserved for the worst type case. I agree that the maximum prescribed penalty is always reserved for the worse type cases. It is settled law in our criminal jurisdiction.

13. Mr Kuvi submits that this Court should firstly consider whether or not

this case is of worst type case. He...