The State v Redford Bubura (2004) N2577

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 28 April 2004
• Citation: (2004) N2577
• Court: National Court
• Year: 2004
• Judgement Number: N2577

Full Title: The State v Redford Bubura (2004) N2577

National Court: Kandakasi J

Judgment Delivered: 28 April 2004

1 CRIMINAL LAW—PRACTICE AND PROCEDURE—Alternative charges—Guilty plead to lesser charge—State choosing to abandon serious charge—Court bound to take into account whole circumstances of the case to determine appropriate sentence.

2 CRIMINAL LAW—Sentence—Grievous bodily harm—Victim speared at abdomen—Near death—Further surgery—Guilty plea—First time offender—Provocation in the none legal sense—No expression of remorse and payment of any compensation—Concerned only about own family report recommending compensation only—Sentence of 7 years imposed—Criminal Code s19 and s319.

3 The State v Nickson Pari (No 2) (2001) N2033, The State v Nickson Pari (No 1) (2000) N2037, The State v Joe Ivoro [1980] PNGLR 1, Gabriel Laku v The State [1981] PNGLR 350, The State v Peter Sari [1990] PNGLR 48, Dinge Damane v The State [1991] PNGLR 244, The State v Abel Airi (2000) N2007, The State v Isaac Wapuri [1994] PNGLR 271, The State v Philip Susuve Raipa [1994] PNGLR 458, The State v Apa Kuman (2000) N2047, The State v Darius Taulo (2001) N2034, The State v Kenny Reuben Irowen (2002) N2239, The State v Henry Idab (2001) N2172, The State v James Gurave Guba (2000) N2020, The State v Lucas Yovura (2003) N2366, The State v Attiock Ishmel (2001) N2294, The State v Joseph Ping (2001) N2169, The State v Raphael Kimba Aki (No 2) (2001) N2082 referred to

___________________________

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 623 of 2004

THE STATE

-V-

REDFORD BUBURA

WEWAK: KANDAKASI, J.

2003: 21st and 28th April

CRIMINAL LAW – PRACTICE & PROCEDURE – Alternative charges– Guilty plead to lesser charge – State choosing to abandon serious charge – Court bound to take into account whole circumstances of the case to determine appropriate sentence.

CRIMINAL LAW - Sentence – Grievous bodily harm – Victim speared at abdomen – Near death – Further surgery – Guilty plea – First time offender – Provocation in the none legal sense – No expression of remorse and payment of any compensation - Concerned only about own family report recommending compensation only - Sentence of 7 years imposed – Criminal Code ss. 19 and 319.

Cases cited:

The State v. Nickson Pari (N0.2) (10/01/00) N2033.

The State v. Joe Ivoro & Gemora Yavura [1980] PNGLR 1.

Lakau v. The State [1981] PNGLR 350.

The State v. Sari [1990] PNGLR 48.

Dinge Damane v. The State [1991] PNGLR 244.

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

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

The State v. Philip Susuve Raepa [1994] PNGLR 459.

The State v. Apa Kuman (20/12/00) N2047.

The State v. Darius Taulo (15/12/00) N2034.

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

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

The State v. James Gurave Guba (19/12/99) N2020.

The State v. Lucas Yovura (Unreported judgment delivered on 29/04/03) N2366.

The State v. Attiock Ishmel (Unreported judgment delivered on 12/10/01) N2294.

The State v Joseph Ping (Unreported judgment delivered on 17/12/01) N2169.

Counsels:

P. Kaluwini for the State

P. Kumo for the Prisoner

28th April 2004

KANDAKASI J: The State presented an indictment against you, charging you with one charge of attempted murder under s. 304 and in the alternative, a charge of grievous bodily harm under s. 319 of the Criminal Code. You pleaded guilty to the charge of grievous bodily harm and denied the attempted murder charge.

The State had to choose between either, running a trial on the charge of attempted murder or accept your guilty plea and abandon the attempted murder charge. The latter was the option opted for. The State then tendered into evidence with your consent, the committal depositions. The Court read them and found that, there was a possible defence of provocation so it raised that with your lawyer. Your lawyer informed the Court that, he had your instructions to take that up in submissions as a mitigating factor. Given that, the Court confirmed your guilty plea and proceeded to administer your allocatus.

In your allocutus, you tried to tell the Court the whole of your side of the story. The Court therefore, took time to explain to you that, the full circumstances in which you committed the offence were before the Court, including your possible defence of provocation. The Court also explained to you that, your possible defence of provocation was raised with your counsel and counsel informed the Court that, that will be taken up in your submissions as a mitigating factor. At the end of the explanation by the Court, the Court asked you to address the Court on your sentence and you did mainly raising concerns and questions over the welfare and the well-being of your family. You also raised concerns and questions in relation to your children’s education.

In allowing and taking the above approach, I had regard to what I said in The State v. Nickson Pari (No 1) (Unreported judgment delivered on 14/12/00) N2037 after having regard to a number of authorities as follows:

“These lines of cases make it very clear that, once a trial judge finds something inconsistent with a guilty plea either from a perusal of the depositions or in the accused person's allocutus, the plea should be changed to a not guilty plea. That must happen whether or not the defence counsel makes an application under s.563 of the Code in order to accord to the accused his constitutional rights and or guarantees. Once a guilty plea is changed to a not guilty plea, the trial judge must disqualify from conducting a trial of the case. There is than a prerogative for the prosecuting counsel to decide whether or not to proceed with an alternative charge that may be available and supported by the depositions and one which accords well with the accused's statement in allocutus if that stage has been reached. If the prosecution takes that option, the accused must be re-arraigned on the alternative charge and be dealt with in the normal way.”

The authorities I had regard to where amongst others were The State v. Joe Ivoro & Gemora Yavura [1980] PNGLR 1, Lakau v. The State [1981] PNGLR 350, In The State v. Sari [1990] PNGLR 48 and Dinge Damane v. The State [1991] PNGLR 244.

In your case, there was no need to change your guilty plea, because the charge proffered and its alternative were set out in the indictment and you pleaded guilty to the lesser and alternative count. Even then, I considered it necessary to ensure that, it was safe to accept your guilty plea. As such, I took the position I took. At the end of that process, I was satisfied that, it was safe to proceed on the basis of your guilty plea and we have.

Relevant facts

The facts giving rise to the charge against you as put to you during your arraignment and as emerging from the witness statements and your record of interview with the police are these. At about 6:00 p.m. on 5th October 2003, the victim of your offence a Dominic Maigo came over to your house to show his frustration over a land dispute he had with you. You and your victim are cousin brothers. Dominic’s wife followed him as he came to your premises. He argued with you over the land dispute issue and broke the wall of your house and tipped a cooking pot with food on the fire. He then chased you and your family. Thereafter, he went to your younger brother, Donald’s house, came back to you, and argued with you again. From there, he proceeded to your uncle Johnstarford’s house and assaulted his wife, Ethol. At this time, you decided to defend your family, got a spear, and...