Police v Paulus [2007] PGDC 155; DC780 (6 September 2007)

DC780

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS GRADE FIVE CRIMINAL JURISDICTION]

GFCr 67 of 2007

BETWEEN

POLICE
Informant

AND

PAHUN PAULUS
Defendant

Lorengau: G. Madu, PM

2007 : September 6

CRIMINAL - Unlawful wounding - Plea - Criminal Code s. 322 (1)

CRIMINAL - Sentence - Matter for consideration - First time offender was provoked - Pleaded guilty - Sentence suspended with good behaviour bond - Compensation payment - Default penalty imprisonment imposed.

Cases Cited

1. John Elipe Kalabus -v- The State [1988] PNGLR 193
2. Kali Mari -v- The State (1980) SC175

Counsel

For the Prosecution -
For the Defendant - In person

G. Madu, PM:In this case PAHUN PAULUS pleaded guilty to unlawfully wounding an elderly man by throwing two (2) stones which landed on his back and his left ear.

1. The facts are that, the accused on Monday 26 of March 2007, at about 9.30am in the morning at NDRANOU Village, with other seven (7) boys were carrying timber to build a house. The victim was not happy with the accused as he claimed ownership to the land where the timber was cut and said that the Court had decided ownership in his favour.

2. The victim then told the accused and the boys to stop cutting timbers. The accused then replied telling the victim to complain to his father instead of talking to him as they were only children and then swore at the victim saying, “Kan Kan”.

3. When victim heard the accused swearing him, he ran to his canteen and came out holding a bush knife and charging at the accused. The victim did swing the bush knife but the accused avoid the knife by moving towards his small brother.

4. At that instant, the accused got the stone and hit the victim on his back and then the second time on his left ear. From that, the victim sustained laceration to his left ear and was sutured.

5. THE ISSUE

What would be the appropriate penalty under the circumstances?

6. THE LAW

The accused committed an offence of unlawful wounding under Section 322 (1) states - a person who –

(a) unlawfully wounds another person; or

(b) unlawfully and with intent to injure or annoy any person, causes any person or othernoxious thing to be administered to, or to be taken by other person,

Penalty: Imprisonment for a term not exceeding three (3) years.

The offence the accused committed is a misdemeanour and therefore is serious. Further although the accused could have raised a defence of provocation or self-defence, however he admitted and pleaded guilty when arraigned.

7. MEDICAL VIEW OF INJURIES

The victim received treatment soon after the incident at Lorengau General Hospital. The Medical Officer attended to the victim and when examined, it was established that the injury was sustained after being hit with a rock. The victim suffered from weakness, dizziness and bleeding from the injury site.

On examination it was established that:-

• 55years male on bench with laceration posterior left ear.
  
• Vitals: P. 80 R16 febrile.
  
• The wound was 1-2 cm deep, there were some bleeding with a rugged 1-2cm.
  

Laceration in the shape of a “Y”, x-rays did not reveal any gross fracture of skull.

The treatment administered included:-

1. Panadol 500mg “o” QID x 5/7
   
2. Fluctox 0.5mg “o” tds x 5/7
   
3. Tetox 0.5mls IMI stat
   
4. Cleaning of wounds with normal saline and LMP 500mg in solution
   
5. Skull x-ray
   
6. Sutured inside muscle with chronic 2-“0” and skill 2 “0”
   

8. CONSIDERATION IN FAVOUR OF THE ACCUSED

I have consider in favour of the accused, that he pleaded guilty and this is his first time to appear in Court and to commit a crime.

I also consider that you reacted in such a angry mood and could not hold your temper because the victim provoked you to behave in such manner, when he directed you to stop cutting the timbers from the land.

Further, I consider that you threw the stones at the victim because he charged at you with a bush knife which shows that there was imminent danger of you being injured by the victim.

9. CONSIDERATION AGAINST THE ACCUSED

The aggravating factors are that you used the stones or rock which was an offence weapon against the victim. Although you may have had the reason to do what you did, because the victim was armed with a bush knife but the use of stones was serious and not excused by law. The force that you used on the victim was far too excessive. It shows that the skin was severed as the wound was 1-2cm deep which required suturing.

10. ADDRESS ON SENTENCE

In sentencing the accused, I find that he pleaded guilty to the charge and further I consider that the case is less serious and is not violent one which and the accused deserves credits. In John Elipe Kalabus -v- The State [1988] PNGLR 193. Kidu CJ stated.

“The practice in this jurisdiction is that the accused persons who pleaded guilty in ordinary and less serious cases are generally entitled to credit for their plea but when a case is a serious one such a wilful murder, murder, violent rape or violent armed robbery, a plea of guilty itself deserves no credits”.

Further from the record of interview, the accused co-operated with the Police when arrested and pleaded guilty when arraigned. This action saved Courts time to call witnesses and conduct a trial. This, I consider as one of the substantial mitigating factor in considering sentence. This was decided by case Kali Mali -v- The State [1980] SC 175.

11. CONCLUSION

In considering, the mitigating and aggravating factors, I find that in this instant case, the mitigating factors take precedence over the aggravating factors. It clearly shows that the substantial mitigating factors is that the unlawful wounding was of less serious nature and therefore the case is considered under Section 19 (1) (a) of the Criminal Code.

12. SENTENCE

I sentence the accused on the following terms:-

(i) The defendant is sentenced to six (6) months imprisonment with hard labour.

(ii) The six (6) months sentence is suspended upon accused paying compensation of K200.00 to the victim within fourteen (14) days from the date of this order (20/09/07) and upon entering into recognizance for a period of twelve (12) months in which the accused will refrain from causing further harm to the victim.

(iii) Failure to pay the compensation of K200.00 within fourteen (14) days to the victim, accused to be committed to prison with hard labour.

For the Prosecution -
For the Accused - In Person