State v Naopa [2003] PGNC 89; N2411 (24 April 2003)

N2411

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1593 of 2001

THE STATE

-V-

EDDIE JOHN NAOPA

WEWAK: KANDAKASI, J.
2003: 2nd, 8th, 23rd and 24th April

CRIMINAL LAW – PRACTICE & PROCEDURE – Appropriateness to hear from victim of offence before sentence – Appropriate practice to do justice from the view point of a victim – The victim’s view can be obtained by hearing him or her in Court or through a pre-sentence report – Means assessment and pre-sentencing report required before any compensation order and community based sentence can be considered and imposed – Such reports at variance with victim’s statement in Court - Court not bound to accept such a report’s recommendations.

CRIMINAL LAW – Compensation – Compensation only relevant for mitigation purposes and does not excuse criminal liability or penalty – Means assessment necessary before making any orders for compensation – Means assessment report disclosing prisoner not personally having any means to pay but relatives capable of meeting any compensation order – Compensation ordered conditional upon prisoner repaying by provision of supervised free labour to relatives.

CRIMINAL LAW - Sentence – Grievous bodily harm to a school girl – A gang attack on school girls returning from Scripture Union fellowship - Victim rendered 100% permanently disabled to right eye - Guilty plea – No prior convictions – Customary compensation paid – Prisoner making no personal contribution - Expression of remorse in Court – Victim stating in Court a wish that both compensation and term of imprisonment be imposed – Probation report recommending compensation only - Sentence of 5 years part suspended imposed – Criminal Code ss. 19 and 319.

Cases Cited:
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. Nickson Pari (N0.2) (10/01/00) N2033.
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. Rex Lialu [1988-89] PNGLR 499.
The State v. Margaret John (No.2) [1996] PNGLR 298.
The State v. Dobi Ao (No.2) (01/05/02) N2247.
The State v. Raphael Kimba Aki (No 2) (28/03/01) N2082.
The State v. Kennedy Arus (16/03/01) N2081.
Jack Lundu Yalo v. Motor Vehicles Insurance (PNG) Trust (08/12/95) N1386.

Counsels:
Mr. M. Ruari for the State
Mr. G. Korei for the Prisoner

24th April 2003

KANDAKASI J: You pleaded guilty to one charge of causing grievous bodily harm to a young school girl, namely Stella Junembary on the 27th of July 2001 at the Brandi High School here in Wewak, contrary to 319 of the Criminal Code. Upon reading the depositions which were admitted into evidence with your consent, I was satisfied that there was sufficient evidence supporting your guilty plea. I therefore accepted your guilty plea and convicted you on the charge presented.

Relevant Facts

The relevant facts are straightforward. Between 9:00 and 9:30 pm on the 27th of July 2001 in the company of 4 others, you were at Brandi High School. That was after you had gathered them from various places. You stayed for a little while under a rain tree not far from the girls’ dormitory at Brandi High School. Whilst there, you saw a group of female students walking on the main road toward their dormitory. They were returning from a Scripture Union fellowship. Upon seeing that, you and your friends planned to get one of the girls.

You then decided to and did in fact execute your plan by grabbing hold of the victim. The victim was right behind her friends. She struggled to free herself and in the process, she had her left fingers cut with a knife held by the person who grabbed her. The victim says with the support of other witnesses that the knife was used to threaten her. The victim then fell into a drain. She managed to get up and tried to run away and you shot her with a stone through a slingshot you had with you. The stone reached the victim’s right eye. You then fled the scene and were later arrested and charged by Police over the incident.

Meanwhile, the victim was admitted to the Wewak Hospital and received treatment for the injuries she sustained. Medical intervention did not help prevent the victim losing completely the use of her right eye. Although she recovered from the injuries, it was with a 100% loss of her right eye.

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 imprisoned to a term not exceeding 7 years. A number of judgements have already dealt with offences 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 (28/11/00) N2007, 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 by reason of which there might well be differences of sentences.

One such case is that of The State v. Isaac Wapuri [1994] PNGLR 271. 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. He was given 18 months in hard labour with 5 months deducted on account of time spent in custody. 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.

In another case, The State v. Philip Susuve Raepa [1994] PNGLR 459, the victim was rendered brain damage out of a drunken brawl and after a skull operation to remove internal bleeding. The Court ordered K5,000 compensation and placed the prisoner on good behaviour bond on his own recognizance with a surety of K300.00 with judgement being deferred to future sittings of the Court and for the prisoner to abstain from alcoholic drinks for 12 months until further orders.

Later, in The State v. Apa Kuman (20/12/00) N2047, a sentence of 3 years imprisonment was imposed. The prisoner after having raped the victim cut her across her stomach to prevent her from calling out for help. That caused substantial damage to her left and right lobes, which bled profusely into the abdomen. Quick admission to the hospital prevented further bleeding and saved her from death due to loss of blood. The prisoner was a young first time offender.

On my part, in The State v. Nickson Pari (N0.2) (10/01/00) N2033, I imposed a term of 4 years and suspended part of it on terms, inclusive of good behaviour bond. That was a case in which the prisoner shot at and injured the victim on his left arm in the course of, and in furtherance of an armed robbery. He was also a first time young offender.

At about the same time in The State v. Darius Taulo (15/12/00) N2034, I imposed a wholly suspended 3 years sentence on strict terms as an alternative form of punishment outside the prison system. That was in the face of genuine remorse being expressed coupled with compensation already paid for by the prisoner himself, a preparedness to undergo his wife’s (the victim’s) traditional form of compensation and restoring the relationship and a willingness to truly change his ways under supervision. I was also persuaded to arrive at that sentence because the victim preferred compensation and that the innocent children of the marriage stood to suffer if the prisoner was sent to prison. Further, the pre-sentence report supported such a sentence. I also noted that the prisoner was a grownup man and he was not a danger to the society and that the society through a pre-sentence report was prepared to help him to rehabilitate.

In all of these cases, the prisoners pleaded guilty and that they were first time offenders. They all involved a single victim. Further, there was a good explanation for the commission of the offences although not all permitted by law. In the first case, it was a case of a sister-in-law provoking the prisoner after failing to secure a sexual intercourse from him. In the second and last cases, they were cases of drunken behaviour. As for the third case, the offence was committed to conceal another offence on the basis of which the case could be considered more serious and inexcusable. Finally, in the fourth case, it was a case of furtherance of the commission of another offence. The sentences were lenient in the first, second and last cases because of compensation payment or orders for payment of compensation.

A more serious case of grievous bodily harm is The State v. Rueben Irowen (24/05/02) N2239. In that 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.

Another serious case is The State v Henry Idab (17/12/01) N2172. In that case, a group of men attacked another group mistakenly taken to be the one 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 of which part was suspended, on strict terms including community work. At the discretion of the village court magistrate, I left room in the judgement for the prisoner to render services free of charge to his victim.

Your Case

Your case is distinguishable from all of the above cases by reason of a number of factors. First, the victim was not related in any way to you. Secondly, there was no provocation in any sense of the word. Thirdly, there is no explanation as to why you committed the offence. Fourthly, the victim was an innocent schoolgirl returning to her dormitory after a Christian religious fellowship. Fifthly, the evidence reveals that you took the lead in planned and executing the failed grabbing of one of the schoolgirls that were with the victim. Sixthly, you were in the company of 4 others and were armed with a slingshot and a knife, which were used against the victim. Finally, you committed this offence in the night against an innocent schoolgirl within her school boundary.

The motive or the purpose behind what you did is not known. But in my view, it is open for inference from the undisputed facts particularly that:

1. you led a group of young men numbering 5;
2. it was in the night between 9:00 and 9:30 pm;
3. you saw the victim and her friends heading to their dormitory;
4. you planned to get one of the girls; and
5. your group of men had a knife and a slingshot, which was used to threaten and injure the victim when she resisted and you were not able to execute your plan successfully.
   

I note from your lawyer’s submission that, you have neither been charged nor have you pleaded to any suggestion of abduction or any other offence. But in my view, that does not prevent this Court from drawing whatever inferences could be drawn from the primary undisputed facts that emerge from the deposition.

As I said in The State v. James Gurave Guba (19/12/99) N2020:

"... there should be no restriction as to the use of the depositions to determine the appropriate sentence, simply because there has been a plea bargain. This is because an indictment is presented and an accused person pleads on the basis of facts presented which are in turn based on facts set out in the depositions and only after reading the depositions, can a Court decide whether or not to confirm a guilty plea and record a conviction before proceeding to sentence the offender."

That in my view, means the Court must be free to draw such inferences as may be supported by the undisputed primary facts. Accordingly, I am of the view that, you and your gang’s intent at the time of committing the offence was to abduct and possibly rape the victim, in the absence of any explanation either by yourself or anybody else to the contrary. Again, as I said in the James Gurave Guba (supra) case, the Court must consider the totality of the circumstances in which an offence has been committed to determine an appropriate sentence.

You pleaded for leniency and mercy from this Court and asked for a good behaviour bond. You also said you were sorry for what you have done and compensation in the sum of K1,000.00 was already paid.

Although unprecedented, I considered it appropriate to call upon the victim to ascertain her wish as to the kind of punishment you should receive. This is not necessarily to influence the Court on sentence but to give the Court some idea as to the kind of punishment that the victim of an offence prefers her offender should receive. I consider this practice important to give a practical and real meaning to the usual practice of the Courts describing how a victim of a crime could take the effect of a crime on him or her and then factor that into the sentence the Court eventually comes up with.

The victim told the Court that she has totally lost the use of one of her eyes. She therefore wanted you to compensate her. At the same time she said you should receive a term of imprisonment.

Given your call for a lenient sentence and your victim’s wish, I called for a means assessment and pre-sentence report from the probation service. The report was provided to the Court well within the days required. The Court is most grateful to the Probation Officer here, Mr. Moses Galus, for that.

The report makes it clear that, both you and your parents are unemployed. You also have no other source of any constant income. It seems to me that, you and your parents live on subsistence farming. The reports indicate that you are prepared to make a further payment of K1, 000.00. This is to be made up of a pig valued at K500.00 and the rest in cash in instalment of K75.00 per fortnight. These appear to be mainly coming from your parents and not you. It follows therefore that, you have no good means to meet any compensation order this Court could make.

In the particular circumstances of this case, I am of the view that this is a serious case of grievous bodily harm, warranting an imposition of the maximum prescribed sentence of 7 years imprisonment. However, given the fact that you pleaded guilty and that you are a first time offender, I will have your sentence reduced to 5 years. This also takes into account the fact that you appear to be relatively young.

I note that according to the means assessment and pre-sentence reports, your relatives paid a sum of K1,000.00 in compensation. The law on compensation is clear. I discussed that in The State v. Henry Idab (supra). There, I said the law clearly provides that compensation is a relevant factor in mitigation but is not a substitute for any criminal penalty. That was based on authorities like The State v. Rex Lialu [1988-89] PNGLR 499 and The State v. Abel Airi (supra). I then referred to my own judgement in The State v. Nickson Pari (No.2) (10/01/01) N2033, and said if the offender is making the payment in either case, only then should such payments be taken into account. I reasoned that:

‘... the whole basis of our criminal justice system is based and any penalty imposed is dependant on the offender’s culpability (see The State v. Abel Airi (supra) at page 6) and he is the only one that is personally responsible for his actions. It is also apparent from a reading of the provisions of ss. 2 to 7 of the Criminal Law (Compensation) Act 1991, especially the wording in ss 2(1) which sets the context in which the other provisions and hence the Act is to apply. It makes it clear that compensation is in addition to other punishments that may be imposed and is not a substitute or replacement for the prescribed punishments.

I noted also that this is why the Courts in cases like that of The State v. Margaret John (No.2) [1996] PNGLR 298 have decided not to order compensations against persons other than the offender.

What this means in your case is that, the fact that compensation has already been paid does not operate in your favour because the payment was not made by you personally. Similarly, your parents and relatives’ preparedness to pay further compensation should not further reduce the sentence I propose to impose against you. If however you are prepared take whatever payments your relatives may make as a loan to you in exchange for future free labour, you will provide in return under Probation Services supervision, I am only on that basis prepared to suspend part of the sentence. If you are prepared to take that option, then I would proceed to determine the compensation payable. I am prepared to do that in view of the particular settings of the typical Papua New Guinean setting, where collective family and communal responsibility prevails. It is the introduced Whitman’s system of justice and a ready application of it that has rendered the Papua New Guinean way of criminal responsibility non-existent. I discussed that in The State v. Dobi Ao (No.2) (01/05/02) N2247 and I need not repeat that in any detail, suffice only to refer to the judgement.

Provided you accept a compensation order, which allows your relatives to pay any compensation order as a form of a loan to you from them, I will make orders in the terms proposed. You will have that repaid to them by way of Probation Service supervise physical labour to them, the details of which I will shortly outline. Accordingly, I will order compensation to be paid to the victim of your crime.

The Criminal Law (Compensation) Act allows for a maximum of K5, 000.00 for compensation. I have already expressed the view in The State v. Raphael Kimba Aki (No 2) (28/03/01) N2082, that where an offender has no means to meet any compensation order, no compensation should be ordered. Based on this view, I declined to make any order for compensation in that case. I followed that in The State v. Kennedy Arus (16/03/01) N2081.

The evidence in your case is that only your parents are able to pay a further K1000.00 in cash and kind. There is no evidence of any ability on your own part and that of your parents and relatives to make further compensation payment. So a further compensation up to the amounts your parents are prepared to pay, in terms of K500.00 and a pig valued at K500.00 as a form of a loan to you, to be repaid by a provision of free supervised labour to your parents. This, I order be paid to the victim within 6 months from today by your parents.

I note that amounts of compensation already paid and now ordered is well below what the victim is entitled to recover if she chooses to bring a civil claim against you. Damages for the loss of one eye is presently over K31, 000.00 in general damages with any economic loss taking that amount up to or over the K100, 000.00 mark: See Jack Lundu Yalo v. Motor Vehicles Insurance (PNG) Trust (08/12/95) N1386. So the sum of K1, 000.00 previously paid and the further K1, 000.00 now ordered is not exhaustive and nowhere near what she is in fact entitled to. Any payment of the amounts so ordered would go toward a reduction of what you may be ultimately ordered to pay under a civil claim against you for damages. If the victim wishes, she is entitled to bring such a claim against you. This judgement and any order for compensation do not operate as any bar to such an action for damages.

Conditional on compensation further being paid in the amounts ordered within the period and manner specified, three years of your sentence of 5 years will be suspended on the following conditions:

1. you immediately enter into your own recognition to keep peace for the currency of your suspended sentence;
   
2. you and or your parents and relatives pay the additional compensation as ordered within time period and manner specified;
   
3. you repay the amounts contributed toward the compensation by your parents and relatives by providing physical labour to do what may be required of you by them and approved by the Probation Service in terms of 8 hours each Thursday, Friday and Saturday or Sunday, depending on when you go to church during the whole of the suspended term;
   
4. the Probation Service and your parents and relatives produce within 2 months from today, a work schedule or plan for the whole of the suspended period for this Court’s endorsement;
5. the Probation Service shall supervise your performance of the work required of you;
   
6. you provide free labour for cleaning or doing of such other physical work as may be required of you from time to time from 8:00 am to 4:00 pm each Mondays, Tuesdays and Wednesdays to the Brandi High School or a public institution of the Probation Services choosing subject to this Court’s endorsement for the whole of the suspended term;
   
7. you remain indoors in your house in your village at Sawarin, Wewak, East Sepik Province between the hours of 6:00 pm and 6:00 am;
   
8. you be not in the company of any youth or other men during the whole of your suspended term;
   
9. you do not consume any alcoholic drink or take in any illegal substance or drug during the whole of your suspended term;
   
10. you do not leave your village without first obtaining the leave of this Court;
    
11. you allow for and permit Probation Services to visit your home on a regular basis to monitor your compliance of these terms and to make such recommendations, as they consider appropriate, either for a variation or an implementation of these terms;
    
12. the Probation Officer in Wewak shall provide to this Court each quarterly, comprehensive reports as to your compliance of these terms;
    
13. if for whatever reason you breach any of these terms, you will serve the balance of the term of the suspended sentence as at the time of the breach;
    
14. you will be at liberty to apply for a review and or variation of any of these terms supported by appropriate evidence or material;
    
15. you accept that any member of your family or community will be at liberty to report to this Court of a failure to meet any of these conditions without any prior notice or warning to you;
    
16. the Police shall also be at liberty to ensure and supervise compliance of these terms at any time.
    

This means you will serve the first two years in hard labour less the time you have already spent in custody awaiting your trial and sentence. I note the total period you have spent in custody is about 1 month and 15 days from the date of your arrest (03/08/01) and grant of bail (18/09/01) and a further 15 days from the date of your conviction and revocation of your bail until today. I order the total of 2 months deducted from the sentence of 2 years you have to serve at the Boram CIS leaving you with 1 year 10 months yet to be served. You will not be released at the end of that period unless you have first paid the compensation that has been ordered against you within the period specified and have entered into your recognizance. A Warrant of Commitment shall therefore be issued for the whole of the 5 years sentence, less the time already spent in custody and subject to that being reduced to 1 year 10 months only upon compensation being paid in accordance with this judgement.
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Lawyers for the State: The Public Prosecutor
Lawyers for the Accused: The Public Solicitor