State v Tangip [2012] PGNC 205; N4782 (10 September 2012)

N4782

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No.1424 of 2009

BETWEEN:

THE STATE

AND:

MICHAEL TANGIP
Prisoner

Minj & Mt. Hagen: David, J
2012: 15 August, 6 & 10 September

CRIMINAL LAW – sentence – unlawful doing grievous bodily harm – multiple injuries inflicted on victim's right leg – right lateral crucial ligament and arteries in the region lacerated - tibia and fibula bones exposed – wounds cleansed with bethadine - internal and external stitches applied - drainage tube inserted - high dosages of antibiotics and analgesics administered – restriction of mobility - performance of household or domestic chores including gardening, church and other social activities greatly affected – use of crutches to walk for rest of life – scarring - flexing and extension of the right knee restricted - poor immobility of the third, fourth and fifth toes of the right leg - muscles wasting in right leg - 75% deformity in right leg at last review - long term physiotherapy required - prisoner believed victim caused death of daughter through sorcery - prisoner and victim are in-laws - factors in mitigation and aggravation equal – factors in aggravation outweigh those in mitigation - sentence of 5 years imprisonment in hard labour – period in custody deducted – remaining term suspended on terms - Criminal Code, Section 319.

Cases cited:
Goli Golu v The State [1979] PNGLR 653
Public Prosecutor v Thomas Vola [1981] PNGLR 412
Avia Aihi v The State (No 3) [1982] PNGLR 92
Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91
The State v Frank Kagai [1987] PNGLR 320
Gimble v The State (1988-89) PNGLR 271
Kwayawako and Five Others v The State [1990] PNGLR 6
Lawrence Simbe v The State [1994] PNGLR 38
Public Prosecutor v Don Hale (1998) SC564
The State v Peter Erne (1999) N1939
The State v Henry Idab (2001) N2172
Edmund Gima and Siune Arnold v The State (2003) SC730
John Baipu v The State (2005) SC 796
Irai Thomas v The State (2007) SC867
Richard Liri v The State (2007) SC883
The State v Steven Dua, CR. No.1525 of 2006, Unreported & Unnumbered Judgment of David, J delivered on 16 August 2007 at Mt. Hagen
The State v Ali Kawa Job, CR 1189 of 2006, Unreported & Unnumbered Judgment of David J delivered on 15 December 2009 at Kundiawa

Counsel

Mary-Anne Zurenuoc & Joe Kesan, for the State
Charles Kos, for the prisoner

SENTENCE

10 September, 2012

1. DAVID, J: The prisoner was charged with one count of unlawful doing grievous bodily harm contrary to Section 319 of the Criminal Code, the State alleging that on Saturday, 21 February 2009 at Banz, Jiwaka Province in Papua New Guinea, he unlawfully did grievous bodily harm to one Theresa Paul, (the victim). On Wednesday, 15 August 2012, I convicted the prisoner after he entered a plea of guilty.
   
2. After administering the allocutus, I directed that a pre-sentence report be compiled and filed by the Probation Service, Mt. Hagen branch by Tuesday, 4 September 2012 at the request of the prisoner made through his counsel, Mr. Kos. Submissions on sentence were reserved pending the filing of the report. The report was duly compiled and filed as directed and I thank Ms. Theresa Puk, Probation Officer for her assistance.
   
3. I heard submissions on sentence on Thursday, 6 September 2012 and reserved to pass sentence on the prisoner today. This is the sentence of the Court.
   
4. The prisoner appears before me for sentence from bail.
   
5. The maximum penalty prescribed for this offence is, subject to Section 19 of the Code, imprisonment for a term not exceeding 7 years.
   
6. Applying the principle of proportionality, i.e., a man must be given the sentence appropriate to his crime (as to both harm done and culpability) and no more, the maximum penalty is usually reserved for the worst sort of cases of unlawful doing grievous bodily harm: see Goli Golu v The State [1979] PNGLR 653 and Avia Aihi v The State (No 3) [1982] PNGLR 92.
   
7. It is also settled law that each case must be decided on its own facts: see Lawrence Simbe v The State [1994] PNGLR 38.
   

8. The short facts presented to the Court to which the prisoner pleaded guilty on arraignment were these. There was an ongoing feud between the prisoner and the victim. The prisoner suspected that the victim was a sorceress and he believed that the victim was responsible for the death of her eldest child, a female. On the morning of Saturday, 21 February 2009, the prisoner saw the victim at the Banz bus stop. Two of his accomplices held the victim by her arms and dragged her towards the back road. The victim put up a struggle and managed to hold onto a pole. The prisoner then attacked her with a bush knife slashing her right leg a number of times in the course. The victim was later taken to the hospital for treatment.

9. Three medical reports form part of the depositions. One was provided by Dr. Anthony Nasai, Surgical Registrar of the Wabag General Hospital dated 30 June 2009. The other two were provided by Dr. Smee Rank, Senior Clinician of the Mt. Hagen General Hospital, one dated 11 August 2009 and the other dated 1 October 2009.

10. These reports reveal that the victim was brought to the Accident & Emergency Department of the Mt. Hagen General Hospital after the incident on Saturday, 21 February 2009 and treated. Clinical examination revealed that the victim received multiple lacerations to her right leg/knee and was bleeding heavily from these wounds. The right lateral crucial ligament and arteries in the region were lacerated and the tibia and fibula bones exposed. The wounds were carefully cleansed with bethadine, internal and external stitches applied, drainage tube inserted and high dosages of antibiotics and analgesics were administered. It was reported that; the injury restricted the victim's mobility such that the performance of household or domestic chores including gardening was greatly affected; she would be on analgesics for a long period; and that she would walk with the aid of crutches for the rest of her life. The prisoner then spent some time as an in-patient at the Surgical Ward at Wabag General Hospital where she received further medical attention. The report by Dr. Rank dated 1 October 2009 reveals that the wounds were healing progressively with scarring, but immobilization of the right leg was still limited. Post clinical findings were; flexing and extension of the right knee were restricted; poor immobility of the third, fourth and fifth toes of the right leg; muscles wasting in right leg; numbness in right leg; and victim requiring crutches to walk. It was further reported that the victim's right leg had 75% deformity which required long term physiotherapy.

11. On his allocutus, the prisoner apologized for committing the offence and asked for mercy. He said he committed the offence because he believed the victim caused the death of his eldest child, a daughter through sorcery. He formed this belief because the victim had had arguments with his wife on three occasions prior to his daughter getting sick and her subsequent death and in all these occasions, the victim had uttered words to the effect that his family would experience some problems in future or that she had placed a curse on his family. His daughter was at school when she felt ill. She was admitted to the hospital and received treatment for three weeks, but her condition did not improve and was getting worse. As he believed the victim was responsible for his daughter falling ill, he requested the victim to visit them at the hospital and resolve their differences for the girl's sake. The victim visited them at the hospital as requested, prayed with them and left. The girl died not long after she left. At the funeral held at the village, he called on the victim to provide an explanation for his daughter's death, but she refused. He later arranged mediation of the differences and animosities that had arisen between his family and the victim over his daughter's death through the involvement of the Banz District Office on three separate occasions, but the victim failed to attend any of them. This was very frustrating so when he heard that the victim was on her way from Wabag to Banz to get her belongings, he met her when she arrived and committed the offence.

12. The pre-sentence report, which I have considered reports that the prisoner is a suitable candidate for probation supervision. It recommends that a non-custodial sentence under probation supervision may be appropriate. The reasons given are; firstly, the prisoner is a first offender; secondly, as is evidenced by the copy of the Settlement Agreement attached to the report, the prisoner has paid compensation in the sum of K6,000.00 and three pigs to the victim and her family which demonstrated that he has accepted criminal responsibility for the offence and his desire for peace and harmony to be restored in the community; thirdly, the victim has accepted the compensation payment and the undertaking by the prisoner to provide financial assistance to herself and her family in future; fourthly, the prisoner and the victim and their respective families have reconciled. The report also reports that the prisoner is financially capable of meeting any compensation order that the Court may deem necessary to make up to the value of K5,000.00 and it is proposed that payment be done within four weeks of an order being made.

13. The prisoner is from Kana which is a part of Munumb village, Banz in the Jiwaka Province. He was aged 43 years when he committed the offence and therefore would be aged about 46 years by now. He has a sister and two brothers and all of them are married and have their own children. He has two wives. With the death of the eldest of his children who was the only female, the surviving children are all boys. The deceased was about aged 22 years when she died. He regards himself as a subsistence farmer. He however owns about eleven hectares of land on which he has planted coffee trees, operates a small trade store in the village and owns a warehouse in Banz town which is leased out to Asian business enterprises. He attained Grade 8 formal education from Fatima Primary School, Banz. He is a baptized member of the Nazarene Church. The prisoner was apprehended on 30 July 2009 and was admitted to bail on 1 August 2009. He was in custody for 2 days. He was committed to stand trial in the National Court on 3 December 2009. Until this offence, the prisoner was a lay pastor with the Nazarene Church, has had a good personal and family background and stable marriage with the two wives he has.

14. The victim is originally from the Enga Province. She is married to one Paul Gele who is from Munumb village, Banz and they live there. She has grown up children from whom she has a number of grand children. The prisoner is his brother in-law. She is an elder of the Assemblies of God Church.

15. The prisoner has no prior convictions.

16. In mitigation, Mr. Kos for the prisoner submitted that; the prisoner pleaded guilty which demonstrated his acceptance of criminal responsibility; the offence was not pre-meditated, but committed in the spur of the moment when he saw the victim in Banz town; there was de-facto provocation because the offence was committed in the belief that the victim caused the death of the prisoner's daughter through sorcery; the prisoner was a first offender; the prisoner cooperated with the police in their investigations demonstrated by the admissions he made at questions and answers 29 to 31 of the record of interview; the prisoner paid compensation comprising K6,000.00 cash and three pigs to the victim and her family; the prisoner expressed genuine remorse and contrition; and the victim was the prisoner's sister in-law given the prisoner and the victim's husband are paternal cousins.

17. Mr. Kos referred me to The State v Ali Kawa Job, CR 1189 of 2006, Unreported & Unnumbered Judgment of David J delivered on 15 December 2009 at Kundiawa. Conviction for the offence under consideration was attained on a plea of guilty. In that case, the prisoner was the victim's husband. While having dinner, they had an argument over the victim failing to cook kaukau for their pigs. The prisoner got a bush knife and chopped the victim on her right leg above the heel and below the calf. Despite receiving treatment at a hospital, the wound did not heal and the lower part of the leg had to be amputated. I sentenced the prisoner to five years imprisonment in hard labour less time already spent in custody. Four years of the remaining term was suspended on terms including orders for free community service and payment of additional compensation.

18. Mr. Kos suggested that a sentence up to 4 years wholly suspended on terms was appropriate.

19. In aggravation, Mr. Kesan for the State submitted that; multiple wounds were inflicted upon the victim's right leg; the injury to the right knee was permanent; a bush knife was used to commit the offence; and the offence was prevalent.

20. Mr. Kesan invited me to consider The State v Peter Erne (1999) N1939 and The State v Henry Idab (2001) N2172 which I have.

21. In Peter Erne, conviction was entered for committing the offence under consideration on a plea of guilty. The prisoner and four of his friends were drinking beer under a bridge when the victim and a friend stopped to collect some stones for their mumu. An argument developed between the prisoner and his friends and the victim and his friend. The prisoner and his friends demanded compensation from the victim and his friend because they alleged that the victim and his friend had fought with them earlier. A fight ensued during which the victim sustained multiple knife injuries to his head and lapsed into unconsciousness at the scene. The victim was taken to a hospital for treatment and was hospitalized for 10 days. The prisoner was a principal offender by operation of Section 7 of the Code. A head sentence of two years was imposed and 10 months for time spent in pre-trial custody was deducted. The balance of the term was suspended on the condition that the prisoner be of good behaviour for 2 years.

22. In Henry Idab, conviction for committing the offence under consideration was obtained on a plea of guilty. There, the prisoner together with his brothers were armed with bush knives and stones and attacked the victim and others who were alleged to have verbally abused their mother near a river. The victim was a village peace officer at the time. The victim suffered serious injuries to both his hands resulting in an estimated 85% permanent disability. The Court considered the case to be of the worst type for the offence given the nature of the injuries suffered by the victim, that it was a gang attack and that the victim was a village peace officer. The Court imposed a sentence of five years imprisonment in hard labour less time spent in custody and suspended two years with strict conditions.

23. Mr. Kesan suggested that a head sentence of 4 to 5 years wholly suspended on terms was appropriate.

24. The factors which mitigate the offence are:

1. the prisoner pleaded guilty which demonstrated his acceptance of criminal responsibility;
   
2. there was de facto provocation because the offence was committed in the belief that the victim caused the death of the prisoner's daughter through sorcery.
   
3. the prisoner was a first offender;
   
4. the prisoner cooperated with the police in their investigations demonstrated by the admissions he made at questions and answers 29 to 31 of the record of interview;
   
5. the prisoner paid compensation comprising K6,000.00 cash and three pigs to the victim and her family;
   
6. the prisoner expressed genuine remorse and contrition; and
   
7. the victim was the prisoner's in-law given the prisoner and the victim's husband are paternal cousins.
   

25. I have accepted the prisoner's submission of de facto provocation because customary belief in the power of sorcery is a mitigating factor on sentence, weight to be given depending on particular facts of a case, but it is not to be regarded as a special mitigating factor: Kwayawako and Five Others v The State [1990] PNGLR 6, John Baipu v The State (2005) SC 796, Irai Thomas v The State (2007) SC867.

26. The factors which aggravate the offence are:

1. there was pre-planning or pre-meditation to attack the victim;

2. a bush knife was used to commit the offence;

3. multiple wounds were inflicted upon the victim's right leg;

4. the injury to the right knee was permanent;

5. the offence is prevalent;

6. the prisoner is an adult living near the Banz town and has some form of education to tell what is right from wrong - lack of sophistication in his situation is not an excuse;

7. the prisoner was a lay pastor.

27. According to the Holy Scriptures, a pastor plays the role of a shepherd, guide and guards God's people as they serve him in this world. The prisoner's action grossly offended the Holy Scriptures when he attacked the victim, an elder of a sister denomination. The fact that he was a lay pastor does not, in my view, lower the immense responsibility reposed in him. His action was unbecoming of a lay pastor therefore very aggravating.

28. As can be seen above, the number of factors in mitigation are equal to those in aggravation. However, I think by comparison, the factors in aggravation actually outweigh those in mitigation.

29. In considering an appropriate sentence for the prisoner, I have also had regard to the case of The State v Steven Dua, CR. No.1525 of 2006, Unreported & Unnumbered Judgment of David, J delivered on 16 August 2007 at Mt. Hagen. Conviction for committing the offence under consideration was obtained on a plea of guilty. In that case, the prisoner had a history of violence towards the victim who was his wife. The prisoner and the victim were aged 46 years and about 40 years respectively. The couple had been married for a long time. They had 7 children whose ages at the time of the crime ranged from seven 7 years to 23 years and the eldest was married with 3 children. The victim left the matrimonial home more than 7 months prior to the commission of the crime at the behest of the couple's eldest son and village leaders because she was being ill-treated, harassed and assaulted time and again by the prisoner who suspected her of committing adultery or cheating on him. Two weeks prior to the commission of the crime, the prisoner went on a business trip. On his way back, he stopped over at a village next to the victim's. The prisoner later met the victim at a location and had an argument with her. He then arranged for a village court type sitting to hear his claim for compensation against the victim for injuries he alleged were previously inflicted upon him by the victim, but was unsuccessful. His intention was actually to force the victim to return with him. The prisoner spent the night at the neighbouring village and the next day, armed with a bush knife, he proceeded to the victim's village where he confronted her. He assaulted the victim with the bush knife causing serious cuts to both of her legs. Her left leg was also fractured. I sentenced the prisoner to 3 years imprisonment in hard labour less time spent in custody leaving one year, nine months and eight days to serve. One year and six months of the remaining term was suspended on terms.

30. The victims in Ali Kawa Job and Steven Dua all suffered leg injuries. The injury sustained by the victim in Ali Kawa Job was far more serious than in Steven Dua because the victim's injury in the former case led to amputation. In the present case, medical reports basically report and demonstrate that the victim has permanently lost the use of her right leg and will be using crutches for the remainder of her life. That is tantamount to losing the use of a leg through amputation as in Ali Kawa Job. The victim's ability to do things she enjoyed doing before the incident such as the usual household chores, gardening or participating in church, social and other community activities has been greatly compromised by the permanent restriction on the mobility of her right leg/knee. I will consider imposing a sentence similar to or closer to Ali Kawa Job.
31. What is the appropriate sentence for the prisoner? Taking into account all the circumstances of the present case, I think the appropriate sentence for the prisoner is five years imprisonment in hard labour.

32. I will deduct from the head sentence the two days that the prisoner spent in custody before being admitted to bail. That will leave the prisoner 4 years and 363 days (the remaining term) to serve.

33. The prisoner will serve the remaining term at the Baisu Correctional Institution.

34. Should I suspend the whole or any part of the remaining term? The power to suspend a sentence is conferred by Section 19(1)(d) of the Code and should be exercised on proper principles: see Public Prosecutor v Thomas Vola [1981] PNGLR 412. Some of these principles are set out in Gimble v The State (1988-89) PNGLR 271; The State v Frank Kagai [1987] PNGLR 320; and Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91 which I have considered. The Supreme Court has also held that there can be no suspension of sentence without the support of a pre-sentence report: Public Prosecutor v Don Hale (1998) SC564; Edmund Gima and Siune Arnold v The State (2003) SC730; Richard Liri v The State (2007) SC883. In Edmund Gima and Siune Arnold, the Supreme Court also observed that a sentence cannot be suspended without imposing any condition because a suspension of either the whole or any part of it is not an exercise of discretion in leniency, but is a form of punishment. Hence, conditions must be imposed to demonstrate that it is an alternative to punishment within our criminal justice system in appropriate cases.

35. I have mentioned already that the pre-sentence report speaks favourably of the prisoner. The report recommends a non-custodial sentence under probation supervision which I accept. I will accede to the parties' submissions to suspend the remaining term in its entirety. I am satisfied that until the offence, the prisoner was of good character and suspension will promote his personal deterrence, reformation or rehabilitation. Suspension will also promote the payment of the compensation order which I propose to make by virtue of Sections 2, 3 and 5 of the Criminal Law (Compensation) Act 1991 which no doubt will greatly assist the victim financially for some time to meet some of her needs. I consider that the amount or kind of compensation the prisoner has already paid to the victim and her family is not adequate enough compared to the degree and nature of personal injury or damage he has caused the victim. The permanent injury to the victim's right leg/knee calls for me to make a compensation order for the maximum allowed of K5,000.00 to be paid by the prisoner. I note Section 4 of the Criminal Law (Compensation) Act, 1991, but I think the financial details of the prisoner supplied in the pre-sentence report should suffice under the circumstances.

36. The remaining term is suspended upon the following conditions:

1. The prisoner pay a fine of K1,000.00. Bail monies of K1,000.00 shall be converted and applied towards the payment of the fine.
   
2. A compensation order is made for the prisoner to pay the victim the sum of K5,000.00 in cash.
   
3. The compensation order shall be settled within five months in instalments of K1,000.00, the first payment due on 10 October 2012 and the last due on 10 February 2013.
   
4. The prisoner shall contact the Mt. Hagen Provincial Probation Officer within 24 hours of sentence.
   
5. The prisoner shall report to the Mt. Hagen Provincial Probation Officer as and when required by him or her to do so.
   
6. The prisoner shall enter into his own recognizance without surety to keep the peace and be of good behaviour during the period of suspension.
   
7. The prisoner shall not change his residential address at Kana, Munumb village, Banz in the Jiwaka Province unless he has given the Mt. Hagen Provincial Probation Officer reasonable notice of his intention to do so and the reason for the proposed change.
   
8. Except to comply with these conditions, the prisoner shall not leave the Jiwaka Province without the permission of the Court during the period of suspension.
   
9. The prisoner shall, for the purpose of the Probation Act, allow a Probation Officer to enter his home during reasonable hours.
   
10. During the period of suspension, the prisoner shall provide free community service of 4 hours per day every government fortnight Friday at the Banz Police Station or at such other institution of the State or the Jiwaka Provincial Administration within the Jiwaka Province requiring the services of the prisoner to be determined and supervised by the Mt. Hagen Provincial Probation Officer. The prisoner must obey all instructions from the heads of the institutions where his services will be provided in consultation with the Mt. Hagen Provincial Probation Officer.
    
11. The prisoner will be at liberty to apply for a review of any of these terms including the lifting of any of them provided that there is substantial compliance.
    

37. In the event that any one of the above conditions is not complied with, then the prisoner's probation will be breached and he will be arrested and sent to gaol at the Baisu Correctional Institution to serve the remaining term which I have suspended.

38. A warrant of commitment shall issue in the above terms forthwith.

Sentenced accordingly.

__________________________________________________
Public Prosecutor: Lawyer for the State
Paul Paraka: Lawyer for the Prisoner