State v Tupi [2012] PGNC 338; N5192 (12 December 2012)

N5192

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 834 of 2011

THE STATE

V

NICK TUPI

Kimbe: Toliken, AJ
2012 : 04th, 10th, 12th December

CRIMINAL LAW – Sentence – Unlawful Wounding – Knife Wound On Temporal Region Of The Head – Plea – First Time Offender – Expression Of Remorse – Some Compensation Paid And Offer For More – Parties Reconciled – Element Of Non-Legal Provocation – Use Of Dangerous Weapon – Intoxication – Sentence Of 12 Months – Wholly Suspended – Probation With Additional Conditions – Criminal Code Ch. 262, S 322.

Cases Cited

The following cases were cited in the judgment:

Goli Golu -v- The State [1979] PNG LR 653
Ure Hane -v- The State [1984] PNGLR 105
The State v. Kassman (2004) N2682
The State v. Pangih (2004)N2676
The State v. Sekun (2006) N2360

Counsel:

F. Popeu, for the State
F. Kua, for the prisoner

JUDGMENT ON SENTENCE

12th December, 2012

1. TOLIKEN AJ. On 09th December the prisoner Nick Tupi pleaded guilty to unlawfully unlawful wounding one Joel Ali on the 21st day of April 2011 thereby contravening Section 322 of the Criminal Code Act Ch. 262.
   
2. He was jointly charged with one Kevin Bate who matter was dismissed during a short trial after the State offered no evidence.
   
3. On 12th December 2012 I gave a short judgment in outline form. This is my detailed judgment in the matter.
   
4. Nick Tupi, the brief facts upon which I am about to sentence you are these. On 21st April 2011 you and Kevin Bate were drinking at Section 37 Settlement in Kimbe. The victim Joel Ali walked up and grabbed the bottle of beer which you were drinking from your hand and drank it. You got angry and punched Joel Ali on his right eye.
   
5. Joel Ali ran to his house to pick up a weapon to retaliate. He picked up an axe and hurled it at you. You retaliated by throwing stones back at him. One of these stones hit Ali. You then ran to Ali, picked up a knife that was lying on the ground and swung the knife at Ali striking him on the left side of his head.
   
6. The medical report revealed that victim sustained a 30cm deep laceration on the left temporal scalp that extended down to the periotal border involving the skull bone. The bone was, however, not fractured.
   
7. The victim was rushed to the hospital. He was bleeding profusely, irritable, confused and vomiting. His blood pressure was a low 90/60 and his pulse was weak. He was in hypovolaemic shock due to haemorrhage. The wound required 20 stitches (10 internal and 10 external). At one stage the victim actually went into a coma but was successfully revived.
   
8. Because of heavy blood loss the victim was infused with 3000ml of intravenous saline and transfused with 300ml of blood. He was admitted and discharged five days later on 26th April 2011. A follow up review on 02nd May 2011 to remove the stitches revealed that he was recovering well.
   
9. You are 38 years old, married with two children and come from Kumburi Village on Bali Island. You currently reside at Section 37 Settlement on the outskirts of Kimbe. You are the eldest of 9 siblings. Your parents are both alive. You were educated to Grade 10 and were the former Lord Mayor of Kimbe town. You currently unemployed but assist your wife with her sales at the town market. You are a first time offender.
   
10. When addressing the court on sentence you apologized to Joe Ali and his family and to your own family. You said that Joe Ali is not your enemy. You are more like brothers. You said you have recently assisted him in getting to the recently concluded PNG Games in Kokopo which you both attend.
    
11. You said he were provoked and acted in self defence though you had abandoned these defences. You said that Joe Ali and his father had made disparaging remarks against your home island of Bali. They also blamed you, as the Town Mayor of the recent killings and destruction of properties in Kimbe.
    
12. You said that you tried to explain but Joe Ali grabbed the bottle of beer from you hence you assaulted him. He ran to his house and grabbed an axe with he hurled at you. You also then grabbed a knife and slashed him in the head.
    
13. You said that as a result of this incident you have lost your job as Town Mayor and your family had been suffering financially ever since. You said that you have since reconciled with Ali and that you assist him with his business.
    
14. You finally pleaded for leniency and asked the Court to allow you to customarily reconcile with Ali before the community so that they can trust you again.
    
15. Mr. Kua submitted in your behalf that this is not a worst offence but readily conceded that it is nonetheless serious. He submitted that there are substantial mitigating factors your favour, you have reconciled with the victim and have lost a lot as a result of your crime. Mr. Kua also said that the Pre-Sentence Report is favourable to you. He submitted that an appropriate sentence in the circumstances should be 12 months which should then be suspended. You should then be placed on probation with conditions that you will not consume alcohol and pay compensation to the victim.
    
16. Mr. Popeu for the State on the other hand submitted that this was yet another alcohol induced crime resulting in the ready use of a bush knife to resolve differences between two individuals.
    
17. Mr. Popeu conceded that the Pre-Sentence Report is favourable to you and that some compensation was paid. He, however, urged the Court to consider the nature and degree of the injuries to the victim. He said that an appropriate sentence would be 18 months which could be suspended and that you be placed on probation with conditions including payment of compensation.
    
18. What then should be an appropriate sentence for you? And should it be wholly or partially suspended?
    
19. You are charged for unlawful wounding under Section 322(1) (a) of the Code which provides:
    

322. Wounding and similar acts.

(1) A person who—

(a) unlawfully wounds another person; or

(b) ...

is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years.

(2) . . .

20. While the maximum penalty is three (3) years, it is settled that the maximum is reserved for the worst category of offences. Goli Golu v. The State [1979] PNGLR 653; Ure Hane v. The State [1981] PNGLR 105.
    
21. It is to be noted that this offence can be also be tried summarily in the District Court before a Principal Magistrate under Section 420 of the Code.
    
22. But what has been the sentencing trend for this offence?
    
23. Neither counsel was able to assist the Court in this regard but the following cases come to mind.
    
24. The State v. Pangih (2004) N2676. In this case the prisoner pleaded guilty to one count of unlawfully wounding the victim with a fishing gun. The spear went through the victim's elbow and penetrated abdomen. The victim recovered well and suffered no permanent or residual disability. There was an element of non-legal provocation. The prisoner was remorseful and was willing to pay compensation. He was sentenced to 2 years imprisonment which was then wholly suspended.
    
25. The State v. Kassman (2004) N2682. There the prisoner was sentenced on a plea to 3 years imprisonment for unlawfully wounding the victim around the neck area with a bush knife. He was a first time offender and had expressed remorse. Some customary compensation was made and the victim recovered well without any residual effects. The court suspended 2 years from the sentence.
    
26. The State v. Sekun (2006) N2360. There the prisoner pleaded guilty inflicting a superficial wound on his sister with a pocket knife. He was sentenced to 2 years.
    
27. Now to your case. At the outset it is noted that this not the worst of cases. It therefore does not justify the imposition of the maximum penalty. Nevertheless it was a serious assault on the victim that must be punished appropriately.
    
28. I take the following factors as mitigating the offence. You pleaded guilty thus saving time and costs for the State. In fact you made early admissions as evident from the Record of Interview and you co-operated fully with the police. You are a first offender and you have expressed remorse. You have also commenced reconciliation with the victim Joel Ali at your own initiative and have made an initial payment of K500 of the K2000 compensation you have offered to pay him. I accept that you have lost quite a lost financially and lost your reputation as a leader in your community. I also accept that you were somewhat provoked in the non-legal sense when the victim made disparaging remarks against you and your home island of Bali.
    
29. On the other hand, you used a dangerous weapon i.e. a kknife to attack the victim. You attacked him on the most vulnerable and softest part of the human skull – the temporal region. He lost a lot of blood and had to be transfused with 300ml of blood and 3000mls of saline solution. And you were under the influence of alcohol. These are aggravating factors against you.
    
30. There are, however, a couple of matters that I also take into account. You struck the victim once only and whilst the attack may not have been vicious it was nonetheless serious because you inflicted a wound to the victim's head.
    
31. So noting the above considerations, a fair and objective starting point for you should be 18 months.
    
32. I however, note that the mitigating factors outweigh the aggravating factors. So in the circumstances I consider that a head sentence of sentence of 12 months would be appropriate for you.
    
33. Now, I think that I must make some general remarks in regard to your case.
    
34. You were a leader at the time you committed this offence, and, may still be one in your Settlement community. You were the Mayor of Kimbe Town – a very responsible position indeed. You were responsible for the welfare of its citizenry and probably a hundred or so businesses, small and big, local and international. So you carried a lot of responsibilities on your shoulders.
    
35. You did not only represent the people in your ward, but, as Mayor you and the Town Council were the managers and custodians of the town's municipal affairs.
    
36. Leaders, whether in government, public service or in the churches are expected to maintain a certain standard of behaviour. Of course as human beings they are not expected to be better than the whole world. However, because of the positions they hold, certain things are expected of them – one of which is that they should comply with the law.
    
37. They are expected to rise above the crowd and exercise restraint in everything they do because they are leaders. People look to them to set standards and examples of good moral behaviour.
    
38. Unfortunately some of us do not exercise restraint and moderation in some of the things we do which may not necessarily be wrong or unlawful such as drinking alcohol. Some of us tend to think that unrestrained use (or abuse) of alcohol is something that comes with the public offices that we hold.
    
39. Mr. Tupi, on the 21st day of April 2011, you forgot that you were a leader- the Town Mayor of Kimbe. In your drunken state, you behaved like a common criminal. You took the law into your hands and like so many who have committed similar offences in the past, you picked up a bush knife and thought nothing about attacking Joe Ali with it. Never mind that he was a personal friend of yours, or that your actions were totally unbecoming of the Town Mayor or that your actions will ultimately cost you your job and affect you and your family adversely.
    
40. In your allocutus you belaboured the Court with a litany of woes that have since befallen you and your family, the loss of standing in your community and your incarceration at Lakiemata before you posted bail.
    
41. These unfortunately are the natural consequences of your action – something that was not forced on you and which you could have totally avoided and controlled had you chose or wanted to.
    
42. You must therefore pay for your crime and as I said a sentence of 12 months will be appropriate. You are therefore sentenced to 12 months imprisonment with hard labour.
    
43. However, should this sentence be suspended fully or in part? Yes think it should be given the circumstances.
    
44. I propose therefore to wholly suspend the sentence and place you on probation for a period of 12 months with the following additional conditions –
    
    1. You will not consume any form of intoxicating liquor
    2. You will pay K2000 cash and one live pig to Joe Ali within 3 months
    3. You will perform a customary reconciliation with Joe Ali and his people within three (3) months under the supervision of the Senior Community Based Correction Officer in Kimbe.
    4. The Senior Community Based Correction Officer shall file an affidavit in the National Court in Kimbe deposing to the compliance or otherwise of the conditions.
       
45. Orders accordingly.

____________________________________________________________
The Public Prosecutor: Lawyers for the State
Paraka Lawyers: Lawyers for the Prisoner