State v Tasion [2013] PGNC 176; N5393 (23 August 2013)

N5393

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 392 of 2012

STATE

V

WILLIAM TASION

Waigani: Salika, DCJ
2013: 23 August

CRIMINAL LAW – charge under Section 315 of the Criminal Code – What is the appropriate sentence in this case – A policeman took aim at the head of victim and fired the shot injuring him on his head – Plea of guilty – policeman on duty – what he did was illegal and wrong.

Cases cited

State v Nerious Pinda (2012 N4872
State v Peter Pendin (2012) N4541
State v Yale Sambai (2005) N2886
State v So-on Tarah (2004) N2675

Counsel:

Mrs Kuvi, for the State
Mr C Raurela, for the Accused

SENTENCE

23rd August, 2013

1. SALIKA DCJ: The prisoner pleaded guilty to one count of intention to cause grievous bodily harm and unlawfully causing grievous bodily harm to one Lincoln Menda (Junior) on 13 August 2011 at Boroko, National Capital District.

2. He was arraigned on the following facts:

On the 13th August 2011, at around 6.00pm to 7.00pm, it is alleged that the accused, WILLIAM TASION, a reserve constable with the Royal Papua New Guinea Constabulary (RPNGC), and two other policemen, were on patrol around the four (4) Mile Area in a white tinted Toyota Land Cruiser ten (10) seater Police Vehicle which had police markings on the side and a siren on the top of its roof.

It is alleged that at that time the complainant, LINCOLN MENDA, and his friends were drinking alcohol or "coffee punch" along a concrete wall near the Four (4) Mile roundabout. The accused and his colleagues then stopped their vehicle in front of the complainant and his friends and the accused then got out of the vehicle and approached the complainant.

It is alleged that the accused then poured the contents of a can of coke on the head and clothes of the complainant. The complainant, angered by this, pushed the accused. The accused then cocked his rifle and fired a shot in the air before ordering the complainant to get into the vehicle. Another police officer then opened the back door of the police vehicle and came to assist the accused to put the complainant into the vehicle.

The complainant refused to get into the vehicle and ran towards the Four (4) Mile bus stop. It is alleged that the accused then aimed his Ar-15 police issued assault rifle at the complainant and fired one shot which hit the complainant on the back of his head, causing him to fall. The complainant lay on the road and did not move.

The accused and the other policeman then dragged the complainant into the police vehicle and took him away. The complainant suffered penetrating gunshot wound to his head as well as a broken tooth and abrasions to his face.

It is the State's allegation that when the accused aimed his rifle at the complainant he intended to cause him grievous bodily harm and when he shot the complainant the accused caused him grievous bodily harm, thereby contravening s.315(b) & (d) of the Criminal Code Act.

Upon arraignment on the above facts, the prisoner pleaded guilty to the charge.

3. The issue to be determined is what is the appropriate sentence to impose on the prisoner. In determining the issue the court will need to consider the following factors:

1. Circumstances under which the offence took place.
2. Whether the actions taken by the prisoner were appropriate in the given circumstances.

100. Whether the actions of the victim were appropriate in the circumstances.

4. The nature of the injuries inflicted on the victim.
   

CIRCUMSTANCES UNDER WHICH OFFENCE COMMITTED

4. The time was between 6.00pm and 7.00pm. The place was already beginning to get dark. Realistically it may have been between 6.30pm and 7.00pm when the incident happened because it was getting dark. The victim was at 4 mile bus stop trying to catch a Public Motor Vehicle bus (PMV) to go to Waigani where he lives. He had been drinking with some of his friends earlier and were still drinking alcohol on the 4 mile bus stop.

5. The police vehicle arrived with the prisoner being one of the policeman in the police vehicle. It stopped in front of the victim. The prisoner came out and poured the remaining alcohol on the head of the victim and on his clothes. The victim pushed the prisoner. The prisoner then cocked his rifle and fired a shot in the air.

6. The victim was ordered to get into the police vehicle but he refused and resisted being forced into the police vehicle. The victim ran towards the 4 mile bus stop. It was at this time that the prisoner then aimed his AR-15 assault rifle and fired a shot at the victim. The victim was hit at the back of his head which caused him to fall to the ground.

7. These facts establish the circumstances under which this offence was committed. In summary it is clear to me that:

1. Victim and friends were drinking alcohol in a public place; that is on the side of a main public road at a bus stop
2. There is no evidence they were rowdy or causing any inconvenience to other people
3. It was getting late to catch a PMV
   

WERE THE PRISONERS ACTIONS APPROPRIATE

8. The prisoner and others came upon the victim and his friends, stopped the vehicle near where the victim was. The prisoner came out armed with an AR-15 police issued assault rifle and confronted the victim. He is said to have taken a can of coke from the victim and poured the contents on the head of the victim and on his clothes. The act of the prisoner pouring the contents of a can of coke on the victim's head was uncalled for and not necessary. This event or act appears to have triggered the entire episode.

9. After the prisoner did what he did to the victim, the victim retaliated-(whether it was a shove or a push) to confront the prisoner. The prisoner cocked his rifle and fired a shot. Depending on what was next going to happen the warning shot may have been justified.

10. The prisoner then ordered the victim to get into the police vehicle but the victim refused. As to why the prisoner wanted the victim to get into the police vehicle is not stated. If the police officer had arrested the victim for committing an offence then he would have the right to detain him or take him into custody but the prisoner was merely inviting the victim to get into the police van. The victim was not obliged to get into the police van. To force or try to force him to get into the police van was not proper unless he was charged and told he was charged for an offence and police needed to take him in for interrogation. In my opinion, with respect the actions of the prisoner to force or try to force the victim into the police van was unlawful. The victim refused to board the van, and that should have ended the matter there.

11. The victim refused to board the van and ran towards the 4 mile bus stop. The victim had been drinking for sometime. One will never be able to talk logic to a drunken person. No serious crime was committed by the victim. The prisoner took aim with his AR-15 assault rifle at the victim and fired a shot which hit the victim. The victim fell. The victim suffered a penetrating gunshot wound to his head as well as a broken tooth and abrasions to his face.

12. What is described here was illegal. The victim was not charged with any crime or offence. There was no hot pursuit. The aim was not at his legs or lower part of his body. I am a licensed shotgun owner but I keep my shotgun in the village and I go home regularly to go hunting for deer and other wild animals and birds. I know how to take aim and when to pull the trigger. The point I am making here is you are not taking aim to kill an animal. That is what happened here. This was totally wrong. The victim was not a known escapee from prison as has happened in recent history. His job then was to prevent him from running away. Taking aim at his legs might have been more appropriate.

13. The prisoner has not told the Court what part of the victim's body he aimed at. He has not stated if he intended to just disable him. His total silence on that as part of the allegations has made the Court to conclude that he aimed at the victim's head and shot him on the head as he intended. This makes his crime more serious.

WHETHER VICTIMS ACTIONS WERE APPROPRIATE

14. The victim and his friends had been drinking alcohol for some time during the day. They were not sober at the time of the confrontation with the prisoner at 4 mile. The victim and his friends were probably still drinking at the 4 mile bus stop and the drink may have been mixed in a can of coke. Unfortunately, the prisoner destroyed a vital piece of evidence that could have supported a charge of drinking in a public place by pouring the contents of the can on the victim's head and body. The victim and his friends may have committed a summary offence of drinking in a public place.

15. The victim reacted by pushing away the prisoner when the prisoner poured the contents of the can on his head and body. Was that action unreasonable? No, in my opinion it was not unreasonable. I would expect some more nasty reaction, if not a nasty retaliation. In this case, it was a mere shove or push. I would say the mere reaction by the victim in the circumstances was reasonable and proportionate to the action of the prisoner.

16. After that the prisoner cocked the AR-15 rifle he was armed with and cocked and fired in the air as a warning shot. The prisoner and other policemen then tried to force the victim into the police van. The victim then ran away and was shot as a result of running away. Why the victim ran away is a matter for much conjecture. Usually people run away because they have done a wrong and have a guilty feeling and do not want to be caught by police, sometimes people run away because they are scared. In this case, a warning shot was fired earlier. The victim in running away might have prompted the police to fire a shot at him. The prisoner himself has not explained what made him fire his rifle. His silence has not assisted his own cause and therefore not helped the Court to say whether the shot was justified or not.

17. As alluded to earlier, the police were not looking or hunting down the victim nor was he a known suspect or a criminal known to them. The act of running away from the police prompted the prisoner to take aim and fire. But as I said earlier, the victim had no obligation to get on the police van. He was not charged or suspected of committing an offence. He was simply at the 4 mile bus stop trying to catch a late PMV to Waigani.

18. It was a wrong decision for the victim to run away from police. Walking away may have been better. He was correct, although he had that right to refuse to go into the police van, unless he was arrested and charged. Up to now the victim has never been charged; in any case police and mainly general duty policemen do not implement the Summary Offences Act. As a result many people openly consume beer at Boroko, and everywhere, on the roads, public places and motor vehicles, do the police do anything? Never, these days. Do the police care about people who smoke in PMVs, enclosed public places? Never. Do police stop people from spitting betelnut juice and rubbish on the roads? Never. Do police stop betelnut sellers or newspaper sellers on the road? Never. The public see that the police do not do anything about stopping people drinking on the roads or in public places so they drink and sooner or later it becomes a normal thing to drink in public places.

19. What about people who sell betelnuts at bus stops? Is that legal? What do police do about them? Nothing. Instead police become their number one customers. What is going on? Stop this rot. Police have a constitutional duty to protect lives and property. Property includes bus stops, roads, bridges, houses, hospitals, schools, etc. These things are owned, they are not just there without owners; police must protect the properties of the State and private properties. That's your job.

THE NATURE OF INJURIES SUSTAINED

20. The most relevant medical report of Dr. Win Kaptigau a consultant neurosurgeon says the following:

" 1. I am Medical Doctor by profession and I am also a registered medical practitioner in Papua New Guinea under the Medical Registration Act Chapter No. 398.

2. I hold a Bachelor's Degree in Medicine and Surgery (MBBS), Masters in Medicine UPNG and Higher Post Graduate Diploma UPNG in Neurosurgery.

3. I am employed by the Department of Health and I work as a Medical Officer attached to the Port Moresby General Hospital.
   
4. I hold the position of Deputy Chief Surgeon (Southern) Department of Health based in Port Moresby General Hospital.
   
5. I have worked as a Consultant Neurosurgeon for 10 years now.
   
6. I have furbished a FINAL MEDICAL REPORT of Lincoln Menda Jnr M/A dated 1st of July 2013. A copy of which is attached hereto and Annexure "A".
   
7. The victim has weakness in right side of his body due to the injuries inflicted by a missile on his left brain. The victim is right handed and is unable to use the right hand efficiently.
   
8. The victim's Education is totally ruined as he is unable to complete school due to the life threatening head injuries. The victim is wheelchair bound and his opportunities to get outdoor job is completely lost due to lack of mobility. His disabilities are for the rest of his life.
   
9. Lincoln Menda Jnr for the rest of his life will be cared for mostly by his family who will be greatly inconvenienced financially and psychologically. This is a loss for Lincoln Menda Jnr and his family for which any form of compensation will never mend their lives.
   
10. The foregoing are true and have been made in a form as LINCOLN MENDA M/DOB: 18/05/1992 – FINAL MEDICAL REPORT dated 01/07/2013.
    

21. The saddest part of the report in my opinion is that according to the medical report the victim is permanently disabled. His education has come to an end. No amount of monetary compensation will ever mend the disability. That's his life, gone in an instant.

22. I take into account your circumstances. You are a family man. Your wife has now left you as a direct result of this offence. On that regard you have suffered. You are a first time offender. You have pleaded guilty to this very serious charge. Your plea of guilty has saved the court time and money. It also saved the State time and money. Again you in fact aimed at the victim's head and fired and got him on his head. His life is now totally useless. Only time will tell. His young life has been devastated. He is reduced to a wheel chair for his entire life now. You sentenced him to the wheel chair.

23. I have had course to look at the case precedents counsel have referred to me. In the case of the State v Nerious Pinda (2012) N4872, the prisoner and two of his friends ambushed the victim and his wife. They chased him and after a distance the victim surrendered. The facts do not show why the victim was assaulted. The prisoner armed with a long bushknife cut the victim on his arm and completely severed it below his elbow joint. The victim also suffered other knife wounds to his body. For that the prisoner was sentenced to 16 years imprisonment by Kawi J on a charge under s.315 of the Criminal Code.

24. In the State v Peter Pendin (2012) N4541 the prisoner used a bushknife to totally sever the victims forearm below the right elbow. The victims hand was amputated. The prisoner was sentenced to 16 years imprisonment by Kawi J

25. Under s.315 the maximum penalty is life imprisonment. Parliament viewed intentionally causing grievous bodily harm offence as very serious as indicated by the maximum sentence. The case precedents show permanent disfigurement to their bodies. The same is true in this present case (See also State v Yale Sambai (2005) N2886, State v So-on Tarah (2004) N2675.

26. In this case a more lethal weapon in the form of a gun was used. In the case precedents cited above bushknives were used. The victims had their arms amputated and they will continue to do some things on their own. They are still independent. In this case the victim is effectively finished from normal life. The injuries and the effect on him are more serious in my view.

27. Considering the special circumstances of your case I will be a bit lenient on you in terms of the sentence. You are sentenced to 12 years imprisonment with hard labour. You have spent only 2 weeks in custody. That is taken off from the head sentence and the balance you will serve is 11 years 11 months 2 weeks imprisonment with hard labour.

28. Sentenced to 12 years IHL. Time spent in custody is 2 weeks. Balance of sentence is 11 years 11 months and 2 weeks I.H.L
______________________________________________

Public Prosecutor: Lawyer for the State
Raurela Lawyers: Lawyer for the Accused