N3662

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 961 OF 2007

BETWEEN

THE STATE

AND

ELSIE WABI

Mendi: Yalo, AJ

2009: 14 and 21 May

CRIMINAL PRACTICE – Prisoner charged with one count of grievous bodily harm under Section 319 of the Criminal Code Act Ch 262 – Prisoner pleaded guilty - Elements of offence: (a) a person; who unlawfully does grievous bodily harm to another person.

DOMESTIC DISCIPLINE – Section 278 Criminal Code – lawful for a parent or a person in the place of a parent, or for a schoolmaster, or master, to use, by way of correction, towards a child, pupil or apprentice under his care such force as is reasonable under the circumstances – not practically possible to define what may amount to "a reasonable force" – What is or may be reasonable force can only be measured against the particular circumstance prevailing at the relevant time when the level or amount of force was applied. 

EXCESSIVE FORCE – Section 281 of the Criminal Code – limit placed on force to be applied where the application of such force is lawful. 

CRIMINAL PROCEDURE – Prisoner taken plea – court adjourned to determine appropriate sentence – sentence not delivered due to unavailability of Judge – Previous proceedings declared a mistrial. Court recommenced proceedings from the beginning – Prisoner pleaded guilty – court considered appropriate sentence – sentence imposed, 2 years suspended sentence with conditions – Order for payment of compensation. 

Cases cited

R v Yofia Abone [1967-1968] PNGLR 277
Public Prosecutor v Tardrew [1986] PNGLR 91
Rex Lialu v State [1988-89] PNGLR 449

Counsels

Mr P Kaluwin, for the State 
Ms T Ohuma, for the Prisoner

SENTENCE

1	YALO, AJ: 	The brief history of this case is that the Prisoner, Ms Elsie Wabi, took her plea in or about September 2007 before his Honour Late Justice Timothy Hinchliffe. Since then she had been awaiting her sentence. When Justice Hinchliffe died in early 2009 sentence could not be delivered. On application by the State the previous proceedings were declared a mistrial pursuant to Section 576 of the Criminal Code. Counsel for the Prisoner advised the Court that the Prisoner had not changed her instruction in relation to taking the plea. The case commenced from the beginning with the State presenting the indictment. 

2	On the date of taking the plea, 14 May 2009, Ms Wabi pleaded guilty to the charge of one count of grievous bodily harm under Section 319 of the Criminal Code Ch 262 (Criminal Code). The antecedent report indicates no prior convictions. The Court administered allocatus and heard submissions from Counsels on the appropriate sentence. This is the Court’s reasons for the sentence. 

3	At the time of the offence the Prisoner was a high school teacher at Nipa High School in the Nipa Kutubu District in the Southern Highlands Province. On 17 April 2005 some of her students arrived late for their Home Economics class. The Prisoner used a one meter ruler to hit the students and in the process she hit the victim Ms Keron Mondo on her wrist and right forearm and caused her grievous bodily harm. 

ALLOCATUS

4	Ms Wabi stated that she has been a teacher for 26 years and that this was the first time she had hit students. That she has never appeared before the District Court or the National Court before. Her victim was a sick student and she would sometimes attend to her when she was sick or cold. When she hit her students she knew that Keron was a sick child but nevertheless she hit her because she had to be fair to other students and hit her in the same manner.

5	The offence occurred in April 2005 but the victim’s medical report was obtained a year and half later. She was indicted in 2007 and she admitted to the charge before late Justice Timothy Hinchliffe. However the Court did not hand down its decision on sentence. Because of her plea to the charge she was put off the payroll by her employer. She waited for a long time for her sentence. The Prisoner then decided to go to teach again in 2008 but this case disturbed her work and she experienced great distress. She lives in Enga Province but occasionally travels to Mt Hagen and Mendi whenever her case is mentioned at these National Court venues. The Prisoner eventually resigned from teaching. She is presently unemployed. The Prisoner is married to a huge polygamous family where her husband has multiple wives.

6	The Prisoner expressed remorse and said sorry to Keron her victim and she said sorry to the Court. She said sorry to everyone. Finally she pleaded for mercy and leniency. 

SUBMISSION ON BEHALF OF THE PRISONER

7	Counsel for the Prisoner, Ms Ohuma submitted that the Prisoner has an adult daughter. Counsel reiterated her client’s statement in allocatus that since taking her plea in September 2007 the Prisoner takes much trouble and continuously travels to and from Mt Hagen and Mendi attending to this case pending her sentence. The Prisoner admitted the offence at the earliest opportunity. The case and the prolonged sentence have caused her stress and distress and this eventually cost her job. The delay was not Ms Wabi’s but the Courts’ fault. 

8	The mitigating factors, Counsel submitted, are that Ms Wabi has expressed genuine remorse. When Ms Wabi was teaching she used to go out of her way to assist her student-cum-victim, Ms Keron Mondo, when she was sick at school. Ms Wabi had no criminal intent and she is not likely to offend again. She is willing to pay compensation within her means, that is K1,000.00 cash and three pigs and that she be given three months to pay up. 

9	Finally Counsel asked the Court to take into account the Prisoner’s pre-sentence report and the means assessment report compiled by the Probation Officer. Counsel asked for a suspended sentence starting from 12 months. 

SUBMISSION BY THE STATE

10	The State submitted that corporal punishments in schools are outlawed. The amount of force applied on Ms Mondo by Ms Wabi, her teacher, was more than an ordinary discipline. It amounted to a corporal punishment. The Prisoner ought to have appreciated her actions. Teachers are like parents to their students. 

11	So far as payment of compensation is concerned circumstances have changed and the court should take that into account when imposing the appropriate sentence. Counsel for the State referred me to the case of Rex Lialu v State (1988-89) PNGLR 449 as the authority that has laid down the principle in payment of compensation. In summary the Counsel submitted that irrespective of the size and value of compensation paid it does not exonerate the Prisoner. Compensation is a means of keeping peace within the community. There is no evidence that the Prisoner is willing to pay compensation but the court can accept it because it is customary. 

12	The State submitted that the fact that the charges were brought against Ms Wabi more than a year later is irrelevant because time does not run against the State in criminal proceedings. The victim has suffered serious injuries. The use of her right elbow is reduced by 10 percent and Ms Mondo further has a reduced sensation on all her fingers on her right hand. Ms Mondo is a young woman and the injuries will be with her all her life. Finally the State submitted that a suspended sentence of 18 months to three years is an appropriate sentence. 

THE LAW

13	The provisions of the Criminal Code that I believe are relevant in the present instance are Sections 319, 278 and 281. Section 319 under which the accused is charged reads:

319. GRIEVOUS BODILY HARM.

A person who unlawfully does grievous bodily harm to another person is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

14	The elements of the offence under Section 319 are fairly self explanatory. Firstly, "a person"; secondly, "who unlawfully does grievous bodily harm; thirdly, "to another person"; is guilty of a crime. The maximum penalty is seven years. I note that intention is not an element of the offence unlike under Section 315 of the Criminal Code which commences with the words: "A person who, with intent – ..." indicating that intent is an element of the offence under that Section.

15	Section 278 of the Criminal Code is relevant in this instance because the facts arise from a teacher to student discipline situation. This provision reads:

278. DOMESTIC DISCIPLINE.

"It is lawful for a parent or a person in the place of a parent, or for a schoolmaster, or master, to use, by way of correction, towards a child, pupil or apprentice under his care such force as is reasonable under the circumstances".

16	The first limb of Section 278 of the Criminal Code provides that it is lawful for a teacher to discipline, by way of correction, a pupil or student under his or her care. The second limb provides that where force is applied as a means of discipline such force applied under the given circumstance must be reasonable. It is not practically possible to define what may amount to "a reasonable force" under any given circumstance. What is or may be reasonable force can only be determined by applying the human experience against the particular circumstance prevailing at the relevant time when the level or amount of force was applied. 

17	Section 281 of the Criminal Code places a qualification or limitation on the amount of force that can be applied even where the law allows for force to be applied like in the circumstance envisaged by Section 278. Section 281 states:

281. EXCESSIVE FORCE.

Even where the use of force by one person to another is lawful, the use of more force than is justified by law under the circumstances is unlawful.

18	It has been stated that to sustain a charge under Section 319 of the Criminal Code the prosecution must prove beyond a reasonable doubt that the act or omission was made unlawful by other provisions of the Criminal Code or other statute: R v Yofia Abone [1967-1968] PNGLR 277 at 287, see also Charmers, Weisbrot, Injia and Andrew: Criminal Law of Papua New Guinea, NSW Australia 2001. This is an instance where the State did not have to prove the charge because the accused pleaded guilty. 

REASONS FOR SENTENCE

19	Ms Wabi’s action of disciplining students who came late to her class was justified under Section 278 of the Criminal Code. That is, it is lawful for a teacher to use, by way of correction, towards a student under her care such force as is reasonable under the circumstances. However the evidence from her victim’s medical report is that she has suffered serious injuries. The use of her right elbow is reduced by 10 percent. The victim has a reduced sensation on all her fingers on her right hand. Ms Mondo is a young woman and the injuries will be with her all her life. Taking into account the evidence of the injuries, Ms Wabi’s action is beyond the lawful force allowed by Section 278 of the Criminal Code. In addition, Section 281 of the Criminal Code provides that even where the use of force by one person to another is lawful, the use of more force than is justified by law under the circumstances is unlawful. Ms Wabi’s force was not justified and she has breached Section 319 of the Criminal Code.

20	To her credit Ms Wabi admitted the offence at the earliest opportunity. She has expressed genuine remorse. She undertakes to pay compensation of K1,000.00 and three pigs to her victim and she said she could pay within three months. I find that she has no prior convictions. I have considered the Probation Officer’s Pre-Sentence Report and Means Assessment Report both compiled in September 2007 but in some respects the circumstances have changed. For instance the Prisoner is no longer employed. She has taught for 26 years and that is a commendable service to thousands of students and tens of communities she has served. She has the support of her brothers and sisters and her wider family members who are willing to assist Ms Wabi should this Court impose orders for payment of compensation. Ms Wabi was the seventh spouse in a polygamous marriage. Ms Wabi accepts full responsibility for her actions. 

21	I also appreciate that teachers often work under trying conditions when students misbehave and do not cooperate with them. However teachers, especially a teacher of Ms Wabi’s experience, should always be aware that corporal punishment is prohibited. Nothing stopped Ms Wabi from paying compensation earlier if that was possible as is the usual traditional customary way of making good her victim’s injuries. That would have added weight to her expression of genuine remorse. I further consider that Ms Wabi has spent so much time and incurred expenses whilst awaiting her sentence. Whilst she has lost her job as a result of this case unfortunately that is a fate she has brought upon herself as a consequence of her own actions; she is the author of the destiny of her career. 

22	Taking into account the totality of the mitigating factors and the aggravating factors I consider that the victim’s lifelong injuries weigh against the Prisoner. Without downplaying the severity of the victim’s injuries I do not think it is a worst case. No case authority was referred to me that have outlined sentencing tariffs or guidelines for grievous bodily harm cases. There is a possibility there may be no such case or cases because unlike homicide offences where sentencing tariffs are provided (see Wellington Belawa v The State [1988-1989] PNGLR 496; Manu Kovi v The State SC7890 (31.05.05) and Ume v The State SC836 (19.05.06)) it is not possible to categorise grievous bodily harm and establish common sentencing tariffs because the offence is very broad in that the particular circumstances of the offence can be very wide ranging. But I stand to be corrected if attempts have been made in this jurisdiction to categorise and set down common sentencing tariffs. I am unable to search both in this jurisdiction and other common law jurisdictions because of my isolation from the outside world and lack of 21st Century communication or information technology. In this particular case the penalty must be one that should send a deterrent message to teachers who continue to mistreat students. This Court will not sympathize with teachers who issue outlawed corporal punishment to students. I say this without condoning the misbehavior of students and their disrespectful and contemptuous attitude toward their hardworking teachers. Students ought to know that teachers are humans, just as any other human is. They have limitations to their patience and are subject to all other frailties and limitations of the human species. In order to avoid testing their teachers’ limitations and in order to avoid the unforeseen they must obey and respect their teachers and comply with school rules at all times. 

23	A sentence of two years imprisonment is appropriate under the circumstances. Whilst this punishment may not make good the victim’s injuries I feel that this jail term appropriately equates with the seriousness of the offence and injury. I further rule that the whole of this term shall be suspended on conditions. The conditions are that the Prisoner shall keep peace and shall not commit any offence during the duration of the suspended jail term. Failure to comply with these conditions shall result in the Prisoner serving the balance of the custodial sentence that remains to be served. In considering suspending the sentence I seek assistance from the Supreme Court case of Public Prosecutor v Tardrew [1986] PNGLR 91 wherein it outlined broad principles relative to suspension. They include:

(a)	Where suspension will promote the personal deterrence, reformation or rehabilitation of the offender; 

(b)	Where suspension will promote the repayment or restitution of stolen money or goods; and 

(c)	Where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of his bad physical or mental health. 

24	In applying the broad guidelines in Tardrew’s case (supra) I feel that the suspension of the jail term will promote personal deterrence of the offender. I further order that the Prisoner shall pay to her victim Keron Mondo, K1, 000.00 in cash and three pigs within six months from the date of this judgment. 

ORDERS

1	The Prisoner is sentenced to 2 years imprisonment. 

2	The whole of the jail term is suspended on conditions. The conditions are that the Prisoner shall keep peace at all times and shall not commit another offence during the duration of the suspended jail term. Failure to comply with the conditions shall result in the Prisoner serving the balance of the custodial sentence that remains to be served commencing from the date she so commits the crime.

3	The Prisoner shall pay to her victim Ms Keron Mondo K1, 000.00 in cash and three pigs within six months from the date of this judgment.

4	The Prisoner’s bail monies if any shall be refunded upon the presentation of genuine bail receipt(s).

______________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused