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State v Maip [2015] PGNC 195; N6091 (6 October 2015)

N6091

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No.376 Of 2015

BETWEEN:

THE STATE

AND

NELSON MAIP
Offender

Mt. Hagen: David, J
2015: 14 & 25 September; 2, 5 & 6 October

CRIMINAL LAW – Sentence – Unlawful doing grievous bodily harm – One count - Plea of guilty - Criminal Code, Section 319.

The offender, a policeman shot the victim with a handgun three times on his left leg fracturing both the femur and tibia. The victim was hospitalised for two months as a result. He pleaded guilty to unlawfully doing grievous bodily harm and was convicted. The victim refused to accept any compensation from the offender and expressed the desire that the offender be imprisoned.

Held:

1. Mitigating factors are; guilty plea; no prior convictions; genuine expression of remorse; moderate amount of de facto provocation offered by the victim; sole assailant; isolated incident; previous good record; and the offender attempted to pay compensation.
   
2. Aggravating factors are; use of a dangerous and lethal weapon; victim sustained multiple injuries to vulnerable parts of his body including fractures to the left femur and tibia; vicious attack; the offender was a law enforcement agent being a policeman in uniform holding the rank of Senior Constable and a Rural Police Station Commander; the offence was committed in the purported execution of duty; the offender unnecessarily called for police reinforcement; police brutality was rife in the country; the offence was prevalent; the offender was a mature adult who should be more familiar with the law as a result of his education, training and employment by contrast to ordinary people.

3. A sentence of four years imprisonment in hard labour was imposed, partly suspended on terms.

Cases cited:

The State v Andreas Puu, CR No.210 of 2013, Unreported Judgment of David,J delivered in Mt. Hagen on 7 May 2015
Avia Aihi v The State (No 3) [1982] PNGLR 92
Edmund Gima and Siune Arnold v The State (2003) SC730
Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
The State v Nickson Pari (No.2) (2001) N2033
The State v Michael Tangip (2012) N4782
Public Prosecutor v Don Hale (1998) SC564
Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91
Ure Hane v the State [1984] PNGLR 105
Richard Liri v The State (2007) SC883

Counsel:

Phillip Tengdui with Joe Kesan, for the State
Misil Yawip, for the Offender

SENTENCE

6th October, 2015

1. DAVID, J: The offender, Nelson Maip pleaded guilty to unlawfully doing grievous bodily harm to the victim, Benjamin Sande and was convicted under Section 319 of the Criminal Code.

2. The incident occurred along the road near Mt. Ambra on Wednesday, 5 March 2014, between 12:00 noon and 02:00 pm. The offender who is from Muglamp in the Dei District of Western Highlands Province in Papua New Guinea and who is a policeman based at Muglamp Police Station, was in a marked police vehicle travelling from Mt. Hagen towards Muglamp. On the way along the road near Mt. Ambra, he met the victim who is also from Muglamp travelling from Muglamp towards Mt. Hagen in another vehicle. The offender signalled to the vehicle, the victim was travelling in, to stop. When that vehicle came to a stop, and following a confrontation, the offender pulled out a handgun and shot the victim three times on his left leg. One of the shots fractured the victim's leg and he fell to the ground. As the victim lay on the ground, the offender kicked him. After the shooting, the offender called for police reinforcement claiming that he had shot a wanted criminal and needed assistance. The victim was taken to the hospital where his injuries were treated. He was hospitalised for two months as a result of the shooting and assault.

3. The Medical Report produced by Dr. Laiam G. Kirau of the Mt. Hagen Provincial Hospital dated 10 September 2014 reports that the victim was attended to at the Emergency Department of the hospital on 5 March 2014 after he was allegedly shot by a policeman. The victim sustained three gunshot wounds to his left leg which included; left lower thigh with stable fracture of the femur; left knee with proximal tibia head fracture; and left foot with soft tissue injury with no bone involvement. He was stabilised and admitted to the surgical ward where his wounds were treated and managed. He was discharged on 6 May 2014. His general recovery was uneventful. The wounds and fractures healed well.

4. The prisoner has no prior convictions.

5. The prisoner was given the opportunity to address the Court on what matters the Court should consider when deciding punishment. He said he was very sorry for committing the offence and being a law enforcement officer in the area, he regretted the action he took.

6. A pre-sentence report was compiled and filed by the Probation Service, Mt. Hagen Branch which I ordered to be done at the request of the prisoner. I commend Ms. Lilly Songoa, Probation Officer for the report. I have considered the report. It speaks of the offender highly. It is also reported that the offender is willing to pay compensation comprising K1,000.00 cash and two pigs valued at K4,000.00 and his local community is also willing to assist the offender with K3,000.00 cash. It is also reported that the victim will not accept compensation and requests that a custodial sentence be imposed. That is confirmed by the victim's statement attached to the pre-sentence report. The report recommends a non-custodial sentence to be served under probation supervision with orders for the offender to pay compensation and provide free community service.

7. The prisoner is a serving policeman attached to the Western Highlands Rural Command of the Police Force. He has been in the Police Force since 1996. He holds the rank of Senior Constable. He is currently the Rural Police Station Commander of the Muglamp Police Station. He is from Muglamp village, Dei District in the Western Highlands Province. He is now aged 43 years. He completed Grade 10 at the Mt. Hagen High School in 1992. He joined the Police Force in 1996 after successfully completing a six month training at the Bomana Police College. After passing out of the Bomana Police College, he was posted to Lae until 2002 when he was posted to Mt Hagen and was attached to the Special Services Division of the Mobile Squad. Later on in 2002, he was transferred to the Muglamp Police Station and became the Station Commander. He has three wives and eleven children and is the sole breadwinner of the family. His father is deceased and is survived by his mother. There are six siblings in his family comprising three males and three females. Four of them are married. His health is sound. His financial situation is not strong. He was arrested on 23 July 2014, charged for a count of unlawfully doing grievous bodily harm and admitted to cash bail of K500.00 later that day. He was committed to stand trial in the National Court on 20 February 2015.

8. Mr Yawip for the prisoner acknowledged that whilst a firearm was used making it a serious matter, he submitted that the offender's guilty plea, absence of prior convictions, expression of remorse and the fact that it was an incident in which there was de facto provocation warranted the imposition of a sentence of between 3 to 4 years imprisonment fully suspended in accordance with the recommendation of the pre-sentence report.

9. Mr. Tengdui for the prosecution highlighted that the use of a firearm which is a deadly weapon, the fact that the victim sustained multiple injuries including a fractured leg, that it was a vicious attack, that it was an unprovoked attack, that it was pre-meditated, that the offender was a policeman, that he called for police reinforcement representing to colleagues or superiors that he had shot a wanted criminal, that police brutality was rife, and that no remorse was shown by tangible means such as payment of compensation made this a serious case, but not such as to warrant the imposition of the maximum penalty. He submitted that the mitigating factors such as the absence of a prior conviction and plea of guilty were rendered completely insignificant by the gravity of the offence. He urged the Court to impose sentence of 4 to 5 years imprisonment. Suspension of any party of the sentence was at the discretion of the Court counsel submitted.

10. I take into account the following factors as mitigating the offence:

1. the offender's guilty plea, although made belatedly at trial accepting criminal responsibility for his conduct and the consequences that will be entailed by that;

2. no prior convictions;

3. genuine expression of remorse;

4. this was an incident in which there was a moderate amount of de facto provocation offered by the victim confirmed by the depositions arising from the offender's involvement in a land dispute between the victim and a third party;

5. sole assailant;

6. isolated incident;

7. until the offence, the offender had a previous good record;

8. the offender attempted to pay compensation to mend and restore relationships, but was rejected by the victim.

11. I have considered whether or not to give some weight to the welfare of the offender's family in mitigation of the offence, but have decided not to as the offender should have considered his family obligations and concerns first before committing the offence. He has himself to blame for his criminal conduct and the consequence that is entailed from such conduct.

12. I find no additional factor that will further mitigate the offence.

13. I take into account the following factors as aggravating the offence:

1. use of a dangerous and lethal weapon;
   
2. the victim sustained multiple injuries to vulnerable parts of his body including fractures to the left femur and tibia;
   
3. it was a vicious attack demonstrated by the shootings when the victim was unarmed and he was kicked by the offender whilst lying on the ground injured, harmless and defenceless;
   
4. the offender was a law enforcement agent being a policeman in uniform holding the rank of Senior Constable and Rural Police Station Commander of the Muglamp Police Station;
   
5. the offence was committed in the purported execution of duty;
   
6. the offender unnecessarily called for police reinforcement claiming that he had shot a wanted criminal knowingly that that was false and according to depositions, the reinforcement actually arrived at the scene and aided him;
   
7. police brutality was rife in the country;
   
8. the offence was prevalent;
   
9. the offender is a mature adult who should be more familiar with the law as a result of his education, training and employment by contrast to ordinary people.
   

14. I have considered the following comparable sentences which were referred to me by counsel.

15. In The State v Nickson Pari (No.2) (2001) N2033, the offender who was a male aged eighteen years, armed himself with a home-made gun and shot the victim causing injury to his left arm after the offender and his accomplices failed in their plan to hold up and steal from a group of people who were playing cards. The victim was taken to the hospital where he received medical attention and eventually recovered. On a plea of guilty, the offender was sentenced to four years imprisonment in hard labour less seven months for the time spent in custody. Two years of the term was suspended with strict conditions including the offender entering into a recognizance to be of good behaviour for two years and to return to his village after serving one year and five months in gaol.

16. In The State v Michael Tangip (2012) N4782, there was an ongoing feud between the offender and the victim. The offender, a lay pastor suspected that the victim, his in-law was a sorceress and he believed that she was responsible for the death of his daughter. The offender with the aid of two accomplices attacked the victim with a bush knife. Multiple wounds were inflicted upon the victim's right leg and the injury to her right knee was permanent. The victim was later taken to the hospital for treatment. On a plea of guilty, the offender was sentenced to five years imprisonment. After the time spent in custody was deducted, the remaining term was suspended in its entirety with strict conditions applying.

17. In The State v Andreas Puu, CR No.210 of 2013, Unreported Judgment of David, J delivered in Mt. Hagen on 7 May 2015, the offender was tried for a count of attempted murder and an alternative count of unlawfully doing grievous bodily harm. He was acquitted of the attempted murder charge and convicted of the alternative count of unlawfully doing grievous bodily harm. The victim and the offender drove past each other along the Okuk Highway at Kiam village in the Jiwaka Province and the victim alleged that the offender's vehicle made contact with his vehicle nearly ripping off the right hand side mirror of his vehicle. The victim turned his vehicle and chased after the offender's vehicle. When the victim caught up with the offender's vehicle, a confrontation ensued as they were driving. They stopped their vehicles and argued. This then developed into a fight and the prisoner shot the victim with his Sig Sauer pistol. The offender was the holder of a valid firearm licence. The victim received two wounds; one to his abdomen and the other to the lower part of his left arm. The prisoner also sustained injuries during the fight. Both the offender and victim were treated at hospitals. I imposed a sentence of 4 years imprisonment. After the time spent in custody was deducted, I suspended the remaining term in its entirety on terms including an order to pay a fine of K2,000.00.

18. These comparable sentences are sufficient for this purpose.

19. What is the appropriate sentence for the offender?

20. The maximum penalty for the offence under Section 319 of the Code is imprisonment for a term not exceeding 7 years.

21. Applying the principle of proportionality, i.e., a man must be given the sentence befitting his crime, the maximum penalty is reserved for the worst examples of unlawful doing grievous bodily harm cases: see Goli Golu v The State [1979] PNGLR 653, Avia Aihi v The State (No 3) [1982] PNGLR 92 and Ure Hane v the State [1984] PNGLR 105.

22. The use of a firearm of any type and capacity, be it factory-made or home-made, in the commission of any offence, is an extremely serious matter more particularly when live ammunition is discharged as in the present case. The victim is extremely distressed as his life is placed in immediate danger. Fortunately for the victim, the attack was not fatal. The offender is also fortunate because if the attack were fatal, he would have been charged with a more serious homicide offence.

23. In the present case, a serving policeman is involved in the commission of the offence. The primary functions of the Police Force is to preserve peace and good order in the country and to maintain and as necessary to enforce the law in an impartial manner: Constitution, Section 197. A member of the Police Force is vested with powers to carry out these functions. So before a member of the Police Force is appointed, he or she is required to make and subscribe to an appropriate oath or affirmation undertaking to well and truly serve the country and its people as a policeman or policewoman without favour or affection, malice or ill-will until discharged and that he or she will seek and cause the peace to be kept and preserved, and will prevent, to the best of his or her power, all offences against the peace, and that, he or she will, to the best of his or her skill and knowledge, discharge all the duties vested on him or her faithfully according to law: Police Act, Section 4.

24. In carrying out police functions, a member of the Police Force needs to be disciplined as force may be used in situations that warrant it. It must be reasonable force however. That is why the Police Force is described as a disciplined force. Members of all ranks must conduct themselves with proper restraint and professionalism in carrying out these functions.

25. The offender's conduct was contrary to the oath or affirmation he made. He did not exercise restraint or proper restraint and professionalism. He acted offensively towards the victim and used unnecessary force on him. His conduct by and large was inexcusable, although as I have alluded to earlier, is mitigated by de facto provocation to a certain degree. His conduct brought into disrepute the integrity of the Police Force and undermined the work of the many hardworking and law-abiding policemen and policewomen. He must be punished with an appropriate sentence considering his special position in society.

26. In the present case, the factors of aggravation outweigh the factors of mitigation. It is my view however that whilst this is a serious case, it does not fall within the worst category of unlawful doing grievous bodily harm cases to warrant the imposition of the maximum penalty.

27 In all the peculiar circumstances of the present case (Lawrence Simbe v The State [1994] PNGLR 38) applying the principle of proportionality, I propose to impose a sentence of four years imprisonment in hard labour for purposes of personal and general deterrence, which I now do.

28. I will, in accordance with the Criminal Justice (Sentences) Act 1986, deduct one day from the head sentence for the short time he spent in custody before being granted bail.

29. The prisoner will serve the balance of the head sentence of 3 years, 11 months, 3 weeks and 27 days (the remaining term) at the Baisu Correctional Institution.

30. Should I suspend the whole or any part of the remaining term? The Supreme Court has 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. Suspension of sentence is discretionary and must be exercised upon a proper basis.

31. Notwithstanding that the victim refuses to accept compensation from the offender and has expressed the desire that the offender be imprisoned, the Probation Service has given the offender a favourable pre-sentence report by recommending a non-custodial sentence to be accompanied by orders for compensation and community service to be performed under its supervision. I have given careful consideration as to whether I should give the offender a non-custodial sentence in view of the favourable pre-sentence report. I have also given careful consideration as to whether a wholly or partly suspended sentence would be appropriate. I must state here that the recommendations made in a pre-sentencing report are not binding on this Court as to treat them otherwise would amount to a fetter of the Court's sentencing discretion. It is therefore my view that given the gravity of the offence demonstrated by the aggravating factors and attaching weight that is reasonable to the mitigating factors, I think an immediate custodial sentence would be appropriate. I will however suspend 3 years of the remaining term as I am of the view that it will promote the personal deterrence, reformation or rehabilitation of the offender: Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91. Upon the prisoner's release from custody, he shall enter into his own recognizance to keep the peace and be of good behaviour for a period of 3 years. In addition, I will also order the offender to pay a fine of K500.00. The bail monies of K500.00 will be converted and applied towards paying the fine.

32. A warrant shall issue in the above terms forthwith.

Sentenced accordingly.
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the prisoner