The State v Elsie Wabi (2009) N3662

• Jurisdiction: Papua New Guinea
• Judge: Yalo, AJ
• Judgment Date: 21 May 2009
• Citation: (2009) N3662
• Docket Number: CR NO 961 OF 2007
• Court: National Court
• Year: 2009
• Judgement Number: N3662

Full Title: CR NO 961 OF 2007; The State v Elsie Wabi (2009) N3662

National Court: Yalo, AJ

Judgment Delivered: 21 May 2009

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...