The State v Napilye Kuri

• Jurisdiction: Papua New Guinea
• Judge: Woods J
• Judgment Date: 09 September 1994
• Citation: [1994] PNGLR 371
• Court: National Court
• Year: 1994
• Judgement Number: N1269

National Court: Woods J

Judgment Delivered: 9 September 1994

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

PHILIP SUSUVE RAIPA

Waigani

Brown J

13 September 1994

29 September 1994

CRIMINAL LAW — Sentence — Assault occasioning grievous bodily harm — Size of compensation order categorised as "punishment" — Award to also include an order deferring sentence for a 12-month period in an endeavour to encourage a community response to reconciliation — Criminal Code Ch 262 s 19 (1) (f) — Criminal Law (Compensation) Act 1991 s 2.

CRIMINAL LAW — Compensation — Award under legislation providing for compensation for injury suffered by criminal act — Matters for consideration — Award does not extinguish right to damages in civil proceedings — Award to be paid by instalments — Criminal Law (Compensation) Act 1991 ss 3,6.

Facts

The prisoner had pleaded guilty to a drunken assault of the victim, aged 23, with a rock. In company with others, he severely beat the victim, who was hospitalised with serious head injuries necessitating an operation to his skull to relieve intra dural haematoma. The victim is a landowner of urban land on which the prisoner was living with his clan members at the will of the owners. The victim suffered, and will suffer, disabilities arising out of his head injuries, which affected his brain.

The Court, on sentence, considered the nature of the injuries coupled with the circumstances of the offender's line "squatting" on land of the victim.

Held

1. An award of compensation is a "punishment" within the meaning of the Criminal Code Ch 262 and the Criminal Law (Compensation) Act 1991 s 2.

2. Customary law requires compensation to be made to a victim, in circumstances where the offender is a "squatter" on land belonging to the victim. The offender's means is not a determinant factor, for compensation is the responsibility of the clan of which the offender is a member.

3. The extent of the injuries to the victim calls for an award of damages in civil proceedings far in excess of the maximum available to be awarded under the Criminal Law (Compensation) Act and, consequently, justifies the award of the maximum K5,000 allowed under s 3 of the Act. (Obiter: The fact of such an award should be taken into account on final assessment of civil claim).

4. Payment by instalments is appropriate where no clear means of the clan's ability to pay are available

Counsel

C Manek, for the State.

B Takin, for the defendant.

29 September 1994

BROWN J: This case raised matters which go beyond the normal when one is considering an appropriate sentence for an aggravated assault.

Here the prisoner is a child, aged 21, of the people from Kerema area living at Sogo Place, Kila Kila 2 Village, Port Moresby. They are squatters. They are grudgingly permitted to remain, it seems, for on the statement of Willy Geita, the land currently occupied by accused's family was given to Tore Eka, an elder of the United Church, by his father, Geita. Willy Geita says that the accused and his "family moved in unaware". As an illustration of the trouble these people have caused, Boa Geita, the victim's second brother, says this is the fourth time the landowners have been abused in this fashion.

He says one man was shot to death by the same people, a second was knifed on the chest, while a third was robbed. This victim, Geita Geita, aged 23, was very seriously injured. Mr Manek properly refers to the doctor's report of Toki Inina, dated 22 March 1994. My own assessment is at Court, when this matter came first before me, and the probation officer's report, where the victim's mother, Debea Geita, describes Geita Geita's present condition.

I quote from the doctor's report:

"On examination at that time he was bleeding from the left side of his head with brain substance coming out through the wound. He was semiconscious. After appropriate initial management he was taken to the operating theatre the same evening and under general anaesthetic the pieces of broken bone from the left side of his skull were removed along with dead brain tissue and blood clots."

When I spoke to Geita Geita in court, his wife was with him. He said he was all right, but she said his...