The State v Patrick Jul (2005) N3167

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 22 December 2005
• Citation: (2005) N3167
• Docket Number: CR NO. 1839 of 2005
• Court: National Court
• Year: 2005
• Judgement Number: N3167

Full Title: CR NO. 1839 of 2005; The State v Patrick Jul (2005) N3167

National Court: Kandakasi, J

Judgment Delivered: 22 December 2005

N3167

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1839 of 2005

THE STATE

-V-

PATRICK JUL

Vanimo: Kandakasi, J.

2005: 19th, 21st and 22nd December

DECISION ON SENTENCE

CRIMINAL LAW - Compensation – Prisoner wishing to pay – No secure source – Attitude of victim not obtained – No input from community leaders - Inappropriate to order compensation.

CRIMINAL LAW – Sentence – Particular offence - Grievous bodily harm to superior at workplace – Provocation in non-legal sense by alleged adverse report against prisoner - Victim’s 11th rib fractured with good recovery – Guilty plea – First time offender – Prevalence of offence - No compensation paid and having no means to pay – Pre-sentence report not balanced - Custodial sentence appropriate – 2 years 6 months imposed – Criminal Code s. 319.

Cases cited:

Roger Jumbo and Aidan Awatan v The State (26/03/97) SC516.

Imiyo Wamela v. The State [1982] PNGLR 269.

Koniel Alar and Hosea Biu v. The State [1979] PNGLR 300.

The State v Vincent Naiwa (22/06/04) N2710.

The State v. Isaac Wapuri [1994] PNGLR 271.

The State v. Philip Susuve Raepa [1994] PNGLR 459.

The State v. Apa Kuman (20/12/00) N2047.

The State v. Nickson Pari (N0.2) (10/01/00) N2033.

The State v. Darius Taulo (15/12/00) N2034.

The State v. Rueben Irowen (24/05/02) N2239.

The State v Henry Idab (17/12/01) N2172.

The State v. Eddie John Naopa (24/04/03) N2411.

The State v. Marety Ame Gaidi (26/0802) N2279.

The State v. Louise Paraka (2002) N2317.

Counsels:

Mr. J. Walai, for the State.

Mr. G. Korei, for the Accused.

22 December, 2005

1. KANDAKASI, J: You pleaded guilty to one charge of causing grievous bodily harm to another person, namely Dennis Weheren at the Bewani Health Centre on 13 March 2003, here in the West Sepik Province.

2. Following your guilty plea, the State admitted into evidence with your consent the District Court depositions. I was then satisfied that, there was sufficient evidence supporting the charge and your eventual guilty plea. I therefore accepted and confirmed your guilty plea and had you convicted on the charge of grievous bodily harm as presented under s. 319 of the Criminal Code.

3. After your address on your sentence, your lawyer applied for a pre-sentence and means assessment report. The Probation Services here in Vanimo have now furnished the report required of them. I note that, the report has no input from the victim and his relatives. Similarly, I noted that, there was no input from the police and any impartial leader in the community indicating their position in relation to the kind of sentence they would want to see you receive. This is important because the Court needs to know, whether they would welcome a non-custodial sentence and if so, what part they would play in a fulfilment of any terms or conditions, the Court might impose as an alternative to sending you to prison to serve your time.

Relevant Facts

4. Turning now to the relevant facts, I note that during the day on 13 May 2003, you went to the then Officer in Charge of the Bewani Health Centre, the victim of your offence. That was over your feeling bad about some confidential report concerning you and a death of a patient. At that time, you served at the same Health Centre as a Community Health Worker. There are two conflicting accounts as to how you caused the grievous bodily harm to the victim. One of them is your own account to the police in the record of interview and the other is the victim’s account supported by the other evidence.

5. The victim’s version is that when you went to see the victim, you went armed with a piece of big stick (witnesses describe it has a log). As soon as you entered the victim’s office, you stood on the other side of his table, picked up his diary and started to read his entries in it. Soon an argument between the victim and you erupted and you used the stick you walked in with to strike the victim across his mouth on the jaw line causing him to bleed right away. You struck the second time with the same stick and that landed on the left side of the victim’s rib cage. That resulted in a fracture of his 11th rib. You struck the third time, this time the victim lost his balance and fell on the floor, and you continue to hit with the stick until the stick broke off on victim’s forearm when he raised it to block of further attacks. The victim thought you were going to kill him.

6. Upon the breaking of the stick, you stopped further attacks of the victim and left. The victim in the meantime crawled out of the office with blood coming down from his face. As soon as he got out of his office, his wife went for his help and walked him home. After leaving him at the house, the victim’s wife went and arranged for the police motor vehicle, which transported the victim to the Vanimo General Hospital the same day. The victim was in a lot of pain until medically treated and he eventually recovered from the injuries you inflicted upon him.

7. Your version tells the same story with a number of variations. First, you say you went to see the victim bare handed. Secondly, you claim that, you knocked on the victim’s office door three times. On each occasion, he told you that, he was busy and he asked you to go away. You however insisted on talking to him. Therefore, on the third occasion, you helped yourself into his office, picked up his diary, and started reading the entries therein and an argument erupted between you and him. Thirdly, you say the victim armed himself with a stick and asked you to leave his office, pushing you out as he did and calling you a stupid. Fourthly, you grabbed hold of the stick and both of you pulled either way until it broke on the victim’s table and then you fought each other and both of you landed on an old safe that was in the office.

8. Clearly, therefore, there are two conflicting versions of what happened. This does not concern the commission of the offence but only in relation to factors of aggravation or mitigation, depending on from which angle, one sees it. In such a case, the law

1 Per Roger Jumbo and Aidan Awatan v The State (26/03/97) SC516; See also Imiyo Wamela v. The State [1982] PNGLR 269 and Koniel Alar and Hosea Biu v. The State [1979] P.N.G.L.R. 300 at p. 307.

1 provides that:

“On a plea of guilty, the plea admits no more than the essential ingredients of the offence. The plea does not in itself admit any circumstances of aggravation which may be alleged by the prosecution; nor conversely does it in itself negative any circumstances of mitigation not amounting to exculpation which may be within the knowledge of the accused alone.

If an accused disputes circumstances of aggravation alleged, he must do so by sworn evidence from himself or someone else; if on the other hand the aggravating matter is not sworn to and is only alleged on the one hand, and denied on the other, in an unsworn form, then “it is the duty of the trial judge to act upon the version of the facts which, within the bounds of reasonable possibility, is most favourable to the accused.

The right of the accused must be no less with regard to circumstances of mitigation such as those claimed in the present case. The facts normally are within the knowledge of the accused alone. Nevertheless the Court must ‘within the bounds of reasonable possibility’ accept the accused’s version. The Court can reject the explanation if it passes the bounds of reasonable possibility, but we do not think it ought to take this course without giving the accused an opportunity to support his assertion by his oath and that of any other witnesses it wishes to call.”

9. In your case, the State did not allege the use of the stick or log or any of the other claims in your version of events. The State merely alleged and you accepted an allegation that, you and the victim fought over the confidential report and the victim suffered a fracture injury to his 11th rib. The State did not allege any particular aggravating circumstances against you. This was confirmed by counsel for the State that, it was presenting the indictment against you under s.319 and not s.315 of the Code. The State maintained that position up to submissions of the parties on the appropriate sentence for you. In the circumstances, I am of the view that the State has already made a decision in favour of the version most favourable to by presenting the indictment in the way it did. I will therefore proceed to consider your sentence going by the version of facts favourable to you.

Allocutus and Submissions

10. In your address on sentence, you asked the Court to note and consider your guilty plea and being a first time offender. You also informed the Court that, you are married with children. Further, you...