The State v Elsie Wabi (2009) N3662

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

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

National Court: Yalo, AJ

Judgment Delivered: 21 May 2009

CRIMINAL PRACTICE – Prisoner charged with one count of grievous bodily harm under s319 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 – s278 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 – s281 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 [1967–68] PNGLR 277; Public Prosecutor v Tardrew [1986] PNGLR 91; The State v Rex Lialu [1988–89] PNGLR 449

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 s319 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...