The State v Nelson Maip

• Jurisdiction: Papua New Guinea
• Citation: (2015) N6091
• Date: 06 October 2015
• Court: National Court
• Year: 2015

Full : CR No.376 Of 2015; The State v Nelson Maip (2015) N6091

National Court: David, J

Judgment Delivered: 6 October 2015

CRIMINAL LAW—Sentence—Unlawful doing grievous bodily harm—One count - Plea of guilty - Criminal Code, s319.

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

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...