The State v Eddie John Naopa (2003) N2411

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 24 April 2003
• Citation: (2003) N2411
• Court: National Court
• Year: 2003
• Judgement Number: N2411

Full Title: The State v Eddie John Naopa (2003) N2411

National Court: Kandakasi J

Judgment Delivered: 24 April 2003

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1593 of 2001

THE STATE

-V-

EDDIE JOHN NAOPA

WEWAK: KANDAKASI, J.

2003: 2nd, 8th, 23rd and 24th April

CRIMINAL LAW – PRACTICE & PROCEDURE – Appropriateness to hear from victim of offence before sentence – Appropriate practice to do justice from the view point of a victim – The victim’s view can be obtained by hearing him or her in Court or through a pre-sentence report – Means assessment and pre-sentencing report required before any compensation order and community based sentence can be considered and imposed – Such reports at variance with victim’s statement in Court - Court not bound to accept such a report’s recommendations.

CRIMINAL LAW – Compensation – Compensation only relevant for mitigation purposes and does not excuse criminal liability or penalty – Means assessment necessary before making any orders for compensation – Means assessment report disclosing prisoner not personally having any means to pay but relatives capable of meeting any compensation order – Compensation ordered conditional upon prisoner repaying by provision of supervised free labour to relatives.

CRIMINAL LAW - Sentence – Grievous bodily harm to a school girl – A gang attack on school girls returning from Scripture Union fellowship - Victim rendered 100% permanently disabled to right eye - Guilty plea – No prior convictions – Customary compensation paid – Prisoner making no personal contribution - Expression of remorse in Court – Victim stating in Court a wish that both compensation and term of imprisonment be imposed – Probation report recommending compensation only - Sentence of 5 years part suspended imposed – Criminal Code ss. 19 and 319.

Cases Cited:

The State v. Abel Airi (28/11/00) N2007.

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. James Gurave Guba (19/12/99) N2020.

The State v. Rex Lialu [1988-89] PNGLR 499.

The State v. Margaret John (No.2)[1996] PNGLR 298.

The State v. Dobi Ao (No.2) (01/05/02) N2247.

The State v. Raphael Kimba Aki (No 2) (28/03/01) N2082.

The State v. Kennedy Arus (16/03/01) N2081.

Jack Lundu Yalo v. Motor Vehicles Insurance (PNG) Trust (08/12/95) N1386.

Counsels:

Mr. M. Ruari for the State

Mr. G. Korei for the Prisoner

24th April 2003

KANDAKASI J: You pleaded guilty to one charge of causing grievous bodily harm to a young school girl, namely Stella Junembary on the 27th of July 2001 at the Brandi High School here in Wewak, contrary to 319 of the Criminal Code. Upon reading the depositions which were admitted into evidence with your consent, I was satisfied that there was sufficient evidence supporting your guilty plea. I therefore accepted your guilty plea and convicted you on the charge presented.

Relevant Facts

The relevant facts are straightforward. Between 9:00 and 9:30 pm on the 27th of July 2001 in the company of 4 others, you were at Brandi High School. That was after you had gathered them from various places. You stayed for a little while under a rain tree not far from the girls’ dormitory at Brandi High School. Whilst there, you saw a group of female students walking on the main road toward their dormitory. They were returning from a Scripture Union fellowship. Upon seeing that, you and your friends planned to get one of the girls.

You then decided to and did in fact execute your plan by grabbing hold of the victim. The victim was right behind her friends. She struggled to free herself and in the process, she had her left fingers cut with a knife held by the person who grabbed her. The victim says with the support of other witnesses that the knife was used to threaten her. The victim then fell into a drain. She managed to get up and tried to run away and you shot her with a stone through a slingshot you had with you. The stone reached the victim’s right eye. You then fled the scene and were later arrested and charged by Police over the incident.

Meanwhile, the victim was admitted to the Wewak Hospital and received treatment for the injuries she sustained. Medical intervention did not help prevent the victim losing completely the use of her right eye. Although she recovered from the injuries, it was with a 100% loss of her right eye.

The Offence and Sentencing Trend

You have been charged under s. 319 of the Criminal Code. That section creates the offence of grievous bodily harm and directs that anyone who does such harm to another must be imprisoned to a term not exceeding 7 years. A number of judgements have already dealt with offences under this section before imposing a variety of sentences. This, I believe has been the case because as I said in The State v. Abel Airi (28/11/00) N2007, the exercising of the sentencing discretion in a sentencing judge is not a matter of mathematics. Instead, it requires an exercise of judicial discretion in such a way to do justice in the circumstances of a particular case by reason of which there might well be differences of sentences.

One such case is that of The State v. Isaac Wapuri [1994] PNGLR 271. That was a case in which the prisoner hit his sister in-law with a vehicle hand brake cable on one of her eyes resulting in a 90% residual disability. This was supposedly after the victim failed to get the prisoner to have sexual intercourse with him and she scattered all of his clothes all over the place. The prisoner thought that was in retaliation for his refusal and so he reacted in the way he did. He was given 18 months in hard labour with 5 months deducted on account of time spent in custody. The balance of the sentence was suspended on condition of good behaviour bond and compensation of K500 cash and pigs to the value of K800 in accordance with the victim and the offender’s custom.

In another case, The State v. Philip Susuve Raepa [1994] PNGLR 459, the victim was rendered brain damage out of a drunken brawl and after a skull operation to remove internal bleeding. The Court ordered K5,000 compensation and placed the prisoner on good behaviour bond on his own recognizance with a surety of K300.00 with judgement being deferred to future sittings of the Court and for the prisoner to abstain from alcoholic drinks for 12 months until further orders.

Later, in The State v. Apa Kuman (20/12/00) N2047, a sentence of 3 years imprisonment was imposed. The prisoner after having raped the victim cut her across her stomach to prevent her from calling out for help. That caused substantial damage to her left and right lobes, which bled profusely into the abdomen. Quick admission to the hospital prevented further bleeding and saved her from death due to loss of blood. The prisoner was a young first time offender.

On my part, in The State v. Nickson Pari (N0.2) (10/01/00) N2033, I imposed a term of 4 years and suspended part of it on terms, inclusive of good behaviour bond. That was a case in which the prisoner shot at and injured the victim on his left arm in the course of, and in furtherance of an armed robbery. He was also a first time young offender.

At about the same time in The State v. Darius Taulo (15/12/00) N2034, I imposed a wholly suspended 3 years sentence on strict terms as an alternative form of punishment outside the prison system. That was in the face of genuine remorse being expressed coupled with compensation already paid for by the prisoner himself, a preparedness to undergo his wife’s (the victim’s) traditional form of compensation and restoring the relationship and a willingness to truly change his ways under supervision. I was also persuaded to arrive at that sentence because the victim preferred compensation and that the innocent children of the marriage stood to suffer if the prisoner was sent to prison. Further, the pre-sentence report supported such a sentence. I also noted that the prisoner was a grownup man and he was not a danger to the society and that the society through a pre-sentence report was prepared to help him to rehabilitate.

In all of these cases, the prisoners pleaded guilty and that they were first time offenders. They all involved a single victim. Further, there was a good explanation for the commission of the offences...