The State v Jeffery Uapipi

• Jurisdiction: Papua New Guinea
• Judge: Liosi, AJ
• Judgment Date: 25 April 2016
• Citation: (2016) N6262
• Court: National Court
• Year: 2016
• Judgement Number: N6262

Full : CR No: 817 of 2012; The State v Jeffery Uapipi & David Kundu (2016) N6262

National Court: Liosi, AJ

Judgment Delivered: 25 April 2016

N6262

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No: 817 of 2012

THE STATE

V

JEFFERY UAPIPI & DAVID KUNDU

Kundiawa: Liosi, AJ
2014: 14th November
2016: 14th & 17th March, 25th April

CRIMINAL LAW – Practice and Procedure – Murder Trial – Criminal Code s.300 (1) (a) –Trial Complete –Accused found not guilty of Murder – Found Guilty of Grievous Bodily Harm – Section 319 Criminal Code – Submission on Sentence Pending – Trial Judge resigns – Should mistrial be declared – Whether proper for another Judge to complete matter – s.576(3) Criminal Code.

CRIMINAL LAW – Sentence – Grievous Bodily Harm – Criminal Code Section 319 – Pleaded not guilty to murder – found guilty of Grievous Bodily Harm – Deceased accidentally pushed onto a sharp pocket knife piercing the left ventricle causing death –

CRIMINAL LAW – Charge of Grievous Bodily Harm resulting in death – Circumstance of Assault – Not as serious – Should range of sentences be higher than normal Grievous Bodily Harm case where death does not occur. – Whether certain Aggravating factors should be taken into account or not.

CRIMINAL LAW – Pre-Sentence Report – Prisoners Requesting to pay Compensation – Need to pay rather than being ordered to pay – Indication of genuineness of being remorseful – Whether order for Compensation can exceed K5,000.00 – Distinction between compensation order under Criminal Law (compensation) Act and order for damages or compensation as part of Probation order under Probation Act chpp.381.

Cases Cited:

Anna Max Marangi v. The State SC 702

Goli Golu v. The State [1979] PNGLR 65.

John Warambo v. The State SC 551.

Manu Kovi v. The State (2005) SC 789.
State v. Aga (No.2) (2013) N5381.
State v. Lawrence Matau (2008) N3865.
Thress Kumbamong v. The State (2008) SC 1017.

Counsels:

P. Tengdui, for the State
M. Yawip, for the offenders

25th April, 2016

Charge

1. LIOSI AJ: The two prisoners are charged that on the 4th day of January 2012 at Kundiawa bus stop in PNG they did each and severally with intent to do Grievous Body Harm to one Daka Mond Kewa killed, the said Daka Mond Kewa a national male thereby contravening s.300 (1) (a) of the Criminal Code Act chp 262.

Facts for Arraignment

2. The accused are policeman based in Kundiawa. It is alleged that on the 4th day of January 2012 at Kundiawa Town Bus stop, the defendants were on foot patrol at Kundiawa Town bus stop. It is further alleged that the accused knifed the deceased. The deceased died at the Hospital after been taken there.

Plea

3. The prisoners pleaded not guilty to the charge of murder under s. 300 (1) (a) of the Criminal Code Act.

Trial

4. The prisoners were tried on one count of Murder but were found guilty of the lesser court of Grievous Bodily Harm. After the verdict of guilty was returned but before the prisoners were sentenced the Trial Judge’s term expired. On the 14th March 2016 the matter came on for Submission by counsels on Sentence. The court noting the above raised the issue as to whether I should hear submissions on sentence or should this matter be declared a mistrial. The matter was then adjourned to 17th March 2016 for submission to be made. On 17th March 2016 the court ruled that it could proceed and hear submissions on sentence as the offenders had already been convicted of Grievous Bodily Harm after a trial. The ruling was made pursuant to s.576 (3) of the Criminal Code which states;

“If after an accused person has been convicted of an offence but before sentencing the presiding Judge becomes incapable of proceeding, some other Judge may, on application by the accused person or his counsel, or by a State Prosecutor, proceed to sentence as though the accused person had been convicted by him”.

After the Ruling the court proceeded to hear submissions on sentence.

Allocutus

5. On Allocutus Jeffrey Uapipi says he is 42 years old and has been in the Police force for 26 years. The court case has taken about 6 years. The accident happened when they were on Police duty and were charged for the Criminal offence and convicted. He is married with three (3) children to look after. He will respect the court decision and will follow what the court orders him to do. He also asked for court’s mercy. He apologises to the victim’s relatives for what had happened.

6. David Kundu says he is 39 years old. He has been in the Police Force for almost 7 years. The incident happened whilst he was on duty. He will rely on the court’s decision and ask the court for mercy. He has two (2) children to look after.

Defence Submission

7. The brief facts as found by the Court after the verdict of guilty to the lesser count of Grievous Bodily Harm are these. On the 4th of January 2012, both accused were on duty at Kundiawa Police Station. They walked up to patrol the PMV bus stop as there were complaints of street sellers harassing the travelling commuters going to Mt. Hagen.

8. It was there that the accused Jeffery Uapipi caught the deceased who was selling pocket knives. He took a knife from the deceased and was talking to him when the other co-accused David Kundu came at the back and pushed the deceased towards Jeffery without knowing that Jeffery was holding a knife pointed at the deceased. The Knife pierced the left ventricle of the heart causing death. The trial Court found that the stabbing was accidental but found that the act of holding out the knife was unlawful as it was a dangerous object and thus convicted the two prisoners of Grievous Bodily Harm.

9. The offenders Brief Particulars as submitted by counsel are as follows. Mr. David Kundu is a Policeman attached with the Task Force Unit here in Kundiawa. He holds the rank of Constable and has been with the Police for eight years since 2009. He completed Grade 12 at Tari Secondary School. He is from Koroba station. He is married with two (2) children. Currently he resides at Ega Police Barracks and still on duty as a member of the Task Force Unit here in Kundiawa.

10. Mr. Jeffery Uapipi is a Policeman. He holds a rank of Senior Constable and is the officer in charge of general duties here at Kundiawa and also a Shift supervisor. He is married to another officer who is attached with the Criminal Investigation Division. He is from New Ireland Province, and has five children. The eldest has completed grade twelve (12) last year and three are attending primary school. He completed Grade 10 at Namatanai High School in 1990 and joined the Police in 1991. He has served the force for 26 years. He is presently in charge of General duties and a shift supervisor.

11. The maximum penalty under section 319 of the Criminal Code is seven (7) years. This is however subject to Section 19 of the Criminal Code which gives the Court the discretion to impose lesser sentence. It is trite law that a maximum penalty is reserved for worst cases. Principles established in Goli Golu –v- State (1979) PNGLR 653. It is submitted that this case does not fall under the worst case category. We submit the following factors to demonstrate that this case does not fall under the worst case category.

12. In mitigation counsel has pointed to the following factors. Both offenders are policeman and are first time offenders. The fact that this was a trial matter should not be held against them as they were found not guilty for the charge of Murder as Indicted. The evidence shows that the stabbing was accidental and was not done intentionally. Reconciliation has been made where an amount of K5000.00 was paid on behalf of the two accused by the Provincial Government to the deceased family. Both offenders have good working records with the Police Department. Their Pre-sentence Reports contains recommendations by their superiors who spoke highly of them. It is submitted that the Court approve and endorse the recommendation of the Pre-sentence Report for both offenders.

13. Counsel has further cited the following cases by way of comparison.

State –v- Aga (No: 2 (2013) N538, His Honour Justice Geita at Wewak found the prisoner guilty of Manslaughter after he was indicted for Wilful Murder. The Court Sentenced him to 7 years wholly suspended with conditions.

State –v- Lawrence Matau (2008) N3865, His Honour Justice Kandakasi, Sentenced the prisoner charged with Murder to 10 years wholly suspended on strict conditions.

14. Mr. Yawip submits that the case of State-v- Aga is similar to the current case in that the offence occurred while the prisoner Policemen were discharging their duties, the prisoner tried their best by taking the victims to the hospitals but they died. Both cases were trial matters. However, in relation to Charges, the present case is less serious as the offenders were found guilty of Grievous Body Harm. Further the use of a gun is considered very serious as compared to a pocket knife. The Present case is not as serious as Lawrence Mauta’s case. It is submitted that the prisoner be sentenced to four (4) years to be wholly suspended with Conditions. Both spent three (3) months in custody before been granted bail.

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