The State v Joe Ngotngot

• Jurisdiction: Papua New Guinea
• Judge: Anis AJ
• Judgment Date: 29 July 2016
• Citation: (2016) N6364
• Court: National Court
• Year: 2016
• Judgement Number: N6364

Full : CR No 644 of 2014 and CR No 1540 of 2015; The State v Joe Ngotngot and Eremas Mutiul (2016) N6364

National Court: Anis AJ

Judgment Delivered: 29 July 2016

N6364

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 644 OF 2014 and CR NO. 1540 OF 2015

THE STATE

V

JOE NGOTNGOT

AND

EREMAS MUTIUL

Kokopo: Anis AJ

2016: 5 & 29 July

CRIMINAL LAW – SENTENCING - two prisoners found guilty of grievous bodily harm under section 319 of the Criminal Code Act Chapter No. 262 - prisoners policemen - serious assaults on a civilian - each prisoner sentenced to 5 years imprisonment - victim wants two prisoners to pay compensation and not go to jail - 5 years imprisonment each suspended - K6,000 compensation awarded against each prisoners plus 200 fathoms or shell money - other imposed conditions applied including an order that compensation be paid forthwith within 6 months

PRACTICE AND PROCEDURE – Police Force's role and duties under the Constitution and the Police Act 1998 discussed

PRACTICE AND PROCEDURE – Court's powers to award compensations under the Criminal Law (Compensation) Act 1991 and the Probation Act Chapter No. 381 discussed

Facts

The two prisoners were policemen. The State charged both men with grievous bodily harm with intent, on a civilian. They were convicted on the alternative charge of grievous bodily harm. The Court found that the two accused had seriously assaulted and wounded a civilian Miriam Papakat with a softball bat and a fanbelt. After their trial on sentence, the Court reserved its decision.

Held

1. A starting point of four (4) years imprisonment should be imposed on members of the disciplinary forces that are found guilty of committing grievous bodily harm to a civilian or to the public.

2. The two prisoners represent the Police Force or the Royal Papua New Guinea Constabulary as it is called under the Police Act 1998. Their actions for which they were found guilty of were far from preserving peace, good order or from maintaining or enforcing the law, as stated under section 197(1) of the Constitution.

3. The Court should not ignore a victim's request or plea in a sentence hearing. In my opinion, before the Court decides for example not to award compensation contrary to the request of the victim, it should firstly rule out all reasonable considerations or possibilities on the subject matter. These include, in my opinion, considering:

(i) whether the victim's request for compensation is a fitting one for the type of offence committed;

(ii) whether the victim's request for compensation is reasonable or fair;

(iii) whether the victim's request for compensation would greatly benefit or assist the victim on matters or issues that have arisen as a direct result of the offence been committed on the victim; and

(iv) whether the prisoner is capable of paying the compensation that is being sought.

4. Courts have exercised their powers in cases where more than one prisoner is sentenced and have awarded compensation at K5,000 or less per prisoner to the same victim and the total compensation would exceed K5,000 [see cases: State v. Anos Naime Maraga (2002) N2433; State v Angaun Kakas, KakaliaTulu, Sukulin Passomb and Kalain Kula (1994) N1219].

5. Apart from the Criminal Law (Compensation) Act, the National Court also has powers under section 18(1)(b) and (e) of the Probation Act Chapter No. 381 to award compensation beyond K5,000 [Cases followed: State v. Balthazar Basan (2012) N4896; State v. James Dar (2015) N6106].

6. The victim Miriam Papakat did not want the two prisoners imprisoned but wants them to pay her compensation for the injuries she had sustained.

7. The Court has duly noted and given effect to the victim's request in that the Court has imposed non-custodial sentences of five (5) years imprisonments against each prisoner with imposed conditions, which included compensation payments of K6, 000 cash plus 200 fathoms of Tolai shell monies to be paid by each prisoner to the victim within six (6) months.

Cases Cited:

State v. Angaun Kakas, Kakalia Tulu, Sukulin Passomb and Kalain Kula (1994) N1219

State v. Anos Naime Maraga (2002) N2433

State v. Balthazar Basan (2012) N4896

State v. Daniel Kapen (2013) N5133

State v. Danny Makao (2005) N2996

State v. James Dar (2015) N6106

State v. Nelson Maip (2015) N6091

Counsel:

Ms Aihi, for the State

Mr Kaluwin, for the two Prisoners

SENTENCE

29 July 2016

1. ANIS AJ: On 30 May 2016, I convicted the two prisoners Joe Ngotngot and Eremas Matiul (the two prisoners) each for the alternative offence of grievous bodily harm under section 319 of the Criminal Code Act Chapter 262 (Criminal Code).

2. This is my ruling on sentence.

BRIEF FACTS

4. This Court found that on 14 December 2013 between 10am - 10:30am, the two prisoners with other policemen went to Kabakada village, Rabaul, East New Britain Province. They went there to attend to a complaint of a disturbance that had occurred the previous night. At Kabakada village, the Court found that prisoner Eremas Matiul used a softball bat and assaulted the complainant Miriam Papakat (Miriam). The Court also found that prisoner Joe Ngotngot used a rubber fanbelt to assault Miriam. The Court found that the two prisoners with others brought Miriam and another suspect to the main road to wait for the police vehicle to arrive. The Court found that at the roadside the two prisoners continued to assault Miriam some more using the same softball bat and the fanbelt. The Court found that Miriam cried out in pain and begged the two prisoners to stop but the two prisoners kept on assaulting her with the two weapons they each had. The Court found that the police vehicle arrived and Miriam was taken to the Rabaul Police Station where she was arrested and charged. The Court found that despite Miriam's serious injuries, which included a swollen dislocated right leg, she was kept at the police cell for two days before she was granted bail and released.

ISSUES

5. The issues are:

(i) What would be the fitting punishments for the two prisoners?

(ii) Should this Court impose custodial sentences on the two prisoners?

(iii) If not, what type of punishments should be imposed on the two prisoners?

PERSONAL DETAILS & ALLOCATUS

(i) Prisoner Joe Ngotngot

6. The prisoner has no prior convictions.

7. He is 44 years old and comes from Tavui No. 3 in Rabaul, East New Britain Province. The prisoner's highest education attained is grade 10 at Boisen High School in Rabaul. He joined the police after that. He worked as a policeman for 24 years. He is currently married to Joylyn June and has two (2) sons. They both attend schools. The prisoner had previously been married. From his earlier marriage, he had three (3) children. Presently, the prisoner looks after all his children except his daughter from his earlier marriage who is being looked after by his former wife Angela Raubi who is based in Lae.

8. The prisoner's parents are alive. The prisoner presently takes care of his father who is said to be suffering from TB. He has six (6) siblings, two (2) brothers and four (4) sisters. The prisoner is the fourth born in the family. None of his siblings are employed.

9. The prisoner had these to say at allocatus:

· he said sorry to the Court

· he said he was executing his duty when he encountered the incident

· he asks the Court for mercy

(ii) Prisoner Eremas Matiul

10. The prisoner has no prior convictions.

11. He is 26 years old and comes from Raburua village in Gazelle, East New Britain Province. The prisoner's highest education attained is grade 12 at Kambubu High School in Gazelle, East New Britain Province. He worked as a policeman for four (4) years. The prisoner is married and has one (1) adopted child and two dependants whom he looks after.

12. The prisoner has five (5) siblings. He is the lastborn. The prisoner's mother passed on in 2002. His father remarried and moved on with his life. The prisoner and his second lastborn sister Pauline Eremas were adopted and looked after by their uncle Nelson Tokiel. Their uncle is alive and still cares for them.

13. The prisoner had these to say at allocatus:

· he said sorry to the Court

· he said he thought he was performing his duty but encountered the incident

· he asks the Court for mercy

MITIGATING & AGGRAVATING FACTORS

14. I note and take into account the submissions by the parties on mitigating and aggravating factors. Let me firstly list what I have considered as mitigating factors for the two prisoners:

· both were first time offenders

· evidence of possible provocation in the non-legal sense

15. Secondly, I list the aggravating factors herein:

· the two prisoners were policemen who were supposed to uphold the law but instead chose to break it

· use of offensive weapons, that is, a softball bat and a fanbelt in the assault

· the offence was repeated at various locations

· the victim suffered injuries to all parts of her body including a suspected broken right ankle

· police brutality is prevalent in Papua New Guinea

PENALTY

16. The...