The State v Lapan Tupulit

• Jurisdiction: Papua New Guinea
• Judge: Kangwia, J
• Judgment Date: 28 July 2015
• Citation: (2015) N6185
• Court: National Court
• Year: 2015
• Judgement Number: N6185

Full : CR No 1168 of 2013; The State v Lapan Tupulit (2015) N6185

National Court: Kangwia, J

Judgment Delivered: 28 July 2015

N6185

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1168 of 2013

THE STATE

-v-

LAPAN TUPULIT

Kavieng: Kangwia, J.

2015: 24 & 28 July

CRIMINAL LAW- Sentence - Grievous bodily harm with intent s 315 (b) & (d)- Convicted after trial where prisoner elected to remain silent – Intention to cause specific result attracts sentence up to life imprisonment – Courts not giving much thought in sentences imposed where offence treated same as GBH under s 319 with sentence range at 5-6 years

CRIMINAL LAW – Sentence - Compensation – offender’s offer of K1, 500. 00 with suspension orders insufficient – Victim sought K5, 000. 00 which was maximum under Criminal Law (Compensation) Act - No PSR – no suspension of sentence without supporting report - No suspension without conditions - Compensation of K2, 500. 00 adequate

CRIMINAL LAW - Sentence –Apology after 2 years – Injury rendered heavy use of left arm useless – prisoner treated as first time offender - Consistency in sentencing dissuades a quantum leap– deterrent and retributive sentence warranted- Sentenced to 5 years imprisonment with deductions for time in custody pending trial –Balance of sentence to be suspended after payment of compensation.

Cases cited:

Edmund Gima & Siune Arnold v State (2003) SC730

Public Prosecutor v Sidney Kerua & Billy Kerua [1985] PNGLR 85;

State v Brian Wadada (CR 885 of 2013)(Unreported Judgment dated 21 May 2015

State v Inapero Susuare (1999) N1880;

State v So’on Taroh (2005) N2675;

State v Jamumei Lawrence (2009) N3117;

State v Lionel Gawi (2005) N2951;

Acting Public Prosecutor v Don Hale (1998) SC 564;

State v Peter Pepa (2010) N4146;

State v Yale Sambrai (2005) N2886;

Counsel:

A. Bray, for the State.

M. Mumure, for the Prisoner.

28 July, 2015

1. KANGWIA, J: Lapan Tupulit appears as a prisoner for Sentence. He was convicted after a trial on one count, that he intended to do Grievous Bodily Harm (GBH) and did Grievous Bodily Harm to one Passingan Milvang, an offence contrary s. 315 (b) & (d) of the Criminal Code Act (CCA).

2. The brief facts were that on 18 December 2012 the prisoner went to where the victim was and asked if the victim had reported him. This was followed by the prisoner chopping the victim on the left shoulder with a bush knife. The injured victim was assisted to the hospital for treatment. He sustained serious injury to the left shoulder area effectively rendering useless the full use of his left arm.

3. The State could not confirm any prior convictions hence he is treated as a first offender.

4. The prisoner is 35 years old and married with one child. He has 2 brothers and 2 sisters. Both parents are alive. He has no formal education.

5. On his allocutus the prisoner said; “I say sorry to the Court for what I did. I ask for leniency with probation. I have K1, 500: 00 according to relatives to compensate and settle the problem under custom.”

6. On his behalf, Mr. Mumure submitted that the Defence conceded the serious injuries to the victim but the Court should determine the penalty on its own merits and should not attach high tariffs in sentencing; that the sentence range of the Court for the offence was currently around 5 to 6 years. Mr. Mumure then cited the following cases for the Court’s consideration.

7. The State –v- Peter Pepa (2010) N4146 where a first time offender who paid instant compensation after causing multiple wounds on the victim including a cut to the Achilles was sentenced to 6 years on a guilty plea.

8. In the State –v- Tamumei Lawrence (2007) N3117 the prisoner was sentenced to six years on a guilty plea to a group attack on the victim.

9. It was also submitted that the prisoner offered to pay K1, 500.00 compensation which the Court should consider. The prisoner had been in custody for 2 years and 2 days awaiting trial and any suspension of sentence was left to the Court’s discretion.

10. For the State Mr. Bray submitted the following as aggravating factors;

- The attack was unprovoked. No reason was offered for cutting the victim.

- The prisoner used a dangerous weapon.

- There was presence of a strong intention to do GBH.

- Injury caused was serious and life threatening.

- The offence was prevalent.

11. It was submitted that a sentence to reflect personal and public deterrence was appropriate in light of the offence being prevalent.

12. While conceding the defence submission on the sentence range for the offence, Mr. Bray suggested that 6 years was appropriate and any suspension of sentence should be with conditions.

13. As for the K1, 500: 00 proposed compensation Mr. Bray offered that the victim during instructions preferred compensation of K5, 000: 00 as the left arm was rendered useless for heavy work.

14. The offence the prisoner was convicted of under s. 315 (b) & (d) of the Criminal Code. The relevant parts are in the following terms:

s. 315 Acts intended to cause Grievous Bodily Harm or prevent apprehension

A person who, with intent –

(a) . . .

(b) to do some grievous bodily harm to any person; or does any of the following things is guilty of a crime –

(c) …

(d) unlawfully wounding or doing a grievous bodily harm to a person; or

(e) . . .

Penalty: Subject to section 19, imprisonment for life.

15. Section 315 creates an Intention to Cause a specific result as an element of the offence. Therefore any offence under s 315 (if proved) becomes more serious attracting a maximum penalty of life imprisonment than its cousin offence under s 319 which carries a maximum penalty of 7 years imprisonment.

16. In my humble view the penalty provision under the offence charged has been accorded inadequate thought and consideration by the Courts as shown by the following cases.

17. In the Public Prosecutor –v- Sydney Kerua & Billy Kerua [1985] PNGLR 85 the two offending brothers were sentenced to 1 year 9 months each for unlawful wounding with intent to cause GBH. On appeal for inadequacy of sentence the Supreme Court substituted the sentences with 4 years & 2 years respectfully.

18. The victim in that case was hospitalized for 13 days and received medication for over two months for the injuries sustained in a persistent assault on him by the prisoners and others in a mob attack.

19. In the State –v- Inapero Susuare (1999) N1880 where the offender who cut the victim on the head and nose with an axe was sentenced to 3 years with 2 years of it suspended with conditions.

20. In the State –v- Yale Sambrai (2005) N2886 the offender cut the victim on the head with a bush knife inflicting a serious injury. As a first time offender who pleaded guilty to the charge, the Court sentenced the offender to 2 years.

21. In the State –v- Lionel Gawi (2005) N2951 the offender cut the victim on the head with a homemade metal axe. Others also attacked the victim. Compensation was paid early and on a guilty plea the Court sentenced the offender to 4 years.

22. In Tamumei Lawrence (2007) N3117 the offender cut the victim on his upper left arm. He was later attacked with sticks and stones. The victim underwent several operations. The Court sentenced the offender to 6 years.

23. In the State –v- Peter Pepa (2010) N4146 the offender cut the victim several times with a bush knife on his face, right arm and right leg. The Court sentenced the offender to 6 years with part of the sentence suspended on conditions.

24. The cited cases show that the average sentence under s 315 (GBH with intent) are generally below 6 years imprisonment. Those sentences were imposed notwithstanding that the maximum prescribed penalty under s 315 was life imprisonment. Owing to the prevalence of the offence where grievous bodily harm is caused, sentences should be higher for purpose of personal and public deterrence.

25. Despite the seemingly lenient sentences cited I am also mindful of the principle of proportional and consistent sentencing which dissuades me from considering a sentence that may amount to a quantum leap in the present case. I propose not to take a quantum leap.

26. The aggravating factors in this case far outweigh those in mitigation. The prisoner denied the offence and raised self defence, yet elected to remain silent. He offered no explanation on the self defence alleged. Self defence was never featured nor present at the trial. The Court and the State were made to incur time and expenses on a futile denial.

27. Usually an offender who wanted to avoid culpability would go out of his way to offer an explanation or justify his actions. That is not the case here.

28. On his allocutus the prisoner indicated that his family had K1, 500.00 to compensate the victim. However, Mr. Bray submitted that the victim during instructions preferred K5, 000.00 if compensation was to be a part of the sentence.

29. There are no supporting reports such as a Pre-Sentence Report for purposes of compensation or even a suspended sentence.

30. Although a sentencing Court...