The State v Michael Tangip (2012) N4782

• Jurisdiction: Papua New Guinea
• Judge: David J
• Judgment Date: 10 September 2012
• Citation: (2012) N4782
• Docket Number: CR No.1424 of 2009
• Court: National Court
• Year: 2012
• Judgement Number: N4782

Full Title: CR No.1424 of 2009; The State v Michael Tangip (2012) N4782

National Court: David, J

Judgment Delivered: 10 September 2012

N4782

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No.1424 of 2009

BETWEEN:

THE STATE

AND:

MICHAEL TANGIP

Prisoner

Minj & Mt. Hagen: David, J

2012: 15 August, 6 & 10 September

CRIMINAL LAW – sentence – unlawful doing grievous bodily harm – multiple injuries inflicted on victim’s right leg – right lateral crucial ligament and arteries in the region lacerated - tibia and fibula bones exposed – wounds cleansed with bethadine - internal and external stitches applied - drainage tube inserted - high dosages of antibiotics and analgesics administered – restriction of mobility - performance of household or domestic chores including gardening, church and other social activities greatly affected – use of crutches to walk for rest of life – scarring - flexing and extension of the right knee restricted - poor immobility of the third, fourth and fifth toes of the right leg - muscles wasting in right leg - 75% deformity in right leg at last review - long term physiotherapy required - prisoner believed victim caused death of daughter through sorcery - prisoner and victim are in-laws - factors in mitigation and aggravation equal – factors in aggravation outweigh those in mitigation - sentence of 5 years imprisonment in hard labour – period in custody deducted – remaining term suspended on terms - Criminal Code, Section 319.

Cases cited:

Goli Golu v The State [1979] PNGLR 653

Public Prosecutor v Thomas Vola [1981] PNGLR 412

Avia Aihi v The State (No 3) [1982] PNGLR 92

Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91

The State v Frank Kagai [1987] PNGLR 320

Gimble v The State (1988-89) PNGLR 271

Kwayawako and Five Others v The State [1990] PNGLR 6

Lawrence Simbe v The State [1994] PNGLR 38

Public Prosecutor v Don Hale (1998) SC564

The State v Peter Erne (1999) N1939

The State v Henry Idab (2001) N2172

Edmund Gima and Siune Arnold v The State (2003) SC730

John Baipu v The State (2005) SC 796

Irai Thomas v The State (2007) SC867

Richard Liri v The State (2007) SC883

The State v Steven Dua, CR. No.1525 of 2006, Unreported & Unnumbered Judgment of David, J delivered on 16 August 2007 at Mt. Hagen

The State v Ali Kawa Job, CR 1189 of 2006, Unreported & Unnumbered Judgment of David J delivered on 15 December 2009 at Kundiawa

Counsel

Mary-Anne Zurenuoc & Joe Kesan, for the State

Charles Kos, for the prisoner

SENTENCE

10 September, 2012

1. DAVID, J: The prisoner was charged with one count of unlawful doing grievous bodily harm contrary to Section 319 of the Criminal Code, the State alleging that on Saturday, 21 February 2009 at Banz, Jiwaka Province in Papua New Guinea, he unlawfully did grievous bodily harm to one Theresa Paul, (the victim). On Wednesday, 15 August 2012, I convicted the prisoner after he entered a plea of guilty.

2. After administering the allocutus, I directed that a pre-sentence report be compiled and filed by the Probation Service, Mt. Hagen branch by Tuesday, 4 September 2012 at the request of the prisoner made through his counsel, Mr. Kos. Submissions on sentence were reserved pending the filing of the report. The report was duly compiled and filed as directed and I thank Ms. Theresa Puk, Probation Officer for her assistance.

3. I heard submissions on sentence on Thursday, 6 September 2012 and reserved to pass sentence on the prisoner today. This is the sentence of the Court.

4. The prisoner appears before me for sentence from bail.

5. The maximum penalty prescribed for this offence is, subject to Section 19 of the Code, imprisonment for a term not exceeding 7 years.

6. Applying the principle of proportionality, i.e., a man must be given the sentence appropriate to his crime (as to both harm done and culpability) and no more, the maximum penalty is usually reserved for the worst sort of cases of unlawful doing grievous bodily harm: see Goli Golu v The State [1979] PNGLR 653 and Avia Aihi v The State (No 3) [1982] PNGLR 92.

7. It is also settled law that each case must be decided on its own facts: see Lawrence Simbe v The State [1994] PNGLR 38.

8. The short facts presented to the Court to which the prisoner pleaded guilty on arraignment were these. There was an ongoing feud between the prisoner and the victim. The prisoner suspected that the victim was a sorceress and he believed that the victim was responsible for the death of her eldest child, a female. On the morning of Saturday, 21 February 2009, the prisoner saw the victim at the Banz bus stop. Two of his accomplices held the victim by her arms and dragged her towards the back road. The victim put up a struggle and managed to hold onto a pole. The prisoner then attacked her with a bush knife slashing her right leg a number of times in the course. The victim was later taken to the hospital for treatment.

9. Three medical reports form part of the depositions. One was provided by Dr. Anthony Nasai, Surgical Registrar of the Wabag General Hospital dated 30 June 2009. The other two were provided by Dr. Smee Rank, Senior Clinician of the Mt. Hagen General Hospital, one dated 11 August 2009 and the other dated 1 October 2009.

10. These reports reveal that the victim was brought to the Accident & Emergency Department of the Mt. Hagen General Hospital after the incident on Saturday, 21 February 2009 and treated. Clinical examination revealed that the victim received multiple lacerations to her right leg/knee and was bleeding heavily from these wounds. The right lateral crucial ligament and arteries in the region were lacerated and the tibia and fibula bones exposed. The wounds were carefully cleansed with bethadine, internal and external stitches applied, drainage tube inserted and high dosages of antibiotics and analgesics were administered. It was reported that; the injury restricted the victim’s mobility such that the performance of household or domestic chores including gardening was greatly affected; she would be on analgesics for a long period; and that she would walk with the aid of crutches for the rest of her life. The prisoner then spent some time as an in-patient at the Surgical Ward at Wabag General Hospital where she received further medical attention. The report by Dr. Rank dated 1 October 2009 reveals that the wounds were healing progressively with scarring, but immobilization of the right leg was still limited. Post clinical findings were; flexing and extension of the right knee were restricted; poor immobility of the third, fourth and fifth toes of the right leg; muscles wasting in right leg; numbness in right leg; and victim requiring crutches to walk. It was further reported that the victim’s right leg had 75% deformity which required long term physiotherapy.

11. On his allocutus, the prisoner apologized for committing the offence and asked for mercy. He said he committed the offence because he believed the victim caused the death of his eldest child, a daughter through sorcery. He formed this belief because the victim had had arguments with his wife on three occasions prior to his daughter getting sick and her subsequent death and in all these occasions, the victim had uttered words to the effect that his family would experience some problems in future or that she had placed a curse on his family. His daughter was at school when she felt ill. She was admitted to the hospital and received treatment for three weeks, but her condition did not improve and was getting worse. As he believed the victim was responsible for his daughter falling ill, he requested the victim to visit them at the hospital and resolve their differences for the girl’s sake. The victim visited them at the hospital as requested, prayed with them and left. The girl died not long after she left. At the funeral held at the village, he called on the victim to provide an explanation for his daughter’s death, but she refused. He later arranged mediation of the differences and animosities that had arisen between his family and the victim over his daughter’s death through the involvement of the Banz District Office on three separate occasions, but the victim failed to attend any of them. This was very frustrating so when he heard that the victim was on her way from Wabag to Banz to get her belongings, he met her when she arrived and committed the offence.

12. The pre-sentence report, which I have considered reports that the prisoner is a suitable candidate for probation supervision. It recommends that a non-custodial sentence under probation supervision may be appropriate. The reasons given are; firstly, the prisoner is a first offender; secondly, as is evidenced by the copy of the Settlement Agreement attached to the report, the prisoner has paid compensation in the sum of K6,000.00 and three pigs to the victim and her family which demonstrated that he has accepted criminal responsibility for the offence and his desire for peace and harmony to be restored in the community; thirdly, the victim has accepted the compensation payment and the undertaking by the prisoner to provide financial...