The State v Nelson Maip

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 06 October 2015
• Citation: (2015) N6091
• Court: National Court
• Year: 2015
• Judgement Number: N6091

Full : CR No.376 Of 2015; The State v Nelson Maip (2015) N6091

National Court: David, J

Judgment Delivered: 6 October 2015

N6091

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No.376 Of 2015

BETWEEN:

THE STATE

AND

NELSON MAIP

Offender

Mt. Hagen: David, J

2015: 14 & 25 September; 2, 5 & 6 October

CRIMINAL LAW – Sentence – Unlawful doing grievous bodily harm – One count - Plea of guilty - Criminal Code, Section 319.

The offender, a policeman shot the victim with a handgun three times on his left leg fracturing both the femur and tibia. The victim was hospitalised for two months as a result. He pleaded guilty to unlawfully doing grievous bodily harm and was convicted. The victim refused to accept any compensation from the offender and expressed the desire that the offender be imprisoned.

Held:

1. Mitigating factors are; guilty plea; no prior convictions; genuine expression of remorse; moderate amount of de facto provocation offered by the victim; sole assailant; isolated incident; previous good record; and the offender attempted to pay compensation.

2. Aggravating factors are; use of a dangerous and lethal weapon; victim sustained multiple injuries to vulnerable parts of his body including fractures to the left femur and tibia; vicious attack; the offender was a law enforcement agent being a policeman in uniform holding the rank of Senior Constable and a Rural Police Station Commander; the offence was committed in the purported execution of duty; the offender unnecessarily called for police reinforcement; police brutality was rife in the country; the offence was prevalent; the offender was a mature adult who should be more familiar with the law as a result of his education, training and employment by contrast to ordinary people.

3. A sentence of four years imprisonment in hard labour was imposed, partly suspended on terms.

Cases cited:

The State v Andreas Puu, CR No.210 of 2013, Unreported Judgment of David,J delivered in Mt. Hagen on 7 May 2015

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

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

Goli Golu v The State [1979] PNGLR 653

Lawrence Simbe v The State [1994] PNGLR 38

The State v Nickson Pari (No.2) (2001) N2033

The State v Michael Tangip (2012) N4782

Public Prosecutor v Don Hale (1998) SC564

Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91

Ure Hane v the State [1984] PNGLR 105

Richard Liri v The State (2007) SC883

Counsel:

Phillip Tengdui with Joe Kesan, for the State

Misil Yawip, for the Offender

SENTENCE

6th October, 2015

1. DAVID, J: The offender, Nelson Maip pleaded guilty to unlawfully doing grievous bodily harm to the victim, Benjamin Sande and was convicted under Section 319 of the Criminal Code.

2. The incident occurred along the road near Mt. Ambra on Wednesday, 5 March 2014, between 12:00 noon and 02:00 pm. The offender who is from Muglamp in the Dei District of Western Highlands Province in Papua New Guinea and who is a policeman based at Muglamp Police Station, was in a marked police vehicle travelling from Mt. Hagen towards Muglamp. On the way along the road near Mt. Ambra, he met the victim who is also from Muglamp travelling from Muglamp towards Mt. Hagen in another vehicle. The offender signalled to the vehicle, the victim was travelling in, to stop. When that vehicle came to a stop, and following a confrontation, the offender pulled out a handgun and shot the victim three times on his left leg. One of the shots fractured the victim’s leg and he fell to the ground. As the victim lay on the ground, the offender kicked him. After the shooting, the offender called for police reinforcement claiming that he had shot a wanted criminal and needed assistance. The victim was taken to the hospital where his injuries were treated. He was hospitalised for two months as a result of the shooting and assault.

3. The Medical Report produced by Dr. Laiam G. Kirau of the Mt. Hagen Provincial Hospital dated 10 September 2014 reports that the victim was attended to at the Emergency Department of the hospital on 5 March 2014 after he was allegedly shot by a policeman. The victim sustained three gunshot wounds to his left leg which included; left lower thigh with stable fracture of the femur; left knee with proximal tibia head fracture; and left foot with soft tissue injury with no bone involvement. He was stabilised and admitted to the surgical ward where his wounds were treated and managed. He was discharged on 6 May 2014. His general recovery was uneventful. The wounds and fractures healed well.

4. The prisoner has no prior convictions.

5. The prisoner was given the opportunity to address the Court on what matters the Court should consider when deciding punishment. He said he was very sorry for committing the offence and being a law enforcement officer in the area, he regretted the action he took.

6. A pre-sentence report was compiled and filed by the Probation Service, Mt. Hagen Branch which I ordered to be done at the request of the prisoner. I commend Ms. Lilly Songoa, Probation Officer for the report. I have considered the report. It speaks of the offender highly. It is also reported that the offender is willing to pay compensation comprising K1,000.00 cash and two pigs valued at K4,000.00 and his local community is also willing to assist the offender with K3,000.00 cash. It is also reported that the victim will not accept compensation and requests that a custodial sentence be imposed. That is confirmed by the victim’s statement attached to the pre-sentence report. The report recommends a non-custodial sentence to be served under probation supervision with orders for the offender to pay compensation and provide free community service.

7. The prisoner is a serving policeman attached to the Western Highlands Rural Command of the Police Force. He has been in the Police Force since 1996. He holds the rank of Senior Constable. He is currently the Rural Police Station Commander of the Muglamp Police Station. He is from Muglamp village, Dei District in the Western Highlands Province. He is now aged 43 years. He completed Grade 10 at the Mt. Hagen High School in 1992. He joined the Police Force in 1996 after successfully completing a six month training at the Bomana Police College. After passing out of the Bomana Police College, he was posted to Lae until 2002 when he was posted to Mt Hagen and was attached to the Special Services Division of the Mobile Squad. Later on in 2002, he was transferred to the Muglamp Police Station and became the Station Commander. He has three wives and eleven children and is the sole breadwinner of the family. His father is deceased and is survived by his mother. There are six siblings in his family comprising three males and three females. Four of them are married. His health is sound. His financial situation is not strong. He was arrested on 23 July 2014, charged for a count of unlawfully doing grievous bodily harm and admitted to cash bail of K500.00 later that day. He was committed to stand trial in the National Court on 20 February 2015.

8. Mr Yawip for the prisoner acknowledged that whilst a firearm was used making it a serious matter, he submitted that the offender’s guilty plea, absence of prior convictions, expression of remorse and the fact that it was an incident in which there was de facto provocation warranted the imposition of a sentence of between 3 to 4 years imprisonment fully suspended in accordance with the recommendation of the pre-sentence report.

9. Mr. Tengdui for the prosecution highlighted that the use of a firearm which is a deadly weapon, the fact that the victim sustained multiple injuries including a fractured leg, that it was a vicious attack, that it was an unprovoked attack, that it was pre-meditated, that the offender was a policeman, that he called for police reinforcement representing to colleagues or superiors that he had shot a wanted criminal, that police brutality was rife, and that no remorse was shown by tangible means such as payment of compensation made this a serious case, but not such as to warrant the imposition of the maximum penalty. He submitted that the mitigating factors such as the absence of a prior conviction and plea of guilty were rendered completely insignificant by the gravity of the offence. He urged the Court to impose sentence of 4 to 5 years imprisonment. Suspension of any party of the sentence was at the discretion of the Court counsel submitted.

10. I take into account the following factors as mitigating the offence:

1. the offender’s guilty plea, although made belatedly at trial accepting criminal responsibility for his conduct and the consequences that will be entailed by that;

2. no prior convictions;

3. genuine expression of remorse;

4. this was an incident in which there was a moderate amount of de facto provocation offered by the victim confirmed by the depositions arising from the offender’s involvement in a land dispute between the victim and a third party;

5. sole assailant;

6. isolated incident;

7. until the offence, the offender had a previous good record;

8. the offender...