The State v Opa Bras Wak

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 19 May 2014
• Citation: (2014) N5598
• Court: National Court
• Year: 2014
• Judgement Number: N5598

Full : CR No.1290 of 2013; The State v Opa Bras Wak (2014)

National Court: David, J

Judgment Delivered: 19 May 2014

N5598

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No.1290 of 2013

BETWEEN:

THE STATE

AND:

OPA BRAS WAK

Prisoner

Mt. Hagen: David, J

2014: 13 & 14 February; 9 & 19 May

CRIMINAL LAW – sentence – grievous bodily harm – prisoner a candidate in Local-level Government elections – victim policeman – prisoner drunk - prisoner threatening staff of hotel while armed with pistol – victim on his way out of hotel intervened to stop prisoner – prisoner punched victim on mouth – victim lost a lower left canine – permanent injury - sentence of 2 years in hard labour – non-custodial sentence – fine - Criminal Code, Sections 19 and 319.

Cases cited

Goli Golu v The State [1979] PNGLR 653

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

Public Prosecutor v Thomas Vola [1981] PNGLR 412

Ure Hane v the State [1984] PNGLR 105

Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91

The State v Frank Kagai [1987] PNGLR 320

Kesino Apo v The State [1988] PNGLR 182

Mase v The State [1991] PNGLR 88

Lawrence Simbe v The State [1994] PNGLR 38

Public Prosecutor v Don Hale (1998) SC564

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

The State v David Carol (2009) N3762

The State v Abel City Ya Kund, The State v Wali Pyakai (2011) N4262

The State v Carol Peter (2011) N4320

The State v Peter Jai (2011) N4391

The State v Paul Jumbugu (2012) N4627

Counsel:

Joe Kesan, for the State

Philip L. Kapi, for the prisoner

SENTENCE

19th May, 2014

1. DAVID, J: The prisoner, Opa Bras Wak of Poimund village, Mt. Hagen in the Western Highlands Province was convicted of unlawfully doing grievous bodily harm to one Ak Kukuma on 7th of September 2013 at Kimininga Hotel in Mt. Hagen under Section 319 of the Criminal Code following his plea of guilty.

2. The maximum penalty prescribed for this offence is, subject to Section 19 of the Code, imprisonment for a term not exceeding 7 years. The maximum penalty for the offence prescribed by Parliament demonstrates the seriousness of the offence: Public Prosecutor v Vangu'u Ame [1983] PNGLR 424.

3. The short facts presented by the prosecution for the purposes of arraignment were these. On 7th of September 2013 at about 10:30 pm in the evening, the prisoner was drunk and drove into the Kimininga Hotel in Mt. Hagen. At the same time, he was armed with a 9mm magnum pistol. At the time, he used the pistol to threaten security guards and went to the reception area of the hotel. At the reception area, he argued with staff working there and threatened them as well. Whilst he was doing that a policeman namely Ak Kukuma was also at the reception area and he tried to intervene and stop what the prisoner was doing. A scuffle developed between the prisoner and the victim. In the process, the prisoner punched the victim on his mouth and the victim suffered a fractured lower tooth which was removed eventually. As a result, the victim suffered grievous bodily harm.

4. The Medical Report provided by Dr. Allan Kulunga of the Kintip Surgery, Mt. Hagen dated 10th September 2013 reports that the victim; sustained a laceration of his left lower lip and was sutured with three stitches; sustained a fracture with the loss of the left lower canine; had a tender and swellings around the lower lips and gums.

5. The prisoner has no prior convictions.

6. For purposes of his allocutus, the prisoner produced a two page affidavit he swore setting out in detail, amongst others, the events leading up to the incident, his arrest and detention which he read from the dock.

7. He started off by apologizing to the victim, his family, friends and workmates for breaking the law and then gave details of his marital status and members of his nuclear family. He was a candidate contesting the seat for the President of the Mt. Hagen Local-level Government at the last Local-level Government elections held last year. He deposed that during polling and scrutiny when he was running third entering the elimination round, he was attacked three times and nearly killed by supporters of the former Deputy Governor and President, Mr. Wai Rapa. The worst of these attacks was when he and two other candidates were attacked by supporters of Mr. Rapa who were armed with stones, bush knives, axes and firearms and actually shot at in the vicinity of the Mt. Hagen Court House. On the evening of 7th of September 2013, he left a function he attended in town under the influence of liquor with his wife and driver and went to the Kimininga Hotel to drink some beer. He saw Mr. Rapa’s security guards at the gate of the hotel so he stopped his vehicle, got out and had an altercation with them about nearly being killed by them in those attacks. The victim arrived at the scene also under the influence of liquor and was trying to stop him when the victim grabbed him and tore his shirt. His mind was disordered by intoxication so not knowing what he was doing, he punched the victim. Upon hearing the victim saying that he had broken his tooth, he left his wife, driver and vehicle and fled the scene.

8. Later that evening, the victim mobilized his men who were also under the influence of liquor and fully armed and drove to his house and terrorized his family. They fired at his house when his children and babysitters were asleep inside and also punched and booted his wife and took her bilum (bag) containing about K3,000.00 cash. He forgave the victim for that incident because he was an innocent person brought into the fray from his initial mistake.

9. The next day on 8th of September 2013, he sent his uncle, a former diplomat and head of a government Department and a brother who was a policeman and member of the Mobile Squad to see the victim. The two men met the victim and gave him K1,500.00 and also relayed to him his message that he was sorry for everything that had happened with an invitation for the victim to go to his house where he would personally say sorry to him and also present him with K10,000.00 cash and two pigs. The victim received the K1,500.00 from the two men he had sent to him, but refused the victim’s invitation preferring that the law take its own course.

10. He voluntarily surrendered to the police on 9th of September 2013 and was subsequently arrested, charged and detained. He was admitted to bail three days later.

11. He pleaded with the Court for mercy and a lenient sentence. He asked the Court take into consideration when considering an appropriate sentence for him that; he and the victim had a good relationship and he treated him as his “father” before the incident; and it was his first time to be in Court.

12. In addition to matters raised in the affidavit, he said that his offer to pay compensation to the victim was still there if he were willing to accept it otherwise the Court was at liberty to make a compensation order.

13. At the request of the prisoner through his counsel, Mr. Kapi, I ordered a Pre-sentence Report and a Means Assessment Report to be compiled and filed by the Probation Service, Mt. Hagen Branch. These reports were duly filed and I commend Ms. Theresa Puk, Probation Officer for her efforts. Both reports speak highly of the prisoner. He is reported to be an educated person, a well established local business entrepreneur and community leader who is actively involved in peace negotiations and other community and family affairs and out of his benevolence has offered a portion of his land for a church to be built on, assists the church financially; helps community members with school fees; participates in payments of bride price and other community obligations. It is recommended that a non-custodial sentence on terms including payment of compensation be imposed. These reports stress the importance of the payment of compensation which was supported by leaders of the community and church although refused by the victim owing to the nature and seriousness of the offence and permanent nature of the injury suffered by the victim as a result of the commission of the offence as it would encourage reconciliation, restore and mend broken relationships and restore peace and normalcy in the community as both the victim and the prisoner were from the same community

14. The prisoner is from Poimund village, Mt. Hagen in the Western Highlands Province and is now aged 34 years and self employed. He is married and has 5 children whose ages range from 1 year to 8 years. His parents are deceased. There are only 2 male siblings in the family and he is the second born. He holds a diploma in accounting from the Institute of Business Studies. He is a baptized member of the Seventh Day Adventist denomination. His last employment in the formal sector was as the Highlands Regional Manager with Bemobile Limited. The prisoner was arrested and detained on 9th of September 2013 and was admitted to bail 3 days later on 12th of September 2013. He was committed to stand trial in the National Court on 22nd of November 2013 for unlawful doing grievous bodily harm.

15. The factors which mitigate the offence...