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State v Raipa [1994] PGNC 68; N1268 (29 September 1994)

N1268

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR. 914/94

STATE

-V-

PHILIP SUSUVE RAIPA

Waigani: BROWN, J
1994: September 13th, 29th.

ON SENTENCE

Criminal Law - Sentence - assault occasioning grievous bodily harm - size of compensation order categorised as "punishment" - award to also include an order deferring sentence for a 12 month period in an endeavour to encourage a community response to reconciliation.

Criminal Code Chap 262 s.19(1)(f).

Criminal Law (Compensation) Act 1991 s.2.

Compensation - criminal law award under legislation providing for compensation for injury suffered by criminal act - matters for consideration - award does not extinguish right to damages in civil proceedings - award to be paid by instalments.

(Criminal Law (Compensation) Act 1991; ss. 3,6

The prisoner had pleaded guilty to a drunken assault of the victim, aged 23 with a rock and in company with others severely beat the victim who was hospitalised with serious head injuries necessitating an operation to his skull, opened to relieve intra dural haematoma. The victim is a landowner of urban land on which the prisoner was living with his clan members at the will of the owners. The victim suffered and will suffer disabilities arising out of his head injuries which involved his brain.

The Court on sentence considered the nature of the injuries coupled with the circumstances of the offenders line "squatting" on land of the victim called for a maximum award of compensation which consequently militates against a jail sentence otherwise appropriate.

Held:

(1) An award of compensation is a "punishment" within the meaning of the Criminal Code Chap 262.

Criminal Law (Compensation) Act 1991 s 2.

(2) Where custom expects compensation to be made to a victim, in circumstances where the offender as a "squatter", is on land belonging to the victim, the offenders means is not a determinant factor for compensation is the responsibility of the clan of which the offender is a member.

(3) The extend of the injuries to the victim calls for an award of damages in civil proceedings far in excess of the maximum available to be awarded under the Act and consequently justifies the award of the maximum K5,000.

Criminal Law (Compensation) Act 1991 s 3.

(Obiter: The fact of such an award should be taken into account on final assessment of civil claim).

(4) Payment by instalments is appropriate where no clear means of the clan liable to pay are available

Mr Manek, for State
Mr Takin, for Defendant

REASONS

BROWN, J: This case raised matters which go beyond the normal when one is considering an appropriate sentence for an aggravated assault.

Here the prisoner is a child aged 21 of people Kerema area living at Sogo Place, Kila Kila 2 Village, Port Moresby. They are squatters. They are grudgingly permitted to remain, it seems, for on the statement of Willy Geita, the land currently occupied by accused's family was given to Tore Eka an elder of the United Church by his father Geita. Willy Geita says the accused and his "family moved in unaware". As an illustration of the trouble these people have caused, Boa Geita the victim's 2nd brother, says this is the 4th time the land owners have been abused in this fashion.

He says one man was shot to death by the same people, a second was knifed on the chest while a third was robbed. This victim Geita Geita aged 23, was very seriously injured. Mr Manek properly refers to the doctors report of Toki Inina dated 22 March 1994, my own assessment at Court when this matter came first before me and the probation officers report, where the victims mother Debea Geita describes Geita Geita's present condition.

I quote from the doctors report.

"On examination at that time he was bleeding from the left side of his head with brain substance coming out through the wound. He was semiconscious. After appropriate initial management he was taken to the operating theatre the same evening and under general anaesthetic the pieces of broken bone from the left side of his skull were removed along with dead brain tissue and blood clots."

When I spoke to the Geita Geita in Court, his wife was with him. He said he was all right but she said his personality had changed and that he had lost much of his placid understanding for he now is quickly upset and frustrated. This accords with what his mother now says.

I am satisfied, if damages in a civil suit were to be assessed, the extent of his injuries described by the doctor would call for an award in excess of the K5,000 provided for under the Criminal Law (Compensation) Act 1991, even before any assessment for continuing disabilities or loss of enjoying of life was taken into account. In other words, compensation for his injuries and disabilities could be expected to far exceed the maximum available to me to award, under the Act.

The Act says I should, when considering punishment consider whether compensation should also be awarded. The factors to be taken into account are set out in s.3.

(a) the nature and seriousness of the offence.

This is a most serious assault for the prisoner, who was affected by alcohol ran some distance, up to 300m to assault Geita Geita without reason. At least, the investigations of the Probation officer, whose report I found most helpful, failed to identify any particular reason in this prisoner to attack Geita Geita, except revenge. Revenge for what was never explained so I am left with a brutal, unjustified assault by a drunk who is not welcome on the land in the first place. Any reason does not justify an attack of such brutality where a rock was used and thrown, and where Geita Geita was then kicked unmercifully while incapable of defending himself on the ground.

(b) the degree and nature of personal injury suffered by Geita Geita.

Mr Manek quite rightly says this mans faculties have been impaired for his brain which is the motor control for the whole body has suffered a serious injury, as demonstrated by the effect on Geita Geita described by his wife and mother.

I agree that the extent of his injuries makes it an appropriate case to look at compensation for the hurt and disabilities.

(c) any other factors regarding the commission of the offence or the offenders attitude which may be considered investigation or aggravation of punishment.

In his allocutus, the prisoner was anxious to tell me how inconvenienced he was in having to report while on bail, and the responsibility he left towards his parents. All quite true but it ignores his responsibility towards his victim and does not give me any assurance that he either feels sorry for the victim or remorse for the everlasting effect of his assault on Geita Geita. The probation officers report says of the prisoner "He seems to be humble and honest and shows genuine remorse" but his concern was for his own families costs involved in the handling of his case.

Clearly his attitude reflects a proper respect for his own line but I can see none for the line of the victim or any remorse at all for his actions. He is sorry it has happened because it has caused his line problems, not because of the injury he caused the victim.

(d) any relevant custom regarding compensation.

Quite clearly from the probation officers report compensation is appropriate by custom, it was considered by the prisoners line and is still being pursued by the victim.

I must also take account of the acts of these squatters in remaining on the land of others in these circumstances where no settlement of compensation has been reached. Clearly both parties expect, in the absence of some particular mediator willing to negotiate a settlement, the courts to fulfil the role and settle the claim. Geita Geita may pursue his personal claim through the civil courts. And any eventual award will take account of this order for compensation, for assessment of compensation in civil suits and this statutory claim, both take into account the seriousness of the assault, the extent of the injuries and any disabilities suffered. But as I say, civil damages in my view, would exceed the maximum K5,000 available under the Act but the award cannot stop further action. Whether legal action which results in an award of greater compensation can be recovered from the prisoner, is a question I need not answer here.

The victim seeks K30,000.

The prisoners line is only willing to offer in total K1,500. This amount, in an urban environment is grossly insufficient and in my view, takes no account of these squatters obligations as such. If they abuse their right to remain on land at the will of the land owners, by assaulting one of the land owners children, the squatters cannot expect to set the guidelines for an amount of compensation. Where customary landowners permit invitees to remain on their land, and one of the invitees harms a landowner, custom clearly calls for compensation from the offending clan which harbours the offender. The means of the assailant to pay an award of compensation in those circumstances is not a determinant factor in considering the appropriate amount.

By allowing time, these offenders can face the consequences of their actions and it may allow a community response to reconciliation between the squatters and landowners.

(e) A report on "means".

The means assessment report shows that the prisoner is reliant on his parents, extended family and those other Kerema people at Kila Kila 2. That is as it should be. The prisoner recognises his obligation to them, realising his actions has caused and will cause his people trouble.

While I cannot assess these peoples ability to pay money immediately, they obviously can collect K1,500 within 2 months, and since the time of this offence, could reasonably have expected to have saved, or set aside money for compensation. Consequently it is a question of time to pay, not how much.

(f) other relevant matters.

I do not propose sending this young man to jail, I am of the view a compensation award is appropriate for all these reasons.

I have a limit but propose to award the maximum of K5,000.

Pursuant to s. 6 -

(a) It shall be paid in cash with-in 6 months; the first payment of K1,000 shall be paid within one month and there-after K1,000 shall be paid at monthly intervals.

(b) in default 6 months imprisonment.

(c) the compensation is payable to Geita Geita.

(d) the whole amount shall be paid on or before the 30 March 1996 by arrangement through the Senior Probation Officer, Mr Peter Yambi, Port Moresby.

The prisoner has been in jail on remand for 2 months. He has had a taste of what he can expect if he comes back before me on sentence or if this compensation is not paid.

I take into account the fact that he has pleaded guilty. In normal circumstances, because of the seriousness of the offence, I still consider that he should be sent to jail as a warning to others, that drinking coupled with this brutal behaviour will not be tolerated by the community.

Where the maximum award of compensation is awarded, Courts should militate against a severe sentence otherwise appropriate in the circumstances. This is the principle underlying s. 2 of the Act which equates an award of compensation with a punishment.

He does have a physical disability, of his own. In this case, and because of his previous good record, I propose to, instead of passing sentence, pursuant to s. 19 of the Code, discharge the offender upon his entering into his own recognizance in the sum of K300 on condition that:

(i) he shall appear and receive judgment at some future sittings of this Court or when called upon within 12 months of this date; and

(ii) in the meantime keep the peace and be of good behaviour, abstain from drinking alcohol for 12 months and accept the direction and control of his parents and Tore Eka the Senior Community Member.

_____________________________________________________

For the State: The State Prosecutor
Lawyer for prisoner: The Public Defender