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State v Talian (No 2) [2003] PGNC 120; N2382 (23 April 2003)

N2382

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. No. 749 of 2001

THE STATE

-V-

LARSEN TALIAN

Wabag : JALINA, J.
2003 : 15 & 23rd April

Counsel:
S. Kesno for the State
P. N’dranoh for the Prisoner

23rd April, 2003

SENTENCE

JALINA, J: This prisoner was charged with unlawfully doing grievous bodily harm to one Asken Yapun at Rakamanda village, Wabag on 21st February 2000. He pleaded not guilty and a trail was conducted. After hearing evidences from both the prosecution and defence for almost a week, I convicted him as charged.

To enable me to consider the appropriate sentence, it is necessary to set out the Medical Report of Dr. Gibson Pawape which specifies the nature and extent of the injuries sustained by the victim.

"Sustained bushknife wound on the 21/02/2000. He was admitted to Sopas Hospital on the same day and discharged on 17/04/2000.

Secondary suturing of the wound was done at Sopas giving him a scar. Subsequent change of dressing and antibiotics were given.

He feels disabled and his left arm is useless with inability to use it.

Examination today, that is 13 months later, left hand grip is incomplete, left thump apposition is weak 2/5 power.

Left ring finger and last finger contraction and clawing.

Finger abduction, adduction weak with 0/5 power. Wrist extension/flexion weak 3/5 power.

General wasting of all left arm muscles with some forearm flexure.

There is a linier scar from left hypotheses imminence, and scar forearm is 26 cm. Oblige scar ring around the distal forearm.

My opinion is that the patient sustained permanent ulna and radial nerve damage of his left hand.

The left hand will be unable to grip or be used normally again."

The production and demonstration by the victim in court of his left forearm during trail confirmed the scars found by Dr. Pawape as well as the conclusion reached by him (the doctor) that the left hand had become virtually useless in so far as its normal functions were concerned.

During his long statement on the allocatus the Prisoner expressed remorse to the victim and to his former wife Janet Asken for the wrong he had done. He also expressed remorse to the people of Rakamanda who were there at the time and to the Court and the State.

He also showed a scar on his right arm which was inflicted by his brother in law on or about 20th September 2000 which appear to have been in an apparent retaliation for the injuries he had inflicted upon the victim Asken Yapun, the subject of this case. He stated that he had forgiven his brother in law and therefore had not taken it to the police. A Medical Report dated 13th October 2000 was tendered by his lawyer Mr. N’dranoh to confirm this.

The Medical Report reveals the following:

"Larson received a bush knife wound to the back of his right arm on the 22/09/2000. It was allegedly inflicted by a boy at Rakamanda.

He presented to the Yampu Health Centre on the same day where the wound was sutured. It was found to be a deep laceration extending to the underlying humerus bone, with severing of the triceps muscle and tendon. It required a total of 30 stitches – 23 for the muscles and tendon and 7 for the skin. He was sent home on antibiotics and analgesics for pain relief.

On the 29/09/2000, he presented to the surgical clinic of this hospital with a grossly swollen right upper limb. The right arm was x-rayed (No. F5848) and it showed that the right humerus was partially fractured. A collar and cuff was applied to the limb and he was advised to elevate the limb whilst in bed. More antibiotics were prescribed.

In sum, Larson received a deep bush knife wound to the right forearm with partial fracture of this underlying humerus bone. It will take a total to two months for the wound and fracture to heal"

The prisoner further stated that he was having problem with growth in his nose.

His lawyer Mr. N’dranoh also tendered a Referral letter dated 8th April 2003 from Dr. Kelly Kep addressed to Dr. Joe Garap at the Port Moresby General Hospital ENT Clinic.

That letter states:

"Mr. Larsen Talian is a known ENT patient with Enga General Hospital.

He sustained a nasal trauma 10 years ago while playing rugby and as reviewed by Dr. Docup – ENT Specialist – on one of his visit to the hospital.

Now, however, the deformity formed consequently, has progressively worsened. He has a right nasal deviation to the left side. This has resulted in intermittent nasal congestion. But the nasal congestion has increased because the deviation has been progressing towards the left, now causing the right side to also deviate.

On examination, there appears to be a fracture of the naso maxillary crest.

He has been a Beconase and Ceclor before.

We refer him to your end for possible Rhinoplasty."

Then Mr. N’dranoh tendered a further Medical Report. It was to support the Prisoner’s statement that he had a very young malnourished child to care for and that his immediate incarceration would adversely affect the child’s welfare. The child was from his marriage to Janet Asken. He said that she abandoned the child with him when the child was only about 3 months old in about 1999.

The Report is dated 10th January 2001. It states:

This report furnishes the accounts when I had an encounter with this child in the clinic.

I first saw the child on the 26th July 2000 and my second review was on the 20th of November 2000. It became apparent to me that he was admitted to Sopas on more than one previous occasions for pneumonia and malnutrition 3-4 months earlier.

Looking at this weight chart his weight dropped below 80% line after 5 months of his life. Possibly when the child was deserted by the mother. The weight remained flat for the ensuring 5 months.

It occurred to me on the second visit that the child was adopted because the biological mother could no longer look after him. Following the take over by the adopting mother the weight had started to improve, that is after the 11th and 12th month of the child’s live. Better still when I saw the child on the second occasion the adopting mother had also started to lactate and the baby was well bonded to the mother.

I further understood that the biological mother at that time was expecting from another man, she is Janet Asken F/24 yrs. The biological father is Lasen Talian."

Mr N’ranoh has submitted that in view of the medical reports and other mitigating factors such as his expression of remorse, his lack of prior convictions and the injuries that he had sustained from his brother in law, a non custodial sentence be imposed. He further submitted that should a custodial sentence be imposed, it should be suspended on probation again in view of the medical condition of the Prisoner as his immediate incarceration would place his life at risk. Mr. N’dranoh also referred to a number of grieves bodily harm cases which I had heard in Wabag previously which I have taken into account.

When given an opportunity by the Court, the victim again showed his injured hand and stated that since he was disabled for life, fairness required that the prisoner be given a custodial sentence. The victim appeared to indicate that compensation would not be a sufficient punishment.

Mr. Kesno has submitted on behalf of the State that in determining sentence I should bear in mind that this was a trail and that the aspect of deterrence against this type of wanton attacks should be emphasized.

In determining sentence, I am concerned that the prisoner, who was much younger and stronger attacked the victim who was much older with a dangerous weapon such as a bushknife which has resulted in permanent disability.

As I have indicated in my judgement on the verdict, although it was his constitutional right to be presumed innocent and put the prosecution to its proof, he ought to have realized that any defence or evidence adduced for the first time by his witnesses would normally carry little weight as it would be considered to be exculpatory evidence of recent invention which was what I have found in his trail. So he should have pleaded guilty and not unnecessarily wasted the Court’s time over four or five days.

In view of the nature and extent of the injuries sustained by the victim, I do not consider for purposes of the Criminal Law (Compensation) Act that compensation is an appropriate punishment. A period of imprisonment should be ordered.

In all the circumstances of this case bearing in mind the mitigating factors that have been put to me by defence counsel, the sentence I consider appropriate from the 7 years imprisonment prescribed by Parliament under s.319 of the Code, is a period of 6 years imprisonment in hard labour which I so impose.

I deduct from that sentence the 3 weeks he has spent in custody which leaves 5 years, 11 months and 1 week in hard labour.

As I said earlier, the victim has indicted that the Prisoner should be imprisoned. I am, of course, not bound to accept that. I am of the view that in expressing his desire for the prisoner to be given an immediate custodial sentence, the victim did not realize that he would not receive any compensation at all.

I also consider that compensation would, to some extent, assist the victim with his daily struggle in life with only one fully functional arm.

Furthermore, in view of the Medical Reports pertaining to the prisoner as well as his young child, I consider that I could accelerate the death of the prisoner as he would not be able to receive specialist medical treatment in prison.

I would also accelerate the death of his child, as there would be no one to take care of him in view of the natural mother having abandoned him. I would rather save two lives than lose them through incarceration of the prisoner.

I accordingly suspend the whole of that sentence and release him on probation on the condition that the prisoner pays the victim K5,000.00 compensation no later than 23rd December 2003. Such payment to be witnessed by the Assistant Registrar, National Court, Wabag.

He shall not argue with the victim or his relatives over this incident.

I further order that his bail money be refunded to him.
___________________________________________________________________
Lawyer for the State : Public Prosecutor
Lawyer for the Prisoner : Public Solicitor