N5133
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 294 OF 2012

THE STATE

V

DANIEL KAPEN

Madang: Cannings J
2012: 20 November,
2013: 3, 5 April

CRIMINAL LAW – sentence – grievous bodily harm – Criminal Code, Section 319 –offender, a member of the Police Force, shot victim, causing severe and permanent injuries – conviction after trial – 5 years.

The offender was found guilty after trial of the offence of unlawfully doing grievous bodily harm to another person contrary to Section 319 of the Criminal Code. The offender was at the time a member of the Police Force. He was on duty and driving along a public road and came upon a group of youths behaving in an apparently drunk and disorderly manner. He stopped the vehicle and within a short period fired one shot into the feet of one of the youths, inflicting a serious and permanent injury. His defence of self defence was rejected. This is the judgment on sentence.

Held:

(1)	The maximum sentence under Section 319 of the Criminal Code is seven years imprisonment and an appropriate starting point is three and a half years.

(2)	Mitigating factors: there was a lack of intent to deliberately harm the victim; the offence was entirely unplanned; the offender has made some attempt to reconcile with the victim; he expressed remorse; he has no prior conviction; the offender has an unblemished and highly regarded record in the Police Force.

(3)	Aggravating factors: unprofessional and negligent use of a lethal weapon; the offender has inflicted serious and permanent injuries; the offender's actions were a spur of the moment, panic reaction to an incident that the offender should have been able to deal with in a much more professional manner; the victim has suffered permanent and serious disabilities.

(4)	A sentence of five years was imposed, two years of which was suspended due to a favourable pre-sentence report and evidence of a prior long and distinguished record of service in the Police Force.

Cases cited

The following cases are cited in the judgment:

The State v Bill Kara (2012) N4663
The State v Daniel Kapen (2012) N4895
The State v Justin Ipa (2008) N3439

SENTENCE

This was a judgment on sentence for grievous bodily harm.

Counsel

M Zurenuoc, for the State
B W Meten, for the offender

5th April, 2013 

1. CANNINGS J: This is the judgment on sentence for the offender, Daniel Kapen, who was found guilty after trial of the offence of unlawfully doing grievous bodily harm to another person contrary to Section 319 of the Criminal Code. The offender was on Sunday 11 December 2011 a member of the Police Force. He was on duty and driving along a public road and came upon a group of youths behaving in an apparently drunk and disorderly manner. He stopped the vehicle and within a short period fired one shot into the feet of one of the youths, Donald Mara, inflicting a serious and permanent injury. He faced a primary charge of attempted murder and a first alternative charge of doing grievous bodily harm with intent. He was found not guilty of those charges but convicted under Section 319. His defence of self defence was rejected, and it was found that he had discharged a police issued firearm without good reason. Further details of the circumstances of the offence are in the judgment on verdict, The State v Daniel Kapen (2012) N4895.

ANTECEDENTS

2. The offender has no prior conviction.

ALLOCUTUS

3. The offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:

I apologise to the court for the time spent on my case, which became unnecessarily complicated because of the insistence of the State in charging me with attempted murder. I have never denied shooting the victim. I apologise to him and his relatives. I am the first born in a family of six children. My parents are alive but they are very old and rely on me as I am the only member of the family to have had fulltime regular employment. I have a grade 10 education and I joined the Police Force straight after school. I have served all of my time in the Force in Madang Province and the first 13 years were spent at Ileg Rural Police Station, Rai Coast District. I have done a lot of work maintaining law and order in the province and a report by the most recent Provincial Police Commander attests to that. I have a clean record, until recently when I was dismissed from the Force in relation to the incident that has led to my criminal conviction. I was given notice of my dismissal on the second day of my criminal trial. I am married with four school-aged children and I also have two other children who are my dependants. I am very concerned about the welfare of my wife and children. I am willing to pay K15,000.00 compensation to the victim and his family. I feel that my personal safety will be at risk if I am given a custodial sentence. There are many prisoners who are in jail at Beon because of my work, including two who are serving life terms. I ask the court to take this into account when deciding on my sentence.

PRE-SENTENCE REPORT

4. A report on the offender was prepared by the Community Corrections and Rehabilitation Service. He is 41 years old and is married with four children. His wife is a member of the Police Force and they have a strong and stable marriage. He is educated to grade 10 and joined the Police Force in 1992. He is presently unemployed, having been dismissed from the Force in December 2012. He is a well known member of the local community.

5. The victim and his father were interviewed for the purposes of the report. A recent medical report shows that the victim has lost 70% use of his right foot and 50% use of the left foot. His injuries and incapacities are permanent. No further surgery will be beneficial. The victim faces the likely onset of osteoarthritis as he gets older. The victim and his father are greatly distressed by what happened and wish to see the offender serve a custodial sentence.

CHARACTER REFERENCES

6. A glowing report has been provided by Superintendent Anthony G Y Wagambie who was until recently the Madang PPC. Supt Wagambie states that the offender was a fine and dedicated and professional policeman who contributed greatly to maintaining law and order in the province by virtue of him being the commander of the Rapid Response Unit which was well known as the backbone of the Madang Police. He is regarded as a "true copper, blue blood all the way" who was dedicated to keeping the community safe.

7. Similarly glowing references have been provided by prominent Madang businessman Mr Stanley Pil, the Member for Rai Coast Hon James Gau MP, the President of Transgogol Local-level Government, Mr Morris Bann, and Reverend Ellison Mamu and other senior representatives of the United Church in the offender's local area in East New Britain.

SUBMISSIONS BY DEFENCE COUNSEL

8. Mr Meten, while acknowledging that the use of a firearm and the seriousness of the victim's injuries made it a serious matter, highlighted the circumstances of the offence. The victim was not entirely innocent as he was drunk and had been involved in a fight. The offender stopped his vehicle and attended to a disturbance on the road for good reason. If the victim had not been drunk and disorderly he would not be in the position he is now in. The offender has a commendable record. He is prepared to compensate the victim and reconcile with him and his family. He greatly regrets what happened and has expressed genuine remorse. He has already paid a heavy price by losing his job, which is not only a job but a promising career. He acknowledges that he must be punished but it must be a punishment that is fair. Mr Meten submitted that a sentence of four years is appropriate all of which should be suspended.

SUBMISSIONS BY THE STATE

9. Ms Zurenuoc submitted that the case had very strong aggravating features, in particular the indiscriminate and unnecessary use of a police firearm and the seriousness of and permanence of the victim's injuries, warranting a sentence of six years imprisonment. There was no strong opposition to the idea of a suspended sentence in view of the offender's long period of service to the State and his willingness to reconcile.

DECISION MAKING PROCESS

10. To determine the appropriate penalty the following decision making process will be used:

•	step 1: what is the maximum penalty?
•	step 2: what is a proper starting point?
•	step 3: what sentences have been imposed for equivalent offences?
•	step 4: what is the head sentence?
•	step 5: should the pre-sentence period in custody be deducted?
•	step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

11. The maximum penalty under Section 319 (grievous bodily harm) is seven years imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

12. I will use the midpoint of three and a half years.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

13. Sentences for offences under Section 319 are given in a small range: zero to seven years imprisonment. In most cases the offender has pleaded guilty and there is an identifiable cause of the offence and the offence can be described as a crime of passion. Such cases usually result in a sentence of three to five years imprisonment, depending on the circumstances. See, for example, The State v Justin Ipa (2008) N3439 and The State v Bill Kara (2012) N4663. The present case is different to the norm in that conviction has resulted from a trial and the crime is not one of passion; it was a crime committed out of negligence.

STEP 4: WHAT IS THE HEAD SENTENCE?

14. Mitigating factors are:

•	there was a lack of intent to deliberately harm the victim;
•	the offence was entirely unplanned: the offender came upon an incident on the road and was performing police duties by attending to the incident;
•	the victim had been drinking; 
•	the offender has made some attempt to reconcile with the victim;
•	he expressed remorse;
•	he has no prior conviction;
•	the offender has an unblemished and highly regarded record in the Police Force.

15. Aggravating factors are:

•	unprofessional and negligent use of a lethal weapon;
•	the offender has inflicted serious and permanent injuries;
•	the offender's actions were a spur of the moment, panic reaction to an incident that the offender should have been able to deal with in a much more professional manner.

16. I reject Mr Meten's submission that a sentence of only four years is called for. This is too serious a case for that sort of sentence. The appropriate sentence, which gives the greatest weight as is reasonable to the mitigating factors, is five years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

17. Yes, I exercise the discretion available under the Criminal Justice (Sentences) Act 1986 to deduct the pre-sentence period of two days.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

18. The offender has received a sound pre-sentence report. This case had potential for a fully suspended sentence but the key factor working against that result is the attitude of the victim and his family. This has been a life-changing event for the victim. He is still very young, 18 years of age. He has an excellent school record. He had just completed grade 8 at the time he was shot. He wants to see the offender punished by being sent to jail. His attitude is understandable and reasonable. The most important person in a case of this nature is the victim. On the other hand, the offender's long and distinguished record of service in the Police Force must be recognised, so I have decided to suspend two years of the sentence. I will not include any requirement to pay compensation. I take judicial notice that the victim has commenced civil proceedings against the offender and the State seeking enforcement of human rights by way of compensation. That case should be allowed to run its course without distraction by these criminal proceedings.

19. The offender's concern for his personal safety if he is imprisoned is genuine. However that is something for the Correctional Service to deal with. If for some reason it cannot be dealt with properly the offender is at liberty to approach the court at short notice for appropriate orders to secure his safety.

20. Two years of the sentence is suspended on the following conditions:

(a)	must reside at the place notified to the Probation Office and nowhere else except with the written approval of the National Court;

(b)	must not leave Madang Province without the written approval of the National Court;

(c)	must perform at least three hours unpaid community work each week at a place notified to the Probation Office under the supervision of his Ward Councillor;

(d)	must attend his local Church every weekend for service and worship and submit to counselling;

(e)	must report to the Probation Office at Madang on the first Monday of each month between 9.00 am and 3.00 pm;

(f)	must not consume alcohol or drugs;

(g)	must keep the peace and be of good behaviour;

(h)	must have a satisfactory probation report submitted to the National Court Registry at Madang every six months after the date of sentence;

(i)	if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

SENTENCE

21. Daniel Kapen, having been convicted of one count of unlawfully doing grievous bodily harm contrary to Section 319 of the Criminal Code, is sentenced as follows:

Length of sentence imposed	5 years	
Pre-sentence period to be deducted	2 days	
Resultant length of sentence to be served	4 years, 11 months, 3 weeks, 5 days	
Amount of sentence suspended	2 years	
Time to be served in custody	2 years, 11 months, 3 weeks, 5 days	

Sentenced accordingly.
___________________________________________________________
Public Prosecutor: Lawyer for the State
Meten Lawyers: Lawyers for the offender