DC571

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE SITTING IN IT’S
GRADE FIVE CRIMINAL JURISDICTION]

GFCr 219 OF 2007

BETWEEN

POLICE
Informant

AND

POMANUS POYAP
Defendant

Lorengau: G. Madu
2007: 12 June

Madu PM: The accused pleaded guilty to one count of striking the victim which resulted in breaking the left arm. The facts to which the accused pleaded guilty are that:-

On 12 May, 2006 at Pomachau Island, the defendant arrived from Lorengau and started to shout and swear. The victim called out to the accused to stop but he did not stop and wanted to fight with the complainant. The accused then approached the complainant to fight but were stopped by the bystanders.

On 14 May 2006, whilst the complainant went to do his laundry, the accused got the mangrove stick and went over to the complainant and swung at him. The complainant put up his hands to stop the stick but landed on the left arm causing it to break.

The matter was investigated by Police and revealed the accused had used a mangrove stick and swung it with force and hit the victim on his left hand which resulted in breaking the left arm. The medical report stated that the victim was admitted to the Outpatient Department on 14 May 2006 at Lorengau General Hospital. He was presented with a swollen and painful left arm.

On examination, the left forearm reveals:-
-Painful and swollen
-Tender
-Limited movements of distal fingers
-Deformity
-Laceration 5cm long/bleeding
-X-ray findings includes:
-Fracture of upper 1/3 ulnar, posteriorly displaced.
-Other systems - No abnormalities detected. The patient is found to be suffering from fracture upper 1/3 Ulnar with posterior displacement. He was admitted to Ward for POP and treated with amoxicillin 500mg ‘o’ tds x 5/7 and Paracetamol 500mg ‘o’ QID Prn. He was discharged after eight (8) days of hospitalization.

The offence the accused committed is a misdemeanour and is serious. It carries a maximum penalty of three (3) years imprisonment. In your favour, you have pleaded guilty to the charge and it is your first time to appear in Court. This is also confirmed by the Pre Sentence Report submitted by the Probation.

The accused had shown remorse for what he committed and want to apologize to the victim as shown in the Pre-Sentence Report. I consider this as a genuine act by the accuse to set things right with the victim.

The aggravating factors are, the accused used the timber and assaulted the victim causing injuries to his hand. It was obvious that the accused swing the timber so hard that the victim’s left forearm was fractured. Further the accused in retaliation assaulted the victim on the next day when the first incident was stopped by the people between the accused and the victim.

The accused was charged under s 340 (1) of the Criminal Code for Assaults occasioning bodily harm. The whole section is stated as follows:-

Section 340 - Assaults occasioning bodily harm.

(1) A person who unlawfully assaults another or by doing so does him 	bodily harm is guilty of a misdemeanour.
Penalty: Imprisonment for a term not exceeding three (3) years.

(2)	......

The issue to deliberate is what is the appropriate sentence in the circumstances the offence was committed?

The Pre-Sentence Report, on behalf of the accused reveals that it is his first time to commit an offence and appear in Court. In the accused favour, his pleading guilty is a credit as he had saved cost and time for the Court to conduct a trial as held in John Elipa Kalabus -v- The State [1988] PNGLR..196.

Having considered both the mitigating and aggravating factors, I consider that the mitigating factors out weight the aggravating factors. I consider that a suspended sentence with probation is appropriate. The defendant is sentenced to one (1) year in hard labour however the one (1) year sentence is suspended and defendant is placed on probation for two (2) years on the following conditions:-

(1) The Probationer is ordered to attend Church Service every Saturday.

(2) The Probationer is ordered to refrain from taking drugs and alcohol.

(3) The Probationer is ordered to pay compensation in the sum of K500.00 within six (6) months.

(4) The Probationer to under go drug counselling.

(5) The Probationer is to perform 100hrs of community work at SDA  Mission Katin Village under the supervision of Katin Village Court Magistrate.

(6) That the Probation Officer to compile a quarterly report on the performance of the Probationer to the Court.

Lawyer for the Police:	Police Prosecution Division
Lawyer for the Accused: Accused in person