DC934

PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS CRIMINAL (SUMMARY) JURISDICTION

DCR 1022 & 1023/2009

BETWEEN:

POLICE
Informant

AND:

REUBEN MEUT
Defendant

Madang: J.Kaumi

2009:22nd, 28th September, 05th, 12th, 19th October

SUMMARY: Sentence –Breach of Peace contrary to Section 7(b) of the Summary Offences Act Chapter 264 – Plea of Guilt – Sentencing Guidelines – Mitigating and Aggravating Factors – No Expression of Remorse –Prior Conviction-No appreciation for prior non custodial sentence- Prevalent Offence – Need for Deterrence.

PRACTICE AND PROCEDURE: Usual purposes of criminal sentencing such as Deterrence, Restitution or Rehabilitation are also relevant factors for consideration.

PRACTICE AND PROCEDURE: Courts not to be unnecessarily restricted in the exercise of sentencing discretion by principles such as no “disparity of sentence between co-accused” or no “quantum leap”. 

PRACTICE AND PROCEDURE: It is incumbent on criminal sentencing courts to exercise the people’s power vested in them by the Constitution to impose sentences that are in touch with the aspirations and attitudes of the people of PNG.

Cases cited

Acting Public Prosecutor v Don Hale SC564 
The State v Irox Winston (21/09/00) N2304
State v Jason Dungoia (13/12/00) N2038
State v Michael Kamban Mani (21/05/02) N2246
State v Fabian Kenny (2002) N223
Edmund Gima v The State & Siune Arnold v The State (03/10/03) SC730
The State v Jack Vutnamur & Kaki Kialo (No.3) (2005) N2919
The State v A. Juvenile “TAA” (2006) N3017
The State v Raka Benson (2006) CR 447&450
The State v Lucas Soroken Sembengo ,Bob Alois Wafi & Raphael Lawrence Mandal N2801 

Legislation

Constitution of PNG
District Court Act, Chapter 40
Summary Offences Act, Chapter 264

Abbreviations

The following abbreviations appear in the judgment
CBC Community Based Corrections
CONST Constitution
DC District Court
GBB Good Behavior Bond
J Justice
NC National Court
PSR Pre Sentence Report
SECT Section
SUBS Subsection
SOA Summary Offences Act
ST State
S C Supreme Court
VGE Village

Counsel

Police Woman First Constable Rose Bussil; for the State.
Defendant in person.

19th October 2009.

INTRODUCTION

1. Kaumi. M. Ruben Meut, you will now be sentenced on two offences contrary to Section 7. (b) SOA on two separate informations.

The Facts

2. The facts upon which I will proceed to sentence you are these: On the evening at around 7:00pm on the 09th September 2009 you arrived intoxicated with alcohol with some mates at Thomas Arua’s house at Malmal Village and continued drinking there and then went and bought a another carton of SP brown beer bottle at Banglang bottle shop and continued. 

3. You then accused the owner of the house Mr. Thomas Arua of hiding your wife, his sister and conducting prostitution in the Vge. You then threatened to get your people to kill Thomas Arua and your wife; the complainant, Bernadette Arua and burn down his house.

4. Your wife tried to intervene but her intervention was cut short by your swearing at her. As a result a fight ensured between Mr. Arua and yourself which resulted in him sustaining cuts to his right feet when you smashed two bottles of beer on his verandah. 

Allocatus and Submission

5. In your address on sentence, you did not express any remorse for your actions. On the contrary all your comments were self serving, you stated the followed:-

a. You are a teacher and have five children;

b. You have an outstanding Adultery issue against your wife for which you have not instituted legal action against her in pursuit of your rights

c. That you have tried to forgive her for what you say she did but that when you consume alcohol you think about this issue and get angry;

d. That it is true you have a prior conviction for which you paid a fine and compensation;

e. That you were placed on a one (1) year Good Behavior Bond;

f. You have nevertheless asked for leniency in form of a lighter sentence than imprisonment;

g. That you were willing to settle this matter out of court.

6. Your Antecedent Report provided to Court is as follows;-

a. You are a married man with five (5) children;

b. You are employed as a teacher by the Education Department as a teacher at the Taladig Vocational Centre and earn K282:00 a fortnight and were normally resident at Danip;

c. That you had a prior conviction by the Karkar District Court for Unlawful Assault on 18/08/08 and placed on a twelve months (12) GBB and further ordered to pay compensation to the complainant. 

7. I take into consideration these above matters when I deliberate your sentence.

8. The Police Prosecutor made no submission on sentence.

Pre-Sentence Report

9. You pleaded guilty upon arraignment and pleaded for leniency in your allocatus and in light of this, the Court requested a pre-sentence report.

10. The Community Based Corrections Office in Madang furnished a Pre-Sentence Report. I have had the benefit of reading the PS R and commend Mr. Sapush for a well documented report. 

11. Turning to the PSR, I note that it has inputs from yourself, your wife (the victim),her medical reports from Miak Health Centre, Karkar dated 23/04/08 and Mapor Health Centre dated 18/08/07, supplementary documents from yourself and your wife and Police records. 

12. The highlight of the PSR has been the ongoing marital disagreements of your seventeen years of marriage to the complainant and your marital problems have not only been many but have transpired through various provinces of this country.

13. I note from your statement marked ‘’Attachment A ‘’dated 18/11/08 that you have documented the various problems over the years of your wife’s alleged affairs with other men; whether these are true or false is not shown to this court and certainly I have not sighted any certificates of conviction of adultery against her.

The Offence and Sentencing Trend.

14. These submissions give rise to only one issue for this Court to determine and that is, what the appropriate sentence in your case is.

15. In order to arrive at an appropriate sentence for you this issue can be decided by having regard to the sentence prescribed by Parliament, the sentencing guidelines and trends per the judgments and the particular circumstances in which you committed the offence from which come the factors in your aggravation as well as those in your mitigation.

16. There are sufficient Supreme and National Court authorities that provide that not only is sentencing a community responsibility but that it is incumbent upon the sentencing Courts in discharging this duty when exercising this people’s power to reflect their attitude towards a particular offence and impose a sentence that is correspondent to it. 

17. In Acting Public Prosecutor v. Don Hale (1), the S C said sentencing is a community responsibility. For the courts exercise a power that belongs to the people by virtue of s. 158 (1) of the Constitution. The S C in that case said: 

"If a judge is to consider some leniency on sentence ... it is incumbent on him to obtain the relevant report such as a pre-sentence report, especially around the age of 17 to 19. ... Then for such a drastic suspension of sentence a further help to the court would be a community report from the community to which the offender belongs and whether the community, seeing that the incident happened within that community, has any views on an appropriate punishment or whether the community is prepared to assist with any community management of any bond period. The Courts are bound under the philosophy of the Constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment of criminals definitely has an effect on the ordinary people. So, community involvement with the punishment of offenders should be considered especially if the court wishes to return an offender to the community instead of imposing imprisonment."

18. In The State v. Irox Winston (2) Kandakasi.J going by the authority of the Don Hale case held that: 

“...If the Court is minded to give a lenient sentence because of tender age or other good mitigating factors, it must first have before it a pre-sentence report supporting such a sentence. This is because criminal sentencing is a community response to an offence and has to reflect the community’s view of the kind of sentence an offender should receive. Without such a report supporting either the suspension of a sentence or the imposition of a lenient sentence, a Court can not arrive at such a sentence."

19. The above views were endorsed by the S C in two subsequent judgments in Edmund Gima v The St & Siune Arnold v The St (3). 

20. His Honor Cannings. J held in the case of The St v Raka Benson (4) that, “…where there is no pre-sentence report supporting a suspension of sentence, no Court can suspend either the whole or a part of any sentence. The question then is, should the Court proceed to suspend any sentence merely because a PSR speaks in favor of it. In my view, that would not be in line with the intent and purpose of requesting and considering a PSR, which is to ensure that there is basis in the report for a suspension of any sentence. It follows therefore that, where there is no proper foundation for a recommendation for suspension of sentence, the Court cannot proceed to suspend because there is no basis for any suspension of sentence”.

21. The practice in the higher Courts has been for the S C to give sentencing guidelines in the course of deciding criminal appeals or reviews. These guidelines are often coined as ‘starting points for various types of cases’ The N C then applies those starting points in the course of looking at the circumstances peculiar to each case i.e. identifying the aggravating and mitigating circumstances.

22. Whilst the practice in the District Court as a ‘creature of statute’ has been to adjudicate within the precincts of the empowering legislation, it should also bear in mind and apply where necessary the guidelines used for sentencing in the N C.

23. With the due respect, none of the publicized judgments up to now in our jurisdiction provide a guideline as to what are appropriate considerations to be taken on board in arriving at a sentence for this type of offence and there is need for guidelines for purposes of uniformity and consistency of sentence.

24. I am therefore inclined to go higher for guidance and analogy and in doing so adopt as a matter of practice, His Honor Kandakasi. J’s guidelines on sentencing in St v Michael Kamban Mani (5) that:-

a. The maximum prescribed penalty should not be imposed but should be reserved for the worst type of the offence under consideration.

b. Guilty pleas and the offender being a first time offender and the existence of “such good “factors operate in the offender’s mitigation and sentence lower than the prescribed maximum may be imposed.

c. The prevalence or otherwise of the offence which could be reflective of the ability of the previous sentence to either deter or not to deter would be offenders.

d. The kind of sentences that one being imposed in similar but less serious offences should be considered to ensure that sentences in a higher or serious offense is not lower than these imposed for the less serious offences.

25. In the present case I have been unable to locate a suitable precedent, so I will use the mid-point of six months as a starting point for the offence

The Law

26. The relevant law creating the offence which the defendant is charged with is provided for under the empowering legislation, the Summary Offences Act and at Sect7 Provoking a breach of the peace-

“A person who-

(b) uses threatening, abusive or insulting…

With intent to provoke a breach of the peace or by which a breach of the peace is likely to take place is guilty of an offence.

Penalty: A fine not exceeding K300:00 or imprisonment for a term not one year.

The Mitigating Factors

27. In your favor, I note that you pleaded guilty to the offence. That saved the St the time and money it could have spent to successfully have you tried and convicted. It also saved the Court the time it could have spent in conducting a trial on the issue of your guilt or innocence. Further, it avoided the need for the relevant witnesses to bear the inconveniences of going to Court to testify against you.

28. Additionally, I note that you are a well educated and married man. At the time of the offence, you were a Vocational School teacher at the Talidig Vocational Centre and had been a teacher for 17 years. 

The Aggravating Factors

29. Against the factors in your favor, I take into account the various aggravating factors against you. First you have a prior conviction, by this court in Karkar in 2008 for an offence of assault against the victim, your wife. You were given a one year G B B which ended this year and you reoffended just weeks later. You reoffending demonstrated in my view, that the first sentence did not have the desired deterrence effect on you. What it means is that in this present case the sentence to be imposed on you inevitably must have the desired element of deterrence. 

30. I note that you remained defiant in the dock even though you pleaded guilty to the charge. You did not express any remorse. This is consistent with the manner in which you have been treating the victim It is also consistent with your attitude towards her relatives. This and the foregoing are factors in your aggravation. 

31. I further note the PSR .and cannot turn a blind eye to the comments by your wife, the victim and the medical reports collated in it and I make mention briefly that they highlight what a frightening life she has had to endure in your company and under your “care” as your wife and the biological mother of your five children for close to two decades.

Other Relevant Considerations

32.The offences for which you have been charged and pleaded guilty to are created under the heading of the relevant section as ‘provoking a breach of peace’ and were so created to cover a whole range of human conduct that though are criminal in nature are not serious enough to warrant charges under the Criminal Code but are nevertheless serious enough for the National Parliament in 1985 to amend the penalty clause increasing it to a fine not exceeding K300.00 or imprisonment for a term not exceeding one year.

33. This is a democratic country with a well defined set of constitutional rights and everyone should enjoy his rights and freedoms anytime without having to be on the constant lookout for drunken louts.

34. It is said that a man’s home is his castle and indeed this should so be, our Constitution guarantees this. You had no right to disturb neither the victim nor her brother for that matter in the manner you did on the night of the 9/09/09 in his home.

35. It is the conduct of persons like you that interfere with the rights of peace loving and law abiding citizens of this country and you must be punished as a personal deterrence to you and also as a general deterrence to others who might be like minded.

36. I note from the PSR the manner in which you attempted to solve your disagreements with your wife over the 17 year of your marriage. You have never gone to a Court of Law but chose to settle your problems yourself.

37. This is all well and good except you chose violence as your choice method of settlement and you by your own volition chose to step over the line and become prosecutor, judge and executioner.

38. The trophies of your form of justice are the scars both physical and without doubt psychological on Bernadette Arua. Her scars are borne out by the medical reports which are well documented by qualified medical personnel. What is alarming about these medical reports is the injury she has suffered to her genitalia. You have not only physically assaulted her, but visited degrading, immoral, and undoubtedly very painful injury to her sexual organs.

39. You are charged with breaching of the peace which involved the utterance of threats of murder and arson and are fortunate indeed not to have been charged with an offence more serious.

40. You being a teacher of 17 years were therefore in a better position to appreciate and uphold the rule of law and respect for one another in our communities. I am sure the community and your students looked upon you as a role model. What you did on that day runs contrary to the respect the community had in you as well as the expectation it had of you. You set a very bad example for other people and more importantly, your students.

41. You are a danger to your family and in particular to your wife as you obviously have no respect for the laws of this country, your wife and others and this adds to the gravity of your conduct.

Conclusion

42. To suit the purposes of retribution and rehabilitation sentences should not be too lenient so as to firstly cause a disservice to the community by failing to deter such offenders and secondly not adequately correspondent to the gravity of the offence and having the desired resultant impact on the rehabilitation of the offender.

43. Kandakasi.J in St v Jason Dungoia (6) stated that “The usual purpose of criminal sentencing such as deterrence, restitution or rehabilitation are also relevant factors for consideration and so are requirements to carefully consider and take into account the factors for and against a prisoner before sentencing him or her”.

44. Therefore it is incumbent on the criminal sentencing courts to exercise the people’s judicial power vested in them by virtue of the Constitution to portray the above virtues if I may put it in their sentences.

45. So it is with the above in mind that this Court highlights this aspect of the PSR for two reasons, firstly, to show that you by your own track record are a person prone to bursts of violent conduct against your wife and secondly that although you were privileged to have a non custodial punishment in the past, you breached it time and again and more over less than a month after the GBB expired on August 08th this year. 

46. This shows that you have the propensity to reoffend even after you were the beneficiary of such a lighter sentencing option as a GBB, something some prisoners can only dream of.

47. All inputs contained in this PSR except yours, point out one glaring aspect about you and that is you have a violent disposition. That you are predisposed to using violence as a means of settling your problems

48. Against this aggregate result, you indicated a willingness to settle this matter out of court and at the eleventh hour too I must add. However there is no evidence in the PSR of you ever having settled your differences in the past with your wife on your own accord peacefully except by sanctioning of the Court.

49. In your case, as I noted, the aggregate result of the inputs in the PSR in my view is against any suspension of sentence and or orders for compensation simply because you have not provided the evidence to substantiate your willingness to settle this matter out of court.

50. Going by Cannings.J’s dictum in St v Raka Benson (7) there must be a basis substantiated by evidence for any recommendation of suspension of a custodial term.

51. Yet the PSR recommends Probation. That recommendation is clearly without the support of any evidence, save only for your own input, which clearly goes against the aggregate result of all the other inputs in the PSR. In the circumstances, I find that you have not provided me with any basis to suspend either the whole or part of any sentence this Court deems fit in the particular circumstances of your case. Similarly, I find that there is no evidence to support the recommendation of the PSR that you be placed on Probation. Accordingly, I will proceed to consider a custodial sentence for you. 

52. Weighing the factors for and against you, I note that the aggravating factors out weigh those in your mitigation.

53. No court should be unnecessarily burdened in the exercise of their sentencing discretion by such principles, as no “disparity of sentence between co-accused” or no “quantum leap” for there is nothing legislated dictating this and they should be guided by the purposes of criminal sentences more than not., And so Courts should impose sentences that though might be viewed by some as “quantum leaps” or “disparity of sentence” are nevertheless sentences that correctly reflect the peculiar circumstances of a particular case. The authority for these sentiments was stated by Kandakasi. J in St v Fabian Kenny (8). 

54. The two charges for which you have pleaded guilty to arise out of the same or closely related facts, and I will treat them as part and parcel of the same transaction for purposes of sentencing.

55. I note that the “one transaction” rule dictates that where two or more offences are committed in the course of a single transaction, all sentences in respect of the offences should be concurrent. See The St v Jacky Vutnamur and Kaki Kialo No 3)( (9); The St v Lucas Soroken Sembengo, Bob Alois Wafu & Raphael Lawrence Mandal (10); and The St v A Juvenile, "TAA" (11). They were armed robbery cases but the same principles apply irrespective of the nature of the crime. 

56. I am also conscious of the "totality principle", that when the court has arrived at appropriate head sentences and decided whether they should be concurrent or cumulative, it must look at the total sentence and see if it is just and appropriate. If it is not, one or more of the sentences should be varied to get a just total.

57. Having alluded to these principles of sentence this Court in contemplating the appropriate sentence has started from the midway point of 6 months which it considers as fair to the defendant but notes on the same token that he has benefitted from a 12 months G B B in the very recent past and therefore not a first or youthful offender.

58. This Court is of the view that a concurrent sentence would not correctly reflect the serious and peculiar circumstances of the immediate matter and corollary that a cumulative sentence would not be crushing on the defendant and indeed not manifestly excessive but just. These offences were committed by a violent man against his wife and mother of his five children who had a history of subjecting her to the most degrading assaults and injuries which no woman deserves and indeed was not created by God to suffer such indignities and shame. Offences of this nature are commonplace in contemporary PNG society and must be stamped out and in my adamant view its prevalence does not in any way or form lend it any legitimacy or credence. These were offences committed by an educated person who was in a better position as a teacher to know better and the sentence must reflect the community’s disgust and disappointment that a person in the offender’s position did such things.

59. I proceed to sentence the defendant in the following manner.

SENTENCE

60. Reuben Meut, having been convicted of two counts of breaching the peace contrary to Section 7 (b) are sentenced in the following manner:

Count One	6 months	
Count Two	6 months 	
Both sentences to be served cumulatively	12 months effective sentence	
Amount of sentence suspended 	Nil.	

61. This is the only penalty which in my view befits your offences so you can have enough time to reflect on your behavior towards your wife of the last 17 years of your marriage life and hopefully make amends.

62. I order that you serve that sentence in hard labor at the Beon Correction Institution. A warrant of commitment in those terms shall issue forthwith. 

Police Prosecutor for the State 
Defendant in person

_____________________________

[1] (27/08/98) SC564
[2] (21/09/00) N2304 
[3] (03/10/03) SC 730.
[4] (2006) CR 447 &450
[5](21/05/02)N3453
[6] (13/12/00) N2038
[7](2006) CR 447&450 of 2006
[8] (2002) N2237
[9(2005) N2919]
[10(2006) N2801
[11(2006) N3017]]