DC940

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

DCR 840,841&842/2009

BETWEEN:

POLICE
Informant

AND:

ELIUTH MOKOTI
Defendant

Madang: J.Kaumi
2009:18th August.

SUMMARY: Sentence – Three counts of Unlawful assault contrary to Section 6 Subsection (3) of the Summary Offences Act Chapter 264 – Plea of Guilt – Sentencing Guidelines – Mitigating and Aggravating Factors – No Expression of Remorse – Prevalent Offence – Need for Deterrence.

Cases cited

Public Prosecutor v Yapuna Kaso [1977] PNGLR 209 
Public Prosecutor v Tom Ake [1978] PNGLR 469
State v Sabarina Yakal (1988-89) PNGLR 129
State v Jason Dungoia (13/12/00) N2038
State v Michael Kamban Mani (21/05/02) N2246
The State v Jacky Vutnamur and Kaki Kialo (2005) N2919
Saperus Yalibakut SCRA No.52 of 2005(27/04/06)
The State v Lucas Soroken Sembengo, Bob Alois Wafi and Raphael Lawrence Mandae N2801
State v A Juvenile,” TAA” (2006) N3017

Legislation

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

Abbreviations

The following abbreviations appear in the judgment
NAT CT National Court
PP Public Prosecutor
SECT Section
SUBS Subsection
SOA Summary Offences Act
ST State
SUP CT Supreme Court

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

18th August 2009.

INTRODUCTION

1. Kaumi. M. The defendant is charged with three counts of unlawful assault contrary to Section6 (3) of the Summary Offenses Act on three separate informations of having assaulted three persons on the 7th August 2009.

CONVICTION

2. The accused pleaded guilty to those facts. I entered a provisional plea of guilty and then after reading the Summary of Facts and confirming them then confirmed the pleas and convicted him as charged... He is now referred to as the Offender.

3. He was convicted of three counts of unlawful assault.

FACTS

4. The relevant facts as put to you when I arraigned you and the statement of facts are as follows and there is authority for the use of such depositions to extract the relevant facts for sentencing purposes, St v Sabarina Yakal (1), P P v Yapuna Kaso (2) and P P v Tom Ake (3).

5. The relevant facts upon which I will proceed to sentence you are these: 

6. On Thursday the 06th August 2009, you being, a second year student of the Madang Teachers College was at Asuramba Care Centre with five other fellow students on a practical teaching program.

7. At around 11; 00pm on the 6/08/09you left your fellow students and went on a “homebrew” drinking spree until daybreak on the Friday 7/08/09.

8. At around 8:00am on that day as your fellow teachers were about to start their day’s activities you arrived there fully intoxicated, shouting and swearing.

9. Because of your disorderly behavior your student leader, Mr. Willy Markal tried to talk you into going to sleep but you turned on Mr. Markal and assaulted him with the use of your hands.

10. When your fellow students saw this they to assist Mr. Markal cool you down but you refused to do so and turned on them assaulting them all in the process.

11. You assaulted Joseph Dickson on his right hand with a stick, hit Nelson Chris with a stone on his right jaw, you hit Fred Martin on his fingers with a stick and hit Francis Aprani on his left arm with a stick.

12. During this whole episode you were shouting and swearing.

13. The matter was reported to Bogia police by the supervising lecturers and you were apprehended and taken to the Police Station where you were formally cautioned arrested and charged. You were informed of his Constitutional rights and later placed in the cell.

ANTECEDENTS

14. The offender is aged 21 years of Sainde village, Lumi, West Sepik Province. You are a single man and a second year student at the Madang Teachers College, have no prior convictions.

ALLOCATUS 

15. I administered the allocatus to you where you were given the opportunity to address the Court on what matters the court should take into account when deciding on punishment and in your address on the sentence, you did not express any remorse for what you did. On the contrary all your comments were self serving A paraphrased summary of your response follows:

“This is my last year at MTC and my first time to appear in Court I came as a self-sponsored student to MTC. My parents are not working and live back in our village at Lumi. I don’t want to lose my education as a teacher. I ask for the Court’s mercy and to be placed on a GBB”.

OTHER MATTERS OF FACT

16. As the offender has pleaded guilty he will be given the benefit of doubt on mitigating matters raised in the depositions, the allocatus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (4), (Jalina J; Mogish J Cannings.J )).

SUBMISSIONS BY THE POLICE

17. Police Woman First Constable Rose Bussil did not make any submission on sentence but left the sentence to the discretion of the Court.

THE OFFENCE AND SENTENCING TREND

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

19. The practice in the higher Courts has been for the Supreme Court 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 National Court 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.

20. 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 NAT CT.

21. 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.

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

THE LAW

23. Section 6 (3) of the SOA provides for the offence of unlawful assault as follows:-

(3) A person who unlawfully assaults another person is guilty of an offence.

Penalty: A fine not exceeding K500.00 or imprisonment for a term not exceeding two years.

(2) Where a court convicts a person of an offence against Subsection (3), it may order him to pay- 

(a). to the person, in relation to whom the offence was committed; 

Such amount by way of compensation for bodily injury or damage to the property of the person occasioned by or in the course of the commission of the offence, as it considers just.

THE MITIGATING FACTORS

24. Before anything else, I take into account your personal background from your Antecedent Report.

25. In addition to your family background, in your favor, I note that you both 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.

26. Next you are first offender in other words you have no prior convictions.

27. These are the only two factors that can be said in your favour.

THE AGGRAVATING FACTORS

28. Firstly, you attacked the victims who were colleagues for no apparent reason, and they were only trying to help you. This was a completely unprovoked attack. There is no evidence that the victims provoked you directly or in the non legal sense. It could have been said arguably in your favor that you acted under a de factor provocation only if the victim had attacked you first. There is no evidence of the victims attacking you in any way or form, let alone retaliating after your initial attack. Despite this you continued to attack the victims after the initial attack on Mr. Markal.Your attack was vicious to say the least, uncalled for and a clear example of the danger of consuming homebrew or ‘Iava’ as it commonly known on the street. You are fortunate that your colleagues did not retaliate to your unprovoked assaults on them otherwise it would have been a different story. 

29. Secondly, your actions did not set a good example to the residents at the Asuramba Care Centre and more importantly the students there who were already traumatized by a natural disaster. These students did not deserve this. I am sure the community looked upon you as a teacher and role model for their young children. What you did on that fateful 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. 

30. Thirdly, I note that your offence of unlawful assault is a very prevalent one. Accordingly it is incumbent upon the Courts to impose such sentences that will deter you personally and other like minded persons.

31. Fourthly, you expressed no remorse whatsoever for the pain and suffering you inflicted on the victims. You violated the Constitutional rights of the victims when you unlawfully assaulted them. Instead your whole allocatus was self serving and this is also an aggravating factor.

CONCLUSION

32. 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 to not adequately correspond to the gravity of the offence and having the desired resultant impact on the rehabilitation of the offender.

33.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”.

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

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

36. 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)( (7); The St v Lucas Soroken Sembengo, Bob Alois Wafu & Raphael Lawrence Mandal (8); and The St v A Juvenile, "TAA" (9). They were armed robbery cases but the same principles apply irrespective of the nature of the crime. 

37. 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.

38. I note that this is your first ever offence. That means you have not been in trouble with the law before. The law allows for a lenient sentence in appropriate cases where the offender is a first time offender. The conversed of that is a repeat offender may be given a far sterner sentence. The idea behind this is to avoid crushing a first time offender with a heavier penalty and the risk of turning the offender into a hard core criminal. Hence a lighter sentence would serve as a punishment as well as serve the communities desire to prevent the offender from re-offending.

39. 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.

40. This Court is of the view that a concurrent sentence would correctly reflect the serious and peculiar circumstances of the immediate matter and corollary that it would not be crushing on the defendant and indeed not manifestly excessive but just. These offences were committed against innocent people. Offences of this nature are commonplace in contemporary PNG society and this fact alone calls for stiffer penalties to be imposed in corresponding fashion. Again here as I have stated in some of my recent judgments the prevalence of an offence does not in any way or form lend it any legitimacy or credence.

SENTENCE 

41.Eliuth Mokoti, having been convicted of three count of Unlawful assault contrary to Sect 6 (3) are sentenced in the following manner: 

Count One	 6 months GBB	
Count Two
Count Three	6 months GBB 
 6 months GBB	
3 x GBB to be served concurrently.		
Amount of sentence suspended 	Nil.	

Police Prosecutor: for the State 
Defendant in Person

[1] [1988-89] PNGLR 129; N2254.
[2] [1977] PNGLR 209
[3] [1978] PNGLR 469
[4] SCR No.5 of 2005, (27/04/06)
[5] (21/05/02) N2246
[6] (13/12/00) N2038
[7] (2005) N2919
[8] N2801
[9] (2006) N3017