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Police v Yomsa [2021] PGDC 105; DC6061 (4 August 2021)

DC6061

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS SUMMARY JURISDICTION]

B. No 1050-1051 of 2021

C.B. No. 1841 of 2021
BETWEEN

THE POLICE
Informant


AND

MAIWAS YOMSA
Defendant


Boroko: Seth Tanei


2021: 4th of August


SUMMARY OFFENCE –– Drunk and Disorderly – s 4 – Summary Offences Act 1977 - Damaging Property – s 47(2) – Summary Offences Act 1977.


PRACTICE AND PROCEDURE- Sentence – Plea – Drunk and Disorderly, Damaging Property - principles of sentencing discussed and considered –Imprisonment for a term of 5 months.


Cases Cited


State v Benson [2006] PGNC 68; N4481
Yalibakut –v- The State [2006] PGSC 27; SC890
State –v- Dua [2013] PGNC 8; N4957
Police –v- Lapasuma [2003] PGDC 26; DC313
Police v Arua [2021] PGDC 99; DC6054
Police v Howigo [2021] PGDC 25; DC5081,
Police –v- Koin & 3 Others [2011] DCR 1277-1280 of 2011, 08.11.2011, Unreported


References


NIL


Legislation


Summary Offences Act 1977
Summary Offences (Amendment) Act 2018
Criminal Justice (Sentences) Act 1986


Counsel

Sergeant Wilson Golina, for the Informant

The Offender in Person

RULING ON SENTENCE

4th August 2021


S Tanei: The Offender, Maiwas Yomsa, pleaded guilty to the offences of being Drunk and Disorderly under section 4 of the Summary Offences Act 1977 and Damaging Property under section 47(2) of the Summary Offences Act 1977 on 13th July 2021.


2. After a number of adjournments, parties made submissions on sentence on 28th July 2021.


3. This is my ruling on sentence.


FACTS:


4. The Offender pleaded guilty to the following facts;


  1. On 3rd July 2021, the Offender was at Erima roundabout, National Capital District. He was drunk and was behaving disorderly.
  2. The victim was driving her vehicle a Mitsubishi IO Station wagon bearing registration number CBD 592, on her way to her house at Erima Wildlife when the Offender ran into the road and blocked the road by standing in the middle of the road in front of the vehicle. As the victim drove closer, the Offender threw his right hand out and hit the right rear vision mirror of the victim’s vehicle causing it to break. The Offender was then chased by bystanders who manhandled him.
  3. Just then a Police Unit from Central Province drove by and stopped when they saw the Public manhandling the Offender. They then apprehended the offender and took him to 15 mile Police Station. At the station, the Offender was found to be drunk as his eyes were red and his breath smelled of liquor and when asked his name he could not speak properly. He later lied and said his name was Venam Sani when he was later asked about his name.
  4. The next day the victim obtained a quote for the damage to her vehicle from Motorist Mart. The total was K 500.00.
  5. The Offender was later taken to Boroko Police Station, arrested, charged and detained.

ANTECEDENT REPORT


  1. The Offender is 29 years old and hails from Bukawa Village, Nawaib, Morobe Province. He is married with one child and resides at ATS Last Block, NCD. He is unemployed and is a habitual offender.

ALLOCOTUS:


  1. During Allocotus, the Offender apologised to the Court. He said he was sorry for what he had done. That is his first time in Court and he asked for the Courts mercy.

ISSUES:


  1. The Court is faced with the issue of what penalty it should impose on the offender.

THE LAW:


  1. The Offender was charged with two Offences under the Summary Offences Act 1977.
  2. Section 4 of the Summary Offences Act 1977 provides that;

‘A person who is found drunk in a public place and who acts in a manner that disturbs a reasonable member of the public or is likely to disturb a reasonable member of the public, is guilty of an offence.”


  1. The Penalty for this offence is provided for under section 4 of the Summary Offences (Amendment) Act 2018 which sets the penalty at K 2000 fine or imprisonment for a term not exceeding six (6) months.
  2. Section 47 (2) of the Summary Offences Act 1977 provides that;

“(2) A person who, without reasonable excuse, destroys, damages or injures any property belonging to another person is guilty of an offence.”


  1. This offence carries a penalty of a fine not exceeding K 4, 000 or imprisonment for a term not exceeding 2 years under Section 46 of the Summary Offences (Amendment) Act 2018.

PRINCIPLES OF SENTENCING


  1. I adopt the decision making process applied by His Honour Justice Cannings in the cases of State v Benson [2006] PGNC 68; N4481 and State –v- Mavuug[2012] PGNC 255; N4898 where the following decision making process was used;

Step 1: what is the maximum penalty?

Step 2: what is a proper starting point?

Step 3: what other sentences have been imposed recently for equivalent offences?

Step 4: what is the head sentence for each offence?

Step 5: should the sentences be served concurrently or cumulatively?

Step 6: what is the effect of the totality principle?

Step 7: should the pre-sentence period in custody be deducted from the term of imprisonment?

Step 8: should all or part of the sentence be suspended?


STEP 1: WHAT IS THE MAXIMUM PENALTY?


  1. The maximum penalties provided for under the Act is a fine of K2000 or imprisonment for six months for being drunk and disorderly and a fine of K 4, 000.00 or 2 years imprisonment for the offence of damage to property. However, those are reserved for the worst case scenario.

STEP 2: WHAT IS A PROPER STARTING POINT?


  1. I held in many cases that the proper starting point for offences in which the Offender pleaded guilty would be the mid-point.
  2. This means that in this matter, the starting point would be K 2, 000 fine or 1 year imprisonment for the offence of damaging property and K 1, 000 fine or 3 months imprisonment for the offence of drunk and disorderly.
  3. It is also important to consider the sentencing trends in similar cases when considering the Starting Point.

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


  1. My research has not led me to many cases that dealt with the offence of being drunk and disorderly.
  2. I have come across only one case on the PNG Sentencing Database where his His Worship John Kaumi (as he then was) comprehensively dealt with the law and penalty to the offence of Being Drunk and Disorderly. That is the case of Police –v- Koin & 3 Others [2011] DCR 1277-1280 of 2011, 08.11.2011, Unreported. In that case, the offenders pleaded guilty to being drunk and disorderly where they entered the premises of a school a disturbed the students and proceedings at the school while being drunk. They were sentenced to 2 months imprisonment each.
  3. The following are cases dealt with the offence of Damaging Property.
  4. In Police –v- Lapasuma [2003] PGDC 26; the Offenders were found guilty of damaging property, a house. They were sentenced to 3 months imprisonment each (fully suspended) and were ordered to pay compensation to the victim in the sum of K 200 each.
  5. In the case of Police v Howigo [2021] PGDC 25; DC5081, the Offender pleaded guilty to one count of damaging property, among other charges. He was sentenced to 9 months imprisonment, fully suspended and ordered to pay a fine of K 200.
  6. In the case of Police v Arua [2021] PGDC 99; DC6054, the Offender pleaded guilty to the offence of damaging property. I sentenced her to pay a fine of K 200 and to compensate the Offender in the sum of K 100 as the damage caused to the property was K53 and the Offender’s mitigating factors saved her.
  7. In the reported cases above, the sentences ranged from 3 months imprisonment to 9 months imprisonment and fines of K 200 depending on the circumstances of each case.

STEP 4: WHAT IS THE HEAD SENTENCE FOR EACH OFFENCE?


  1. Before I come up with the head sentences, I must look at the mitigating factors and aggravating factor and other important considerations.
  2. In this matter, the Offender pleaded guilty so he will be given the benefit of the doubt on mitigating factors. I apply the principle in Yalibakut –v- The State [2006] PGSC 27; SC890.
  3. I am duty bound to consider the mitigating factors as well as the aggravating factors.
  4. The Offender has the following mitigating and aggravating factors.
  5. The mitigating factors are;
    1. Early Guilty Plea
    2. He expressed remorse.
  6. The aggravating factors are;
    1. His actions were unprovoked
    2. He was violent.
    1. He was under the influence of alcohol
    1. He damaged property belonging to the victim
    2. He was a nuisance at a public place, a public road
  7. During submissions on sentence, Prosecutor Wilson Golina submitted that the nature in which the offences were committed by the Offender is serious. He says the Offender was a nuisance at that time, blocking a public road from road users and eventually damaging the victim’s property, the right rear mirror of her vehicle, the total cost of replacement and repair is K 500.00. He therefore submitted that the Offender should be given the maximum imprisonment term.
  8. The Offender did not make any submissions apart from his allocotus.
  9. I uphold the submissions of the Prosecutor. The Offender’s actions were totally unwarranted. The victim was driving towards her home minding her own business when she was attacked by the drunk Offender.
  10. Apart from those circumstances put forth by the Prosecutor, the Offender’s aggravating factors overwhelmingly outweigh the mitigating factors. The Offender was drunk and violent and causing nuisance on a public street. He also caused damage to the victim’s vehicle, a value of K 500.00.
  11. Also, I note that the Offender says that he is a first time offender while the Police Report says that he is a repeat offender. Although the Police Antecedent report does not show what prior offences the Offender Committed, when I read the statement of facts again I noted that the Offender lied about his name when he was first brought to the Station. This casts doubt my mind on whether I should believe the Offender’s statement.
  12. I also remind myself of the purposes of sentencing. They are for retribution, rehabilitation, deterrence and separation.
  13. It is my view that the sentence that I impose on the offender must be one that serves the purpose of rehabilitation, deterrence and retribution.
  14. The Offender is unemployed and in my view he will be unable to pay a fine or compensate the victim for the damage he caused to the victim’s vehicle. Hence, a custodial sentence will be the most appropriate sentence to serve the purposes of rehabilitation, deterrence and retribution. However, I do not find that this particular case falls under the worst case scenario.
  15. Taking into account the sentencing trends and the mitigating and aggravating factors as well as other consideration, I sentence the Offender to the following;
  16. For the offence of being Drunk and Disorderly, the Offender is sentenced to 3 months imprisonment in hard labour.
  17. For the offence of Damaging Property, the Offender is sentenced to 5 months imprisonment

STEP 5: SHOULD THE SENTENCES BE SERVED CONCURRENTLY OR CUMULATIVELY?


  1. It is my view that the sentences should be served concurrently. The due to the fact that the offences arose out of the same set of facts and the victim was the same person (State –v- Mavuug [2012] N4898). This means that the offender will serve the highest sentence out of the two.
  2. Therefore, the Offender’s total sentence in this case would be 5 months imprisonment.

STEP 6: WHAT IS THE EFFECT OF THE TOTALITY PRINCIPLE?


  1. The effect of the totality principle is that the sentence imposed by the Court should not be too crushing on the Offender. I am of the view that the sentences that I imposed on the offender are within the bounds of the law and are not too crushing.

STEP 7: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?


  1. Yes. Section 3 (2) of the Criminal Justice (Sentencing) Act 1986, gives the power to the Court to deduct the pre-sentence time spent in custody. The Offender in this matter has been in custody since 3rd July 2021. One month will be deducted from the total sentence.

STEP 8: SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?


  1. I have considered all the factors in this case and it is my view that a custodial sentence is the only way the Offender will be rehabilitated, deterred from committing the offence and as a form of retribution for the damage he did to the victim’s vehicle.
  2. Also, the number aggravating factors do not support a non-custodial sentence.

CONCLUSION


  1. After due consideration of all factors in this case, the Offender shall be given a sentence of 5 months imprisonment in hard labour.

SENTENCE


  1. The following is the sentence of the Court;
    1. Mawias Yomsa, having pleaded guilty and being convicted of the offences of Being Drunk and Disorderly under 4 of the Summary Offences Act 1977 and Damaging Property under section 47 (2) of the Summary Offences Act 1977 is sentenced to five (5) months imprisonment in hard labour.
    2. Pursuant to Section 3(2) of the Criminal Justice (Sentences) Act 1986, the Offender’s period in custody of 1 month is deducted from the total sentence of five (5) months.
    3. The Offender shall serve 4 months in prison at Bomana Corrections Institution.
    4. A Warrant of Commitment is issued forthwith.

Lawyer for the Informant Police Prosecutions

Lawyer for the Offender: In Person

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