DC5064
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS SUMMARY JURISDICTION]
B. No  461 of 2021
BETWEEN
THE POLICE
Informant

AND
LESLEY JOE
Defendant

Boroko:  S Tanei 

2021:  24th of March
             

SUMMARY OFFENCE – Unlawful Assault – s 6(3) – Summary Offences Act.  

PRACTICE AND PROCEDURE- Sentence – Plea of Guilty – principles of sentencing discussed and considered – Unlawful Assault- Mitigating Factors considered – Imprisonment for 12 months – wholly suspended.  

Cases Cited

State –v- Dua (2013) PNGNC 8; N4957
State –v-Mai [2018] N7182
National Fisheries Authority –v- Pais Taihu [2020] DC4075
Police –v- Aspi Awinjip [2009] DC936
Police –v- Marcus Kachau [2010] DC948
Police –v- Kavip Tetenge [2008] DC896
References

Legislation

District Courts Act 1963
Summary Offences Act 1977

Counsel
Constable Wilson Golina, for the Informant 
The Offender in Person
RULING ON SENTENCE
24th March 2021

S Tanei: The Offender, Lesley Joe pleaded guilty to one count of Unlawful Assault on 17th March 2021. 

2. The following is my ruling on sentence. 

FACTS: 

3. The Offender, Lesley Joe was charged with one count of Unlawful Assault under section 6 (3) of the Summary Offences Act 1977.

4. The following are the facts to which Lesley Joe pleaded guilty to.

5. On 6th March 2021 at about 5 pm, the Offender was at Henao Drive, Gordons, NCD. He was intoxicated. 

6. At that time, the Complainant was on her way to work. The offender approached her and told her to stop. He accused her of enticing him and using up his resources. He then took out a kitchen knife and poked the Complainant on her back and then he ran away. The Complainant sustained a cut on her back as a result. 

7. The Complainant then lodged a Complaint and the Offender was arrested, cautioned, told of his rights and detained at the Police Cells at Boroko. 

ANTECEDENT REPORT

8. The Offender is 18 years old and hails from Oyareb Village in Mendi, Southern Highlands Province. He is single and resides at Henao Drive, Gordons NCD with his family. He is unemployed and is a first time offender.   

ALLOCOTUS:

9. During Allocotus, the Offender said “Me laik tok sorry lo kot. Em first time blo me. Me bin spak na mekim. Me askim lo marimari blo kot. Me no man blo mekim trabol.” He was in tears. When translated, his words mean “I would like to say sorry to the Court. This is my first time. I ask for the Court’s mercy. I am not a troublemaker”.

ISSUES:

10. The Court is faced with the following issues;

a)	What is the sentence the Court should impose on the Offender?
THE LAW

11. Section 6 (3) of the Summary Offences Act 1977 provides that; 
(3) A person who unlawfully assaults another person is guilty of an offence.
12. The Penalty provision in section 6 (3) has been amended by the Summary Offences Amended Act 2018. This offence now carries a penalty of A fine not exceeding K 4, 000.00 or imprisonment for a term not exceeding two (2) years. 

SENTENCE
13. In deciding on the appropriate sentence the Court must be guided by sentencing principles. 

14. Numerous cases that deal with this offence and the penalty that should be imposed.

15. I will adopt the decision making process applied by His Honour Justice Cannings in the case of State –v- Dua (2013) PNGNC 8; N4957 and His Worship Mr. Samuel Lavutul in the case of National Fisheries Authority –v- Pais Taihu [2020] DC4075.   In those cases, the 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 sentences have been imposed for equivalent offences?
•	step 4: what is the head sentence?

Step 1: what is the maximum penalty?

16. The maximum penalty provided for under the Act is a fine of K 4, 000.00 or 2 years imprisonment. This is reserved for the worst case scenario. 

Step 2: what is a proper starting point?

17. In the cases provided above, the Court held that the proper starting point would be the mid-point since the Offender pleaded guilty. 
 
18. In our case, the mid-point would be an amount of K 2, 000 fine or 1 year imprisonment. 

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

19. It is important to look at the sentencing trends and similar cases when handing down the sentence. 

20. In the case of Police –v- Aspi Awinjip [2009] DC936, the offender pleaded guilty to one count of unlawful assault. He was sentenced to 12 months imprisonment, fully suspended and placed on Good Behaviour Bond. 

21. In the case of Police –v- Marcus Kachau [2010] DC948, the offender pleaded guilty to one count of unlawful assault. He was given a sentence of 6 months imprisonment (wholly suspended with conditions). He was also ordered to pay Compensation pursuant to Section 6 (4) of the Summary Offences Act. 

22. In Police –v- Kavip Tetenge [2008] DC896, the offender pleaded guilty to unlawful assault. He was sentenced to 6 months imprisonment in hard labour. The sentence was fully suspended with the offender placed on Good Behaviour Bond and the offender was also ordered to pay compensation to the victim. 

23. In the recent case of Police –v- Elis Ruti B. 461 of 2021, 17.03.21 Unreported , the Defendant pleaded guilty to one count of unlawful assault. The Court sentenced her to 6 months imprisonment, wholly suspended. She was also ordered to compensate the Complainant in the sum of K200 pursuant to section 6(4) of the Summary Offences Act 1977. 

Step 4: what is the head sentence?

23. The Offender pleaded guilty and as such he will be given the benefit of the doubt on mitigating factors. Here, the Court will consider circumstances of mitigation and aggravation. 

24. The following are the mitigating factors; 
a)	Early guilty Plea
b)	Genuine expression of remorse
c)	First time offender

25. The aggravating factors are; 

a)	It was an unprovoked assault. 
b)	The Defendant was under the influence of liquor. 
c)	He used a dangerous weapon namely a kitchen knife. 
d)	The Defendant sustained a knife wound from the attack. 

26. From the two lists, the aggravating factors outweigh the mitigating factors. 

27. Sergeant Wilson Golina of Police Prosecutions submitted that this particular offence is a concern in society as there is no longer any respect for women and elderly people by people like the Offender. 

28. The Prosecutor submitted that the Complainant obtained a wound from the attack by the Defendant. He submitted that compensation pursuant to Section 6 (4) of the Summary Offences Act would not be an appropriate penalty because the Offender is unemployed and as such will be unable to pay compensation. 

29. The Prosecutor submitted that given all the circumstances, the most appropriate sentence would be a custodial sentence. 

30. In the case of Acting Public Prosecutor –v- Aumane, Boku, Wapulai and Kone [1980] PNGLR 150 , it was held that sentences must be for the purpose of deterrence, separation, rehabilitation and retribution. 

31. The Court must look at the principles and choose which one applies to the case of the Offender in this case. 

32. This case is different from the other cases as the offender used a knife to attack the Complainant. He would have been charged with an indictable offence under the Criminal Code. However, he was lucky to have been charged with a Summary offence. 

33. The Offender’s mitigating factors do not work for him in this case. Although he pleaded guilty early, expressed genuine remorse and is a first time offender, his actions are totally uncalled for. He committed an unprovoked assault, he used a weapon to attack the Complainant and he was intoxicated at the time of the commission of the offence. 

34. Society, especially the Courts should not tolerate such actions as the offence committed by the Offender. 

35. While I condemn the actions of the Offender, I am fully aware that I am bound by sentencing principles established by the Courts. I apply the principles in the case of Acting Public Prosecutor –v- Aumane, Boku, Wapulai and Kone [1980] PNGLR 150 and hold that a sentence in this case must be deterrent in nature. It must also be of rehabilitation. The Defendant must be rehabilitated. He must be given the opportunity to reflect on his actions so that he becomes a better citizen. He is only 18 years old. It is my view that he must not be put through a sentence which will make him become a hardened criminal. I refer to the case of State –v-Mai [2018] N7182 where these principles are discussed. 

CONCLUSION 

36. Taking into consideration all the circumstances, I find that the appropriate penalty would be imprisonment for a term of 1 year. I will wholly suspend the sentence considering the age of the Offender and that he is a first time offender. 

37. The Offender will be put on Good Behaviour Bond for twelve months commencing this instant under the following conditions; 
a)	The Offender shall not consume any form of alcohol throughout the length of his sentence. 
b)	The Offender shall attend his local church every Saturday. 
c)	The Offender shall do one day of community service work every week in consultation with the Police Prosecutor and the Probation Officer throughout the length of his sentence. 
d)	The Offender shall not reoffend or commit any other Offence while on Good Behaviour Bond. 
e)	In default, the Offender shall be brought before the Court and if found guilty of breach of any of the Conditions listed above, the Good Behaviour Orders will be lifted and the Offender shall be committed to Bomana Prison to serve his full imprisonment term. 
f)	The Good Behaviour Orders shall expire on 23rd March 2022. 

SENTENCE

38.  Lesley Joe, having pleaded guilty and being convicted of the offence of Unlawful Assault under section 6 (3) of the Summary Offences Act 1977 is sentenced to the following; 

Length of Sentence Imposed	1 year  Imprisonment at Bomana Corrections Institution	
Pre-Sentence period to be deducted	18 days	
Resultant length of sentence to be served	11 Months 12 days	
Amount of sentence suspended and to be served under Good Behaviour Bond	11 Months 12 days	
Time to be served in Custody 	NIL	

Lawyer for the Informant  		Police Prosecutions 
Lawyer for the Offender: 		In Person