DC5082
PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE
HELD AT
TARI DISTRICT COURT
In the Matter of Summary Offences Act  
SUM NO. 39 OF 2021
Between:
THE POLICE
	Informant	
And:
THOMAS MINARI
Defendant
Tari - His Worship Mr. E. Komia
17th and 22ndMarch 2021 and 30th March 2021

CRIMINAL LAWS (SUMMARY) PRACTICE AND PROCEDURE—unlawful assault, followed on by stealing – stealing by intimidation and threat – underlying cause of assault and stealing emanating from attempted rape of the accused’s wife – whether extenuating circumstance exists to mitigate punishment 

CRIMINAL LAWS (SUMMARY) PRACTICE AND PROCEDURE- Non Guilty Plea using custom as defence - Sentencing and Courts exercise of the people’s power by virtue of section 158(1) of the Constitution - Need for proper Guidelines to be followed in the course of deciding appropriate sentence for purposes of Uniformity and Consistency-Appropriate sentence for assault and stealing - Circumstances where a lighter sentence can be imposed

Held;
1.	An accused’s defence of provocation can never be a mitigating factor, nor can it be taken as an extenuating circumstance to reduce the culpability of an offence, if the facts surrounding the defence of provocation and extenuating circumstance raised have been settled by the parties themselves, prior to the offence.

2.	Sentencing being a community responsibility, the courts in sentencing an offender shall consider the nature of the circumstance in which the penalty would have on the community. If the court is of the opinion that there is high probability of unrest and potential harm in the community, the court must be careful in imposing penalties, whilst giving serious and due consideration to the degree of the aggravating factor and the serious or heinous nature of the crime.

3.	Whilst “ignorance of the law is not an excuse”, in circumstances where the offender has a conflicting customary belief or principle of customary values which forms the basis of an offence, the court in sentencing the offender must be slow in penalising the offender, and explain in a very elaborative and unambiguous terms of the reasons why the customary value is not excused by law, and the reasons why the offender is penalised.

4.	In a summary (criminal) matter, the courts can either order for compensation to be paid or a fine to be paid depending on the courts view of the probable solution, the compensation or fine would bear on the victim, society and the offender.

5.	The offender in this case must be given a non- custodial sentence given the fact that he has become remorseful of the offence he committed, and the demeanour he has displayed in and out of the court room and his consistency in appearing in court despite various roadblocks and tribal fights between his home and the court house, is a very important mitigating factor.

Cases cited
Acting Public Prosecutor v Don Hale [1998] PGSC 26; SC564 (27 August 1998)

Kovi v The State [2005] PGSC 34; SC 789 (31 May 2005)
Saperus Yalibakut v The State [2006] PGSC 27; SC890 (27 April 2006)
State v Jason Dongoma [2000] PGNC 76; N2038 (13 December 2000)
State v Raka Benson [2006] PGNC 68; N4481 (17 August 2006)
State v. Samban [2007] PGNC 199; N4998 (11 May 2007)
State v Tele [2014] PGNC 341; N5802 (22 August 2014) 
Police v Steven Kawage [1998] PGDC 10, (15 June 1998)
Akasiki v Auhova [2007] PGDC 134; DC700 (17 July 2007)
Police v. Lui Keisi [2009] PGDC 38; DC895 (2 June 2009)
Police v. Aulem [2011] PGDC 32; DC2024 (12 May 2011)
Police v Tobby [2011] PGDC 33; DC2019 (17 May 2011)
 Police v. Nanai [2011][PGDC 35; DC2021 (17 May 2011)
Police v. Sebi & Ors [2011] PGDC 45; DC2033 (14 July 2011)
Kabilo v. Parengkuan [2008] PGDC 139; DC1025 (11 September 2008)
Police v. David [2021] PGDC 5; DC5056 (15 March 2021). 
Police v. Aiye [2011] PGDC 41; DC2034 (27 June 2011)
Police v Bala Saol [2011] PGDC 43; DC2036 (8 July 2011)
Police v Nelson [2014] PGDC 8; DC4084 (27 February 2014)

Legislations
Summary Offences Act

Counsels
Police Prosecutor:			Senior Sergeant Mr. Akaku 
Counsels for the Defendant:		in person

INTRODUCTION
1.	The accused was charged with one count of unlawful assault pursuant to s.6 (3) and one count of stealing pursuant to s. 48C of the Summary Offences Act. 

2.	The accused entered an initial plea of not guilty when the court obtained plea during the fresh hearing on 11th March 2021.

3.	The matter was then set down for trial on 17 March 2021, at 9:30 am, and continued on 22nd March 2021. 

EVIDENCE
4.	At the trial, the police called four witnesses, and the defendant did not call any witnesses except himself. The police witnesses are:

-	Becky Phillip (complainant)
-	David Gipe Hawi (complainant)
-	John Ekape 
-	David Walape

5.	All the witnesses gave a clear account of what transpired and mentioned that the accused did, in fact committed the offences. A summary of their evidence is outlined below.

6.	Becky Phillip gave her evidence that; on 28th January 2021, she was outside her store, located beside the Komo Nogoli road, when the accused approached her and asked her whether Becky will bring his wife back. Becky responded saying that she was not his wife’s keeper and he should go and look for his wife himself. She was then assaulted by the accused and she sustained cuts to her head just above the eyebrow. That is when her brother in law David Hawi Gibe chased him with a bushknife and he ran away.

7.	David Gipe Hawi gave his evidence that; on 28th January 2021, the accused went and was talking to Becky and an argument started. The defendant then assaulted the complainant and seeing his sister in law covered in blood, he chased the accused with a bush knife, and the accused fled. The accused then returned the next morning with his tribesmen and forcefully removed two pigs from his house, which he also reported and had the defendant arrested, and is now before this court.

8.	John Ekape is a young man from Tebi LLG in Tari Pori, and was at Irawi when they saw the defendant come with two groups of men and they jumped over the drain and entered the premises of David Gipe Hawi, and got two of his pigs and left. This happened on 29th January 2021.

9.	Soon after the prosecution closed its case, the accused gave his evidence. The court noted that the accused essentially admitted to the evidence provided by the Police witnesses. 

10.	His major argument was that, he assaulted Becky (complainant for the charge of unlawful assault) and the forcefully went into the premises of David Gipe Hawi (complainant for the offence of stealing) because, David Gipe Hawi supported his sister in law during the argument and wanted to cut the assailant with a machete (bush knife).

11.	The accused further went on to blame the victim and her husband for the problem and said that, all that would not have happened if Becky’s husband had not attempted to rape his wife.

12.	The accused stated that that his wife left him and returned to her family in Poroma, Nipa Kutubu electorate of Southern Highlands Province because of the embarrassment from the attempted rape. In essence, he blamed his wife’s desertion on the complainant Becky Phillip and her husband.

13.	From evidence given by the defendant himself, that issue was settled and compensation was given. At the time of settlement of the demand, the accused accepted the compensation and later stated that, if his wife and children leave him as a result of the incident, he will hold Becky and her husband liable.

14.	It is an undisputed fact that the incident occurred around the month of August in 2020. Sometime around December 2020, the accused’s wife and their small child returned to their home village in Poroma without advising the accused.

15.	As a result of that, the accused went to Becky and her husband’s house and asked a 10 year old girl, who was Becky's small sister to accompany him home and stay with him until Becky and her husband brought his wife and child back.

16.	Becky sought the assistance of the police and military personals patrolling the highway and managed to get the small child back. 

17.	The police and military personals warned the accused not to do such thing again and cautioned the accused. The court then vigorously questioned the accused of the reasons why he abducted the small girl and took her to his house.

18.	It was established that the young girl was not sexually assaulted and returned safely to her sister’s house. Nevertheless, this Court notes that it is a serious breach of law, but rather would leave that to another time for the police to deal with this matter. 

19.	Not long after that incident, the accused went to Becky and her husbands tucker box beside the road and questioned Becky about his wife and child and if she had any plans to bring them back. At that instance Becky replied that your child is one and a half years so you should wait for another one and a half year before they (mother and child) returned to him.

20.	That comment frustrated him and he assaulted the complainant, from which the complainant sustained injuries on the left side of her forehead, just above the eyebrow.

21.	Having seen Becky bleeding from the assault, her brother in law, David Gibe Hawi, attacked the accused with the machete but, the accused managed to avoid all the swings made at him, and went home. 

22.	That next morning, the accused returned with his tribesmen and forcefully entered the premises of David Gibe Hawi and walked away with two live pigs, worth K1000 and K500 respectively.

23.	A complaint was formally filed at Tari Police Station, and the police arrested him and charged him for one count of unlawful assault on Becky Phillip under s.6(3) of the Summary Offences Act, and, two counts of  stealing under s. 48C(2)(a) of the Summary Offences Act, and the Court convicted the defendant on 17th March 2021.

24.	After hearing all the police witnesses, and the accused's evidence, I find that police have proved beyond reasonable doubt, that the accused is guilty of one count of stealing, and one count of unlawful assault. I therefore entered conviction against the accused and adjourned the matter the accused and his wife.

ISSUE 

25.	The issue before this court is, for this Court to determine the proper penalty for the offender according to law. 

THE LAW

26.	The law with respect to the charge of unlawful assault is stipulated under s.6(3) of the Summary Offences Act, which states;

PART III – PROTECTION OF PERSONS
6.	ASSAULT.

(1)	In this section, “applies force” includes the application of heat, light, sound, electrical force, gas odour or any other substance or thing if applied to such a degree as to cause any injury or personal discomfort.
(2) For the purposes of this section, a person who–
(a) strikes, touches, moves or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud; or
(b) by any bodily act or gesture, attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has an actual or apparent present ability to apply such force,
is deemed to assault that person.
(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.
(4) Where a court convicts a per son of an offence against Subsection (3), it may order him to pay–
(a) to the person, in relation to whom the offence was committed; or
(b) to any other person who suffers bodily injury or damage to property as a result of the commission of the offence,
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.

27. Section (6) (2) of the SOA establishes the elements of the offence. It states in the following manner, that:
- a person (not the victim)
- strikes, touches, moves or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent
- or with his consent if the consent is obtained by fraud; 
is deemed to assault that person.
28.	The penalty for the offence of Assault under s.6 (3) is a fine not exceeding K500.00 or imprisonment for a term not exceeding two years. Apart from the penalty given under s.6 (3), subsection 4 gives the Court the discretionary powers to deal with the offence by allowing for compensation to be paid to the victims by the accused. But again, it is the Courts discretion whether to allow for compensation or the prescribed penalty under S.6 (3).

29.	For the offence of Stealing, S. 48A, 48B, and 48C (a) of the Act sets the offence and its penalty, as follows;
Division 2.
Stealing.
48A. APPLICATION OF CRIMINAL CODE
Sections 363 to 371 of the Criminal Code 1974 apply to offences under this Division.
48B [REPEALED.]
48C. STEALING
(1) A person who steals or attempts to steal anything, capable of being stolen, of a value not exceeding K500.00, is guilty of an offence under this Act.
Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding 12 months.
(2) A person who steals or attempts to steal anything, capable of being stolen, of a value not exceeding K500.00–
(a) from the person of another; or
(b) the property of his employer or property which came into his possession on account of his employer,
is guilty of an offence under this Act.
Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding 12 months.

30.	Now looking at the scheme of words under s.42, it is unambiguous that, for the jurisdiction of the District Court with respect to a crime of stealing to qualify as a Summary Offence, the value of the victim’s property that has been stolen must equate the fiscal value of K500 and not exceed K500 in monetary value. What this means is that, if an accused is charged with the offence of stealing, and the matter is to be tried summarily, the value or worst of the property stolen must not exceed K500 or must be K500.

31.	At this juncture, I note that the accused has been charged for stealing two pigs, one worth K500 and another worth K1000. The pertinent question I pose before this court is one of jurisdiction. 

32.	Whilst this court has the jurisdiction to try a matter summarily for the stealing of pig worth K500, does this court also have the jurisdiction to deal with the offence of stealing, for a property worth over K500?  as in this case, the other pig is worth K1000, and the toal value of the pig stolen is K 1, 500.00.

33.	I find the solution readily available under s.48A, which states; 
48A. APPLICATION OF CRIMINAL CODE.
Sections 363 to 371 of the Criminal Code 1974 apply to offences under this Division.

34.	What this provision means is that, if the Summary Court is faced with a situation where the value of the property is over the ceiling of K500, as stipulated under Division 2 of the SOA, the Summary Court can invoke its powers from under s.363 through to 371 of the Criminal Code in assuming jurisdiction to deal with the matter as and when the circumstances arise, so as to allow the invoking of those provisions under the Criminal Code Act, as those are Offences that are Indictable Offences but, can be tried summarily, as they are known as Schedule 2 Offences, under the Criminal Code Act. Section 370(2) of the Criminal Code Act, allows for the Summary Court to deal with offence such as stealing of property worth up to K1000. I therefore, safely conclude that I have the jurisdiction to deal with this matter that is now before me.

35.	Therefore the penalty for stealing would be a fine not exceeding K400.00 or imprisonment for a term not exceeding 12 months, as per the Summary Offences Act, and if the thing stolen is of the value of K 1, 000.00 or over, the offender is liable to imprisonment for a term not exceeding seven years, as sanctioned under s. 372(10) of the Criminal Code Act. 

36.	In deliberating on the proper penalties that I should impose on the accused, I must firstly decide on the two charges separately. I will then decide to have the penalties to be served concurrently or cumulatively.

UNLAWFUL ASSAULT

37.	The various case authorities dealing with unlawful penalties regarding Unlawful assault are cases such as State v Laukai [2015] PGDC 19; DC3015 (11 December 2015) in which the accused was found guilty of unlawful assault and was sentenced to two years with the whole sentence suspended and accuses was placed on good behaviour bond with strict conditions. Police v Mako [2008] PGDC 108; DC801 (17 September 2008) Court found the defendant guilty already and ordered the convicted person to pay court fine of K300.00 forthwith in default the accused was to be imprisoned for five (05) months in hard labour. Furthermore, the Court ordered that the convicted person also pay compensation to the complainant pursuant to s. 6(4) of the Summary Offences Act Chapter 264 for the bodily injuries she sustained from the assault in the sum of K200.00, and in doing so, the Court gave a timeframe for the convict to pay the fine and the court set a date for such fine and compensation to be paid, failing which the convict would be imprisoned to serve the sentence time of five months in full.

38.	The sentencing trend on Unlawful Assault Causing Bodily Harm and similar offences depend entirely on the facts of each case. On the side of sentences on this offence, let me cite the following cases;

38.1	The State v. David Tiki (2007) N5030  was a, case which the accused pleaded guilty to Unlawful Assault causing bodily harm. It’s a case where the accused strucked the victim with an iron bar and fractured his left shoulder bone. Accused was in a drunkard state when he assaulted the victim. He was sentenced to 9 months but the sentence was wholly suspended on condition including payment of compensation.

38.2	The State v. Martin Konos (2010) N4157, is a case where the offender pleaded guilty to Unlawfully doing bodily harm to his nephew by attacking him with a piece of timber, fracturing his knee and inflicting other superficial injuries by multiple blows. His Honour Cannings J sentenced the prisoner to 3 years. The sentence was fully suspended with stringent conditions.

38.3	In The State v. Pinda (2012) N4872, the accused was fighting with his wife and threatening to cut her with bush knife when an elderly woman placed herself between them and the accused hit her on the forearm with a piece of wood causing a fracture of the right forearm. Accused pleaded to the charge of unlawful assault doing bodily harm. His Honour Batari J imposed a sentence of 3 years fully suspended the sentence and placed the prisoner on probation for a period of 3 years on condition including compensation payment of K3, 500.00.

38.4	In The State v. Terence Teko & Patimos Wutena, Unreported Judgement dated 21st September, 2011, the two accused pleaded guilty to one count of unlawfully causing grievous bodily harm. This was a case where a female called a victim by phone and told him to wait for her on the road. When he came, the female told him to sit on the platform near a chapel while she went to see her mother at the well. While the victim was sitting down, the two accused approached him and attacked him. Patmos swung a bush knife and hit him on his hand. The victim fell to the ground. Both accused punched and kicked him all over his body. The Medical Report showed that the victim lost two of his teeth and suffered minor bruises on his face. His Honour Lenalia J imposed a sentence of 2 years and wholly suspended the sentence with conditions.

38.5	It is clear from the above cases that the courts have been exercising their discretion to impose suspended sentences as well as the maximum term of 3 years after taking into account the different circumstances of each case with respect to the factors of mitigation and aggravating as they may be. As it is trite law, every case must be decided on its own merit.

STEALING

39.	With respect to the offence of stealing, the Courts both in the National Court and District Courts have come down hard on sentencing convicted persons for stealing through aggravated form of break and enter, and those who are in a position of trust. In circumstances where an accused has mobilised his clansmen and gone into the complainants premises without any lawful excuse, amounts to stealing in the most aggravating form.

40.	The sentencing trend for the offence of stealing can well be considered by looking at the various cases that have been decided, which I find proper to outline and summarise as follows:

40.1	In Tutmulai v Lalarina [1998] PGDC 17; DC40 (16 October 1998), the accused was found guilty and sentenced to 9 months in prison.

40.2	In State v Aua [1997] PGDC 11; DC20 (25 September 1997), the accused was found guilty of stealing 8 solar panels belonging to his employer and sentenced to  suspended sentence was issued with conditions.

40.3	In Pius v Kasta [2010] PGDC 70; DC3095 (5 June 2010) the accused was sentenced to three years but the three years imprisonment order was withheld for the Defendant to repay the sum of the stolen pistol to be sold. Whether the convict was sent to prison or not is not known, but I will take that it was a custodial sentence for the sake of this case.

40.4	In State v Puma [1998] PGDC 22; DC45 (17 December 1998), the Court sentenced the convicted person to two years but deducted two and a half months spent in custody and was ordered to spend fifteen months and two weeks in hard labour.

DISCUSSION OF LAW AND FACT

41.	I have read through the authorities, and I appreciate that the courts have opted to non custodial sentence. Nevertheless, in this case, the accused who is convicted has acted in a manner that is unacceptable. He was compensated by the complainant’s husband in August 2020. His wife deserted him around December 2020 for reasons known to himself and his wife, and he instigated the problem in January 2021. The court has not been properly guided and advised on the reasons why his wife deserted him. From my own understanding, it must have been an argument between himself and his wife on some domestic issues. I say this because, if his wife was upset with what happened, she would have deserted the home at that point in time, soon after the incident occurred, which would be around August 2020, or towards the sometime around September 2020. This is not the case.

42.	The space in time of the actual incident, in which the accused’s wife was assaulted (August 2020), and the time when she left their matrimonial home (December 2020) is far too remote for this court to consider the accused’s reasons for the assault and stealing to be considered as either, an extenuating circumstance or mitigating factor. The argument that he acted out of frustration because his wife left after being embarrassed of the assault is a very shallow and sham excuse to escape the criminal responsibility.

43.	The accused deliberately breached the peace and started the argument, and continued on with the assault, followed on with the stealing the next day. The most aggravating factor is when he mobilised about twenty to thirty of his tribesmen, who came in fully armed with bush knives, bows and arrows and guns, in act of intimidation, went into the complainant’s house and took with him the two pigs. That is very unacceptable and this court condemns those acts strongly.

44.	The circumstances leading from the time the initial problem started to the last occurrence that resulted in the accused being arrested and charged is consequential to the initial act of attempted rape on the accused’s wife by Becky's husband. The accused allowed for local mediation. His wife, and himself were adequately compensated with three live pigs. That incident occurred around August 2020. 

45.	When Becky was assaulted, Becky lodged a formal complaint for assault and allowed the law deal with the issue, which now is before this Court. Given the fact that the accused has blamed Becky and her husband for his wife’s desertion, is it safe for the courts to consider his defence as provocation? The other question I ask is, whether this Court can safely consider the facts prior to the offence, which the accused says, led to his wife deserting him, be taken as an extenuating circumstance? I remind myself that, the accused had the opportunity to cool off after the incident. Rather he came back the next day and stole the two pigs by using force, threat and intimidation. I am also thinking of my initial argument above in which I stated that the accused had some time to get over his anger. He was also adequately compensated, and it is not a direct consequence of that incident that caused his wife to desert him.

46.	There is no direct evidence in Court establishing that contention. So then, what is the extenuating circumstance? I think it is a matter for law and it is proper for me to discuss this issue before I deal with the other factors.

47.	In the Supreme Court case of Ume v The State [2006] PGSC 9 SC836 (1 May 2006), the court carefully and extensively dealt with the definition and application of ‘extenuating circumstance’ in which the court stated that:

“There is however a distinction between extenuating circumstances and mitigating factors. Although both have the same desired effect of reducing the punishment, extenuating circumstances relate to the circumstances of the offence which reduces or diminishes the gravity of the offence whereas mitigating factors are usually unrelated to the circumstances of the offence.......
Examples of extenuating circumstances include de-facto provocation, duress or coercion, the degree of an extent of the offender’s participation, the offender's medical condition such as psychopathic personality, offender's lack of sophistication or traditional customs, practices and beliefs which influence the offender to act in the way he did. "Examples of extenuating circumstances include de-facto provocation, duress or coercion, the degree of an extent of the offender’s participation, the offender's medical condition such as psychopathic personality, offender's lack of sophistication or traditional customs, practices and beliefs which influence the offender to act in the way he did"

48.	In construing the reasoning’s provided in Ume (supra), I note that the accused referred to the Huli custom which he submitted, allows him to do such. His main argument is that his Huli custom allows him to go after the family members (in this case the complainant Becky Phillip) in demanding for an explanation, why his wife has left, and also because he had previously stated that he would seek explanation from them if his wife left for no good reason. The he says justified for him to assault the complainant.

49.	Whilst it may seem to be logical and reasonable to a huli man, the sticking point is, if I allow that reason to become an extenuating circumstance, it would be a grave mistake for this court to consider a customary practice that is repugnant to the general principles of humanity to form the basis of an extenuating circumstance. Also having in mind that I do not have the jurisdiction to make decisions as to the applicability of custom, I remain steadfast to be guided by the principles,  set out in the case of an “Application by ICRAF Re: Willingal [1997] PGNC 174; PNGLR 119 (10 February 1997), the National Court in this application dealt with the applicability of a customary law, and if the exchange of a girl for a head pay (compensation) was acceptable. 

50.	The repugnancy test was applied and the court held that it was not proper, and unconstitutional. Whilst the repugnancy principle operates, s. 23(1) of the Criminal Code also sets out that the ignorance of the law is not an excuse for an act or omission that would otherwise constitute and offence.

51.	I therefore conclude that if I am to impose a non-custodial sentence, then I will not be deciding on the basis of an extenuating circumstance with respect to custom, but on the basis of other factors, which I may find relevant in circumstances surrounding this case.

DECISION MAKING PROCESS

52.	To determine the appropriate penalty I will adopt the following decision making process, decided by His Honour Justice Canning which has been adopted and applied by the District Courts in various cases, such as the case of,The State v Raka Benson [2006] PGNC 68; 4881 (17 August 2006), Police v. Koni Sebi & Ors PGDC 45; DC 2033 (14 July 2011), all decided by Kaumi. M (as he then was) and recently by myself in the case of Police v. David [2021] PGDC 5; DC5056 (15 March 2021). The process is as follows:
•	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 5: should the pre-sentence period in custody be deducted?
•	step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

53.	For the charge of unlawful assault, the charge attracts a penalty of 2 years, whilst the charge of stealing attracts a penalty of up to one year for property worth K500 or less, and three years for property valued at K 1000. The maximum penalty under Section 335 (common assault) is one year imprisonment. The Summary Offences Act under s. 6(3) sets the penalty at one (1) year imprisonment as well.

STEP 2: WHAT IS A PROPER STARTING POINT?

54.	For the charge of unlawful assault I will use the midpoint of six months, and for the charge of stealing, I will use the starting point at six months as well, because the amount stolen is K 1, 500

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

55.	Whilst there is no uniformity in the sentencing trend, the courts have exercised their discretion in coming up with penalties for such offenders. It is important to note that, whilst courts have decided to pass either, custodial sentence or non-custodial sentence, the decisions must be made on a case by case basis given the circumstance surrounding the cases as it was held in the case of Lawrence Simbe v. The State [1994] PNGLR 38.

STEP 4: WHAT IS THE HEAD SENTENCE?

56.	Mitigating factors are:

•	Accused apologised to the Court, the defendant and everyone affected by his actions;

•	He further stated that he will definitely return the two pigs to the complainant and will also compensate the other complainant for assaulting her.

•	Whilst he was attending court, there were very trivial matters such as tribal fights and constant threats that hampered the accused from attending court, but he did not let those issues became an excuse, not to attend court. He was present. Even when his matter was listed for late afternoons whilst he had no possible PMV or alternate transport to return to his village, he was present.

•	His demeanour all throughout has been exceptional in Court. 

57.	The aggravating factor is that both victims suffered a very significant injury during the melee and the offender bears some responsibility for that as his actions made one of the victim’s sustain injuries whilst the other lost two of his pigs. Accused claimed that the pigs are still with him. He stated that he will return the pigs if he is ordered to do so, and also compensate the complainants or victims of his actions.

58.	I will impose a non-custodial sentence, given his remorsefulness, and his preparedness to assist the community in restoring peace. He apparently has been living in a remote location without committing any other offence. He surrendered to the Police a week ago as he heard that the Court would be sitting on old cases and he wanted to have the matter resolved, as he learnt that a bench warrant had been issued against him in February 2021.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED?

59.	The accused has not spent any time in custody and therefore there can never be a suspension of time if he is to be given custodial sentence. There will be no deductions.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

60.	The court notes that the incidents relating to this particular issue had been ongoing settled. The accused and his wife (now deserted) had the option of lodging a complaint at Tari Police Station. He decided to forgo that and resorted to local mediation. 

61.	The local mediation awarded a compensation of three (3) live pigs. What irks me is that, when the pigs were exchanged at toward the end of the mediation, the accused had stated that, if his wife and himself faced any difficulty, or left even after the mediation, the leaders overlooked that statement. That to my mind establishes that he had an intention and his intention was of criminal in nature. 

62.	But I also consider the extenuating circumstance, which to my mind negates the defence of de-facto provocation, and therefore, it should not be an excuse to decrease the culpability of the accused. The accused all along had the intention, and seized the opportunity when the complainant had responded. Furthermore, he had the opportunity to cool down and rethink his actions. Instead he mobilised his tribesmen and came back to defend his criminal act of assault. This is totally unacceptable. 

63.	Nevertheless, the accused was remorseful and begged this court for leniency. He further stated that, he thought what he did was morally sound as he based his actions on custom. He said he now understood what the repercussions of his actions are and is very sorry. 

64.	He further went on to say that he is now prepared to go back to the village and educate people on the manner in which individuals should conduct themselves in the society, and how hard the court will come down on offenders. He also promised the court that her will compensate the victim, and return the two pigs to the victim. 

65.	I have given serious consideration to all these factors, and on those basis, I am of the view that the penalties to be imposed by the Court should be suspended. The circumstances of this case must be considered on its own facts and circumstance as held in the case of Lawrence Simbe v. The State [1994] PNGLR 38 and I therefore order that the accused must be given a non-custodial sentence.

AND THE COURT HEREBY ORDERS:

1.	The accused is sentenced to twelve months imprisonment, which is hereby suspended and the accused is placed on a twelve moths good behaviour bond with the following strict conditions:

(a)	The accused shall return two live pigs to the complainant David Gipe Hawi.

(b)	The accused shall pay K500 to the complainant Becky Phillip as compensation.

(c)	The accused shall do community work at Idawi Primary School every Fridays for eight (8) hours, to be supervised by the Pastor of Idawi ECPNG Church, one James Ekape.
(d)	The accused shall not commit any offence, whether summary or indictable in nature, and shall ensure to be of sober habit at all times during the cause of the probation period.

2.	Failure to comply with the conditions set by this Court, the defendant shall be apprehended, and detained in Prison to serve the full twelve months in prison.

3.	Time is abridged.

BY THE COURT
Magistrate Komia