DC 6040
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS SUMMARY JURISDICTION]

B. No 671 of 2021
CB No. 1113 of 2021
BETWEEN
THE POLICE
Informant

AND
ALAN AIFARAPO
Defendant

Boroko:  S Tanei 

2021:  7th of July
             

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

PRACTICE AND PROCEDURE- Sentence – Trial – principles of sentencing discussed and considered – Unlawful Assault- Mitigating Factors considered – Fine of K 300 – Compensation – s 6(4) – Summary Offences Act 1977. 

Cases Cited

State –v- Dua [2013] PGNC 8; N4957
State –v- Sapik Tommy [2014] PGNC 103; N5647
Police –v- Aspi Awinjip [2009] DC936
Police –v- Marcus Kachau [2010] DC948
Police –v- Kavip Tetenge [2008] DC896
Police v Ruti [2021] PGDC 9; DC5062
Police v Joe [2021] PGDC 11; DC5064 
Police v Metoa [2014] PGDC 9; DC2060 
Acting Public Prosecutor –v- Aumane, Boku, Wapulai and Kone [1980] PNGLR 510 
The State v Auduwa [2012] N5169

References

Legislation

District Courts Act 1963
Summary Offences Act 1977

Counsel
Constable Tarabbie Agu, for the Informant 
The Offender in Person
RULING ON SENTENCE
7th July 2021

S Tanei: Alan Aifarapo was found guilty of Unlawful Assault on 15th June 2021. 

2. On 30th June 2021, submissions on sentence were made. 

3. This is my ruling on sentence. 

FACTS: 

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

5. The following are the facts in which the Offender was found guilty of. 

6. On 8th April 2021 between 5.30 pm and 6.30 pm, the Offender was at home at Joyce Bay Sabama, NCD. There was an argument between his daughter and the victim and her daughter regarding how their employment roster was made. 

7. The Offender’s daughter and the victim and her daughter were all employed at Lamana Hotel. The victim was the supervisor. They are related as the victim is the Offender’s sister. 

8. The work place argument was brought home to Sabama where they fought. The cousins fought first and then the victim fought with the Offender’s daughter. 

9. Just then the Offender stepped in and assaulted the victim. He did so by punching her on her face. They struggled and fell. When she fell onto the ground, he jumped onto her and hit her. 

10. The matter was reported to the Police later and the Offender was arrested and charged for unlawful assault. 

ANTECEDENT REPORT

11. The Offender is 54 years old and hails from Isapeape Village, Kerema, Gulf Province. He is married with adult children and resides at Joyce Bay, Sabama NCD. He is unemployed and has no prior convictions.  

ALLOCOTUS:

12. During Allocotus, the Offender said “Me askim kot lo marimari lo me. Bai me sidaun wantaim sister blo me na family blo em na stretim disla heavy”. When translated, it means “I ask for the Court’s mercy. I will meet with my sister’s family and resolve this issue”. 

ISSUES:

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

THE LAW

14. Section 6 (3) of the Summary Offences Act 1977 provides that; 
“(3) A person who unlawfully assaults another person is guilty of an offence”

15. The Penalty provision in section 6 (3) has been amended by Section 5 of 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
16. In deciding on sentence for a particular offence the Court must be guided by appropriate sentencing principles. 

17. I adopt the sentencing process applied by His Honour Justice Cannings in the case of State –v- Dua (2013) PNGNC 8; N4957 and the case of State –v- Sapik Tommy [2014] PGNC 103; N5647.   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?

18. The prescribed maximum penalty under the Summary Offences 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?

19. In this case the Offender did not plead guilty so he will not be given the benefit of the doubt on mitigating factors. However, the starting point will depend on the sentencing trends. 

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

20. The following are sentences passed on equivalent offences. 

21. In the case of Police –v- Aspi Awinjip [2009] DC936, the offender pleaded guilty to one count of unlawful assault where he used an iron rod to attack the victim. He was sentenced to 12 months imprisonment, fully suspended and placed on Good Behaviour Bond. 

22. In the case of Police –v- Marcus Kachau [2010] DC948, the offender pleaded guilty to one count of unlawful assault where he continuously punched and kicked the victim until he was unconscious. 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. 

23. In Police –v- Kavip Tetenge [2008] DC896, the offender pleaded guilty to unlawful assault where he punched his pregnant wife all over her body and the wife had a miscarriage later that day. 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. 

24. In the case of Police v Ruti [2021] PGDC 9; DC5062 the Offender pleaded guilty to unlawful assault where she used a can to hit the victim on her head which injured the victim’s head. She was sentenced to 6 months imprisonment but that sentence was fully suspended and she was put on Good Behavior Bond and ordered to pay compensation to the victim. 

25. In the case of Police v Joe [2021] PGDC 11; DC5064 the Offender pleaded guilty to using a knife to assault the victim. He was sentenced to 12 months imprisonment. However, this sentence was fully suspended and the Offender was placed on Good Behavior Bond.

26. In the case of Police v Metoa [2014] PGDC 9; DC2060 the Offender pleaded guilty to assaulting the victim by punching him and using a wooden stool to hit him. He was fined K 200 and ordered to pay compensation to the victim.

27. It is my view that the sentences vary depending on the manner in which the assault was committed. I note that more serious assaults with the use of weapons drew greater penalties while less serious assaults without the use of weapons drew lesser penalties. 

Step 4: what is the head sentence?

28. The Court is duty bound to consider the mitigating factors and the aggravating factors in all cases whether the Offender pleaded guilty or not. The following are the circumstances of aggravation and mitigation. 

29. The mitigating factors are; 
a)	Expression of remorse
b)	First time offender
c)	Willingness to reconcile with victim

30. The aggravating factors are; 

a)	It was an unprovoked assault. 

31. I note that there are more mitigating factors than aggravating factors. 

32. Prosecutor Tarrabie Agu of Police Prosecutions submitted that this matter involves family members and it would be appropriate if a non-custodial sentence is imposed. He proposed a penalty of K 200 fine and stated that a Good Behaviour Bond would be appropriate for the Offender. 

33. I note that the victim did not suffer any serious injury as a result of the assault. Although she mentioned during trial that she suffered a swollen face, there is no medical report to show that. 

34. In this matter, the Offender’s mitigating factors work in his favour. I note that he expressed genuine remorse during allocotus and he is willing to reconcile with his sister and her family. 

35. In the case of Acting Public Prosecutor –v- Aumane, Boku, Wapulai and Kone [1980] PNGLR 510 the Court discussed principles of sentencing and held that the purposes of sentences are for deterrence, separation, rehabilitation and retribution. 

36. In the case of The State v Auduwa [2012] N5169, it was held that “suspension may also be considered if it will achieve reconciliation and restoration of damaged relationships between parties”. Here, the Court was deciding whether to order a custodial or non-custodial sentence in an offence where family members were involved.  

37. It is my view that a custodial sentence will not restore the relationship between the Offender and his sister. It will only worsen it. If the offender is given a non-custodial sentence, he will be able to fulfil his aim of reconciling with his sister and restore their relationship in the long run as family members. 

38. Also, this particular case does not fall under the worst case scenario. 

39. Given all the above reasons, it is my view that a fine of K 300.00 is the most appropriate sentence. 

40. Section 6 (4) of the Summary Offences Act allows for compensation to be made to the victim in Unlawful Assault cases. Thus, I will order the Defendant to pay K200 Compensation to his sister, the victim for unlawfully assaulting her. 

CONCLUSION 

41. Taking into consideration all the factors, I find that the appropriate penalty would be a fine of K300. 

42. The Offender will also pay Compensation to the victim in the Sum of K 200 pursuant to section 6 (4) of the Summary Offences Act within 7 days.

SENTENCE

43.  The following is the sentence of this Court; 

1.	Alan Aifarapo, having been found guilty and being convicted of the offence of Unlawful Assault under section 6 (3) of the Summary Offences Act 1977 is to pay a fine of K 300.00.

2.	The Offender’s Bail of K 300 is forfeited and converted to pay the Court fine. 
 
3.	The Offender shall pay the victim K 200 as Compensation before the Clerk of Court at Boroko District Court within seven (7) days from the date of this Order. If the Offender fails to do that, he shall spend two (2) months in hard labour in prison at the Bomana Corrections Institution. 

4.	The matter shall return to Court on 15th July 2021 at 9.30 am to check on compliance of Item 3 of these Court Orders. 

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