N3163

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1081 OF 2004

THE STATE

v

DICK MEAEA

Lae: Kirriwom, J
2006: 18 August

SENTENCE – Unlawful Assault causing Bodily Harm – Guilty Plea – Youthful Offender – Twelve (12) Months Suspended Sentence – Compensation of Victim – Criminal Code s.340 

Cases Cited:

Kuri Willi v The State [1987] PNGLR 298
R v Taggart [1923] 17 Cr APPR 132

Counsel:

J. Done, for the State
L Tunian, for the Accused

SENTENCE

18 August, 2006 

1. KIRRIWOM, J: Dick Meaea of Marake, Ihu, Gulf Province is charged with unlawfully assaulting one Simon Kafu and causing him bodily harm on 26 January, 2004 at Lae. The charge is brought by indictment pursuant to s.340 of the Criminal Code which carries a maximum penalty of three years imprisonment.

2. Between 5:00 and 6:30 pm on 26 January, 2004, there were two groups of young boys going about their own ways. In one group was the accused and two others and in the other group was Simon Kafu and two of his friends. The facts presented before me for purpose of arraignment of the accused were that Simon Kafu and his friends were telling jokes amongst themselves and laughing as they walked along 7th Street. Within the hearing of their laughs or laughter was the accused and his friends who it is alleged were intoxicated. The accused thought that the merriment was directed at him and his friends so they approached Simon Kafu and questioned him. And unhappy with the answer given, the accused and his friends kicked and punched Simon Kafu (victim) causing him serious bodily harm. The victim suffered multiple bruises and lost two upper teeth. 

3. He pleaded guilty to the charge on the facts as presented and now appears to receive his sentence.

4. This offence took place on the street on the spur of the moment as a result most likely of misunderstanding and may well have been sparked by influence or effect of alcohol. Alcohol, especially when taken by young men who do not know how to handle its effects on their brains when consumed to excess, can perform all kinds of things on people who would otherwise not do in sober state. The prisoner in this case heard the victim and his friends laughing as they looked in their direction and quickly concluded that the object of their laughter or merriment was him or them. Angered by this he reacted. Had he being sober he probably would have considered the matter seriously before resorting to physical violence. 

5. As the result of that assault the victim Simon Kafu who is believed to be studying at the University of Papua New Guinea now wears two false teeth in place of the two he lost. This is confirmed by the evidence contained in the Medical Report dated 18 April, 2006 issued at Port Moresby General Hospital OMF Unit by Dr.M. Apaio BDS, MDS.

6. The prisoner was given opportunity to say something before he is sentenced. He expressed remorse and apologies to the relatives of the victim. He also expressed deep regret for his action and paid respect to his late father Ian Meaea, a retired school teacher who died on 7 November, 2005 due to severe asthma attack as well as worrying over his son’s (prisoner’s) predicament. 

7. The law prescribes criminal sanctions for those who commit crimes against the State. All crimes are committed against the State, although the victims are either individuals or corporations, but subjects of the State. Therefore it is the State that punishes those who break the law. 

8. Punishing an offender serves many purposes including retribution and correction. The main objective of punishment is that the offender will learn from his wrong doing and stay away from crime or bad behaviour or conduct.

9. What is an appropriate punishment is determined by what the law prescribes as the penalty for the offence the offender is found guilty of and the particular circumstances of his offence as well as his personal circumstances. All these factors arte considered when deciding on his punishment.

10. The maximum penalty for this offence is three years imprisonment. But the maximum is usually reserved for the worst case of this kind.

11. This is not a worst case although the victim suffered a permanent injury in loss of two teeth. He wears false teeth in their place. No doubt he may have found this foreign matter or object in his mouth somewhat uncomfortable at first but over time he would have now got used to them. It is an injury that a reasonable compensation ought to be an appropriate remedy as opposed to custodial punishment. 

12. In determining the prisoner’s sentence. I take into account the following factors:

1.	His plea of guilty
2.	His remorse or apology
3.	His cooperation with the Police
4.	Youthful Offender
5.	Young family with wife and child
6.	Recent school leaver now gainfully employed with own family to manage
7.	First offender 
8.	Willingness to pay compensation to the victim
9.	supportive report and reference from employer

13. The prisoner is a young man aged 21 years old. He is the last born of seven children whose parents lived on 7th Street in Lae. His father died less than a year ago survived by his mother who is a retrenched Nurse Aide. They live at Huonville Primary School Teachers’ Village where their father last taught before retirement.

14. The prisoner completed Grade 12 at Lae Secondary School and is now employed by Cool Air Industries Ltd as Trainee Refrigeration Mechanic on regular wage/ income with which he supports his wife and young child less than a year old.

15. Pre-Sentence has not been obtained but I have sufficient information presented in mitigation on penalty as well as the Means Assessment Report to pass sentence today. 

16. The entire family’s support to help him pay compensation to the victim is commendable. Compensation as punishment has a lot of meaning and objectivity when all the family members rise up and take the responsibility. It will have a profound effect on their errant family member who will no doubt be over-whelmed by the loving support that the family gives him and that will be his life time guidance to keep out of trouble.

17. As a youthful offender it is unwise to send him to prison without considering alternative to imprisonment. And I agree with the observations made in Kuri Willi v The State [1987] PNGLR 298 by Hinchliffe J, quoting the oft cited passage in R v Taggart [1923] Cr APP R 132 at 132:

" A Judge or Magistrate who sends a young man to prison for the first time takes on a grave responsibility. It is not practical…or desirable, to lay down a general rule, but there are many cases…it is (desirable) to take a risk to save a young man or woman from the consequences of prison." 

18. I note that the cost of replacing the victim’s lost teeth with two false ones was K100.00. However the prisoner has offered to pay K1000.00 compensations and requires six months to do that.

19. The prisoner had attended court regularly up to the time of his trial and conviction. This is another factor in his favour.

20. This is not a prevalent offence these days. This would mean that as far as strict violence such as this case is concerned, people generally are respecting the law and respecting other people’s right to go about their lawful business. This case could be an isolated accident. The prisoner is not a habitual bully on the street or anywhere. What may be considered as aggravating factor is the involvement of alcohol. However, that can be appropriately addressed in the penalty imposed.

21. In the circumstances of the case, I sentence the prisoner to 12 months imprisonment in hard labour which is wholly suspended on the following conditions:

1.	Within six months from today, he shall pay compensation of K1000 to the victim Simon Kafu under supervision of the CBC who shall report back to the Court once payment is made within six months.
2.	 He enters into own recognizance to keep peace and be of good behaviour for two years.
3.	He shall not consume alcohol or take any other intoxicating substances or drugs for the period of his 12 months suspended sentence. 
4.	He shall refrain from associating with other persons who are likely to re-offend during the period of his 12 months suspended sentence.

_____________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused