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State v Piries [2007] PGNC 186; N4982 (18 September 2007)

N4982

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 886 0F 2007

THE STATE

V

JUDAH LUSAN PIRIES

Buka: Cannings J
2007: 13, 18 September

CRIMINAL LAW – sentence – three counts of assault occasioning bodily harm – Criminal Code, Section 340 – offender, drunk, had dispute with his in-laws – assault by guava stick – guilty plea – total sentence of 2 years.

A man pleaded guilty to three counts of assault occasioning bodily harm. He was drunk and went looking for a friend but his friend was not there so he ended up having an argument with one of his in-laws, who he assaulted. When the first victim's sister came to assist, the offender assaulted her too. Then when the first two victims' mother intervened, the offender assaulted her too.

Held:

(1) When sentencing an offender for multiple offences, the court should first pass a notional sentence for each offence, then determine whether the sentences are to be served cumulatively or concurrently, then apply the totality principle.

(2) The totality principle requires that the total sentence be reduced, to avoid a penalty not befitting the crimes committed. Accordingly the court imposed a total head sentence of 2 years apportioned as follows: count 1 = 8 months; count 2 = 8 months; count 3 = 8 months.

(3) The pre-sentence period in custody was deducted, and the rest of the sentence was suspended subject to conditions including payment of compensation to all victims, within three months.

Cases cited

The following cases are cited in the judgment:

Mase v The State [1991] PNGLR 88
Public Prosecutor v Kerua [1985] PNGLR 85
Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v Mathew Sabuin, Gabriel Pinia and Philip Kit CR Nos 921 & 922, 25.08.06
Tom Longman Yaul v The State (2005) SC803

SENTENCE

This was a judgment on sentence for assault occasioning bodily harm.

Counsel

L Rangan, for the State
P Kaluwin, for the offender

18 September, 2007

1. CANNINGS J: This is a decision on sentence for a man, Judah Lusan Piries, who pleaded guilty to three counts of assault occasioning bodily harm arising from the following facts. The trouble occurred on the night of 13 August 2005 at the offender's village, Lemankoa, Buka Island. He went to the household of his in-laws, the Malis family between 8.00 and 9.00 pm, drunk, looking for his friend Eugene. He was told that Eugene was not at home. Not impressed by that response, the offender uttered some swear words at his in-laws. His brother-in-law, Nicky Malis became angry and started arguing with the offender. The offender responded by hitting Nicky with a guava stick. Nicky's sister Joyce came to her brother's aid and the offender hit her with the same stick. The offender then hit Nicky and Joyce's mother, Hatagi Malis, with the same stick. The offender's assaults on his in-laws was not authorised or justified by law and they sustained bodily harm.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:

These people are my in-laws and I was angry with them as they had assaulted me so I went to their place to fight with them. After I left their house they mobilised more of the in-laws and they came to my house and assaulted me again. They chased me and my parents and my wife (their sister) out of our house. They surrounded me and cut me with a knife and assaulted me with bows and bamboo. My father saw them about to hit me with a hoe so he stabbed my uncle and they all ran away. My father then sent me to stay with my aunty. We heard that they had called the police so I just waited for the police to come and get me. Things have settled down now. They want to reconcile but I told them to wait until my case is over. I was advised by the Public Solicitor to plead guilty and that is what I am doing.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06). Significant mitigating factors amongst all that material is that he co-operated with the police and made admissions in his police interview. He claims to have been assaulted first, a claim that was not contested by the prosecution, so there is a strong element of de facto provocation. He was assaulted by the victims' supporters after committing the offences.

PERSONAL PARTICULARS

5. Judah Lusan Piries is aged 27, Catholic and married with three children.

SUBMISSIONS BY THE DEFENCE

6. Mr Kaluwin highlighted the guilty plea. The offender has already suffered through the administration of jungle justice. His relationship with his in-laws has started to heal. He should be sentenced to one year for each offence, to be served concurrently.

SUBMISSIONS BY THE STATE

7. Mr Rangan agreed with the defence counsel's submissions.

DECISION MAKING PROCESS

8. To determine the appropriate penalty I will adopt the following decision making process:

• 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 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?
• step 8: should all or part of each sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. Section 340(1) of the Criminal Code provides that the maximum penalty for this offence is three years imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

10. In the present case I have been unable to locate a suitable precedent, so I will use the mid-point of 18 months as the starting point.

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

11. In Buka last year I dealt with a similar case: The State v Mathew Sabuin, Gabriel Pinia and Philip Kit CR Nos 921 & 922, 25.08.06. Three young men pleaded guilty to offences under Section 340. The first offender twice kicked the victim in the head. The second and third offenders kicked the victim all over his body as he lay on the ground. They were all drunk. They received sentences of two years, 18 months and 18 months respectively.

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

12. I have considered the injuries sustained by each victim. They are very similar. They all presented at Lemanmanu health centre with bruises and lacerations and were treated largely with painkillers and antibiotics. I will therefore impose the same sentence for each offence. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be reduced below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point. Three sorts of considerations are listed. Numbers 1 to 8 focus on the circumstances of the incident. Numbers 9 to 13 focus on what the offender has done since the incident and how he has conducted himself. Numbers 14 to 16 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

1. Did the assault on the victims consist of just a single blow? No – the offender struck each victim a number of blows.
   
2. Was just one person involved in the assault? Yes.
   
3. Was there some other cause of bodily harm, ie did the injury not result directly from the assault committed by the offender? No.
   
4. Were the victims injured by only a fist? No – the offender used a guava stick.
   
5. Did the offender not set out to hurt anyone? No.
   
6. Did the victims or any other person provoke the offender in 'the non-legal sense', eg did the victims abuse or assault the offender? Yes.
   
7. Did the victims have pre-existing conditions making them susceptible to injury by a moderate blow? No.
   
8. Can the assault on the victims be classed as 'not vicious'? Neutral.
   
9. Did the offender give himself up after the incident? Yes.
   
10. Did the offender cooperate with the police in their investigations? Yes.
    
11. Has the offender done anything tangible towards repairing his wrong, eg offering compensation to the victims, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what he did? Neutral.
    
12. Has the offender pleaded guilty? Yes.
    
13. Has the offender genuinely expressed remorse? No.
    
14. Is this his first offence? Yes.
    
15. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence? Neutral.
    
16. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Neutral. This was a fight between family members, and though the offender claims that he was assaulted first, the depositions suggest that he started his own problems by being a drunken bighead, high on home brew.
    

13. To recap, mitigating factors are:

• No 2 – sole offender;
• No 6 – de facto provocation;
• No 9 – gave himself up;
• No 10 – co-operated with police;
• No 12 – pleaded guilty;
• No 14 – first offender.
  

14. Aggravating factors are:

• No 1 – multiple blows;
• No 3 – direct assault;
• No 4 – a stick, rather than fist;
• No 5 – no accident;
• No 7 – no pre-exiting condition;
• No 13 – no remorse.
  

The other factors (Nos 8, 11, 15 and 16) are neutral.

15. After weighing all these factors and bearing in mind that there are six mitigating factors and aggravating factors, the head sentence will remain at the starting point. I impose a head sentence of 18 months imprisonment for each offence.

16. The total potential sentence the offender is facing is:

1.5 + 1.5 + 1.5 = 4.5 years imprisonment.

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

17. I now have to decide whether the head sentences should be served concurrently (the sentences are served at the same time) or cumulatively (the sentences are added together). In Public Prosecutor v Kerua [1985] PNGLR 85 and Mase v The State [1991] PNGLR 88 the Supreme Court held that in deciding whether sentences should be made concurrent or cumulative the following principles apply:

(i) Where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent.

(ii) Where the offences are different in character, or in relation to different victims, the sentences should normally be cumulative.

(iii) When a court has arrived at appropriate sentences and decided whether they should be concurrent or cumulative, it must then look at the total sentence to see if it is just and appropriate. If it is not, it must vary one or more sentences to get a just total.

18. I consider that, though the offences were committed over a short space of time in one incident, there were three different victims. Therefore the sentences should be served cumulatively. The total sentence, subject to the totality principle, remains 4.5 years imprisonment.

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

19. I now look at the total sentence the offender is facing, to see if it is appropriate having regard to the totality of the criminal behaviour involved. 20. I consider that 4.5 years would be excessive. Having regard to all the circumstances, I impose a total head sentence of two years imprisonment, apportioned as follows: count 1 = 8 months; count 2 = 8 months; count 3 = 8 months.

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

21. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is one month, one week.

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

22. There is no pre-sentence report before the court, However, given the nature of the offences and the apparent willingness on the part of all those involved to reconcile and get on with their lives in a peaceful and harmonious way, I will suspend the rest of the sentence subject to the following conditions.

(a) must within three months after the date of sentence pay K500.00 cash compensation to the victims and participate in a reconciliation ceremony supervised by the local council of chiefs and witnessed by a Probation Officer;

(b) must attend the first sittings of the National Court at Buka in 2008, to demonstrate compliance with condition (a);

(c) must reside at the village and nowhere else except with the written approval of the National Court;

(d) must not leave Bougainville without the written approval of the National Court;

(e) must perform at least six hours unpaid community work each week at his local church under the supervision of the Parish Priest;

(f) must attend Church every weekend for service and worship;

(g) must report to the Probation Office at Buka on the first Monday of each month between 9.00 am and 3.00 pm;

(h) must not consume alcohol or drugs;

(i) must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victims and their family;

(j) must have a satisfactory probation report submitted to the National Court Registry at Kokopo every three months after the date of sentence;

(k) if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

23. The last condition is very important. If any of these conditions is breached, any person may report the matter to the police or to any person nominated to supervise the offender or to the Probation Office, any of whom may bring the matter to the attention of the National Court. The Court may then issue a warrant for arrest of the offender and he can be brought before the Court to show cause why he should not be sent to jail to serve the rest of his sentence. (See Tom Longman Yaul v The State (2005) SC803.)

SENTENCE

24. Judah Lusan Piries, having been convicted of three counts of assault occasioning bodily harm, is sentenced as follows:

Sentenced accordingly.
____________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender