DC936

PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS CRIMINAL (SUMMARY) JURISDICTION

DCR 1096/2009

BETWEEN:

POLICE
Informant

AND:

ASPI AWINJIP
Defendant

Madang: J.Kaumi
2009:12th, 19th, October

SUMMARY: Sentence – Unlawful assault contrary to Section 6 Subsection (3) of the Summary Offences Act Chapter 264 – Plea of Guilt – Sentencing Guidelines – Mitigating and Aggravating Factors – Expression of Remorse – Prevalent Offence – Need for Deterrence.

Cases cited

Saperus Yalibakut vs. The State SCRA No 52 of 2005; 27.04.06
Public Prosecutor v Yapuna Kaso (1977) PNGLR 209 
Public Prosecutor v Tom Ake (1978) PNGLR 469
State v Sabarina Yakal (1988-89) PNGLR 129
State v Michael Kamban Mani (21/05/02 N2246

Legislation

Constitution of PNG
District Court Act, Chapter 40
Summary Offences Act, Chapter 264

Abbreviations

The following abbreviations appear in the judgment
CHT Chapter
CI Corrective Institute
DR Doctor
IHL Imprisonment with Hard Labour
KJV King James Version
NAT CT National Court
PP Public Prosecutor
SECT Section
SUBS Subsection
SOA Summary Offences Act
ST State
SUP CT Supreme Court
V Verse

Counsel

Police Woman First Constable Rose Bussil; for the informant
Defendant in person.

INTRODUCTION

1. KAUMI M. You pleaded guilty to a charge of unlawful assault contrary to Section6 (3) of the Summary Offenses Act.

ARRAIGNMENT

2. On arraignment you pleaded guilty but said you committed the offence two (2) hours after you were provoked by the victim as you say by assaulting you.

3. I entered a provisional plea of Guilty after reading the Statement of facts and confirming them with you I convicted you as charged.

4. As the defendant has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocatus or in submission that are not contested by the prosecution (Saperus Yahbakut v St) (1).St v Sabarina Yakal (2), P P v Yapuna Kaso (3) and P P v Tom Ake (4).

THE FACTS

5. On Tuesday the 06/10/09 at about 3:00 pm you were inside the Production Engineering office at the James Barnes Facility here in Madang.

6. The victim, Mr. Garry McMahon was having tea with colleagues inside the office there when you entered the office.

7. You were armed with a 11/2 metal pipe and you swung it at the victim, hitting him on the head.

8. You then proceeded to hit him again on the left chest causing bruising of about 6cm long and 3cm wide.

9. You the kicked the victim on groin and he suffered pain and swelling to his left testicle.

10. The victim had difficulty and suffered pain when taking deep breaths.

11. He needed medical attention after your attack on him.

12. The matter was reported to Police and both you and the complainant were brought for questioning and you admitted to assaulting the victim.

13. You were as a result arrested and charged with unlawful assault, cautioned and your constitutional rights administered to you and allowed K50:00 police bail.

ANTECEDENT REPORT 

14. You are aged 36 years and come from Kumbru village, Simbai/Middle Ramu, Madang Province.

15. You are married with two (2) children.

16. You are employed as a welder with Globe Manufacturing Ltd (James Barnes) here in Madang and earn K380.00 a fortnight.

17. You reside at Malabo Street, Newtown, Madang.

18. You have no prior convictions.

19. Mr. Bel for the prosecution did not make any submission on sentence but tendered the medical report after the defendant had viewed it and had no objections to its tendering.

ALLOCATUS AND SUBMISSIONS

20. When allocatus was administered to you by this Court you said the following:-

a. I am sorry for what I did;

b. This is my first time to appear in Ct;

c. I have two children to look after;

d. I ask the Ct for mercy and for a Good Behavior Bond.

21.The Medical Report of the injuries suffered by the victim prepared by Dr. C. Kalana of the Madang Medical Center who attended to the victim at his surgery states:-

22. On 2/10/09 at about 3:30pm the victim, Garry Mc Mahon was injured and assaulted by the use of 111/2 inch metal pipe and he was kicked in the groin and almost collapsed with excruciating pains.

23. The findings on physical examination are as follows:-

a. Chest - left upper chest mid exillary thrombosed bruise at 6cm length and 3 cm wide contused.

 - Painful and very tender

 - Deep breathing very painful with restricted breathing

 - There is no pneumonae mothorax complication

b. Scrotum – the left testicles is very swollen, painful and tender.

c. Finger – right hand 3rd finger distal phalanx is bruised and painful.

d. As of today he is also suffering from post traumatic stress syndrome.

24. It is evident from physical examination that Garry Mc Mahon sustained injury to the left chest, left testicle and right 3rd finger distal phalanx.

25. The chest injury could have been fatal had he developed pneumonae thorax.
The Ct also received a letter dated 19/10/09 tendered by Police Prosecution stating that the defendant and victim had reconciled through a third party out of Court.

26. The letter was from Mr. Bala Paranmananthan, the Operations Manager of Globe Manufacturing Ltd, Madang basically stating that you and the victim had reconciled.

27. The Management of Globe asked that the Ct look upon this mediation favorably and dismiss the case against the defendants as he was committed Seventh Day Adventist Christian with good family values and is a well respected employee at Globe. 

THE OFFENCE AND SENTENCING TREND

28 These submissions gives rise to only one issue for this Court to determine and that is, what the appropriate sentence in your case is. This issue can be decided by having regard to the sentence prescribed by Parliament, the sentencing guidelines and trends per the judgments and the particular circumstances in which you committed the offence from which come the factors in your aggravation as well as those in your mitigation. 

29. The practice in the higher Courts has been for the Supreme Court to give sentencing guidelines in the course of deciding criminal appeals or reviews. These guidelines are often coined as ‘starting points for various types of cases’ The National Court then applies those starting points in the course of looking at the circumstances peculiar to each case i.e. identifying the aggravating and mitigating circumstances.

30. Whilst the practice in the District Court as a ‘creature of statute’ has been to adjudicate within the precincts of the empowering legislation, it should also bear in mind and apply where necessary the guidelines used for sentencing in the NAT CT.

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

THE LAW

32. Section 6 (3) of the SOA provides for the offence of unlawful assault as follows:-

(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.

(2) Where a court convicts a person of an offence against Subsection (3), it may order him to pay- 

(a). to the person, in relation to whom the offence was committed; 

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.

33. I am therefore inclined to go higher for guidance and analogy and in doing so adopt as a matter of practice, His Honor Kandakasi. J’s guidelines on sentencing in St v Michael Kamban Mani (5) that:-

(a). The maximum prescribed penalty should not be imposed but should be reserved for the worst type of the offence under consideration.

(b). Guilty pleas and the offender being a first time offender and the existence of “such good “factors operate in the offender’s mitigation and sentence lower than the prescribed maximum may be imposed.

(c). The prevalence or otherwise of the offence which could be reflective of the ability of the previous sentence to either deter or not to deter would be offenders.

(d). The kind of sentences that one being imposed in similar but less serious offences should be considered to ensure that sentences in a higher or serious offense is not lower than these imposed for the less serious offences.

THE MITIGATING FACTORS

34. Before anything else, I take into account your personal background from your Antecedent Report that you are aged 36 years and come from Kumbru village, Simbai/Middle Ramu, Madang Province and are married with two (2) children. That you are employed as a welder with Globe Manufacturing Ltd (James Barnes) here in Madang and earn K380.00 a fortnight and reside at Malabo Street, Newtown, Madang. 

35. In addition to your family background, I also take into account in your mitigation first, your plea of guilt. That saved the State the time and expense that would have been incurred in the successful conduct of a trial on the issue of your guilt or innocence. Further, it avoided the need for the victim of your offence to incur further costs and suffer inconveniences by coming into Court and testifying against you.

36. Next you are a first offender in other words you have no prior convictions

37. Your expression of remorse is genuine especially in light of the letter tendered to Court from the employer of both the victim and you.

38. These are the only three factors that can be said in your favour.

THE AGGRAVATING FACTORS

39. You attacked the victim apparently by surprise as it would seem as you gave him no opportunity to at least defend himself. If the victim had attacked you first you could have pleaded provocation strictly in the non legal sense but the initial altercation between you and the victim was some two hours before your attack on him. You certainly did not inform the Court of the nature of this initial altercation. There is no evidence of you suffering any injury as a result of this initial altercation, let alone him retaliating after your initial attack. Despite this you continued to attack the victim after you had hit him on his head initially, when you assaulted him by using the same metal pipe on his chest. The severity of your attack on his chest was to such a degree that not only did he suffer a “thrombosis” bruise measuring some 6cm in length and 3cm in width was very painful in itself but he had great difficulty when taking deep breaths which caused him great pain and restricted his breathing. Yet obviously at this point in time the stricken state of the victim was of no concern to you as you launched into another attack on him, this time targeting a man’s weakest point of his anatomy, his testicles. And I can only imagine the pain he suffered which is best described in his medical report as ‘excruciating pains’. You were obviously hell bent on revenge for an overstated wrong and your attack was vicious to say the least and callous. It was way above and certainly not in proportion to what he may have done to you. So I am not persuaded that you acted under any de factor provocation. 

40. I do not accept your feeble attempt to suggest provocation in the non legal sense in view of the peculiar circumstances of this matter given your being a committed SDA Christian with good family values and is a well respected employee of Globe Manufacturing Ltd.What you did to the victim ran contrary to what God expects of Christians as stated in KJV Bible in the book of Mathew, Chapter 5 verse 39 where they are to turn the left ‘cheek’ if slapped on the right cheek. You certainly did not set a good example for other members of your congregation. You set a very bad example for other people. 

41. I note that your offence of unlawful assault is a very prevalent one. Accordingly it is incumbent upon the Courts to impose such sentences that will deter you personally and other like minded persons especially those who might be harboring notions of kicking men in the testicles.

42. You violated the Constitutional rights of the victim when you unlawfully assaulted him. In the 2 hour lull before you attacked him you had every opportunity to report the initial altercation between you two, to the Management of Globe or even law enforcing authorities for a resolution of it. But you chose personal violence as your preferred method of resolution.

OTHER RELEVANT CONSIDERATIONS

43. You are very fortunate not to have been charged with an indictable offence such as Attempt murder which according to my reading of the facts in this matter should have been the most appropriate charge given the extent of the injury to the victim’s genitalia, he could have died but for the grace of God.

44. When I consider the extent of the injury to the victim and other factors in your aggravation, the factors in your favor pale into insignificance.

45. However, I note that this is your first ever offence. That means you have not been in trouble with the law before. The law allows for a lenient sentence in appropriate cases where the offender is a first time offender. The conversed of that is a repeat offender may be given a far sterner sentence. The idea behind this is to avoid crushing a first time offender with a heavier penalty and the risk of turning the offender into a hard core criminal. Hence a lighter sentence would serve as a punishment as well as serve the communities desire to prevent the offender from re-offending.

46. Fortunately for you, you are a first time offender, if not; Beon CI would be your next place of abode for the next twelve months of your life. 

THE SENTENCE

47. Defendant is sentenced to 12 months imprisonment with IHL.

48. The whole term of imprisonment is suspended on condition that you enter into a recognizance for Good Behavior for twelve (12) months.

49. Your bail is refunded to you.

50. No orders are made for compensation but the victim is quite at liberty to institute civil action to claim damages for the life threatening injury he suffered as a result of the defendant’s unlawful actions.

Police Prosecutor: for the State 
Defendant in Person

______________________________________________________________________________
[1] SCRA No 52 of 2005; 27.04.06 
[2] (1988-89) PNGLR 129
[3] (1977) PNGLR 209
[4] (1978) PNGLR 469
[5] (21/05/02 N2246