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Police v Bart [2021] PGDC 112; DC6068 (24 August 2021)

DC6068

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS SUMMARY JURISDICTION]

B. No 1176-1177 of 2021

CB No. 2040-2041 of 2021

BETWEEN

THE POLICE
Informant

AND

EMELDA BART
First Defendant

AND

VALDINA MAIMAKU
Second Defendant

Boroko: Seth Tanei

2021: 24^th of August

SUMMARY OFFENCE – Use of Insulting Words – s 7(b) – Summary Offences Act.

PRACTICE AND PROCEDURE- Sentence – Plea of Guilty – principles of sentencing discussed and considered – Mitigating Factors considered – Fine of K 200 each.

Cases Cited

State –v- Mavuug[2012] PNGNC 255; N4898
State –v Dua [2013] PGNC 8; N4957
Lokonbo –v- Stevensen [2009] DC964
Police –v- Waimen [2010] DC957
Police –v- Boki [2021] PGDC 12; DC5065

References
NIL

Legislation

District Courts Act 1963
Summary Offences Act 1977
Summary Offences (Amendment) Act 2018

Counsel

Constable Tarrabbie Agu, for the Informant

The Offender in Person

RULING ON SENTENCE

24^th August 2021

S Tanei: The Offenders, Emelda Bart and Valdina Maimaku, pleaded guilty to the offence of Using Insulting Words on 4^th August 2021.

2. Submissions on sentence were made on 17^th August 2021.

3. This is my ruling on sentence.

FACTS:

4. The Offenders were each charged with one count of Using Insulting Words under section 7 (b) of the Summary Offences Act 1977. They pleaded guilty to the following facts;

5. On 20^th July 2021 at around 7.30 pm and 8.00 pm, at Rainbow, Gerehu, NCD, the Offenders called up a meeting with their tenants.

6. The Complainant is a tenant in their property.

7. At the meeting the Offenders discussed a range of issues including water usage and damage to the property.

8. They then called the Complainant over and told her that the house is not a Brothel as the Complainant brings her boyfriend to her rental unit. The Complainant was offended as she was being seen as a prostitute.

9. She then reported the matter to Police and the Offenders were arrested and charged.

ANTECEDENT REPORT

10. Emelda Bart is 36 years old and comes from Obea Village in Afore, Oro Province. She is married with one child and resides at Rainbow, NCD. She is self-employed and is a first time offender.

11. Valdano Maimaku is 34 years old and hails from Kuminibus Village, Maprik, East Sepik Province. He is married with two children and resides at Rainbow, NCD. He is self-employed and has no prior convictions.

ALLOCOTUS:

12. During Allocotus, Emelda Bart said “Me laik tok sorry lo wanem samtin me mekim. Me first time offender. Me nonap mekim ken”. When translated it means I am sorry for what I did. I am a first time Offender. I won’t do it again.

13. Valdina Maimaku said the following in his allocotus “Me laik tok sorry lo kot na Cathy Fred. Me askim lo marimari blo Kot. Me nonap mekim ken”. When translated, it means, I want to apologise to this Court and to Cathy Fred. I ask for the Court’s mercy. I won’t do it again.

ISSUES:

14. The Court is faced with the following issues;

1. What is the sentence the Court should impose on the Offenders?
   

THE LAW

15. The Offenders were charged under section 7 (b) of the Summary Offences Act. It provides that;

7. PROVOKING A BREACH OF THE PEACE.

A person who–

..................

(b) uses threatening, abusive or insulting words; or

........................

with intent to provoke a breach of the peace or by which a breach of the peace is likely to take place is guilty of an offence.

16. The Penalty provision in section 7 has been amended by section 6 of the Summary Offences (Amendment) Act 2018. This offence now carries a penalty of a fine not exceeding K3, 000.00 or imprisonment for a term not exceeding twelve (12) months.

SUBMISSIONS ON SENTENCE

17. Apart from the Allocotus, the Offenders did not make any submissions.

18. Constable Tarrabbie Agu of Police Prosecutions proposed a non-custodial sentence for both Offenders.

SENTENCE
19. I adopt the decision making process applied by His Honour Justice Cannings in the cases of State –v- Mavuug[2012] PGNC 255; N4898 and the case of State –v Dua [2013] PGNC 8; N4957. The following decision making process was used:

step 1: what is the maximum penalty?

step 2: what is a proper starting point for each offence?

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

step 4: what is the head sentence for each offence?

Step 1: what is the maximum penalty?

20. The maximum penalty provided for under Section 7 of the Summary Offences Act is a fine of K 3, 000.00 or 12 months imprisonment. It is usually reserved for the worst case scenario.

Step 2: what is a proper starting point?

21. I have held in many cases that where Offenders plead guilty, the starting point for their sentences would be the mid-point.

22. In our case, the mid-point would be a fine of K 1, 500 or 6 months imprisonment.

23. Similar cases and sentencing trends also play an important role in determining a starting point.

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

24. The following are cases which dealt with this offence.

25. In the case of Lokonbo –v- Stevensen [2009] DC964, the offender pleaded guilty to one count of using insulting words. He was ordered to compensate the victim, a female, in the sum of K 500.

26. In the case of Police –v- Waimen [2010] DC957, the offender pleaded guilty to one count of using insulting words. He was fined K200.

27. In the case of Police –v- Wayne Boki [2021] PGDC 12; DC5065, the offender pleaded guilty to the offence of using insulting words, among other charges. He was sentenced to 3 months imprisonment wholly suspended.

28. For the offence of using insulting words, the sentences range from fine of K 200 to compensation of K 500 and imprisonment for three months depending on the circumstances of each case.

Step 4: what is the head sentence?

29. The Offenders pleaded guilty and as such they will be given the benefit of the doubt on mitigating factors. The Court will consider their mitigating factors as well as aggravating factors

30. The following are the mitigating factors;

1. Early guilty Plea
2. First time offender

100. No violence was used

4. Expression of remorse
   

31. The aggravating factors are;

1. The Offenders had no reason to use those words against the victim.
   

32. The purposes of sentences are deterrence, separation, rehabilitation and retribution.

33. The Court must look at the purposes and elect the best purpose to which the case fits.

34. In this case, there are more mitigating factors than aggravating factors. The Offenders pleaded guilty early, they expressed remorse, there was no violence and they are first time offenders. It is my view that the sentence in this case must deter the Offenders from committing the Offence again.

35. It is important to use correct words and expressions at the right time. It is my view that what happened was the Offenders wrong choice of words. They chose the wrong words to use at the wrong time when they told the victim that the house was not a Brothel when the victim brought her boyfriend to the house. I agree with the prosecution and the victim that this creates an impression that the victim is a prostitute. This impression tarnishes the reputation of the victim. Also, the circumstances do not warrant the use of the words that the Offenders used.

36. I note that the prosecution does not support a custodial sentence.

37. Taking into account all the factors, I find that the appropriate penalty for the offenders would be a fine of K 200 each.

CONCLUSION

38. After due consideration of all the factors, it is my view that the appropriate penalty for the Offenders is a fine of K 200 each.

SENTENCE

39. The following is the Sentence of the Court;

1. Emelda Bart and Valdina Maimako, having pleaded guilty and each being convicted of the offence Using Insulting Words under section 7(b) of the Summary Offences Act are to pay a fine of K 200 each.
   
2. The Offenders’ Bail of K 200 each is forfeited and converted to pay for the Court fine.
   

Lawyer for the Informant Police Prosecutions

Lawyer for the Offender: In Person