DC5065
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS SUMMARY JURISDICTION]
B. No  446 - 448 of 2021
BETWEEN
THE POLICE
Informant

AND
WAYNE BOKI
Defendant

Boroko:  S Tanei 

2021:  1st  of April
             

SUMMARY OFFENCE – Unlawfully on Premises– s 20 – Summary Offences Act, Use of Threatening Words – s 7(b) –Summary Offences Act – 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 – Imprisonment for 3 months – wholly suspended.  

Cases Cited

State –v- Mavuug[2012] PNGNC 255; N4898
Lokonbo –v- Stevensen [2009] DC964
Police –v- Waimen [2010] DC957
State –v- Taru [2007] DC645
Songonae –v- Gamiha [2008] DC802
Police –v- Anton [2018] DC3098
Nivani v Manakom [2008] DC902

References
NIL

Legislation

District Courts Act 1963
Summary Offences Act 1977

Counsel
Constable Tarrabbie Agu, for the Informant 
The Offender in Person
RULING ON SENTENCE
1st April 2021

S Tanei: The Offender, Wayne Boki, pleaded guilty to the offences of Being Unlawfully on Premises, Using Threatening Words and Using Insulting Words on 17th March 2021. This is my ruling on sentence 

FACTS: 

2. The Offender, Wayne Boki was charged with one count of Being Unlawfully on Premises under section 20 of the Summary Offences Act 1977, one count of Using Threatening Words under section 7 (b) of the Summary Offences Act 1977and one count of Using Insulting Words  under section 7 (b) of the Summary Offences Act 1977. He pleaded guilty to the following facts; 

3. On 22nd February 2021 at around 8.30 pm to 10.30 pm, the Offender was at Works Compound, 4 Mile (Boroko), National Capital District. He was intoxicated. He entered the Complainant’s property without her invitation. 

4. The Complainant had purchased the property from the Offender’s father in December 2020. The Offender said that there were some outstanding proceeds of the sale still being held by the Complainant. 

5. When the Offender entered the Complainant’s property, he threatened to burn the Complainant’s house down. He also stated the following words “Kon Meri, Bai me koapim ass blo papa blo you, bai me koapim ass blo ol brata blo you, kaikai kan blo mama blo you” and other insulting words. Attempts by the Complainant and others to calm him down and get him to come back when he was sober were in vain. 

6. The Complainant then reported the matter to Boroko Police and the Defendant was apprehended by Police Unit Fox 204 and brought to the Police Station at Boroko. The Offender was arrested and charged for the offences mentioned above, cautioned, told of his rights and detained at the Police Cells at Boroko. 

ANTECEDENT REPORT

7. The Offender is 23 years old and comes from Nukukau Village in Kendrian-Glaucester, West New Britain Province. He is single and resides at 4 Mile Works Compound. He is a Student at the IEA College of TAFE and is a first time offender.   

ALLOCOTUS:

8. During Allocotus, the Offender said the Complainant still owes his family money from the sale of their house. He needed money for his school fees. He was so frustrated so he went and argued with the Complainant. 

ISSUES:

9. The Court is faced with the following issues;
a)	What is the sentence the Court should impose on the Offender?
THE LAW

10. The Offender was charged with three offences. The relevant provisions are reproduced here. 

11. Section 20 of the Summary Offences Act 1977 provides that; 
20.	Unlawfully on premises.
A person who, without lawful excuse, is in, on or adjacent to any premises is guilty of an offence

12. The Penalty provision in section 20 has been amended by the Summary Offences Amended Act 2018. This offence now carries a penalty of A fine not exceeding K3, 000.00 or imprisonment for a term not exceeding two (2) years. 
13. The Defendant was also charged with two (2) offences namely threatening and use of insulting words under Section 7 (b) of the Summary Offences Act 1977. The relevant 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.

14. The Penalty provision in section 7 has been amended by section 6 of the Summary Offences Amended 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
15. Apart from the Allocotus, the Offender did not make any submissions. 
16. Constable Tarrabbie Agu of Police Prosecutions submitted that the Offender is a law abiding citizen and he committed these offences out of character. He submitted that the Offender be given a sentence of 18 months imprisonment fully suspended. 
SENTENCE
17. In deciding on the appropriate sentence the Court must be guided by sentencing principles. 

18. I adopt the decision making process applied by His Honour Justice Cannings in the case of State –v- Mavuug[2012] PNGNC 255; N4898 . In that case, 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 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 the sentence be suspended?

Step 1: what is the maximum penalty?

19. The offender was charged for three offences under 2 different provisions of the Summary Offences Act. 

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 while the maximum penalty under Section 20 is a fine of K 3, 000.00 or 2 years imprisonment. 

21. The maximum is usually reserved for the worst case scenario. 

Step 2: what is a proper starting point?

22. In the cases provided above, the Court held that the proper starting point would be the mid-point since the Offender pleaded guilty. 
 
23. In our case, the mid-point for the offences of Threatening and Use of Insulting Words would be an amount of K 1, 500 fine or 6 months imprisonment while the mid-point for unlawfully on premises is K 1, 500 fine or 12 months imprisonment. However, sentencing trends for similar offences will have to be considered as well. 

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

24. The offences will be dealt with separately here. 

25. I will deal with the offence of threatening and use of insulting words first. 

26. 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. 

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

28. The following are some cases in which the Court dealt with the offence of threatening under section 7 (b) of the Summary Offences Act. 

29. In State –v- Taru [2007] DC645, the offender pleaded guilty to the charge of threatening to provoke a breach of peace. He was placed on Probation and ordered to pay compensation to the victim. 

30. In the case of Songonae –v- Gamiha [2008] DC802 , the Defendant pleaded guilty to one count of threatening to provoke a breach of peace. The Court sentenced him to pay a fine of K 100.

31. The following cases dealt with the offence of being unlawfully on premises contrary to section 20 of the Summary offences Act. 

32. In the case of Police –v- Anton [2018] DC3098, the Defendant pleaded guilty to one count of being unlawfully on premises. He was ordered to pay a fine of K 100 and also ordered to perform community service in Goroka Town. 

33. In the case of Nivani v Manakom [2008] DC902, the Defendant pleaded guilty to one count of being unlawfully on premises. She was fined K 200. She was further ordered to compensate the victim. 

34. For the offence of using insulting words, the sentences range from fine of K 200 to compensation of K 500.

35. For the offence of using threatening words, the sentences range from a fine of K100 to being placed on Probation. 

36. For the offence of being unlawfully on premises, the sentences range from K 100 to 
K 200 fine and also compensation to the victim. 

37. I note from the reported cases that those sentences were made prior to the amendments to the Penalty Provisions of the offences under the Summary Offences Act in the Summary Offences Amendment Act 2018. 

Step 4: what is the head sentence?

38. The Offender pleaded guilty and as such he will be given the benefit of the doubt on mitigating factors. Here, the Court will consider circumstances of mitigation and aggravation. 

39. The following are the mitigating factors; 
a)	Early guilty Plea
b)	First time offender

40. The aggravating factors are; 

a)	The Defendant was under the influence of liquor. 
b)	He used aggression.

41. From the two lists, the aggravating factors and the mitigating factors balance out. 

42. In the case of Acting Public Prosecutor –v- Aumane, Boku, Wapulai and Kone [1980] PNGLR 150 , it was held that sentences must be for the purpose of deterrence, separation, rehabilitation and retribution. 

43. The Court must look at the principles and choose which one applies to the case of the Offender in this case. In this case, I am of the view that the relevant sentence must be for deterrence and for rehabilitation of the Offender. 

44. In this case, the mitigating factors and aggravating factors balance out. I note that the Offender did not express any remorse during allocotus despite pleading guilty early. He is also a first time offender. On the other hand, he was intoxicated when he entered the Complainant’s property. Although he had a reason to confront the Complainant, this did not give him the right to approach the Complainant in the manner that he did. 

45. There are better ways to resolve disputes or disagreements than the approach employed by the Offender. 

46. I also note that the Prosecution do not support a custodial sentence in this matter. 

47. Furthermore, the Offender is a student and an order for fine or compensation would not be appropriate in this circumstance. 

48. Taking into account all the factors, I find that the appropriate sentence for each offence in this case would be; 

a)	Use of Threatening words   = 3 months imprisonment
b)	Use of Insulting Words = 3 months imprisonment
c)	Unlawfully on Premises  = 3 months imprisonment

·  Step 5: should the sentences be served concurrently or cumulatively?

49. Taking into account the totality principle referred to in the case of State –v- Mavuug [2012] N4898, the sentence should be served concurrently. This is because the offences occurred out of a single transaction and that the victim is the same person. 

50. Therefore, the Offender’s total sentence in this case would be 3 months imprisonment. 

· Step 6: what is the effect of the totality principle?

51. The totality principle exists to ensure that the sentence that is imposed on the Offender is just and not too crushing. In this case, I find that the sentences that I imposed for each offence are not too crushing as they are within the bounds of the law and within the Courts jurisdiction. 

· Step 7: should the pre-sentence period in custody be deducted?

52. The Offender is on bail and as such this step is not relevant. 

· Step 8: should all or part of the sentence be suspended?

53. The offender is a first time offender. He is a student and he is young. In my view, a custodial sentence would expose him to hardened criminals and this may have an effect on him personally. 

54. It is therefore only fitting that all of his sentence be suspended and the Offender shall be placed on Good Behaviour Bond. 

CONCLUSION 

55. Taking into consideration all the circumstances, I find that the appropriate penalty would be imprisonment for a term of three (3) months. I will wholly suspend the sentence considering the age of the Offender and that he is a first time offender. 

56. The Offender will be put on Good Behaviour Bond for three (3) months commencing this instant under the following conditions; 
a)	The Offender shall not consume any form of alcohol and or dangerous drugs throughout the length of his sentence. 
b)	The Offender shall attend his local church every Saturday. 
c)	The Offender shall do one day of community service work every week in consultation with the Police Prosecutor and the Probation Officer throughout the length of his sentence. 
d)	The Offender shall not reoffend or commit any other Offence while on Good Behaviour Bond. 
e)	In default, the Offender shall be brought before the Court and if found guilty of breach of any of the Conditions listed above, the Good Behaviour Orders will be lifted and the Offender shall be committed to Bomana Prison to serve his full imprisonment term. 
f)	The Good Behaviour Orders shall expire on 1st July 2021. 

SENTENCE

57.  Wayne Boki, having pleaded guilty and being convicted of the offences of Unlawfully on Premises under section 20 of the Summary Offences Act 1977 , Using Threatening Words under section 7(b) of the Summary Offences Act and Using Insulting Words under section 7 (b) of the Summary Offences Act is sentenced to the following; 

Length of Sentence Imposed	Three (3) Months  Imprisonment at Bomana Corrections Institution	
Pre-Sentence period to be deducted	NIL	
Resultant length of sentence to be served	3 Months	
Amount of sentence suspended and to be served under Good Behaviour Bond	3 Months 	
Time to be served in Custody 	NIL	

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