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Voivoi v Police [2016] PGNC 387; N6634 (18 August 2016)

N6634

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR (APP) NO.19 OF 2016


BETWEEN


OSCAR VOIVOI

Appellant


AND


THE POLICE
Respondent


Kokopo: Lenalia, J
2016: 9th& 18th August


APPEAL– Appeal – Appeal against severity of sentence – Whether presiding Magistrate erred in law in the exercise of sentencing discretion.


APPEAL – Appeal against sentence of 12 months imposed for the offence of assault under s.6 (3) of the Summary Offences Act 1977.


APPEAL – Whether the Court erred in the exercise of its discretion when imposing the sentence pursuant to the section cited in the body of the Information.


Cases Cited:


Edmund Gima v The State & Siune Arnold v The State (2003) SC730
Goli Golu-v-The State [1979] PNGLR 653
John Elipa Kalabus-v-The State [1988] PNGLR 193
Mary Bomai Michael v The State (2004) SC737
Passingan-v-Beaton [1971-1972] PNGLR 206
Paia Lift-v-Philip Dege (1981) N291
Saperus Yalibakut v The State (2006) SC890
The State v Eric Emmanuel Vele (2002) N2252
The State v Iori Veraga (2005) N2921
Wilkenson Stephens & Michalov v The State [1967-1968] PNGLR 112
William Norris v The State [1979] PNGLR 605
Wesley Nobudi, John Evoa & Frank Yalikiti v The State (2009) SC999


Overseas Case cited:


R v O’Donoghue (1988) 34Crim R 397


Counsel:


Mr. P. Yange, for the Appellant
Mr. L. Rangan, for the Respondent


18th August, 2016


1. LENALIA J: The appellant was charged with one count of assault under s.6 (3) of the Summary Offences Act 1977. He pleaded guilty to the charge in the District Court here at Kokopo. The facts to which the appellant pleaded guilty to are that, on the evening of 14th May 2016, between 9 and 10pm, the appellant was with three other friends at JT Tyre Service Station at Vunamami within the township of Kokopo town. They were on the dark corner near the trade store.


2. While they were there, the complainant Constable David Moses walked up to the store to buy him a drink. After buying a coca cola drink, he was walking back and the appellant used insulting words to him and said, “yu kan face” and further insulted him and when the victim came closer to him (appellant), a police vehicle came.


3. On seeing the police vehicle the friends of the appellant fled. The appellant then punched the victim on his cheek. He wanted to run away, but the victim chased him and caught him. He was taken to the police station and later charged.


4. In the primary court, the appellant pleaded guilty and was convicted and sentenced to 12 months incarceration. He appealed on the grounds that the sentence imposed on him was manifestly excessive.


5. There are four (4) grounds of this appeal. I set out those grounds hereunder:


(A) That the learned Magistrate erred in law and in fact in sentencing the Appellant to 12 months imprisonment in a situation where;

(B) The Learned Magistrate erred in fact and when he imposed the sentence of 12 months on receiving a guilty plea from the defendant without taking into account the fact that the primary penalty prescribed by section 6 (3) of the Summary Offences Act (herein “Act”) is a “fine not exceeding K500.00”.

6. On arguing this appeal, Mr. Yanger spoke to their extract of submission. Counsel submitted that on the whole, the Learned Magistrate did not consider mitigating factors on behalf of the appellant such as the complainant did not receive any serious injuries and the fact that the appellant was drunk at the time he committed the assault.


7. The second leg of his argument relates to the sentencing discretion of the learned Magistrate saying, since his client’s case was a plea matter, the learned District Court Magistrate could not have exercised his sentencing discretion otherwise because, the appellant pleaded guilty to the charge under Section 6(3) of the Act. Counsel argued that this was clear error of law on the part of the presiding Magistrate.


8. On the last leg of his argument, counsel submitted that, the penalty imposed was so excessive and given the back ground factual circumstances of the case, the assault was not serious and a monetary penalty could have been appropriate.


9. Mr. Rangan of counsel representing the respondent argued in reply that, the primary Court did not commit any error of law as the penalty imposed was not the maximum. He asked the Court to dismiss this appeal and the appellant should serve the remaining portion on the sentence.


Application of Law

10. The appellant complied with s.220 of the District Courts Act (the Act) by filing a Notice of Appeal and he entered into a recognizance as a security for prosecuting the appeal in compliance with s.222 of the Act.

11. There are 4 grounds of appeal. The first ground referred to as (A) (1) seems to say that the primary Court erred in fact and law on sentencing the appellant to 12 months imprisonment, when the facts did not disclose a serious assault. Part of the argument in relation to this ground is that the primary Court concentrated much on the deterrent aspect when comments were made by the presiding Magistrate that, the sentence ordered by the court should send a warning message to youths around the Vunamami community.

12. This ground is misconceived. The purpose of sentencing an offender is to deter the offender and other would be likely offenders. The task of sentencing an offender is no less important than other earlier stages in the criminal process: The State v Iori Veraga (2005) N2921. And to impose an appropriate penalty, an offender must be sentenced on the grounds alleged by the prosecution and not on an opinion of what is the accused not guilty of: Saperus Yalibakut v The State (2006) SC890.

13. Coming to imposition of any penalty, any penalties imposed be it by a fine or custodial sentence, it should show the seriousness of the offence and it must have the effect of both purposes of deterrence and rehabilitation of the offender: The State v Eric Emmanuel Vele (2002) N2252. Ground 1 of this appeal is dismissed.

14. The second ground(B) of this appeal alleges that Learned Magistrate erred in fact and law in that he imposed the sentence of 12 months, when the appellant had pleaded without taking into account the fact that the primary penalty prescribed by s. 6 (3) of the Summary Offences Act is a fine of K500.00. In my view this was an erroneous interpretation of the section under which the appellant was charged under. Section 6 of the Act states:

“6. Assault.

(1) In this section, "applies force" includes the application of heat, light, sound, electrical force, gas odour or any other substance or thing if applied to such a degree as to cause any injury or personal discomfort.

(2) For the purposes of this section, a person who—

(a) strikes, touches, moves or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud; or

(b) by any bodily act or gesture, attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has an actual or apparent present ability to apply such force,

is deemed to assault that person.

(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.

(4) 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; or

(b) to any other person who suffers bodily injury or damage to property as a result of the commission of the offence,

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.”(Emphasis added).

15. The prescribed maximum penalty for Subsection (3) of the Act is a fine of not exceeding K500.00 or an imprisonment for a term not exceeding 2 years. It is not just a monetary fine as suggested in Ground 2 and the line of arguments in the written submissions.

16. The presiding Magistrate had discretion either to impose a term of imprisonment or make an order for a fine. The District Courts Act sets out criminal jurisdiction and civil jurisdictions of that court in ss.20 and 21 of the District Courts Act. This ground must also fail.

17. The arguments put forward for grounds (B) (1)&(B) (2)can be summarized together. First on (B) (1) it says that the facts did not disclose a “worst type” case or instance of breach of the provision under which the appellant was charged. Then (B) (2) states that, the offender was the first offender and the primary Court erred in not considering the appellant’s expression of remorse and his desire to pay compensation to the victim.

18. In arguing this ground, counsel for the appellant submitted that, considering the circumstances and background facts of the case, the case was not that serious and the sentence imposed was not on the par with what the appellant did.


19. The principles in law on appeals is that, in order for an appellant to prove that a sentence was manifestly excessive, that is the sentence imposed was clearly beyond the range of sentences available which may show that some error must have been made: Wilkenson Stephens &Michalov v The State [1967-1968] PNGLR 112; see also Edmund Gima v The State & Siune Arnold v The State (2003) SC730 or that of Mary Bomai Michael v The State (2004) SC737.

20. No arguments were raised by either counsel on the issue of the complainant being a police officer. No information came to this Court on the issue of whether the victim was on duty or not.

21. I do not wish to take this issue on board because the principle on appeal is that, an appellate court has no power to substitute its own findings for those of the sentencing Court: R v O’Donoghue (1988) 34Crim R 397 at 401. The appellate court cannot even allow extraneous or irrelevant matters or factors to guide or affect the findings of the Court: Wesley Nobudi, John Evoa & Frank Yalikiti v The State (2009) SC999 or the case of William Norris v The State [1979] PNGLR 605.

22. On the whole, given the nature of the assault committed upon the complainant of this case, I am of the view that, the sentence imposed was manifestly excessive and I uphold grounds (B) (1) (2) & (3) on the Notice of Appeal.

23. I relation to ground (4) of the appeal, it says that the Court may find other grounds as they arise from the Appellate Court’s decision making processes that become available. I have a problem with how this appeal was dealt with. The Notice of Appeal shows that the Appellant was convicted on 19th May this year. He filed the Notice of Appeal and the Recognizance of Appeal on 2nd June 2016. The matter was first mentioned before A J. Anis on 4th July 2016 and adjourned to 5th that month for hearing.

24. Because no reason for the decision was attached, the matter was further adjourned to 5th July 2016. The matter was called before me on 5th, 6th, and still no reasons for decision had been filed. Then on 7th, this court summoned the Clerk of Court the District Court to come to court and explain the situation as to why, no reasons for the decision had been filed. The Clerk of the District Court came and explained that, she had inquired with the presiding Magistrate but no written judgment had been forth coming to the Clerk of the Court.

25. The matter was further adjourned to 11th July. By then no reasons for the decision had been filed. It was adjourned to 20th July, the lawyer for the appellant was away in Moresby. It was adjourned to 5th August.

26. The appellant’s lawyer did not turn up. Matter was further adjourned to 8th then to 9th when the Court heard submissions on this appeal.

27. The Magistrate’s reason for decision was only filed on 4th August 2016. On the Amended Appeal Book it contains 11 pages. From page 8, there is the Summary of the District Court Worksheet, page 9 is the copy of the Information Sheet, page 10 contains the Summary of Facts then page 11 is the Warrant of Commitment. There are no other documents in relation to what happened on the date the matter was prosecuted. What concerns this Court is it took a long time to deal with this appeal. This was not a complicated matter at all.

28. Despite what I am saying here, it has gone past that stage now. On the issue of excessiveness of the penalty imposed. In criminal practice in this jurisdiction, the most serious offences would normally attract the most severe sentences. The principle is that only in worst type cases, the maximum penalty may be imposed: Taiba Maima-v-Sma [1971-1972] PNGLR 49 (see also Passingan-v-Beaton [1971-1972] PNGLR 206).

29. Examples of the worst type case may be in a case where, an offender is a habitual offender and has consistently come to the Court for or in a particular charge. Another example is in a situation where, the circumstances surrounding a particular offence are seriously very aggravating: Paia Lift-v-Philip Dege (1981) N291.

30. The penalty imposed on the appellant was not the maximum. Even if the presiding Magistrate sentenced the appellant to the maximum of 2 years imprisonment, the maximum penalty is not automatic. According to the case of John Elipa Kalabus-v-The State [1988] PNGLR 193 at page 195 the late Chief Justice Sir Buri Kidu said:

“The fact that a case falls into the worst type category does not mean that the maximum sentence automatically applies. For instance, in any murder case of the worst type where the accused is 14 years old it would not be, in my opinion, appropriate to impose the maximum sentence of life imprisonment.”

31. Earlier in the Supreme Court appeal in the case of Goli Golu-v-The State [1979] PNGLR 653, Kearney J said:

“It is a general principle of sentencing that the maximum penalty should be reserved for the most serious instances of offence, the worst possible case normally encountered in practice. This is an application of an even more basic principle, that there must be proportion the offence and sentence.....”

32. Having said the forgoing, exercising the powers given this Court by s.230 of the District Courts Act, I am of the view that, the sentence imposed was manifestly excessive and eventually, I uphold this appeal and quash the conviction and sentence imposed by the District Court. The parties shall meet their own costs.
________________________________________________________________ Islands Legal Services: Lawyer for the Appellant
The Public Prosecutor: Lawyer for the Respondent


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