Republic v Kepae [2022] NRSC 4; Criminal Case 19 of 2020 (21 January 2022)

IN THE SUPREME COURT OF NAURU CRIMINAL CASE NO. 19 OF 2020
AT YAREN
CRIMINAL JURISDICTION

BETWEEN

THE REPUBLIC Prosecution

AND

KEP KEPAE Defendant

Before: Khan, ACJ
Date of Sentencing Submissions: 17 January 2022
Date of Sentence: 21 January 2022

Case to be referred to as: Republic v Kepae

CATCHWORDS: Criminal charge – Intentionally causing serious harm contrary to section 71 of the Crimes Act 2016 – Whether the Court has powers to suspend the sentence.

APPEARANCES:

Counsel for the Prosecution: R Talasasa (DPP)
Counsel for the Defendant: T Lee

SENTENCE

INTRODUCTION

1. You were involved in a fight with Frederick Spanner (Frederick) on 10 October 2020 when both of you attended a mutual friend’s birthday party.
   
2. Both you and Frederick are 22 years old and know each other.
   
3. As a result of the fight, Frederick suffered a broken jaw and lost a wisdom tooth and you were charged on 27 October 2020 with one count of attempted murder and one count of intentionally causing serious harm contrary to ss.55A and 71 respectively of the Crimes Act 2016. On 30 October 2020 you were produced before the District Court and detained to allow the police to complete their investigations.
   
4. Bail could not be granted for the offence of attempted murder and you were remanded in custody and I granted you bail on 3 March 2021 having expressed an opinion that the medical evidence was not sufficient to prove an essential element of the charge of attempted murder (count one), that is, that the injury was not likely to endanger Frederick’s life.
   
5. After your trial spread over a period of 9 days, I concluded at [63] of my judgement that:
   

[63] In light of my above discussions, I find that the prosecution has not proved that the injury to the complainant was capable of endangering his life and the defendant is acquitted on count one.

6. However, you were convicted on the alternative count of causing serious harm.
   
7. I stated in my judgement that I had two versions of how the fighting between you and Frederick took place. The version given by Frederick was that you two had an argument and he decided to leave and as he was about to go to his motorbike you struck him with an object. On the evidence of the witnesses present at the scene, I found that you and Frederick were engaged in a fist fight, but you were the aggressor and as a result he suffered the injuries.
   
8. Both you and Frederick had consumed alcohol prior to the fight and Frederick had been drinking for a few days before the incident and you had consumed alcohol before joining in the birthday celebration.
   
9. Both you and Frederick had previously engaged in a consensual fist fight after a drinking bout. The exact date and time are not clear on the evidence.
   
10. As a result of the injuries Frederick was hospitalised for 5 days when medical procedures were performed on him including removal of the fractured wisdom tooth and the wiring of the jaws and he was put on a liquid diet for a period of 6 weeks.
    
11. You also suffered injuries as observed by Sgt Marvin Tokaibure who noted that you had bruising on your face and that your eyes were blue and red.
    
12. You continued to punch Frederick after he fell down on the ground and you stated that your reason for doing so was that if he should get up, he would do the same to you. This is not acceptable as the consequences of that could have been very serious.
    

MAXIMUM SENTENCE

13. The maximum sentence for this offence is 20 years imprisonment, if aggravating circumstances exist or otherwise it is 15 years imprisonment. The DPP contended that there are aggravating circumstances in this case which is defined in s.79 of the Crimes Act as follows:
    

s.79 - Aggravating Circumstances for Assault

1. Where an offence under this Division provides for a penalty if aggravating circumstances apply, then the penalty may be imposed if the conduct constituting the offence occurs in any of the following circumstances:
   
   1. The defendant is, or pretends to be, armed with an offensive weapon;
      
   2. The defendant is in company with one or more other people;
      
   100. The defendant intends to commit another offence; or
        
   4. The defendant intends to avoid the lawful arrest or detention of a person.
      
14. I have made a finding that this was a straight fight between you and Frederick and as such there are no aggravating circumstances.
    

SUBMISSIONS ON SENTENCING

15. The DPP submits that a sentence of 5 to 6 years imprisonment would be an appropriate sentence whilst your counsel submits that the sentence of 18-19 months would be an appropriate sentence.
    
16. In the case of Amran v The Republic^[1] on a charge of intentionally causing harm, a sentence of 8 months was imposed by the District Court; and in the case of R v Adun^[2] a sentence of 13 months was imposed by this Court on appeal. This matter is currently on appeal to the Nauru Court of Appeal.
    
17. But you were found guilty of one count of intentionally causing serious harm which is more serious and carries more severe penalty.
    

YOUR FAMILY CIRCUMSTANCES

18. You have 5 brothers and 3 sisters and you live with your parents and grandmother. You are married with 2 children aged 4 years and 5 months. At the time of the offending, you were helping your father in making concrete bricks.
    

CONVICTION ENTERED

19. You have spent a period of 7 months in custody when you were remanded after the charges were filed and after you were found guilty on the alternative count. Having heard the mitigation on your behalf I enter a conviction against you on the charge of intentionally causing serious harm.
    
20. At the time of the assault both you and Frederick were adversely affected by alcohol and I accept that alcohol was a major contributing factor – but the fact remains that his kind of behaviour should not be tolerated or condoned as the one punch assault has resulted in deaths. In R v Carriere^[3] the Alberta Court of Appeal dealt with the issue of consent fights and Laycraft CJA said:
    

“I observe in passing that the ‘consent’ in many of these ‘fair fights’ with fists is often more apparent than real. Challengers are, most often, those who feel assured that they can overwhelm opponents. Those who accept the challenge often do so, not because they wish to fight, or truly consent to it, but because they fear being branded as cowards by their peers. Moreover...fists are not insignificant weapons. Serious injury or death often results from these fair fights.”(Emphasis added)

PROBATION REPORT

21. The Acting Probation Officer stated in his report that you have given up drinking and that a custodial sentence will adversely affect your ability to support your young family and in particular your father and your young siblings. He stated that you are unlikely to re-offend and that you should be placed on a probation order.
    

KINDS OF SENTENCE

22. S.277 of the Crimes Act states the kind of sentences that a Court may impose which includes a term of imprisonment, a fine, a conviction recorded and discharging of an offender, without recording a conviction and dismissal of the charge. S.277(e) states that “impose any other sentence or ...”.
    
23. S.278 inter alia states that a sentence should be imposed to adequately punish an offender, to protect the community, to promote rehabilitation of an offender, and to denounce the conduct.
    

SENTENCING CONSIDERATIONS

24. The sentencing considerations are set out in s.280 which states:
    

Sentencing Considerations – Imprisonment

A sentence of imprisonment may be imposed on a person only if:

1. In the opinion of the Court:
   
   1. the person has shown a tendency to violence towards other people;
      
   2. the person is likely to commit a serious offence if allowed to go at large;
      
   3. the person has previously been convicted of an offence punishable by imprisonment;
      
   4. any other sentence would be inappropriate having regard to the gravity of the circumstances of the offence; or
      
   5. the protection of the community requires it; or
      
2. A sentence of imprisonment is necessary to give proper effect to s.278 and 279.
   

25. In all the sections discussed above, the overriding duty of the Court is to impose a sentence which is appropriate in the circumstances.
    

WHAT IS AN APPROPRIATE SENTENCE?

26. Obviously, the offence calls for a custodial sentence – a matter that is conceded by your counsel, and rightly so, but the question remains as to what is an appropriate sentence?
    
27. In sentencing you I must take into consideration all the matters which I have discussed earlier. I stated earlier that a major contributing factor which resulted in the fight was alcohol and I said that with some degree of confidence as you and Frederick did exactly the same when both of you had consumed alcohol once previously. The Acting Probation Officer also addressed the issue of alcohol and states that you will stop drinking as you are concerned about your young family.
    
28. Having taken all the matters into consideration including your age and family circumstances and your family’s support available to you and their need for your support I sentence you to a term of 30 months imprisonment.
    

WHETHER I HAVE POWERS TO SUSPEND THE SENTENCE OR PART THEREOF?

29. In Jeremiah and Others v The Republic^[4] the Nauru Court of Appeal (Palmer, Muria and Scott JJ) stated at [39] that the Court has powers to suspend a sentence. It was stated at [39] as follows:
    

“[39] However, in considering the material placed before us set out in the summons for admission of fresh evidence as to the personal circumstances of the appellant after conviction, sentence and pre-appeal, we accept that those matters raised being, progress towards rehabilitation, hardship experienced, including the impact on the appellants of the delay from the protracted appellant litigation, and subsequent events following stay of the execution of sentences, we accept submissions of the appellant that this Court can in the exercise of its re-sentencing powers, which powers must necessarily include powers of suspension of the enforcement of any sentence imposed in appropriate circumstances, take the view that the peculiar circumstances surrounding the protracted delay in the hearing and bringing this case to finality we deem sufficient to direct that part of the sentences be suspended therewith. In the overall scheme of things we order that 50% of the sentences imposed to be suspended for a period of 12 months, the appellants accordingly to serve half of the totality of the sentence imposed...”

30. The Nauru Court of Appeal did not state as to what section of the Crimes Act did it rely on to suspend the sentence and I believe that s.277(e) is the enabling section which states:
    

“Impose any other sentence.”

31. Out of your sentence of 30 months imprisonment I order that 50% of the sentence is to be suspended for a period of 3 years and what this means is that if you are convicted for another offence in the next 3 years, then your suspended sentence of 15 months will be re-activated and you will have to serve that term.
    
32. Out of the remaining 15 months sentence I take into account the period of 7 months that you spent in custody and you will serve the remaining term of 8 months imprisonment.
    

DATED this 21 day of January 2022

Mohammed Shafiullah Khan

Acting Chief Justice

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^[1] [2017] NRSC 89, Criminal Appeal 18 of 2017(29 September 2017)
^[2] NRSC 6; Criminal Case No. 5 of 2018 (25 April 2019)
^[3] (1987) 35 CCC (3^rd) 276, 286-287
^[4] Criminal Appeal No. 1 of 2018; Supreme Court Appeal No. 101 of 2016