State v Sasu [1997] PGDC 9; DC18 (23 September 1997)

Unreported District Court Decisions

[1997] PNGDC 25 - STATE V VINCENT SASU

[1997] PNGDC 25

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

CIR 01 OF 1997

THE STATE

V

VINCENT SASU

Waigani

Abisai SPM

23 September 1997

CRIMINAL LAW - Sentence - Unlawfully Assaulting Another Person causing Bodily Harm - No Priors - Shown Remorse.

Cases Cited

Frank Kagai v The State [1987] p288

Counsel

Senior Sergeant Leo Sale for the State

Mr Casper for the Prisoner

JUDGMENT ON SENTENCE

23 September 1997

ABISAI SPM:  The prisoner pleaded guilty that on the 18th day of January 1997, at Sogeri did unlawfully assaulted Amenge and by doing so cause him bodily harm.

The State laid an information charging the prisoner of unlawfully assaulting another person Amenge causing him bodily Harm. under Section 340(1) of the criminal Code Act Chapter No 262.

N2>(1)      A person who unlawfully assaults another and by doing so does him bodily harm is guilty of misdememor.

The offence itself is a serious offence because it carries the penalty of three (3) years.

BRIEF FACTS

It was alleged that on the 18th day of January 1997, at Sogeri Police Station, there was a small party for the members and their families for the Christmas and the New years eve. After the party, the complainant and his family left for their houses after sometimes, the defendant approached the complainant in his house and asked him for the whereabouts are the beer for the party. Complainant told the defendant that there were no more beer left so he and his family left to go home. Defendant further demanded to know as to what happened to five (5) cartoons of beer and at the same time swing the full bottle beer which he was holding at Amenges face. The bottle landed on the victims left hand and he lifted his arm to protect himself/face as a result, the complainant sustain the fractured hand. The victim cried out by calling the accused name saying, what did I do to you and you broke my hand.

In his allocuties the prisoner said that he is very sorry for what he has done in committing this offence.

ADDRESS ON SENTENCE

Your Worship,

The defendant was charged for assault occasioning bodily harm pursuant to section 340 (1) of the Criminal Code Act. A plea of guilty was entered 22nd August 1997 and the matter was stood over for an address on sentence.

1. PERSONAL DETAILS

Vincent is 37 years old, married and has five children Aged 13,10,7 1 and a month old baby. He comes from Silo number two village, Kerema in the Gulf Province. Both his parents have passed away. In his family there are three brothers and an only sister while he is the second. He goes to United Church and lives up at Sogeri.

Vincent began his education in his village and continued onto do grade 7 to 10 at Malalaua High School. He then went on to do further training at Gaulim Teachers College in Rabaul. But had to leave due to family problems. he arrived in Port Moresby and then joined the Police Department on the 10th December 1997. Beginning his training at Bomana Police College. He passed out a provisional constable and was sent to the Police Headquarters at Konedobu.  The proceeded on to Boroko Police Station where he was attached with sector patrol for 2-3 years until the sector patrol was moved to Gerehu. Where he worked for another year.  Vincent was then transferred to Kwikila Police Station, where by then was a confirmed constable and worked in the general duties section for 3 years. Before he was again transferred to Sogeri where he is now based. In Sogeri he was then promoted to the rank of Senior Constable.

2. CIRCUMSTANCES OF THE OFFENCE

On the day of the alleged offence, the 18th January 1997, at Sogeri. A party was put up by the Police Officers up at Sogeri. After the party ended Vincent took a walk up to Senior Constable Amenge’s residence and asked for more beer as he knew not all the beer had be consumed. Amenge replied negative, because Vincent used insulting language. Vincent retaliated by angrily flinging the bottle of beer towards Amenge. A fight broke out between the two, whereby Amenge realized sometime later that there was persistent pain his left arm. He had actually received injuries as a result of the brawl. At that time, both Vincent and Amenge had consumed some amount of alcohol. Vincent was later arrested and charged under section 340 (1) of the Criminal Code Act for assaulting another and causing that person grievous bodily harm. The offence carries a penalty of imprisonment for a term not exceeding three years.

3. MITIGATION

Your Worship,

In mitigation we plead the following factor:

N2>(a)      Vincent pleaded guilty. As such saved the Courts time.

N2>(b)      During his interview with the police he co-operated with the police.

N2>(c)      He expresses remorse.  He has actually rebuilt the relationship he had with Amenge and also realized that had he not fought with Amenge.  Amenge’s hand would not have fractured again as that same hand was broken some years ago.

N2>(d)      He has never had a prior conviction and is a first offender.

4. SENTENCE

Your Worship,

Although the Criminal Code calls for a long custodial term, we submit a non-custodial sentence is appropriate taking into account the mitigating factors.

We understanding the seriousness of the charge but raise the provision in Section 605 of the Criminal Code Act. That is to treat this offence as a simple offence and not an indictable offence.

It is our further submission that this Honourable Court impose a non-custodial sentence taking into account:

N2>(a)      the mitigating factors.

N2>(b)      the raising of section 605 of the Criminal Code Act.

N2>(c)      that Vincent being the sole breadwinner of his family. The family would have no-one to support them if he be given a custodial sentence. As times are becoming hard for every family as a result of the devaluation of the Kina. And where goods have gone sky high.

Otherwise, your Worship has a discretion to impose whatever sentence it deems appropriate and we ask for the mercy of this court.

ADDRESS ON SENTENCE SUBMISSIONS

CHARGE

The Defendant was charged that on the 18th day of January 1997, at Sogeri, Central Province, between the hours of 9.00pm and 9.30pm, did unlawfully assault another person namely, AMENGE and by doing so caused him bodily harm to is right arm.

Thereby contravening Section 340(1) of the Criminal Code (Chapter No: 262)

Penalty:  Imprisonment for a term not exceeding three years.

FACTS

It was alleged that on the 18th day of January 1997, at Sogeri Police Station, there was a small party for the members and their families for the Christmas and the New Years eve. After the party, the complainant and his family left for their house. After sometime, the Defendant approached the complainant in his house and asked him for the whereabouts of the beer for the party. Complainant told the Defendant that there were no more beer left so he and his family left to go home. Defendant further demanded to know as to what happened to five (5) cartons of beer and at the same time swung the full bottle of beer which he was holding at AMENGE’S face. The bottle landed on the victim’s left hand as he lifted his arm to protect himself/face. As a result, the complainant sustain the fractured hand. The victim cried out by calling the accused name saying, what did I do you and you broke my hand.

CIRCUMSTANCE

Your Worship, the circumstance of the case itself it much serious. We say that the offence is so serious as per Medical Report by Dr. Brown dated 20th day of March 1997.

Prosecution would therefore submit to the Court for a custodial sentence.  The Defendant is a member of Law enforcement body and should show some respect to his senior members and his NCO.

It is further submitted that the Court should take into account of Section 57 (2) of the Police Force Act, Chapter 65 say: If a member of a Regular Constabulary Branch concerned is convicted of the charge by a Court of Competent Jurisdiction the court shall in addition to any punishment that it may otherwise impose recommend that the member be or not be:

N2>(a)      Dismissed from the force;

N2>(b)      Reduced to a specified lower rank; or

N2>(c)      Reduced in salary, as the court thinks appropriate.

Your Worship, attached is a Medical Report by Dr. Brown of Accident and Emergency Department, Port Moresby General Hospital.

End of Submission

SENTENCE

This Court has considered what is appropriated punishment to be imposed upon the prisoner. The court has considered the seriousness of the offence, prevalence of the offence and also what prisoner said in his allocuties, his lawyer and the prosecutor have stated to this Court and also other factors.

In this particular case the prisoner pleaded guilty has no prior convictions recorded against him. His Council has informed this Court that the prisoner, had a fight with the Complainant and as a result his hand was broken, his lawyer further stated that it was not the first time that the complainants hand been broken, it was stated that it had been broken previously therefore when little but of force applied his hand broke. This however does not excuse the prisoner from his Criminal Activities, if he had not gone to the complainant’s house the trouble or that particular incident worst happened, but because of him the trouble brewed up and as a result the other person was injured.

The issue to consider is how and why did the complainant’s hand break? Is it of his own carelessness or fault that had caused such injury, if that is so then the complainant would not bother to report the injury sustained by him to the Police.

I believed the real cause of complainant’s suffering was due to the prisoners aggressiveness towards him, as it was stated that the prisoner was upset over (5) five cartoons of been. Therefore assaulted him and as a result Mr Amenge sustained the injuries.

As a Police Senior Constable the responsibilities vested on you is very important, your duty is  suppose to be the peace maker and life protector, you have been recognized by the people of PNG, as one of its best children therefore awarded you the post of Senior Constable.  Your responsibilities vested on you remains with you regardless of whether you are on duty or off duty.

People have given their support and trust on you as one of those persons, who is protector of Laws of this land. We have been experiencing the crime rates within Papua New Guinea and have deny high respect for our Policemen and force as a whole to maintain peace and harmony within our societies, communities and Country as a whole. This Country cannot survive if the upholders of Law land to become law breakers, the result would be chaos, not only people will suffer but the nation as well.

The members of the security forces suppose to be most loyal and dedicated person in upholding the interests of individuals Government of the day and nation as a whole. Your attitude brings alot of doubt to the Public, questioning the discipline and loyalty of Policemen and Police force as a whole. It seems to me that chain of command and discipline is non existent within the force. There is no respect of officers now commissioned officers by their subordinates. When are we going to learn to accept responsibilities, self discipline, self control, to become obedient instead of disobedient.

I have read and seen the submissions of both Defence and Prosecutor. I lend to agree with prosecution because your behaviour brought shame to the Police force and people of this nation, what the prosecutor has recommended to this court is to consider not only your criminal charge but also Court has to take into consideration section 57(2) of the Police force Act Chapter 65.  It states:

“If a member of a regular Constabulary branch concerned is convicted of the charge by a Court of competent Jurisdiction the Court shall in addition to any punishment that if may otherwise impose recommend that the member be on not be:

(a)      Dismissed from the force;

(b)      Reduced to a specific lower rank; or

(c)      Reduced in salary as the Court thinks appropriate.

Although your lawyer has informed this Court to take into account of your good record with the Police force, to impose non custodial sentence, this Court has taken into consideration also because you are a first offender and have no prior convictions against you. Also you have shown your remorseless by trying to re-establish your good relationship with the aggrieved party, this clearly shown that you were really sorry for what you have done. In Frank Kagai v The State [1987] 298. His Honour Judge Hinchliffe  held that “suspension of sentence of an imprisonment is not an exercising leniency but an order made in communities interest and designed to prevent offending which a person sentence standing alone seldom does a person so released has an obvious incentive not to offend and should have no mix conception as to what will occur if he does.”

In my view the appropriate sentence to be imposed on the prisoner is suspended sentence with conditions.

I therefore sentence the prisoner to 18 months 11th labour at CIS Bomana sentence be wholly suspended upon prisoner entering into his own recognizance with surety on the following conditions:

N2>(1)      Defendant to enter into his own recognizance with surety sum of K200.00 to be paid forthwith.

N2>(2)      Promise to keep peace and good behaviour for a period of 12 months as from ...

N2>(3)      To report to Grade 5 Clerk at Waigani or every Mondays at the end of every months between the hours of 8 am to 12 noon.

N2>(4)      Not to consume any liquor for a period of 6 months.

N2>(5)      To attend United Church Services every Sunday morning and Report to the pastor if he is not an duty.

N2>(6)      To be reduced in salary from senior constables salary to constables salary for a period of four (4) forthnights.

N2>(7)      To pay compensation to the sum of K200.00 to the injured person within 3 months period.

N2>(8)      If any of the above recognizance are not complied with the prisoner is to be brought back to this Court to be dealt accordingly.

N2>(9)      The Court further orders that his Bail sum of K       be converted to his surety.

Lawyer for the State:  Police Prosecutions

Lawyer for the Prisoner:  Public Solicitor