Mark v Lauveni [2002] PGDC 46; DC405 (28 December 2002)

DC405

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 15, 19 OF 2002

Asa Mark
Informant

V

John Lauveni
First Defendant

Warumala Karava
Second Defendant

Keith La Uveni
Third Defendant

Kokora Benson
Fourth Defendant

Uria Mila
Fifth Defendants

Moregulna: M. Samala
2002: 28th December

JUDGEMENT ON SENTENCE

Criminal Law:
Fighting - Offence serious involving use of weapons - Factory and home-made guns and other weapons - Unlawful wounding and harassment of innocent people -Destruction and loss of personal properties - Burning down of dwelling houses

Criminal Law:
Sentencing - Unrepresented defendants - Guilty pleas - Factors considered aggravating in the fight may be considered aggravating in the Offence.

Cases Cited
Agiru Aieni and 12 Others -v- Paul T. Tahain [1978] PNGLR 37

Plea Matter:
The defendants each pleaded guilty to one count each for fighting and causing injury to innocent persons and damage to properties of some innocent persons. The following judgement was delivered on sentence.

P. Baiyo: Complainant
Defendants in persons: Defendant

28th December 2002

M. SAMALA: The five defendants have pleaded guilty to the charge of fighting and, causing injury to innocent persons and damage to properties of innocent persons -offence contravening Section 10 of the Summary Offences Act, Ch. No. 264.

The Facts of the Offence

On the date of the alleged offence, 23rd of December 2002 the defendants are all from Arnau Village, having Christmas/New Year soccer and volleyball competitions. At 4.30 pm that Monday a fight broke out at the soccer field between the players of Wapu and Mixed Blood teams.

It started over a foul in the game causing Wapu player one Kokora Benson, 4th defendant using abusive insult words spoken to the effect 'yu kaikai kan" against John Lauveni, 1st defendant of Mixed Blood. The two fought each other and others joining in causing the fight to get out of control resulted in the two persons suffering from severe knife wounds, eight innocent family homes completely burnt down by fire and destruction of properties worth of substantial values.

The fighting caused wide spread fear among the community as players and supporters resort to use weapons such as factory and home-made guns, axes, bush knives and hunting spears which resulted in the killing of domesticated animals - pigs, dogs, cats and chickens. And of the eight dwelling destroyed by fire, three are permanent houses built of sawn timbers and corrugated roofing iron.

Consequences

This is a fight involving two groups of people who are from the same area that actually know each other very well. In fact, the manner of violence of this extent experienced is becoming a common place here like elsewhere in the country.

In the instant case there was evidence contained in the brief facts that there were severe bush knife injuries inflicted on two innocent lives and damage to properties of innocent people not related to the fight that are worth of substantial values, especially the three permanent buildings burnt down.

Courts, in my view, in such cases have the duty to impose appropriate sentence to protect innocent lives and their properties. The defendants here have deliberately and recklessly put innocent peoples' lives and their properties at risk by choosing freely to engage themselves in the unlawful act of fighting. In the circumstances of this case, legally there is no provocation in the legal sense seen here to excuse the defendants for a lenient sentence to be imposed when from the playing field they deliberately and recklessly choose to destroy properties of persons who are not part of the dispute they have in the soccer field.

The loss of family homes with all their contents especially clothing, kitchen utensils, garden tools and all properties of values is of serious concern to those that suffer the loss who really do not deserve this criminal act against their persons and properties.

This in itself is seen as aggravating feature in the case. The next aggravating factor against the defendants is that they deliberately and recklessly put innocent lives of ordinary men, women and children at risk when they used weapons such as guns, spears, bush knives and axes as evident in the facts in the fight. It in fact had caused a lot of fear amongst the ordinary people and is viewed as aggravating in the offence committed.

Mitigation

Having read through the summary of facts, I accepted your guilty pleas. I have considered your guilty pleas having been properly entered and administered taking into account your statements in allocutus to further support your guilty pleas satisfying the elements of the charge.

For the interest of doing justice, I used as guideline to the unrepresented defendants authority set out in Agiru Aieni and 12 Others vs Paul T. Tahain [1978] case. Wilson J stated that in the circumstances that each of the defendants are unrepresented before the Court, the Court in entering the plea of guilty has to be cautious whether the defendants' guilty pleas have been properly pleaded, any admission made in plea had to be weighed with the factual external behaviour and judging by allocutus sufficient to constitute the elements of the offence charged.

These external behaviour test covers any conduct and gestures of the defendants in aiding and abetting each other in the commission of the offence, or words spoken or gestures promoting and encouraging the principal offenders or any like behaviour seen by a reasonable person that the defendants' actions would constitute the element of the offence charged.

In your statements in allocutus, you each stated you took part in the fight. In the defendants allocutus statements:

Defendant 1: I have nothing to say, Wapu fought me so I fought them.

Defendant 2: I ask for Court's leniency as I have family to care for. I fought because they (Wapu) fought me.

Defendant 3: It is my first time, I won't do it again. I fought because my team mates were attacked.

Defendant 4: Same. I have family to care for. I fought to assist my team mates.

Defendant 5: I fought because the other team fought my team.

In considering the elements of the offence of damage caused to properties, you all are reluctant to admit persons responsible for the arson. In this case I do not think it really matters who fought and who did the damage. I take into account that loss of properties and damage to properties all come about as a result of you all causing a fight and recklessly inflicting these losses which satisfies the second element of the charge.

None of you disputed the loss and damage caused to properties and so I infer this to mean you all will each accept to take the criminal responsibility over whatever penalty the Court imposes in the aggravating nature of the offence over loss suffered by the innocent people in this fight.

In considering all the circumstances in this case, the only factor in your favour being your guilty pleas, that I take most of you are also first offenders and that some of you have asked the Court for its mercy and leniency.

Sentence

Most of you spoke very well in response to your charge and in allocutus. This indicates that you are all educated, you know the law and you definitely know of the legal consequences of your actions. F or the purpose of this instant case, the use of weapons such as guns and knives, axes and spears is most serous viewed with ordinary fighting with the use of fists. There was so much fear in the community when persons fighting are out armed.

In this case, there was evidence that so much loss and damage to personal properties of innocent people suspected being inflicted. Though there was no value assessment done and tendered to Court over actual loss suffered, so as, value not an element of the offence. The fact remains is that all those properties loss or damaged are of value accumulated over time in years and people affected by cost of these properties will go through a lot of financial hardship to start life all over again to physically have possession of them again.

Considering this, Courts in their endeavour to stop such unlawful behaviours and practices should tailor appropriate sentence for purposes of public protection of innocent lives and of properties when faced in this venerable situations and so the Courts must impose severe penalties for purposes of deterrence and to also prevent others of the like criminal minds to commit the same offence in future. Further severe penalties will help make people abide by the rules of the law and appreciate taking their problems to lawful authorities to have them solved or to have it solved amongst themselves more peacefully.

This offence carries a maximum fine of K600.00 or imprisonment for a term not exceeding three years. I am of the view that a fine of K400.00 with default imprisonment term of eight months be appropriate to be imposed on each and several defendants.

I therefore ordered that the defendants each and severally be fined the sum of K400.00 to be paid forthwith in default be sentenced to eight months imprisonment each in hard labour at CIS Bomana.

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UNREPRESENTED MATTER