Police v Bira (2) [2010] PGDC 24; DC941 (23 April 2010)

DC941

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS CRIMINAL (SUMMARY) JURISDICTION]

DCR 41/2010

BETWEEN

POLICE
Informant

AND

FRANK BIRA (2)
Defendant

Madang: J. Kaumi
2010: 23rd APRIL

SENTENCE

CRIMINAL LAW-Summary offence-Summary Offences Act, Part III, Protection of Persons-Section 6 subsection (3) Assault-Defendant convicted after trial-assault of wife's younger sister, who had annoyed him by persisting in seeing sister despite his objections-assault- Is the de facto provocation a factor in mitigation.

CRIMINAL LAW-: Sentence -Sentencing Guidelines discussed – maximum penalty of 2 years imprisonment – starting point - relevant considerations are identified and considered

CRIMINAL LAW-: Usual purposes of criminal sentencing such as Deterrence, Restitution or Rehabilitation are also relevant factors for consideration.

CRIMINAL LAW-: It is incumbent on criminal sentencing courts to exercise the people's power vested in them by the Constitution to impose sentences that are in touch with the aspirations and attitudes of the people of PNG.

CRIMINAL LAW – sentence – suspension appropriate in unlawful assault cases where the pre requisite Pre Sentence Report and Community Report are provided and special circumstances exist.

The defendant was convicted of the unlawful assault of his wife's younger wife, who had persisted in seeing her despite his objections. There was evidence that the defendant had, prior to the incident in which he unlawfully assaulted the victim had an altercation with her. The defence that he raised at the trial of provocation – was rejected.

Held

(1) I have been unable to locate a suitable precedent in our jurisdiction, so I will use the mid-point of twelve months as a starting point for the offence then consider all mitigating and aggravating circumstances.

(2) The considerations that should be taken into account in deciding whether to impose a sentence equal to, lesser or greater than the starting point are set out

(3) These considerations are applied to the circumstances of the prisoner to arrive at a head sentence.

(4) In the present case the aggravating factors outweigh the mitigating factors and the case though of a serious nature did not fall within the worst case category hence it was not proper to sentence the defendant above the starting point.

(5)One mitigating factors was the de facto provocation or provocation in the non-legal sense by the victim's persistence in seeing her sister despite the objections by the defendant. However, it was only a mildly mitigating factor.

(6) The circumstances of the defendant are such that an alternative option to immediate incarceration should be considered, in other words his circumstances warrant mitigation to the head sentence.

(7)For a defendant to be returned to his community to serve sentence there are pre requisites that must be met first, namely, there must be pre sentence report and further a community report from the community to which the defendant belongs and to which it is intended that he is to be returned to serve sentence. (Acting Public Prosecutor v. Don Hale Sc 564)

(8)Without such a report supporting either the suspension of a sentence or the imposition of a lenient sentence, a Court can not arrive at such a sentence."( In The State v. Irox Winston(21/09/00) N2304)

(9)There must be a proper foundation in the PSR that is speaking in favour of a suspension of sentence for such a suspension. ( The State v Raka Benson (2006) CR 447&450)

(10) The offender was sentenced to 1 year imprisonment and the whole term suspended on condition.

CASES CITED

Acting Public Prosecutor v Don Hale Sc 564
The State v Irox Winston (21/09/00) N2304
State v Jason Dungoia (13/12/00) N2038
Edmund Gima v The State & Siune Arnold v The State (03/10/03) SC730
The State v Daniel (No 2)
The State v Raka Benson (2006) CR 447&450
Police v Frank Bira DCR 41/2010

Legislation

Constitution of PNG
Criminal Code Act 1974, Chapter 246
Summary Offences Act, Chapter 264

Abbreviations

The following abbreviations appear in the judgment
CBC..................Community Based Corrections and Rehabilitations
DCR..................District Court Report
GBB..................Good Behaviour Bond
J Justice
M.....................Magistrate
N C......................National Court
No Number
PNGLR......... Papua New Guinea Law Reports
PSR Pre Sentence Report
SC............ Supreme Court
S Section
ST State
v...................versus

Counsel
Senior Constable David Bel, for the Police
Defendant in person

SENTENCE

INTRODUCTION

1. Kaumi M: This is a decision on sentence for a man convicted of the unlawful assault of his wife's only sister.

BACKGROUND

2. The defendant Frank Bira was convicted on 30th March 2010 of the unlawful assault of a female, contrary to Section 6 (3) of the Summary Offences Act. The offence was committed at Odd village on the morning of 1st January 2010 between 8:00am and 9:00am. The victim had gone to the residence of the defendant at the material time to wish her older sister, the wife of the defendant happy New Year greetings but was not allowed to do so by the defendant. She persisted in doing so causing the defendant to assault her firstly in front of his house, then whilst dragging her out of his yard by the scruff of her neck, threw her onto a cactus plant in his yard, then assaulted her a second time on the road just outside the entrance to his premises by dumping her on the ground then punching and kicking her body with the assistance of his son, then stamping on the right side of her neck, then finally assaulting her for a third time at a location away from his premises as she was being rescued. He was aged 49 at the time of the offence. The victim was a female adult working at the Coast watchers Hotel in Madang. Further details of the circumstances in which the offence was committed are set out in the judgment on verdict (The Police v Frank Bira ) (1)

RELEVANT LAW

3. The defendant was charged with and convicted of unlawful assault under Section 6(3) of the Summary Offences Act:-

Section 6 (3) of the SOA provides for the offence of unlawful assault as follows:-

(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.

(2) 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;

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

ANTECEDANTS

4. The defendant is a married with six children, unemployed, and a villager and does not have any prior convictions.

ALLOCATUS

5. I administered allocatus to the defendant and the following is what he said, "Mi gat sixpla pikinini, kot I painim mi rong na mi rong. Mi sori long women mi wokim, mi silip na mi nogat gutpla ting ting na mi kirap wantem koros. Mi askim kot long marimari".

SUBMISSIONS

6. There was no submission on sentence by the Police Prosecutor.

PRE-SENTENCE REPORT

7. Upon the request of the defendant in allocatus for leniency I directed the CBC office to prepare a pre sentence report for submission to Court. Such a report has been prepared and this court is in receipt of it.

THE OFFENCE AND SENTENCING TREND.

8. These submissions give rise to only one issue for this Court to determine and that is, what the appropriate sentence in your case is.

9. The practice in the higher Courts has been for the S C to give sentencing guidelines in the course of deciding criminal appeals or reviews. These guidelines are often coined as 'starting points for various types of cases' The N C then applies those starting points in the course of looking at the circumstances peculiar to each case i.e. identifying the aggravating and mitigating circumstances.

10. Whilst the practice in the District Court as a 'creature of statute' has been to adjudicate within the precincts of the empowering legislation, it should also bear in mind and apply where necessary the guidelines used for sentencing in the N C.

11. I have again conducted a search of published judgments on sentences after a trial from 1995 to 2008 for the offence of unlawful assault in our jurisdiction on Pacli, that would provide a clear guideline as to what are appropriate considerations to be taken on board in arriving at a sentence and indeed there is need for such guidelines for purposes of uniformity and consistency of sentence but have come up with none. This does not mean in anyway that the incidents of this offence are few hence the absence of publicized judgments, certainly that would be a fallacy .On the contrary what it highlights is the fact that not all judgments have been publicized. With the due respect, none of the publicized judgments up to now in our jurisdiction provide this clear guideline.

12. I am therefore inclined to go higher for guidance and analogy and in doing so am indebted to His Honor Cannings. J's guidelines on sentencing in The St v Daniel (No.2) (2) and they can be summarized as follows,

Part (A) what is the appropriate head sentence, in terms of years?

(i) an appropriate starting point is identified

(ii) the considerations that should be taken into account in deciding whether to impose a sentence equal to, lesser or greater than the starting point are set out

(iii) these considerations are applied to the circumstances of the prisoner to arrive at a head sentence.

Part (B) should all or part of the sentence be suspended?

Part (C) if all or part of the sentence is suspended, what conditions should be imposed?

13.This was a wilful murder case which though is a different offence is nevertheless an offence involving personal violence as is the immediate case and so it's sentencing guidelines are therefore relevant for purposes of guidance and analogy.

PART (A) WHAT IS THE APPROPRIATE HEAD SENTENCE, IN TERMS OF YEARS?

(i) Starting point-.

14. In the present case I have been unable to locate a suitable precedent in our jurisdiction, so I will use the mid-point of twelve months as a starting point for the offence.

(ii) Relevant considerations

15. I pose the relevant considerations in these questions:-

1. Did the defendant not directly assault the victim?

2. Was he the only person involved in the attack?

3. Did the defendant not set out to hurt anyone?

4. Did the victim provoke the defendant in 'the non-legal sense' e.g. the victim abuse or assault the defendant?

5. Did the victim have trouble with the defendant making her susceptible to attack by the defendant?

6. Can the attack on the victim be regarded as vicious?

7. Did the defendant co-operate with Police in their investigations?

8.Has the defendant done anything tangible towards repairing his wrong, e.g. offering compensation to the victim, engaging in a peace and reconciliation ceremony, personally or publicly apologizing for what he did?

9. Did the defendant play a relatively minor role in the activity that he was involved in?

10. Did the defendant give himself up and confess after the incident?

11. Has the defendant pleaded guilty?

12. Has the prisoner genuinely expressed remorse?

13. Is this his first offence?

14. Can the defendant be regarded as a youthful defendant or are his personal circumstances such that they should mitigate his sentence?

15. Are there any other circumstances of this incident or the prisoner that warrant mitigation of the head sentence?

16. His Honor Cannings .J's rationale for the use of such considerations as above can be summarized in the following manner:-

(A) Mitigating factors- an affirmative (yes) answer is a mitigating factor. The more mitigating factors that are present the more likely it is that the head sentence will be reduced.

(B) Aggravating factors- a negative (no) answer will be an aggravating factor. The more aggravating factors present,, the more likely it is that the head sentence will be lifted above the starting point.

(C) Neutral factors- a neutral factor will be a neutral factor.

(D) Sentencing is not an exact science, it is a discretionary process.

(E) When a factor is marked as mitigating or aggravating, it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some may be mildly whilst others strongly mitigating or aggravating factors.

17. The above considerations can be categorized into 3 groups, numbers 1-6 focus on the circumstances of the incident, secondly, numbers 7 to 13 focus on what the prisoner has done since the incident and how he has conducted himself, and thirdly, numbers 13 to 15 look at the personal circumstances of the defendant and gives an opportunity to take into account any other factors not previously considered.

(iii) Application of considerations

18. I apply these considerations in the answers below:-

1. Did the defendant not directly assault the victim? No, the defendant directly assaulted the victim.

2. Was he the only person involved in the attack? No, he was not the only person involved in the attack.

3. Did the defendant not set out to hurt anyone? No, it cannot be said that he did not set out to hurt the victim.

4. Did the victim provoke the defendant in 'the non-legal sense' e.g. the victim abuse or assault the defendant? Yes, the victim did offer some provocation in the non-legal sense when she persisted in seeing the defendant's wife. The defendant was frustrated and angry with the victim's persistence. He was very angry but his vicious assault on the victim was not justified and it only goes some way in explaining why he assaulted the victim.

5. Did the victim not have trouble with the defendant in the past making her susceptible to attack by the defendant? No, from the evidence she had in the recent past had a dispute with the defendant resulting in he evicting her from his house and the evidence of this bad blood between them made her susceptible to an attack by the defendant.

6. Can the attack on the victim be regarded as not vicious? No, It cannot be regarded as not vicious especially as the defendant assaulted her on three different occasions with the use of fists, legs all over her body and throwing her onto the cactus plant.

7. Did the defendant co-operate with Police in their investigations? Yes, he co-operated with police in their investigations.

8.Has the defendant done anything tangible towards repairing his wrong, e.g. offering compensation to the victim, engaging in a peace and reconciliation ceremony, personally or publicly apologizing for what he did? No, he has not done any such thing.

9. Did the defendant play a relatively minor role in the activity that he was involved in? No, he did not play a relatively minor role; he assaulted the victim on all three occasions.

10. Did the defendant give himself up and confess after the incident? No

11. Has the defendant pleaded guilty? No, he didn't plea guilty.

12. Has the prisoner genuinely expressed remorse? Yes, he has expressed some remorse but although he said in his allocatus that he was sorry he subsequently qualified this by saying he was sleeping at the time the victim came to his house and woke up without any good thoughts but anger, no doubt towards her.

13. Is this his first offence? Yes

14. Can the defendant be regarded as a youthful defendant or are his personal circumstances such that they should mitigate his sentence? No, he is not a youthful offender.

15. Are there any other circumstances of this incident or the prisoner that warrant mitigation of the head sentence? Yes, there are other circumstances of this prisoner that warrant mitigation of the head sentence.

19. The results of the above application of the considerations are as follows:-

(a) Mitigating factors-

(i) mild-Nos.4, 7, 12

(ii) strong-No.15

(b)Aggravating factors-

(i) mild-Nos.5, 8, 9 and 11

(ii) strong-Nos.1, 2, 3 and 6

(c) Neutral factors (i) Nos.7, 10 and14, and weighing the factors for and against you, I note that the aggravating factors out weigh those in your mitigation.

20. As a consequence of the above considerations I set a head sentence at the top of the starting point I previously set. The head sentence is 12 months imprisonment.

PART (B) SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?

21. The Defendant exercised his constitutional right to run a trial i.e. he pleaded not guilty and was convicted after that trial so the Police and the Court were put to the time and expense of a trial with the calling of witnesses to establish his guilt so any mitigation factors such as admission and remorse have limited application and as such he loses the advantage of a discount on sentence that the defendant pleading guilty would otherwise be entitled to.( Acting Public Prosecutor v Don Hale (3))

22 .There are sufficient Supreme and National Court authorities that provide that not only is sentencing a community responsibility but that it is incumbent upon the sentencing Courts in discharging this duty when exercising this people's power to reflect their attitude towards a particular offence and impose a sentence that is correspondent to it.

23. In Acting Public Prosecutor v. Don Hale (4), the S C said sentencing is a community responsibility. For the courts exercise a power that belongs to the people by virtue of s. 158 (1) of the Constitution. The S C in that case said:

"If a judge is to consider some leniency on sentence ... it is incumbent on him to obtain the relevant report such as a pre-sentence report, especially around the age of 17 to 19. ... Then for such a drastic suspension of sentence a further help to the court would be a community report from the community to which the offender belongs and whether the community, seeing that the incident happened within that community, has any views on an appropriate punishment or whether the community is prepared to assist with any community management of any bond period. The Courts are bound under the philosophy of the Constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment of criminals definitely has an effect on the ordinary people. So, community involvement with the punishment of offenders should be considered especially if the court wishes to return an offender to the community instead of imposing imprisonment."

24. In The State v. Irox Winston (5) Kandakasi.J going by the authority of the Don Hale case held that:

"...If the Court is minded to give a lenient sentence because of tender age or other good mitigating factors, it must first have before it a pre-sentence report supporting such a sentence. This is because criminal sentencing is a community response to an offence and has to reflect the community's view of the kind of sentence an offender should receive. Without such a report supporting either the suspension of a sentence or the imposition of a lenient sentence, a Court can not arrive at such a sentence."

25. The above views were endorsed by the S C in two subsequent judgments in Edmund Gima v The State & Siune Arnold v The State (6)

26. His Honor Cannings. J held in the case of The State v Raka Benson (7) that, "...where there is no pre-sentence report supporting a suspension of sentence, no Court can suspend either the whole or a part of any sentence. The question then is, should the Court proceed to suspend any sentence merely because a PSR speaks in favor of it. In my view, that would not be in line with the intent and purpose of requesting and considering a PSR, which is to ensure that there is basis in the report for a suspension of any sentence. It follows therefore that, where there is no proper foundation for a recommendation for suspension of sentence, the Court cannot proceed to suspend because there is no basis for any suspension of sentence".

27. A summary of the principles enunciated in these cases are as follows:-

(a) For a defendant to be returned to his community to serve sentence there are pre requisites that must be met first, namely, there must be pre sentence report and further a community report from the community to which the defendant belongs and to which it is intended that he is to be returned to serve sentence. (Acting Public Prosecutor v. Don Hale (8))

(b) Without such a report supporting either the suspension of a sentence or the imposition of a lenient sentence, a Court can not arrive at such a sentence."(In The State v. Irox Winston (9))

(c) There must be a proper foundation in the PSR that is speaking in favour of a suspension of sentence for such a suspension (The State v Raka Benson (10))

28. I have a Pre Sentence Report before me and I thank Mr. Logan Sapush of the Madang CBC office for it. But there is an absence of a community report. It is a report that according to my understanding the CBC office bears the responsibility of preparing and submitting to Court along with the PSR. A community report is a report from the community in which the defendant is proposed to be returned to. It entails seeking the views of people in that community for their views on what the defendant did and what they feel about the possibility of returning him to them for punishment. Further, it should contain what or how they propose to assist in the rehabilitation of the deft while serving his sentence amongst them. Therefore the fulfillment of these two crucial requirements is complying with the constitutional mandate to exercise people's power vested in the Court to impose sentences that are in touch with the aspirations and attitudes of the people of PNG.

29. In the immediate case before me for sentence the Court only has the benefit of a PSR minus any community report. Therefore the defendant loses the benefit of immediate release back into his community with minimal conditions in the form of a GBB. What this means is that this Ct must consider other forms of punishment. In passing I will reiterate that the defendant is not a youth offender pleading guilty. He is an adult convicted after a trial. As a first time offender I am obliged by law to consider him for a punishment other than what a convicted adult with a prior conviction would be entitled to.

30. Now I consider the contents of the PSR to ascertain whether or not there is a proper foundation for a recommendation for suspension of sentence. The first matter of this report I wish to highlight is the fact that even though this problem has occurred between the defendant and the victim, the latter is still being accommodated by his relatives which I take to be positive sign of not rejection but indirect reconciliation between the two. Secondly I note the remorsefulness of the defendant for his actions though I note on the same token that he has not directly reconciled with the victim but he has nevertheless allowed her to live with his relatives. Thirdly I note that the defendant is not considered a risk at all to the community and though it is not mentioned in the report I take that to mean Odd village. Fourthly it is noted that that the victim and defendant are family members and she still lives with the family of the latter and as a result it is recommended that compensation be considered as the penalty. Fifthly I note that the defendant is suffering from failing eye sight due to aging. Sixthly I note that the victim only requests that she be compensated for the injuries she suffered as per the attached medical report which I note show that though are not life threatening, do not reflect the undoubtly painful ordeal she had to endure when she was assaulted on New Years day.

31. In a nutshell the whole thrust of the PSR is for a non custodial sentence and indeed that is the aggregate result and I am satisfied that there exists a proper foundation for the recommendation for suspension of sentence. The next question to consider is whether I should suspend part or the entire custodial sentence.

32. The absence of the community report meant I could not simply give the defendant the option of only a good behavior bond.

33. In the consideration of whether a custodial sentence should be suspended in part or in its entirety I have to decide which of these two options would enhance the personal deterrence, retribution and rehabilitation of the defendant.

34. To suit the purposes of retribution and rehabilitation sentences should not be too lenient so as to firstly cause a disservice to the community by failing to deter such offenders and secondly not adequately correspond to the gravity of the offence and having the desired resultant impact on the rehabilitation of the offender.

35. Kandakasi.J in St v Jason Dungoia (11) stated that "The usual purpose of criminal sentencing such as deterrence, restitution or rehabilitation are also relevant factors for consideration and so are requirements to carefully consider and take into account the factors for and against a prisoner before sentencing him or her".

36. Therefore it is incumbent on the criminal sentencing courts to exercise the people's judicial power vested in them by virtue of the Constitution to portray the above virtues if I may put it in their sentences.

37. So it is with the above in mind that this Court highlights the PSR for two reasons, firstly, to show that you are a person not prone to bursts of violent conduct against other people and secondly that even though you were charged and arrested for this offence you have not totally rejected your wife's only sister for whom you were responsible for bringing to Madang from Milne Bay Province though I do not doubt it was in your power to tell your relatives to do so.

38. What the above tells me is that what you did to your sister-in-law was an isolated incident and not a true reflection of your personal attributes.

39. Having referred to this I note that it is still incumbent upon me to consider the peculiar circumstances of this matter and in doing so I note the viciousness of your attack on the victim. For what I consider to have been a trivial reason you launched yourself into a determined effort to assault the victim at all cost. You were not satisfied with assaulting her to the ground once in front of your house but proceeded to inflict further physical pain upon her on two further occasions at two different locations. An aggravating factor against you as well is your action of throwing her onto a cactus plant, why you did this I cannot understand but what it amplifies here is the extent of the callousness of your actions that day towards the victim. The victim was not only your sister-in-law but a woman, a member of the fairer sex. This fact however did not deter you from your cowardly assaults upon her. You not only breached custom by "holim sikin blo tambu meri blo yu" the consequences of which you will face in future but more importantly you broke the Lord Jesus' new commandment "to love your neighbor as you love yourself ".

40. Nevertheless I am of the opinion that the option of a suspension of the entire sentence would best serve the purposes of criminal sentencing in the personal deterrence, retribution and rehabilitation of the defendant.

41. Going by Cannings.J's dictum in State v Raka Benson (12) there must be a basis substantiated by evidence for any recommendation of suspension of a custodial term and in this case I find that the basis for suspension of sentence has been substantiated by evidence.

PART (C) IF ALL OR PART OF THE SENTENCE IS SUSPENDED, WHAT CONDITIONS SHOULD BE IMPOSED?

42. The whole of the sentence is suspended on the following conditions:-

(a) Deft is placed on probation for 1 year to be supervised by the CBC office, Madang

(b) Deft is to be of Good Behaviour for one year and is not to threaten, abuse or assault Shirley Wame in any way or form for the duration of the probation period;

(c) I also consider s.6 (4) of the Summary Offences Act in view of the victim's injuries as per the medical certificate contained in the PSR. Defendant is to pay K100 as compensation to Shirley Wame and in the exercise of my sentencing discretion converts his bail of K100 to the compensation component of his sentence.

Police Prosecutions for the Police
Defendant in person

_______________________

1. DCR 41/2010
2. [2005]\ N2890 (8/09/05)
3. Sc 564
4. Supra Note 3
5. (21/09/00) N2304
6. (03/10/03) SC730
7. (2006) CR 447&450
8. Sc 564
9. Supra Note 5
10. Supra Note 7
11. (13/12/00) N2038
12. Supra Note 7