Police v Joe [2010] PGDC 44; DC1034 (25 November 2010)

DC1034

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL (SUMMARY) JURISDICTION]
DCR 959 & 960/2010

BETWEEN

POLICE
Informant

AND

BIG JOE
SHEIN KIMBA
Defendants

Madang: J.Kaumi
2010: 5th, 12th, 15th, 18th 25th November

CRIMINAL LAW-Summary offence-Summary Offences Act, Part III, Protection of Persons-Section 6 subsection (3) Assault-Plea of Guilty

CRIMINAL LAW- Sentencing Guidelines discussed – Mitigating and Aggravating Factors– Expression of Remorse

CRIMINAL LAW- Attack on Law Enforcement Agencies -Prevalent Offence – Need for Deterrence.

Cases cited
Saperus Yalibakut vs. The State SCRA No 52 of 2005; 27.04.06
Public Prosecutor v Yapuna Kaso (1977) PNGLR 2009
Public Prosecutor v Tom Ake (1978) PNGLR 471
Peter Naibiri and Kutoi Soti Apia v. The State (Unreported judgment delivered on 25/10/78) SC137
Ure Hane v. The State [1984] PNGLR 105
State v Sabarina Yakal (1988-89) PNGLR 129
Joe Foe Leslie Leslie v. The State (Unreported judgment delivered on 07/08/98) SC560
State v Michael Kamban Mani (21/05/02 N2246
The State v. Ian Bob Wali (11/06/04) N2580
State v Kraningi [2005] N2934 (26/09/05)

Legislation

Constitution of PNG
District Court Act, Chapter 40
Summary Offences Act, Chapter 264

Abbreviations

The following abbreviations appear in the judgment
CI Corrective Institute
F/C First Constable
IHL Imprisonment with Hard Labour
J Justice
NAT CT National Court
PP Public Prosecutor
SECT Section
Sgt Sergeant
SUBS Subsection
SOA Summary Offences Act
ST State
SUP CT Supreme Court
V Vesus

Counsel
Senior Constable David Bel; for the informant
Defendants in person.

INTRODUCTION

1. KAUMI M. You have both pleaded guilty to a charge of unlawful assault contrary to Section 6 (3) of the Summary Offenses Act

ARRAIGNMENT

2. On arraignment you both pleaded guilty to having assaulted two members Papua New Guinea Constabulary, namely, Sergeant Edward Kursi and First Constable Joe Simbratuo whilst they were acting in the execution of their duties.

3. I entered a provisional pleas of Guilty then after reading the Statement of facts I asked if either of you had anything to say in response and a paraphrased summary of your responses are as follows: -

Big Joe - “ There was frustration over some bags of betel nut and that’s why we did that but our problem wasn’t with the police but some highlanders and we were arguing with them at the time the police arrived and I pushed the policeman and when I was told that it was a policeman I was pushing I stopped. Later we sorted out the dispute with the local landowners and the highlanders and shook hands. After three hours I was having my bath in the river when the police arrived. I was assaulted by the police at the road and they threw us into their vehicle and took us to Bogia Police Station where we assaulted with the use of fan belts, iron rods and sticks and said to us ‘ yupla ol lain blo Prime Minister Sir Michael Somare’ and then they locked us up without allowing us medical treatment”.

Shein Kimba - “ All I have to say Big Joe has mentioned”,

and I subsequently convicted both of you as charged.

4. As you have both pleaded guilty you will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocatus or in submission that are not contested by the prosecution (Saperus Yahbakut v St) ¹.St v Sabarina Yakal ², P P v Yapuna Kaso ³ and P P v Tom Ake ⁴.

THE FACTS

5. On Saturday the 30/10/10 at about 2:00 pm at the Mandi Care Centre, Bogia the both of you and two others approached police personal who were executing their duties in trying to solve a dispute between two persons, one of whom was from Biwat in the East Sepik Province over four bags of betel nut.

6. The four of you mounted a road block to stop police from passing through and as Sgt Kursi and F/C Simbratuo tried to remove the road block the both of you attacked them.

7. Big Joe assaulted Sgt Kursi by pushing him around whilst you Shein Kimba struggled with F/C Simbratuo for a while until Simbratuo received cuts to his fingers as a result of this scuffle.

8. You, Shein Kimba then proceeded to grab a police gas launcher and ran away with it, fortunately community members chased after you and F/C Kue fired a warning shot and as a result you were apprehended.

9. You were both later arrested and charged with unlawful assault, cautioned and your constitutional rights administered to you and you were both placed in the cell.

ANTECEDENT REPORT

14. Big Joe-You are aged 35years and come from Biwat/Angoram, East Sepik Province.

15. You are married with four (4) children.

16. You are unemployed and have no prior convictions.

17. Shein Kimba - You are aged 26 years and come from Biwat/Angoram,East Sepik Province.

18. You are single, unemployed and have no prior convictions.

ALLOCATUS AND SUBMISSIONS

19. Senior Constable. Bel for the prosecution made the following submission on sentence: -

(i). that all the facts were before the court;

(ii). the policemen were doing their duties by attending to a complaint and the both defendants obstructed them from doing so in order to ensure a peaceful and safe community.

(iii). they got a gas gun and ran away with it and the police had to ran after them in order to retrieve the firearm because they had no respect for police.

(iv). we ask for a custodial sentence as a deterrence to other like minded persons.

20. When allocatus was administered to you by this Court you said the following:-

Big Joe - “I am sorry for what I did, this is my first time to appear in court and I ask the Ct for mercy and for a Good Behavior Bond”.

Shein Kimba - “ I adopt what Big Joe has said”.

THE OFFENCE AND SENTENCING TREND

28 These submissions gives rise to only one issue for this Court to determine and that is, what the appropriate sentence in your case is. This issue can be decided by having regard to the sentence prescribed by Parliament, the sentencing guidelines and trends per the judgments and the particular circumstances in which you committed the offence from which come the factors in your aggravation as well as those in your mitigation.

29. The practice in the higher Courts has been for the Supreme Court 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 National Court 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.

30. 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 NAT CT.

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

THE LAW

32. 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.

33.. I am therefore inclined to go higher for guidance and analogy and in doing so adopt as a matter of practice, His Honor Kandakasi. J’s guidelines on sentencing in St v Michael Kamban Mani (5) that:-

(a). The maximum prescribed penalty should not be imposed but should be reserved for the worst type of the offence under consideration;

(b). Guilty pleas and the offender being a first time offender and the existence of “such good “factors operate in the offender’s mitigation and sentence lower than the prescribed maximum may be imposed.

(c). The prevalence or otherwise of the offence which could be reflective of the ability of the previous sentence to either deter or not to deter would be offenders.

(d). The kind of sentences that one being imposed in similar but less serious offences should be considered to ensure that sentences in a higher or serious offense is not lower than these imposed for the less serious offences.

THE MITIGATING FACTORS

34.. Before anything else, I take into account your personal backgrounds from your Antecedent Report which I need not repeat as it is more or less the same as what you have said in your allocatus.

35. In addition to your respective family backgrounds, I also take into account in your mitigation first, your pleas of guilt. That saved the State the time and expense that would have been incurred in the successful conduct of a trial on the issue of your guilt or innocence. Further, it avoided the need for the victim of your offence to incur further costs and suffer inconveniences by coming into Court and testifying against you.

36. Next you are both first offenders in other words you have no prior convictions

37. Your expression of remorse is genuine especially in light of the reconciliation you conducted with the locals and highlanders on 5/11/10 after your altercation with police and nothing tendered in contradiction by prosecution.

38. These are the only three factors that can be said in your favour

THE AGGRAVATING FACTORS

39. You attacked the victims who in this instance were members of the RPNGC who were going about their constitutional duties as prescribed under s.197 of the Constitution and apparently without any provocation from them and the law of this country is very clear about offences of this nature.

40. The Courts in this country over the years have treated the increasing attacks against the law enforcement agencies, namely the courts, court officers, police establishments and officers and village court officials very seriously.

41. I am grateful to Kandakasi.J in State v Kraningi ⁶ [2005] N2934 (26/09/05) for succinctly setting out the Supreme Court’s abhorrence of attacks of this nature as follows:-

Thirdly, you attacked a policeman in the cause of his lawful duty. The Courts have treated attacks against the law enforcement agencies, namely the courts, court officers, police establishments and officers and village court officials very seriously. Thus, it is now settled law that, an offence against a law enforcement agency is a serious offence that requires a stiffer penalty. I made that observation in The State v. Ian Bob Wali ⁷ (11/06/04) N2580. In doing so, I had regard to the relevant authorities in this way:

"In Peter Naibiri and Kutoi Soti Apia v. The State ⁸ (Unreported judgment delivered on 25/10/78) SC137, the Supreme Court said in the context of an attack on a policeman:

"Outbreaks of violence.......appear to be on the increase....... The Courts must therefore do their duty to try to assist the preservation of orderly life and to convince police that they will be assisted and protected in carrying out their duties by the sanction that will be involved against anyone who attacks them."

Subsequently, the Supreme Court judgment in Ure Hane v. The State ⁹ [1984] PNGLR 105 continued to emphasis this point in the context of classifying the types of wilful murder cases. There at p. 107 Bredmeyer J. listed wilful murder of a policeman in the execution of his duty as one of the worst type of wilful murder cases. In 1998, the Supreme Court emphasized this yet again in Joe Foe Leslie Leslie v. The State ¹⁰ (Unreported judgment delivered on 07/08/98) SC560. It did so by affirming the judgment of the National Court, per Sevua J., who said:

‘I want to reiterate my own belief that, where a policeman is attacked in the course of his lawful duty, the attacker must be severely punished. It is my view that an attack on a law enforcement agency, be it a police officer, Judge, Magistrate or CIS officer, is a very serious matter. I consider that an attack on any of the law enforcement agency is tantamount to an attack on the fundamental democratic institutions we have under our Constitution. The attack on the police officer in the present case, in my view, is tantamount to attack on the function of the Police Force under s 197 of the Constitution. Neither the Courts nor the community at large should condone or tolerate violence against police officers who are going about their lawful and constitutional duties.’

The Supreme Court also added that, there has been an increase in the use of violence against the police since the cases referred to by the trial judge and that, it was a matter of public knowledge that, the use of firearms against the police by violent offenders was prevalent in the National Capital District. The Supreme Court was therefore, of the view that, the trial judge correctly referred to the principles and found no error in the application of these principles to the facts of the case."

As the highest Court of the land has acknowledged and said, it is already a dangerous job policemen and women throughout the country are doing. Hence, every citizen needs to appreciate the kind of work they do and respect and honour them for taking on such a difficult task on their shoulders. All of us need to therefore respect and support them. Of course, should they step out of line, there are proper channels to address them rather than take the law into one’s own hand as you did in this case. Any attack on any policemen or any law enforcement agency or their establishment is a very serious matter because it affects the very heart of the country’s internal security. Hence, people who commit an offence against them ought to be dealt with severely... It is about time therefore that, those who continue to show disrespect and take matters into their own hands as did you be dealt with severely. This will send a clear message that those who engage in the kind of conduct you got yourself into will be dealt with severely.

40. I do not accept your feeble attempt to shift the blame for your attack on the two policemen on some isolated incident involving yourselves and some persons from the highlands. What has some argument over bags of betelnut with highlanders got to do with the two policemen who only trying to do their job.

41. The actions of Shein in not only causing cuts to F/C Simbratuo’s fingers but in stealing the police issue gas launcher is very serious as had you not been caught and the said firearm retrieved, the possibility of it falling into the wrong hands very real.

42. I note that your offence of unlawful assault on policemen is becoming a very prevalent one. Accordingly it is incumbent upon the Courts to impose such sentences that will deter you personally and other like minded persons especially those who might be harboring notions of assaulting policemen.

43. You violated the Constitutional rights of the victims when you unlawfully assaulted them. When the policemen intervened in your problem before you attacked him you had every opportunity to report the initial dispute between you two and the highlanders, to these law enforcing authorities for a resolution of it. But you chose complete disregard for the law over respect for it as your preferred method of resolution.

OTHER RELEVANT CONSIDERATIONS

44.You Shein Kimba are very fortunate not to have been charged with an indictable offence such as Unlawful wounding which according to my reading of the facts in this matter should have been the most appropriate charge given the extent of the injury to F/C Simbratuo’s fingers.

45. When I consider in totality what the both of you did and other factors in your aggravation, the factors in your favor pale into insignificance

46. However, I note that this is your first ever offence. That means you have not been in trouble with the law before. The law allows for a lenient sentence in appropriate cases where the offender is a first time offender. The conversed of that is a repeat offender may be given a far sterner sentence. The idea behind this is to avoid crushing a first time offender with a heavier penalty and the risk of turning the offender into a hard core criminal. Hence a lighter sentence would serve as a punishment as well as serve the communities desire to prevent the offender from re-offending.

47. Fortunately for you, you are a first time offender, if not; Beon CI would be your next place of abode for the next twelve months of your life.

THE SENTENCE

48. The Both defendant are fined K300.00 each to be paid forthwith in default to be sentenced to 12 months imprisonment with IHL.

49. As you both have been in custody since your arrest I make no orders in respect of bail.

50. No orders are made for compensation but the both victims are quite at liberty to institute civil action to claim damages for the assault and F/C Simbratuo’s injury he suffered as a result of the defendant Shein Kimba’s unlawful actions.

51. Twenty (20) days are deducted for time spent in custody from the twelve (12) months term.

Police Prosecutor: for the Police
Defendant in Person

________________________________
[1] SCRA No 52 of 2005; 27.04.06
[2] (1988-89) PNGLR 129
[3] (1977) PNGLR 2009
[4] (1978) PNGLR 471
[5] (21/05/02 N2246
[6] [2005] N2934 (26/09/05)
[7] (11/06/04) N2580
[8] Unreported judgment delivered on 25/10/78) SC137
[9] [1984] PNGLR 105
[10] (Unreported judgment delivered on 07/08/98) SC560