Police v Kachau [2010] PGDC 47; DC1099 (6 January 2010)

DC1099

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL (SUMMARY) JURISDICTION]
DCR 1207/2009

BETWEEN

POLICE

AND

MARKUS KACHAU
Defendant

Madang: J.Kaumi
2009:12th, 19th, 20th November, 11th, 17th December, 2010:05th, 06th January

SUMMARY: Sentence – Unlawful assault contrary to Section 6 Subsection (3) of the Summary Offences Act Chapter 264 – Plea of Guilt – Sentencing Guidelines – Mitigating and Aggravating Factors – No Expression of Remorse – Prevalent Offence – Need for Deterrence.

Cases cited

Public Prosecutor v Yapuna Kaso [1977] PNGLR 2009
Public Prosecutor v Tom Ake [1978] PNGLR 471
State v Sabarina Yakal [1988-89] PNGLR 129
Acting Public Prosecutor v Don Hale Sc 564
State v Michael Kamban Mani (21/05/02 N2246

Legislation

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

Abbreviations

The following abbreviations appear in the judgment
MGH Modilon General Hospital
NAT CT National Court
PHO Provincial Health Office
PSR Pre Sentence Report
PP Public Prosecutor
SECT Section
SIRH Smugglers Inn Resort Hotel
SUBS Subsection
SOA Summary Offences Act
ST State
SUP CT Supreme Court

Counsel

Police Woman First Constable Rose Bussil; for the informant
Defendant in person.

INTRODUCTION

1. KAUMI M. You pleaded guilty to a charge of unlawful assault contrary to Section6 (3) of the Summary Offenses Act. The case has taken some time to complete due to the unavailability of the defendant due to work commitments relating to the cholera outbreak.

The Facts

2. The relevant facts as put to you when I arraigned you and the statement of facts are as follows and there is authority for the use of such depositions to extract the relevant facts for sentencing purposes, St v Sabarina Yakal ^[1], P P v Yapuna Kaso ^[2] and P P v Tom Ake ^[3].

3. On the night of 30th May 2009 at around 3:00am you were with one of your two wives at the Smugglers Inn Resort Hotel in Madang drinking beer with her when the victim ,Thomas Nava an employee approached you two and asked if you two were okay which was part of his lawful duties to do so and you replied that you were fine and as he turned to go about his lawful duties in the restaurant you without as much as a warning came from behind and assaulted him with a folded fist causing him to fall to the cement floor .You then continued to kick him on his left jaw into a state of unconsciousness while he still lay on the cement floor and were going to continue your attack on this unconscious man by attempting to kick him again but were prevented from doing so by the victim’s fellow employees of the hotel. You were intoxicated at this time

4. As a result of your attack on the victim he in his state of unconsciousness bled profusely from the wound you inflicted on him It was at this point in time you realized what you had done to the victim and offered to assist him by taking him to the Modilon General Hospital but instead of taking him there straight away you took him to your residence where you attempted to treat by giving him some medicine you had there and you dropped him off at his house.

5. However the bleeding did not stop but continued to flow and so the next day31st May 2009 he finally had to be taken by his family to the MGH where eventually the wound was stitched and consequentially the victim received proper medical treatment.

6. The victim laid a complaint with Police and you were brought and questioned in relation to the incident. In your explanation you admitted assaulting the victim and said that at that time you were not happy with some of the services provided by SIRH and got angry and released your anger on the victim.

7. You were as a result arrested and charged with unlawful assault, cautioned and your constitutional rights administered to you and allowed K100:00 police bail.

Allocatus and Submissions

8. In your address on the sentence, you did not express any remorse for what you did. On the contrary all your comments were self serving, you stated the following:-

a. That you knew since day one that you were wrong;

b. That you were not happy with what the victim was asking for;

c. That if you were ordered to pay compensation that you be given time to do so;

d. That the victim had asked you for K600:00;

f. That you didn’t intend to assault the victim but that you drunk when you did so;

g. You asked for a non custodial penalty either in the form of a Court fine or Probation.

9. The Police Prosecutor made no submission in response but tendered the victim’s medical report after it was shown to you.

10. I asked the victim who was in court if he anything to say with regard to compensation to which he replied, “Yes, em imas stretim mi long ai na maus blo mi. Mi bin kisim bikpela bagarap.

11. I asked him further if he had any amount of compensation in mind and he asked for a fixed rate of K1100:00

12. As the defendant has pleaded guilty he 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) ^[4].

The Offence and Sentencing Trend

13 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.

14. 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.

15. 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.

16. 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

9. 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.

17. 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

18. Before anything else, I take into account your personal background from your Antecedent Report and your affidavit dated 16/11/09 which you filed after I had adjourned on the 12/11/09 that show amongst others that, you married with two wives and are the father of eight children and am still paying 2009 school fees for them due to financial constraint. Your affidavit at paragraph three (3) you state that you assaulted the complainant “due to inconvenience caused to by SIRH by not providing you an opener to open your bottle of wine and not opening it professionally” resulting in the loss of all the contents of the bottle of wine. Further that when you requested your wife to leave with you she was hesitant to leave causing you to become frustrated and that the victim was in the crossfire line so you assaulted him. You are Advisor to the Provincial Health Office, Madang and earn K900:00 a fortnight

19. In addition to your family background, in your favor, I note that you pleaded guilty to the offence. That saved the St the time and money it could have spent to successfully have you tried and convicted. It also saved the Court the time it could have spent in conducting a trial on the issue of your guilt or innocence. Further, it avoided the need for the relevant witnesses to bear the inconveniences of going to Court to testify against you.

20. Next you are first offender in other words you have no prior convictions

21. These are the only two factors that can be said in your favour

The Aggravating Factors

22. You attacked the victim from behind and apparently by surprise as it would seem as you gave him no opportunity to at least defend himself. This was a completely unprovoked attack. There is no evidence that the victims provoked you directly or in the non legal sense. If the victim had attacked you first you could have pleaded provocation strictly in the non legal sense. There is no evidence of the victim attacking you in any way or form, let alone retaliating after your initial attack. Despite this you continued to attack the victim after he was unconscious on the floor. Your attack was vicious to say the least and cowardly. All of the trouble started with you and finished with you. So I am not persuaded that you acted under any de factor provocation particularly when you started it all.

23. Of particular concern is your feeble attempt at trying to raise provocation in the non legal sense, especially given your being a well educated person and a very senior public servant. What you did, did not set a good example for junior public servants. At the time of the offence, you were the Advisor to the PHO. You were therefore in a better position to appreciate and uphold the rule of law and respect for one another in our communities. I am sure that the people of Madang Province looked upon you to provide the right kind of leadership. What you did on that fateful day runs contrary to the respect the community had in you as well as the expectation it had of you. You set a very bad example for other people.

24. Another aggravating factor against you is the fact that you were frustrated with your wife and took it out on a completely innocent person. Your explanation is pathetic and absolutely illogical especially coming from a person of your education and standing both in the public service and community.

25. I note that your offence of unlawful assault is 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.

26. You expressed no remorse whatsoever for pain and suffering you inflicted on the victim and I can only think what a traumatizing time it must have been for him. You violated the Constitutional rights of the victim when you unlawfully assaulted him. Instead your whole allocatus was self serving

27. Secondly, 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.

28. As noted in the summation of the facts, you inflicted serious injuries to the victim’s right upper eyelid and lips causing lacerations which required x6 x5 stitches respectively. He also had a massive right peri-orbital edema (black eye) with generalized facial swelling.

The Sentence

29. Weighing the factors for and against you, I note that the aggravating factors out weigh those in your mitigation. I consider a custodial sentence is appropriate. Accordingly, I sentence you, in the following manner

(a) The defendant is sentenced to 6 months imprisonment with hard labor;

(b) As the immediate incarceration of the defendant would cause hardship to his family, in the exercise of my powers I suspend the whole term of imprisonment on the following conditions:

(1) Defendant is placed on Good Behavior Bond for twelve months;

(2) Defendant is to pay compensation pursuant to Sect.6 (4) in the amount of K400:00 to the victim, Mr. Thomas Nava within two weeks ending 21/01/10 in the presence of the Clerk of Court, Madang.

(3) Failure to comply with Part (2) of the Court order will amount to a breach of Part (1) of this order and the defendant is to be brought back to Court to be dealt with according to law.

(4) The defendant’s bail of K100:00 is refundable at the end of the GBB period.

Police Prosecutor: for the State
Defendant in Person
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^[1] [1988-89] PNGLR 129; N2254

^[2] [1977] PNGLR 209

^[3] [1978] PNGLR 469

^[4] SCR No.5 of 2005,27/04/06-Jalina.J, Mogish.J, Cannings.J)

^[5] (21/05/02) N2246