Police v Waimen [2010] PGDC 48; DC2017 (11 February 2010)

DC2017

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

DCR 1385/2009

BETWEEN

POLICE
Informant

AND

DAVID WAIMEN
Defendant

Madang: J.Kaumi
2009 30th December 2010 5th January, 9th- 11th February

SUMMARY: Sentence – Insulting Words contrary to Section 7 Subsection (b) of the Summary Offences Act Chapter 264 – Plea of Guilt – Sentencing Guidelines – Mitigating and Aggravating Factors – Expression of Remorse – Mild Mitigating Factor- 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
State v Sabarina Yakal (1988-89) PNGLR 129
State v Jason Dungoia (13/12/00) N2038
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
CHT Chapter
CI Corrective Institute
NAT CT National Court
PP Public Prosecutor
SECT Section
SUBS Subsection
SOA Summary Offences Act
ST State
SUP CT Supreme Court
v Verse

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

INTRODUCTION

1. KAUMI M. You pleaded guilty to a charge of using insulting words with intent to provoke a breach of peace or by which a breach of peace was likely to take place contrary to Section7 (b) of the Summary Offenses Act

ARRAIGNMENT

2. On arraignment you pleaded guilty.
3. I entered a provisional plea of Guilty after reading the Statement of facts and confirming them with you I convicted you as charged.

4. 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) ^[1].St v Sabarina Yakal ^[2], P P v Yapuna Kaso ^[3] and P P v Tom Ake ^[4].

THE FACTS

5. On Monday 28th November, 2009 at about 8:45am you were at the Craft Market at the Madang Resort.

6. At this time the complainant, Rachael Kumray, yourself and your mother were at this Craft Market selling artifacts when an expatriate man went in and bought a crocodile carving belonging to your mother for K20.00. After this you got angry for you were also selling your carving for K40.00 and said that you were going to hit your mother.

7. When the complainant, Rachael Kumray your sister heard this she told you that she was your mother and that you shouldn’t say that.

8. You then proceeded to use the following words against her, “KAN YU, HUL YU, PAMUK MERI, YU LAIK PAMUK NA RAUSIM OL PIKININI LONG HAUS, PAMUK KAN”.

9. The matter was reported to the Police and you were brought to the Police Station, questioned whereupon you admitted committing the said offence. You were then arrested and placed in the cell and later released on K50.00 Police bail.

ANTECEDENT REPORT

10. You are an adult man and come from Maringe village, Ambunti, East Sepik Province.

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

12. You are self-employed and reside at Bilia Mausrot.

13. You have no prior convictions.

14. Mr. Bel for the prosecution did not make any submission on sentence but left the sentence to the discretion of this court.

ALLOCATUS AND SUBMISSIONS

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

a. I am sorry for what I did;

b. This is my first time to appear in Ct;

c. I have four children to look after;

d. I just buried my father on Sunday and there is no man to look after my mother;

d. I ask the Court for mercy.

THE OFFENCE AND SENTENCING TREND

16. 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.

17. 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.

18. In the present case I have been unable to locate a suitable precedent, so I will use the mid-point of K150.00 as a starting point for the offence

THE LAW

19. Section 7(b) of the SOA provides for the offence of using insulting words as follows:-

A person who-

(b) uses threatening, abusive or insulting words;

with intent to provoke a breach of the peace or by which a breach of the peace is likely to take place is guilty of an offence.

Penalty: A fine not exceeding K300.00 or imprisonment for a term not exceeding one year.
(
20. I am 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
21. Before anything else, I take into account your personal background from your Antecedent Report that you are an adult man and come from Maringe village, Ambunti, East Sepik Province and are married with four (4) children. That you are self-employed and reside at Bilia Mausrot.

22. In addition to your family background, I also take into account in your mitigation first, your plea 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.

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

24. You have expressed remorse but I consider that it is a mild factor of mitigation as you have not apologized to your sister especially in light of the type of words you used against her.

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

THE AGGRAVATING FACTORS

26. Against the factors in your favor, I take into account the various aggravating factors against you as follows:-

(a).Your verbal barrage against your sister was done without any form of provocation by her either in the legal or non legal sense. What your sister did was the obviously correct thing to do in those circumstances, for one sibling to say to another and that was to remain you that the target of your intended assault was none other than your own mother;

(b).Your choice of words against your sister leaves a lot to be desired. She was your blood sister and she did not deserve what you said about her. When you chose to use those terms against your blood sister, you breached God’s law, you breached the custom undoubtedly of your area (obviously your sister would not lay this complaint against you if the use of such language was permissible in your village) and you contravened the law.

(c).The use of the infamous ‘Triple K’ in modern contemporary PNG society has become commonplace. From the bright lights of the urban settings right down to the villages it is used. It has become so prevalent that it not uncommon for one to hear even females and small children blurting out this filthy oral vomit.

(d).When you used those words you obviously had no respect for your sister, your mother, your wife, your daughter and womenfolk in general. You quite obviously forgot how you were brought into this world.

OTHER RELEVANT CONSIDERATIONS

27. You are very fortunate that you are a first time offender as I am obliged by law not to treat you as a defendant with prior convictions.

28. 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.

29. The prevalence of the use of the infamous ‘Triple K’ is both staggering and frightening. Where is PNG headed to if we are to accept such terms and the like as everyday lingua franca? Certainly there are people and institutions in this country that must stand against the use of such terms and the courts are one such institution and have that duty to ensure that this trend does not become entrenched in our society today. It is only by learning to respect one and other that true progress can be achieved in this country.

30. One way of instilling respect for others is to mete out deterrent sentences and the circumstances of this particular matter demand that this court exercise the people’s sentencing power vested in it by the Constitution and impose a sentence that is in touch with their aspirations and attitudes.

31. Fortunately for you, you are a first time offender, if not; Beon CI would be your next place of abode.

The Sentence

32. 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 correspondent to the gravity of the offence and having the desired resultant impact on the rehabilitation of the offender.

33.Kandakasi.J in St v Jason Dungoia ^[6] 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”.

34. 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.

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

(a) The defendant is fined K200.00 forthwith in default imprisonment for three (3) months imprisonment with hard labor;

(b) In the exercise of my sentencing discretion your bail of K50.00 is converted to the fine component of your penalty.

Police Prosecutor for the Police
Defendant in person

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^[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] (13/12/00) N2038