Police v Metoa [2014] PGDC 9; DC2060 (7 February 2014)

DC2060

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

CR 25/2014

BETWEEN:

POLICE
Informant

AND:

LELENA METOA
Defendant

Alotau: L. Mesmin
2014: 27^th 29^th January & 5^th 7^th February

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 – Expression of Remorse – Prevalent Offence

Cases cited
State –v- Dua (2013) PGNC 8; N4957
State v Michael Kamban Mani 21/05/02 N2246
Henry Tuk v. First Constable Gori [1983] PNGLR 420;
Laho Kerekere v. Robin Miria [1983] PNGLR 277; and
The State v. Danny Sunu and Ors [1983] PNGLR 396
Public Prosecutor v Yapuna Kaso [1977] PNGLR 209

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

Counsel
First Constable Joseph Ambere for the informant
Defendant in person

Mesmin, L DCM:

1. The Defendant was charged with one count of unlawfully assaulting another, Mr Patrick Misa by punching him and then using a stool to hit the victim with. He then assisted his son to further assault the victim him by pulling his legs from under him causing him to fall.
   

FACTS

2. The Defendant is 55 years of age and is from Tamonau village, Alotau, Milne Bay Province.
   
3. On the 29^th January 2014 the Defendant appeared from bail before this court and pleaded guilty to the charge of having assaulted one other person namely, Patrick Misa.
   
4. In the Police Statement of Facts they alleged that on 11^th of December 2013 at about 4:30pm the Defendant was at Bomata village, Sagarai estates.
   
5. The complainant, Patrick Misa went to the Defendants canteen and told him that his daughter Idith Metoa went to the compound where the Complainant lived.
   
6. The Defendant then left the canteen and returned later with his son and after closing the door to the canteen it is alleged that the defendant threw several punches at the complainant and then proceeded to assault the complainant using a wooden stool and hit him 3 times on his left hand.
   
7. The Defendant then put the stool down and pulled the complainants leg from under him causing him to fall on the floor whilst the Defendants son punched the complainant on his right eyebrow area inflicting injuries manifested in a cut.
   
8. The victim laid a complaint with Police and the Defendant was brought and questioned in relation to the incident.
   
   He was as a result, arrested and charged with unlawful assault, cautioned and administered his constitutional rights and allowed out of custody on K100.00 police bail.
   

ARRAIGNMENT & CONVICTION

9. On arraignment the Defendant pleaded guilty to the charge and did not dispute the statement of facts.
   

Documents:

10. The only documentary evidence tendered is:
    
11. Exhibit “A1” The Medical Report of Dr. Siaelo Panta of Milne Bay Provincial Health Authority – The relevancy of this piece of evidence goes to show the results of examination conducted on the victim confirming the injuries and bruises sustained on his face and particularly to his right eyebrow area where there is a cut and surrounded by soft swollen tissue.
    
12. I confirmed his provisional plea of guilty and based on that finding of guilt, convicted him.
    
13. As the Defendant pleaded guilty to the charge of unlawful assault, for this Court to impose the appropriate penalty, the facts and nature of the offence needs consideration.
    
14. This matter was adjourned to today for the court to decide on the type of penalty that is deemed appropriate for the Defendant, Lelena Metoa for having pleaded guilty to a charge of unlawful assault contrary to s. 6(3) Summary Offences Act Chp. 264.
    

ISSUE

15. What is the appropriate sentence the Court should impose on the Offender?

LAW

16. For assaults of this nature the law is clear in these terms:
    

"6 Assault
(1)............
(2)............
(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."

(4) 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; or

(b) to any other person who suffers bodily injury or damage to property as a result of the commission of the offence,

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. A person convicted under this provision of the law faces a maximum court fine of up to K500.00 or goes to prison for up to two years.
    
18. Whether a convict gets a fine or imprisonment depends very much on the nature or the circumstances of the case beforehand. Other external matters may also be of relevance for the sentencing court to consider when deciding on an appropriate penalty and may often result in the court invoking its sentencing discretion under various provisions of the District Courts Act Chp.40.
    
19. Bearing in mind, the first instance penalties and the availability of other penalty options, the court now must ask itself, what is the appropriate penalty(s) for this particular case taking into account the circumstances leading up to the assault which I will review before deciding on the penalty.
    

ALLOCOTUS AND SUBMISSIONS

20. No submissions were raised by the offender as to what kind of penalty to be imposed on him. However, I take into account what he said in Allocotus that has lead me to the view that he was submitting for a non-custodial sentence.
    
21. In Allocatus, Mr Metoa showed some remorse for what he did to the victim who was actually his son in law and Mr Metoa asked the court to show him mercy and stated that he would never do it again.
    
22. I am quite surprised and concerned that the prosecutions made no attempt to submit on sentence either. This is becoming too common of a trend in my court room especially at this stage where I require some assistance in relation to sentencing ranges.
    
23. I am of the view that the sentencing process cannot be expected to operate satisfactorily; in terms of either justice or efficiency, if arguments in support of adopting a particular sentencing option are not advanced at the hearing through the police prosecution.
    
24. Due to the fact that the police prosecutor has obligations different to those of defence counsel, owing duties both to the court and the public at large, it demands the prosecutor to act fairly and impartially in discharging his or her duty, one of which is to make submissions on sentence with a view to:
    

• Inform the court of all of the relevant circumstances of the case;

• Provide an appropriate level of assistance on the sentencing range;

• Identify relevant authorities and legislation; and

• Protect the court from appellable error.

25. While there may be no need to assist the magistrate on these issues or on sentencing ranges (or to provide comparative sentences) for offences which regularly come before the court, eg. Unlawful assault offences, it is essential to be prepared to assist the magistrate where this is not the case, and to be ready to accurately provide assistance to the court when it is requested on such issues.
    
26. Magistrates cannot be expected to have an encyclopaedic knowledge of maximum penalties, sentencing ranges and comparative sentences for the myriad of offences with which they are required to deal with every day.
    
27. The list of legislation within the Court’s jurisdiction is continuing to grow also. In addition, a magistrate may not be familiar with particular legislation, let alone sentencing ranges, if he or she is newly appointed. There should not be too much reliance placed on the impossible proposition of magistrates knowing it all.
    
28. It is a big concern and unsatisfactory that in this case, no attitude was expressed by the Police Prosecutor who could have mounted a substantial argument in support of the State’s case.
    
29. Even though the Police Prosecutor made no submission as to sentence, he tendered the victim’s medical report which is marked as Exhibit ‘A1’ in the Courts record.
    
30. As the defendant has pleaded guilty he was given the benefit of the doubt on mitigating matters raised in the depositions and the allocotus that were not contested by the police prosecution.
    
31. There was only one issue for the Court to determine which was to ascertain what the appropriate sentence was.
    
32. This issue can be decided by having regard to the sentence prescribed by Parliament, the sentencing guidelines and trends per judgments and the particular circumstances in which the offender committed the offence from which come the factors in aggravation as well as those in mitigation.
    
33. The practice in the higher Courts has been for the Supreme Court to give sentencing guidelines in the course of deciding criminal cases. These guidelines are often coined as ‘starting points for various types of cases’.
    
34. 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.
    
35. 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 National Court.
    
36. I rely on the case of State –v- Dua (2013) PNGNC 8; N4957 and will adopt His Honour, Justice Canning’s, decision making process in deciding on the appropriate sentence, that he applied in that case.
    
37. Justice Cannings applied and used a 6 step process in that decision addressing these questions:
    
    1. What is the maximum penalty?
    2. What is a proper starting point?
    3. What sentences have been imposed for equivalent offences?
    4. What is the head sentence?
    5. Should the pre-sentence period in custody be deducted?
    6. Should all or part of the sentence be suspended?
       
38. The maximum penalty provided for under Section 6(3) Summary Offences Act is K500 or imprisonment for a term of two years but I remind myself that the maximum must be reserved for the worst case scenario. This position was highlighted clearly by His Honour Kandakasi. J, in his guidelines on sentencing in the case of State v Michael Kamban Mani 21/05/02 N2246 where it was stated that:-
    

“The maximum prescribed penalty should not be imposed but should be reserved for the worst type of the offence under consideration:”

39. In State –v- Dua (Supra) Judge Cannings considered that since the Prisoner pleaded guilty the starting point would be the mid-point so in the current case that would be K250 or imprisonment for term of 1 year. I will use the mid-point of K250 fine or twelve (12) months imprisonment as a starting point for the offence.
    
40. In the present case, I have been unable to locate a suitable precedent and therefore I am inclined to go higher for guidance and analogy and in doing so adopt as a matter of practice, His Honour Justice Kandakasi’s guidelines on sentencing in State v Michael Kamban Mani (Supra) 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

41. The Court takes into account the Defendants personal background from his Antecedent Report and Allocotus that show amongst others that he:
    
    • (i) Is married with six (6) children;
    • (ii) Is the incumbent counsel president of Huhu LLG;
    • (iii) Pleaded guilty to the offence immediately upon completion of his arraignment;
    • (iv) The offender is a first time offender with no prior convictions.
      
42. In addition to his family background, and his plea, the Court also noted the significance of his plea of guilt to the offence which saved the State the time and money it could have spent to successfully have him tried on the issue of his guilt or innocence and convicted.
    
43. Further, it avoided the need for the relevant witnesses to bear the inconveniences of going to Court to give their testimonies. I take into consideration that he has not wasted Courts time and has co-operated with the police from the very outset.
    
44. The Defendant showed remorse during Allocotus by saying “I am sorry to the court. I broke the law and I will not do it again.”
    
45. I also accept that the injury caused may not have been as serious as injuries inflicted in other unlawful assault cases caused to a victim, however, this does not reduce the seriousness of this type of offence.
    
46. These are factors that can be said in the Defendant’s favour.
    

THE AGGRIVATING FACTORS

47. The aggravating factors are;
    • (i) The Prisoner attacked the victim with the help of another person who was his son and it appears from the statement of facts that the victim was not given an opportunity to at least defend himself;
    • (ii) There is no evidence that the victim provoked him directly or in the non-legal sense. If the victim had attacked the Prisoner first he could have pleaded provocation strictly in the non-legal sense. There was nothing stated on the statement of facts showing the victim attacking him in any way or form, let alone retaliating, after the initial attack. Despite this Mr Metoa continued to attack his son in law after he initially assaulted him the first time causing him to fall to the floor. I find that the attack was unprovoked and uncalled for to say the least and cowardly.
    • (iii) The complainant/victim sustained injuries.
      
48. I note that the offence of unlawful assault is a very prevalent one in the Milne Bay Province. Accordingly it is incumbent upon the Courts to impose such sentences that will deter the Defendant personally and other like-minded persons in the future.
    
49. The fact stands that he violated the Constitutional rights of the victim when he unlawfully assaulted him.
    

ANALYSIS

50. Where a magistrate considers a fine to be appropriate, he may exercise his dispositive discretionary power as captured in cases of Henry Tuk v. First Constable Gori [1983] P.N.G.L.R. 420; Laho Kerekere v. Robin Miria [1983] P.N.G.L.R. 277; and The State v. Danny Sunu and Ors [1983] P.N.G.L.R. 396.
    
51. I also note that where a magistrate considers that a fine would not be an adequate punishment he is bound to impose at least the minimum penalty under s. 6(3) of SOA.
    
52. The minimum penalty for assault is not less than six months’ imprisonment. It has been held by the National Court and the Supreme Court that the minimum penalty provisions do not oust the alternative remedies, like a fine open to a magistrate, if he considered it appropriate.
    
53. In this case after having considered this discretion and if the court came to a view and to the conclusion that a fine would not be an adequate punishment, it would be bound to impose the six months’ imprisonment term under s. 6(3) of the Summary Offences Act. I do not intend to do so.
    
54. The court considers that the mitigating factors largely outweigh the aggravating factors. I am of the view that this matter is one which can be categorised as not being a worst case scenario and therefore on that premise, my starting point would be a fine of K250 and I will work either up or down from that mid-point.
    
55. The Court also has the discretion under Section 6(4) (a) SOA to award compensation to the victim for the damages and injury he or she sustained or suffered to their person as a result of the assault the offender was convicted for under Section 6(3) SOA.
    
56. Mr Metoa submitted that he would compensate the victim with an amount of K100.00.
    
57. Upon considering everything raised above this Court considers that a custodial sentence would not be appropriate. On that basis, the submission by the offender pursuant to Section 6(4)(a) SOA for compensation is accepted for the reason that parties are related through marriage and they live together within the same vicinity.
    

SENTENCE

58. Weighing the factors for and against the Prisoner, I note that the mitigating circumstances out-weigh those factors in aggravation and therefore, as I stated earlier, consider a non-custodial sentence is appropriate and conclude that a monetary fine lower that the mid-point will be adequate punishment for the offence committed.
    
59. Accordingly, I sentence Mr Lelena Metoa, in the following manner:
    
    • (i) He has been found guilty as charged and is fined K200.00
    • (ii) His bail of K100 is forfeited and converted to Court fine to offset part of the total fine
    • (iii) He shall pay the balance of K 100.00 within the next seven days.
    • (iv) He is further to pay compensation pursuant to Sect.6 (4) of the Summary Offences Act in the amount of K100.00 to the victim, Mr. Patrick Misa within one month and two weeks ending 7/03/14 in the presence of the Clerk of Court, Alotau.
    • (v) In default of not paying the remaining fine of K100 to the State and compensation in the sum of K100 to the victim with the times stipulated, he will be imprisoned for 6 months in hard labour at the Giligili Corrective Institution.
      

Police Prosecutor: Senior Constable Joseph Ambere for the State
Defendant in Person