State v Laukai [2015] PGDC 19; DC3015 (11 December 2015)

DC3015

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL (GRADE FIVE) JURISDICTION]

GFCr 12 Of 2015

BETWEEN

STATE

AND

DUNSTAN LAUKAI
Defendant

BUKA: TASIKUL, PM
2015: 11^TH DECEMBER

CRIMINAL: Particular offence- unlawful assault – plea – guilty – sentence – criminal code s 340(1)

CRIMINAL – Sentence – consideration – aggravating factors – crime is prevalent –seriousness of injuries sustain Alternative sentence to imprisonment – first time offender- Compensation considered.

CASES CITED:
State V Manga Kinjip [1976] PNGLR 86
State V Albina Sinowi (N2175)

REFRENCES:
Section 340 (1) Criminal Code Act

COUNSEL:
Appearing for the prosecution: Constable Ian Gaemate
Appearing for the defendant: in person

JUDGEMENT ON SENTENCE

1. B.TASIKUL: The defendant Dunstan Laukai of Parirao Village, Buin, South Bougainville pleaded guilty to the charge of unlawfully assault Maxine Taehu Pais and by doing so did cause her bodily harm.
   
2. It was alleged that on the 20^th March, 2015 at 5.00pm the victim who is an employee of New Dawn FM studio was working in the office, when the defendant approached her and questioned her if she had received any phone calls from a Jessie.
   
3. The victim denied receiving any calls and whereupon the defendant without any reasons assaulted her. She was punched and kicked all over her body resulting serious injuries.
   
4. She was then admitted to Buka General Hospital for medical treatment.
   
5. I am satisfied that it is safe to accept your plea of guilty as you made your plea of guilty on uncertain terms see. State V Manga Kinjip [1976] PNGLR 86.
   
6. The penalty for assault occasioning bodily harm under section 340 of the Criminal Code carries a sentence of three (3) years imprisonment.
   
7. In your allocutus you told the court that because the victim denies calling Jess made you angry. You further stated that after this incident the victim’s relatives assaulted you. You further said you gave the victim K100.00.
   
8. I also noted the prosecution submission, whereby emphasis that violence against women is becoming prevalence and the court should take tough stands in its decisions.
   
9. I also noted a pre-sentence report submitted by the Probation Officer. The report in itself very comprehension. I noted from the report that you are willing to compensate the victim and willing to perform customary reconciliation.
   
10. Having said that,it must be noted that sentencing powers lies entirely by the courts. Its case is determined by its own merits and circumstances.
    
11. I noted the injuries sustained by the victim. The medical report by Dr. Damien Hasola reveals that the victim was admitted to Buka General Hospital on the 20^th March, 2015 with a traumatic injury to her left eye. Onexaminationof her left eye revealed bleeding and swelling around upper and lower orbits. Her vision was poor and unable to see clearly.
    
12. X-ray of the skull showed orbital fracture. CT scan and 3 D confirmed multiple fracture of the posterior ortal bone and collection of blood in her sinus. The fracture is also severe extending close to the brain stem.
    
13. She was treated with antibiotics and analgesics. She will need other CT scan to confirm if blood clot is still present. She will however, suffer from chronic heads and blurry vision in the future. She will also suffer from post-traumatic stress disorder in the future.
    
14. I noted from this medical report the degree of the injuries the victim sustained.
    
15. You were not represented by a lawyer so it is very difficult for me to come up with a proper sentencing principle based on previous decisions of the higher court which I am bound to adopt.
    
16. However, with my limited research I manage to find similar cases which the higher court has set sentencing guides to these particular offences. In The State V Albina Sinowi Unreported Judgement N2175. In this case the defendant assaulted the victim who his wife is causing her a broken arm.He was paid K1000.00 compensation. The court after considering the matter imposed a six months suspended sentence.
    
17. This is what his honour Kandakasi J has to say:
    

"As with any other offence, the offence of unlawful assault causing bodily harm has its own categories. Up on the top of the scale would be cases in which there are multiple acts of assault with serious bodily harm but falling short of grievous bodily harm cases. Next to that would be cases in which there is say, a single act of assault resulting in a closer to serious bodily harm to the victim. Following this category of unlawful assault resulting in bodily harm would be cases in which there is an act of assault resulting in a very minor bodily harm
Of course, whether an offender should be given the maximum prescribed sentence would also depend on the particular facts of the case and whether or not the offender has any prior convictions. If the offender has a prior conviction and he or she is found guilty after a trial and his or her case falls in the worse category that may attract an imposition of the maximum penalty of three years imprisonment. If however, the offender pleads guilty and has no prior convictions, a lower sentence may be appropriate.
I consider it also important that a sentencing judge should have regard to the type of sentences being imposed in similar but more serious offences such as unlawful assault resulting in grievous bodily harm This is important because going by the scheme and intent of the legislation, Parliament in my view, intended that the more serious an offence is, the higher the penalty should be. It follows therefore that, a sentencing judge should not impose a sentence in an unlawful assault case, which is higher or equivalent to a sentence for an offence such as unlawful assault causinggrievous bodily which is a more serious offence then an unlawful assault causing only bodily harm.

18. In order to decide upon an appropriate sentence for you, it is necessary to take into account both the factors for and against you. In the foregoing, I discussed both the factors for and against you. I now note and consider those and carefully weigh them against each other and the kind of sentence already imposed in this kind of cases. At the end of that exercise, I find that your case does not fall into the worse category.
    
19. Nevertheless, this does not mean that, what you did is not serious. No doubt, the victim suffered great pain and suffering at the time of you assaulted her.
    
20. A deterrent sentence is therefore called for to help deter you and other like-minded persons from committing this kind of offence. I therefore consider a head sentence of 2 years is appropriate. Then in view of your guilty plea, being a first time offender having the means and being prepared to pay compensation, I am prepared to suspend the whole of that sentence based on the probation report that was furnished to me.
    
21. This is necessary and is consistent with the position I have taken in a number of cases that, the Court cannot order an unwilling victim to accept compensation. Imposing compensation on an unwilling victim has the potential of further aggravating the endeavours of the victim to recover from the effects of the offence on him or her, which has the potential of leading to a lack of confidence in the judicial system to deliver justice. That in turn has the potential of causing people to take the law into their own hands leading to more violence and disorder.
    
22. In arriving at the decision to suspend, I continue to maintain the view that imposing a suspended sentence is not an exercise of discretion in leniency. However, it is a form of punishment aimed at achieving one of the purposes of criminal sentencing, which is rehabilitation. I also maintain the view that a community-based sentence is far more effective in appropriate cases, not only in terms of rehabilitation but also in terms of serving both as a personal and general deterrence against other would be offenders.
    
23. I therefore sentence you to two years imprisonment, however I will suspend the whole of the sentence based on the following conditions;
    
    1. That you keep peace and be of good behaviour towards the victim for a period of two years
       
    2. That you pay K1000.00 compensation to the victim;
       
    3. That a customary reconciliation be perform between the victim’s family and your family which will be witnessed by the Probation officer in which a date will be determine by both families;
       

24. If any of the above orders are not comply with will result you be sentence to two years imprisonment.