Police v Ako [2015] PGDC 22; DC3062 (29 September 2015)

DC3062
PAPUA NEW GUINEA

IN THE DISTRICT COURT SITTING

IN ITS CRIMINAL (SUMMARY) JURISDICTION

DC 583/2015

BETWEEN

POLICE
-Informant-

AND

ALBERT AKO
-Defendant-

Kundiawa: B. Tanewan

2015: 29^th September

RULING ON SENTENCE

1. INTRODUCTION

The Defendant Albert Ako was charged and found guilty after trial of one (1) count of Unlawful Assault under Section 6 (3) and Section 48 C of the Summary Offences Act respectively.

2. BACKGROUND FACTS
   

The Defendant was at Greenland Pokies House with his friends on 7^th August 2015 and the victim, Dr. Henry Kuriar was also there. Whilst they were gambling they had an argument. They all then jumped on the same vehicle to drop off the victim at the hospital gate. While they were at the hospital gate it is alleged that the victim punched the Defendant and in retaliation the Defendant and two (2) of his friends came out of the vehicle and started assaulting the victim which rendered him unconscious.

At the material times it was found that the victim lost K700.00 together with a sim card and a modem from his possession.

Trial was conducted in which the Defendant raised provocation as a defence on the charge of unlawful assault and general denial on the charge of stealing, however, the Court found him guilty of both charges and this is the ruling on sentence.

3. THE LAW

In these particular cases, Section 6(3) and section 48C of the Summary Offences Act are relevant.

Section 6 (3) (4) of the summary Offence is relevant, which provides;

“A person who unlawfully assaults another person is guilty of an offence”.

Penalty: A fine not exceeding K500 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 person who suffers bodily injury or damage to the property as a

result of the commission of the offence,

such amount by way of compensation for the bodily injury or damage to the property of the person occasioned by or in the course of commission of the offence as it considers just.

In addition section 48C provides;

“48C. STEALING.

(1) A person who steals or attempts to steal anything, capable of being stolen, of a value not exceeding K500.00, is guilty of an offence under this Act.

Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding 12 months.

(2) A person who steals or attempts to steal anything, capable of being stolen, of a value not exceeding K500.00–

(a) from the person of another; or
(b) the property of his employer or property which came into his possession on account of his employer,

is guilty of an offence under this Act.

Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding 12 months.”

4. APPLICATION OF LAW
   

In applying the relevant laws to the circumstances of this particular case, I am also mindful of the sentencing trends in assault and cases, the aggravating and mitigating factors.

Mitigating Factors

- plea of guilty at first instance
- shown of remorse
- apology to the victim
- willingness to pay compensation to the victim

Aggravating Factors

- prevalent of such domestic violence
- occurred in a domestic setting by known persons
- the articles used such as stones and iron rod

The Court also consider the sentencing trends as in such cases, and apply the principle that, the highest penalties are reserved for the worst kinds of offences, and in doing so I view this case as being in the middle category of cases. This is said in GoliGolu v. The State [1979] PNGLR 653.

In the National Court case of State –v- Daniel N2890 of 2005, Justice Canning in trying to arrive at the appropriate sentence posed the following;

(i) Did the Defendant not directly assault the victim?

(ii) Was he the only person involved in the attack?

(iii) Did the Defendant set out to hurt anyone?

(iv) Did the victim provoke the Defendant in a non-legal sense?

(v) Did the victim have trouble with the Defendant making him susceptible to attack by the Defendant?

(vi) Can the attack on victim regarded as vicious?

(vii) Did the Defendant co-operated with the police during investigations?

(viii) Did the Defendant done anything tangible towards repairing his wrong eg. Offering compensation, apologies?

(ix) Has the Defendant pleaded guilty?

(x) Is this his first time offence?

His Honour Cannings I went on to say that “if any answers to the above question is in the affirmative or yes that can be regarded as a mitigating factor and if the answer is in the negative or no then that is an aggravating factor.”

In applying the above considerations I answer the following as follows:-

1. Did the Defendant directly assault the victim? Yes, he did directly attack the victim.
   
2. Was the Defendant the only person involved in the attack? No, there were three (3) of them who attacked the victim.
   
3. Did the Defendant not set out to hurt anyone? No, the Defendants did not set out to hurt anyone, but was on retaliation from attack by victim.
   
4. Did the victim provoke the Defendant in a non-legal sense? Yes, the victim provokes the Defendant in a non-legal sense by punching the defendant whilst in the vehicle.
   
5. Did the victim have trouble with the Defendant making susceptible to attack? Yes, they had argued previously in the pokies house then victim punched him in the vehicle..
   
6. Can the attack on the victim regarded as vicious. Yes, the attack was vicious as it rendered the victim unconscious.
   
7. Did the Defendant co-operate with the police? Yes, he co-operated well with police up until the hearing of this case.
   
8. Has the Defendant done anything tangible in repairing their wrong? No, but has offered to pay compensation to the victim as per the Pre-Sentence Report.
   
9. Did the Defendant play minor role in the attack? No, he played the main role in attacking the victim.
   
10. Did the Defendant gave himself up and confessed to the attack? Yes, he gave himself to the police and also confessed to the attack.
    
11. Has the Defendant pleaded guilty? No, the Defendant was found guilty at trial.
12. Is he a first time offender? Yes, the Defendant is a first time offender.
    

In consideration of the above, there a more mitigating factors present than the aggravating factors. As such the Court views this offence as in the mid category of such offences.

5. CONCLUSION

In applying the above principles to the current circumstances of this case, the Court orders:

1. The Defendant is sentenced to six (6) months for unlawful assault of which the entire sentence is suspended and the Defendant placed on probation for the duration.
   
2. The Defendant shall compensate the victim in the sum of K1, 000.00 within one (1) month in default six(6) months imprisonment.
   
3. The Defendant shall pay K200.00 as court fine for stealing in default three (3) months IHL.
4. The Defendant and his two (2) friends shall repay the stolen K700.00 within 1 month in default six(6) months imprisonment.
   
5. Defendant’s bail shall be refunded forthwith.
   

Orders accordingly,