Police v Solien [2016] PGDC 22; DC2085 (22 September 2016)

DC2085

PAPUA NEW GUINEA

IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS

CRIMINAL SUMMARY JURISDICTION

CB NO.3899 OF 2016

BETWEEN:

POLICE

-Informant-

AND:

DANIEL SOLIEN

-Defendant-

Boroko - NCD: A. Kalandi

2016: 22^nd September 2016

JUDGMENT ON SENTENCE

CRIMINAL LAW – Summary Offence – Summary Offences Act, Part iii, Protection of Persons, Section 6(3) Unlawful Assault

Counsels:Constable Killip – Police Prosecution

Mr.Daniel Solien – In Person

Laws:

1. Summary Offences Act, Sections 6(3)
2. Criminal Law (Compensation Act, Section 4

Cases cited
Nil

KALANDI. A. DCM: The offender was charged withone count of unlawfully assaulting the victim, one VakiHeni by punching him on the face and again kicking him several times which resulted in the victim sustaining scratches, cuts and a swollen face contrary to Section 6(3) of the Summary Offences Act.

The Defendant was aligned and he pleaded guilty to the charge and the statement of facts were read to the Defendant which he understood and confirmed his plea of guilty. As a result, submission on sentence was made and this is the Court’s Ruling on sentence.

POLICE BRIEF

The Police alleged that the Defendant, Daniel Solienon the 24^th July2016, at around 4.00am in the early hours of the morning was drinking with his cousin brother, Christopher Solien. They in the process got into an argument and threw punches at each other. The victim who was there knowing the two boys very well as they grew up there together tried to stop them, but in the process the Defendant pushed the victim to a table where his laptop was placed and the laptop fell to the ground. The Defendant seeing his laptop falling to the ground punched the victim on his face and he fell to the ground and later kicked him several times when on the ground. As a result, police alleged that the victim sustained scratches and a swollen face.

ISSUES

The issue for the Court to determine is the appropriate penalty for the offender.

SUBMISSIONS

The Prosecutionin submission made submission in reliance of the submission filed on the 20^th September 2016. It was submitted that the victim was assaulted when he stood in to stop the Defendant from assaulting his cousin brother. The defendant in the stead assaulted him and he sustained serious injuries. He received four stiches, vomited and did not eat for at least a week. It was submitted, the defendant knew very well that what he was doing was not right. The victim was punched and he fell to the ground and was kicked several times resulting in sustaining bruises and cuts to his face. The defendant showed no remorse to the victim. He is of sound mind and is well aware of the law. The injuries sustained are very serious. The prosecutor sought leave to present photographs of the victim showing the injuries sustained and there was no objection by the defendant when shown to him. The photographs were tendered as exhibits.

Ms.Killip submitted that to show the general public and the young people that there is law and that any person committing any offences can be prosecuted, the defendant be imprisoned. She submitted, the offence under Section 6(3) Summary Offences Act calls for a penalty of fine not exceeding K500 or imprisonment for a term not exceeding two years. Thus submitted the defendant be imprisoned for a term not exceeding two years. She also submitted for an order to restrain the defendant from further assaulting, insulting or threatening others. If the Court decides otherwise, she submitted for the defendant to be placed on good behaviour for one year.

She further submitted the offender was a first time offender, unemployed and married to a child aged one year and six months and is from the Pinu village, Kairuku District of Central.

The offender submitted he was sorry for what he did, it was his first time to commit an offence and appear in Court. He showed remorse to the victim and says sorry to him and said he wanted to compensate the victim for what he did.

APPLICATION OF LAW

The offence of unlawful assault per Section 6(3) of the Summary Offences Act is set out in the following terms;

6. ASSAULT
   

(1) In this section, “applies force” includes the application of heat, light, sound, electrical force, gas odour or any other substance or thing if applied to such a degree as to cause any injury or personal discomfort.

(2) For the purposes of this section, a person who–

(a) strikes, touches, moves or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud; or

(b) by any bodily act or gesture, attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has an actual or apparent present ability to apply such force,

is deemed to assault that person.

(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.

In this case, section 6(3) SOA prescribes a penalty in fine not exceeding K500.00 or an imprisonment term not exceeding two years. The penalties are not the maximum, wide discretion is placed on the sentencing authority taking into consideration the nature of the offences, circumstances surrounding the offences, any aggravating and mitigating factors and any other relevant factors that comes to the view of the court in considering the penalty.

As the offender pleaded guilty to the charge of unlawful assault, for this Court to impose the appropriate penalty, the facts and nature of the offences needs consideration. From the facts, the offender punched the victim when he was trying to stop the offender and his cousin brother who were fighting, which resulted in the victim falling to the ground. The offender then kicked him several times whilst on the ground. The victim sustained scratches and cuts to his body. The photographs of the injuries sustained on his face were tendered as evidence, but there was no medical report produced confirming the extent of the injuries sustained by the victim.

The victim was taken by surprise as he was not expecting same from the offender.

The aggravating factors against the offender are; the nature and the circumstances in which the offence was committed. The mitigating factors are that the offender is a first time offender,he has the benefit of the guilty plea, showed remorse to the court, showed remorse to the victim and submitted not to do same again.

The Court is also placed with the discretion per section 6(4) (a) SOA to award compensation to the victim who suffered damage and injury to his person as a result of the offence on conviction under section 6(3) SOA as the Court considers to be just. The offender submitted to compensate the victim with an amount of K500.00.

The offender did not submit as to what kind of penalty to be imposed on him. However, considering what he submitted in his submission I am of the view that he was submitted for a non-custodial sentence. If the Court is of the view of imposing a non-custodial sentence, then the Court will consider the submission by the prosecution.

This Court has the discretion to impose any penalty appropriate that suits the nature and circumstances of the offence committed. This Court has the discretion to impose fines or order for imprisonment between the fine and imprisonment range specified by the law that creates the offence.

The Court in considering all the above factors considersthat a custodial sentence would not be appropriate. Thus, I accept the submission by the offender per section 6(4)(a) SOA for compensation as appropriate as they all live around the same area.

ALLOCUTUS ADMINISTERED

Allocutus was administered and the offender said he had nothing to say.

PRE-SENTENCE REPORT

No pre-sentence report per Section 13 Probation Act or means assessment report per Section 4 of the Criminal Law (Compensation) Act was submitted for purposes of compensation in the event, the Court orders for compensation. However, the victim’s father submitted to accept the offender to compensate in the amount submitted by the offender as that was one way to bring peace to the community.

SENTENCE

The Court is now placed in a position to consider the appropriate penalty to the offender of the offence. The appropriate penalty would be imposed in consideration of the considerations mentioned above.

This Court in consideration of same, is now convicting the offender for a non-custodial sentence in view of section 6(4)(a) of the Summary offence Act.

COURT ORDER

1. The offenderis convicted to three (03) months imprisonment, conviction fully suspended and ordered forcompensation.
2. The offender to pay an amount of K500.00 compensation to the victim.
3. Offender’s bail money of K300.00 to be refunded.
4. The compensation to be paid by the offender within one week from the date of this order.
5. The offender in default of the payment of compensation within time stipulation, imprisonment for 3 months at the Bomana Correctional Institute.
6. Matter returns to Court for review on the 29^thSeptember 2016 at 9.30 am

Police – Prosecution

Defendant – In Person