Police v Siari [2016] PGDC 25; DC2088 (20 October 2016)

DC2088

PAPUA NEW GUINEA

IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS

CRIMINAL SUMMARY JURISDICTION

CB NO.5681-5682 OF 2016

BETWEEN:

POLICE

-Informant-

AND:

THOMAS SIARI & LERI AKIE

-Defendants-

Boroko - NCD: A. Kalandi

2016: 20^th October 2016

JUDGMENT ON SENTENCE

CRIMINAL LAW – Summary Offence – Summary Offences Act, Part iii, Protection of Persons, Section 6(3) Unlawful Assault –Guilty plea by both offenders – Offenders submitted to compensate accepted by victim at certain amount – Court took different approach and reduced amount in compensation to defer both offenders and victim.

Counsels:Constable Hembehoie – Police Prosecution

Mr.Thomas sari &LariAkie – In Person

Laws:

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

Cases cited
Nil

KALANDI. A. DCM: The offenders were charged withone counteach forunlawfully assaulting the victim, one Simon Faravo by punching him several times with their folded fist which resulted in the victim falling to the roadcontrary to Section 6(3) of the Summary Offences Act.

The Defendants were aligned and they both pleaded guilty to the charge and the statement of facts were read to the Defendants which they understood and said, they did what they did because the victim was drunk and was rowdy and assaulted another person. They said they went to the aid of this other person and assaulted the victim and they confirmed their 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 Defendants, Thomas Siari and LeriAkieon the 10^thSeptember 2016, at around 09.00am were at KoneRouna Quarry Settlement. The victim was under the influence of liquor and was arguing and fighting with his relatives, going rowdy and uttering abusive words and disturbing the neighbouring residences.

The offenders walked straight to the victim and confronted him and argued with him then assaulted him. The offenders chased the victim and punched him several times. Tthe victim fell to the bitumen road and cut his upper lips which split into two and even fainted on the spot.

ISSUES

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

SUBMISSIONS

The Prosecutionin submission made submission in reliance of the submission filed on the 11^th October 2016. It was submitted that the victim sustained injuries to his upper lips and forehead and sought medical assistance. He submitted the offence committed was a prevalent offence almost in every family unit and in the society. He added such offences can lead to permanent injuries or even death. He submitted the victim was drunk and was causing nuisance at the time of the incident and if the offenders were trying to stop him from doing what he was doing, they should have stopped him and taken him away, but instead they assaulted him. He submitted the victim was arguing with his own relatives and not with anyone of them to assault him for purposes of being provoked. The offenders had some grudges against the victim and intended to do what they did to him.

Mr.Hembehoiesubmitted that to show the general public and deter the offenders from committing any offences, the defendants be imprisoned the maximum penalty as prescribed by Section 6(3) of SOA .He 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.

He further submitted the offenders were first time offenders, unemployed and not married and both are from the Oiyabuvillage, Sepoi of the Gulf Province.

The offenders submitted they wanted to compensate the victim for the injuries he sustained. The offenders each submitted to compensate the victim with an amount of K500.00 each.

In respond, the prosecution on instruction from the victim submitted that victim agrees to the submissions by the offenders to compensate him. It was added that the victim concurs with the amount of K500.00 submitted by the offenders.

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 offenders 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 offenderspunched the victim as a direct result of the victim’s attitude at the location where the incident took place. The victim was drunk and was rowdy, uttering abusive words, causing disturbance to the residence there. The victim was even arguing with his own relative and assaulted him and it was that event that prompted the offenders to assault the victim.

The offenders had the benefit of a defense in provocation in relation to the uttering of the abusive words, the nuisance created, but the offenders confirmed their plea of guilty saying they assaulted the victim because he was assaulting another person. This other person is the victim’s own relative. Thus, the offenders were not provoked into assaulting the victim as the offenders were not provoked by the victim in assaulting the other person. Thus, the defence of provocation was not available to them.

The offenders’ guilty plea confirms that the victim sustained some injuries as a result of the assault inflicted on him. Though the prosecution submitted the victim received medical assistance, there is no evidence to confirm the nature of the extend he sustained. However, I accept the submission by the prosecution that as a result of the victim falling to the road, sustain cuts to his lips. Section 6(2) SOA defines how the definition of an assault is applicable and Section 6(1) ascertains the application of the force applied on the victim by the assailant.

The victim was drunk and was creating nuisance as people were living around that location, uttering abusive words, and assaulting another person who is believed to be his relative. When people are drunk, they become very powerful, they think they can do anything, as swearing, assaulting, destroying, becoming rowdy, creating nuisance, blocking roads to people and vehicle travelling. The moment they are drunk they become a different person. Here this is exactly what became of the victim, he thought he was more powerful, he can do anything. However, what the victim did was not right. The offenders as I have mentioned had the benefit of the defence of provocation available in the event, they submitted they assaulted the victim as a result of the victim’s nuisance, disturbance and abusive words being directed to them, but they assaulted as a result of the victim assaulting another person and on that basis, the defence of provocation was not available to them. I understand they went to the aid of the other person, the relative of the victim whom the victim was assaulting; they did not have any drudges against the victim as was submitted by the prosecution.

In any case, an event unfolds as a result of another event unfolding. The victim uttered the actions that triggered the offenders to assault him, but they were not provoked by his actions as I have asserted earlier.

The aggravating factors against the offender are; the assault on the victim in which the offence was committed. The mitigating factors are that the offendersare first time offenders, they have the benefit of their guilty plea, the facts demonstrates as to the offenders assaulting the victim and showed remorse by submitting to compensate the victim for what they did to him.

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 offenders submitted to compensate the victim with an amount of K500.00 each.

The offenders did not submit as to what kind of penalty to be imposed on him. However, considering what they submitted in their submissions I am of the view that they 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 as to compensation.

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 with the view that hey all live around the same area.

ALLOCUTUS ADMINISTERED

Allocutus was administered and the offenders said they were sorry for what they did to the victim. They said sorry to the victim, the victim’s patents and the Court.

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 prosecution’s submission in respond to the offenders’ submission for compensation on instructions that the victim accepted the offenderssubmission to compensate in the amount submitted by the offenders.

SENTENCE

The Court is now placed in a position to consider the appropriate penalty to the offenders 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. The Court also takes consideration of the attitude displayed by the victim which indirectly triggered the offenders to assault him. Though the offenders submitted to compensate the victim at an amount of K500.00 each and that that amount was accepted by the victim, the Court takes a twist in consideration of the nature and circumstances of the case so that deterrence is not only applicable to the offenders but is also applicable to the victim and the public at large.

The victim as a result of his uncalled acts and omissions was assaulted by the offenders. There was no intention of the assault on the victim by the offenders if it was not for his rowdy attitude. This will be a signal to the public that one cannot do an unlawful act then cry to the Court for an unlawful act on him or her as a result of the act performed by him or her.

COURT ORDER

1. The offendersaresentenced to three (03) months imprisonment,sentence fully suspended and ordered forcompensation.
2. The offenders each to pay an amount of K200.00 compensation to the victim.
3. Offenders’ bail money of K200.00 to be refunded.
4. The compensation to be paid by the offenders within two week from the date of this order.
5. The offenders 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 03^rd November 2016 at 9.30 am

Police – Prosecution

Defendants – In Person