Police v Robin [2018] PGDC 18; DC4004 (23 February 2018)

DC4004
PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CRIMINAL JURISDICTION]

Cr. 133 & 134 of 2018

THE POLICE

Informant

AND

RICKY ROBIN & DESMOND ROBIN

Defendants

Goroka, P Kaumba, Magistrate

2018: February 22, 23

CIVIL:

Cases Cited:
Nil

References:
Nil

Counsel:

Lawyer for the Informant, Police Prosecutor, Ms Kundi.

Lawyer for the Defendant,In person.

23^rd February, 2018

SENTENCE

P KAUMBA, Magistrate: Onthe 21^st of February 2018 the Defendants were taken into custody by police and was charged for unlawful assault under section 6(3) of the Summary Offences Act(herein-after referred to as ‘the SOA’).The Accused appeared before me on the 22^nd day of February 2018from police custody. They pleadedguilty to the charge and the case was set for sentence on the 23^rdof February2018 and they were remanded in police custody.

STATEMENT OF FACTS

1. ‘’That on the 21^st day of February 2018 at about 12am at Mambu Market residential area.The defendants now before this court namely Ricky Robin and Desmond Robin did entered a dwelling house and assaulted the victim(complainant) by using folded fist and legs.

It was on the above mention date, time and place.The

Complainant(victim) Elizabeth David was fast asleep in her bedroom,

when the two(2) defendants broke into her house under the influence of

alcohol and used their fist and legs and punched her all over her body and

face.The defendants did argued with her and did punched her on her face

and body. She sustained injuries to her left side of the eye and fled to the

police station and laid a formal complaint. Police then attended and

apprehended the both suspects(defendants) and brought them to the

police station then formally cautioned, arrested and charged the both

defendants, assault,told of their constitutional rights under section 42(2)

of the constitution and detained in the police cells’’

ANTECEDENT REPORT

2. The First defendant is 26 years old, single, unemployed and has no previous convictions.
   
3. The second Defendant is 25 years old, single and unemployed and no previous convictions.
   

ARRAIGNMENT& CONVICTION

4. On arraignment the defendants pleaded guilty to the charge and did not dispute the statement of facts(above) and I confirmed their plea of guilty and convicted them.
5. Since the defendants pleaded guilty to the charge, the court can extract relevant information from the Statement of facts and the charge for the purpose of sentencing(State-vs- Sabarina(1988-1989)PNGLR 129).
   

ALLOCUTUS STATEMENT.

6. In allocutus the First Defendant said’’Minogatsampelatok long mekim.Mi tupelo mekimpinisinapkotmarimari long mitupela(I have no nothing much to say. We have done it Can the court have mercy on us)’’.
   
7. The Second defendant said‘Mitoksori long pasin mi mekim(I am sorry for what I did)’’
   

ISSUE(S).

8. (1) What is the appropriate penalty for Ricky Robin?
   • (2) What is the appropriate sentence for Desmond Robin?

.

SUBMISSION BY PROSECUTION.

9. Ms Kundi submitted that the court should consider the fact that the defendants are single, and have no previous convictions into account in sentencing.
   

OTHER MATTERS OF FACT.

10. The defendants pleaded guilty and they will be given the benefit of doubt in having all facts in the statement of facts, statement on arraignment, statement in allocutus, antecedent report and other statements made in court that are not contested into account in sentencing(SaperusYalibakup-vs- The State(2006)SCRA No522005),
    

SENTENCING PROCESS.

11. The sentencing process used by Justice Cannings in the case of State-vs-RakaBenson(2006)CR 447 &450 is a good guide and that is what I intend to use here with few modifications to fit this case and my style of delivering sentence.
    
    • (a) MAXIMUM PENALTY FOR OFFENCE.
      

SUMMARY OFFENCES ACT(SOA).
6 ASSAULT.

(1) In this section ‘applies force’ includes the application of heat, light, sound, electrical force, gas order 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 person 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 property of the person occasioned by or in the course of the commission of the offence, as it considers just.

(b).STARTING POINT.

K250.00 fine or imprisonment of 1 year.
(c), SENTENCING TREND AND GUIDES.
(i) TREND.
I have read somecases on sentencing on this kind of offences and
most decisions of the District Courts vary from court to court but
in many cases courts have imposed non -custodial sentences,
which include compensation to victims under pursuant section
6(4) of SOA and section 6(1) of the Criminal Compensation Act. In
Police- vs- Turana(2003) PGDC 38 –K200.00 court fine and K100.00
compensation to victim, State-v-Gabour(2007)PGDC 46-K50.00
compensation to victim,Mondo-v- Ine(2007)PGDC 83-6 months
IHL, State-vs-Atmeyok(2009)PGDC 1 -6pm to 6 am detention for 5
days, State-v- Kabui(2009)PGDC 2-12 months IHL, sentence
suspended and placed on GBB for 12 months with conditions,
Police –v- Gabby(2009) 63-12 months IHL.Sentence suspended
and placed on GBB with conditions, Police –v- Awinjip (2009)PGDC
104 -12 months IHL, Suspended & placed on GBB with other
conditions, Police-v- Mokoti(2009) PGDC 95- 6 months GBB and
Police-v- Kachau (2010)PGDC 47- 6 month IHL, suspended and
placed on GBB with conditions include payment of K400.00 to
victim.
(ii) GUIDE.
Highest penalty should be reserved for offences for worst type of
Offences(State-vs- Michael K Mani(21/5/2002)N2246.
Courts can impose the highest penalty if circumstances and gravity
of the offence requires it to do so.
Courts can impose the highest penalty if it is of the view that that
high penalty needs to be imposed to deter potential offenders to
take heed of its decisions to and conduct their affairs in
compliance with the laws of the country.
Guilty plea and first time offender are factors that will act in
mitigating the seriousness of the offence{state –vs= Mani(supra)}.
Prevalence of the offence is an aggravating factor{State-vs-
Mani(supra)}

(d).CIRCUMSTANCES IN WHICH OFFENCE WAS COMMITTED.
(See statement of facts above).

1. RICKY ROBIN(First Defendant).

(i) MITIGATING FACTORS.

(a). Plea of guilty made the work of police and the courts easy.
(b) No previous conviction.

(ii) AGGRAVATING FACTORS.

(a). Prevalence of the offence.

(b).The defendant unlawfully entered the victim’s premises.

(c). Breaking into the victims house.

(d). Offence committed under influence of alcohol.

B. Demson Robin(Second Defendant).
(i).MITIGATING FACTORS.
The mitigating facts in the defendants favour are:
(a). Pleaded guilty thus making work of police and the court easy.
(b). No previous conviction.
(c). Apologized for his actions.

(ii).AGGRAVATING FACTORS.

The aggravating factors against the defendant are:
(a).Prevalence of offence.
(b).The defendants unlawfully entered the victims premises.
(c).Breaking into the victims house.
(d).Offence committed under influence of alcohol.

(e).SENTENCING CONSIDERATIONS AND SENTENCE.
The defendants were luck to be charged with assault only because
There were more than one offence was committed by the
Defendants. Police did not do a good job but the Defendants will
be given the benefit of doubt.
Nevertheless the defendants assaulted the victim all over her body
In her house which is a serious offence and this type of offences
are prevalent and people in our society have been calling tough
action on persons who perpetrate his kind of offences on women
who are of the weaker sexand the defendants need to be
punished to send a message to potential offenders in our society
to be careful not to commit this kind of offences and look at

peaceful means to solve their disputes. Hence I intend to follow my brother magistrate in case of State –v- Turana(supra) and impose a fine and order compensation to the victim.

(1) First Defendant shall pay K120.00 fine.In default the Defendant shall be imprisoned for one month.
(2) The Second defendant shall pay K100.00 court fine. In default three(3) weeks imprisonment.
(3) In addition to the above orders the Defendants shall jointly and severally pay K280.00 to the victim as compensation pursuant to section 6(4) of the SOAand section 6(1) of the Criminal Compensation Act upon release from police custodyand within 21 days from date of release. In default two(2) months imprisonment with hard labour.
(4) The Default sentences to be served concurrently.

The Defendants pleaded guilty to the charge and the extent of the injuries the victim received is not in evidence before this court and the victim can sue the defendants for compensation if the compensation ordered by this court is not adequate compensation for her injuries. In any event this is not a civil court that can obtain evidence to assess damages properly and award adequate compensation. A criminal court can only give a fraction of damages(‘’sore pay’’ as many in in our society call it) to enable the victim to meet his/her costs to pursue compensation in the civil courts and that is up to the victim to take that option.

Counsel:

Lawyer for the Informant, Police Prosecutor, Ms Kundi.

Lawyer for the Defendant, In person.

23^rd February, 2018