Police v Mori [2021] PGDC 104; DC6059 (28 July 2021)

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SITTING IN ITS SUMMARY JURISDICTION]
B. No 953 of 2021
CB No. 1718 of 2021

PRACTICE AND PROCEDURE- Sentence – Plea – principles of sentencing discussed and considered – Unlawful Assault- Use of Weapon- Aggravating and Mitigating Factors Considered – Imprisonment for 12 Months.

S Tanei: The Offender, Kaupa Mori was charged with one count of Unlawful Assault contrary to section 6(3) of the Summary Offences Act 1977.

3. I requested for a Pre-Sentence Report and the matter was adjourned for submissions on sentence.

7. On 18^th June 2021, at around 2pm, the Offender was in front of City Pharmacy at Boroko, National Capital District.

8. The victim and his children walked past City Pharmacy when the Offender approached them and touched the bum of one of the victim’s daughters. When the victim questioned him as to why he did that he replied by saying “Bai yu mekim wanem?” He then pulled out a green kitchen knife from his pocket and cut the victim on his chin.

10. The Offender was brought to Boroko Police Station where he admitted to committing the offence. He was formally arrested and charged and detained at the Boroko Police Cell.

11. The Offender is 18 years old and hails from Yani Village, Gumine, Simbu Province. He is single. He is a student and has prior convictions for unlawful assault and for being drunk and disorderly.

12. During Allocotus, the Offender said “Olgeta samting true. Me askim lo marimari blo kot. Me nonap mekim ken” When translated, it means “Everything is true. I ask for the Court’s Mercy. I will not do it again”.

13. The Court is faced with the issue of what penalty it should impose on the offender.

14. The Offender was charged under section 6 (3) of the Summary Offences Act 1977. This particular provision provides that;

“(3) A person who unlawfully assaults another person is guilty of an offence”

15. The Penalty provision in section 6 (3) has been amended by Section 5 of the Summary Offences (Amendment) Act 2018. This offence now carries a penalty of a fine not exceeding K 4, 000.00 or imprisonment for a term not exceeding two (2) years.

SENTENCE
16. I adopt the sentencing process applied by His Honour Justice Cannings in the case of State –v- Dua (2013) PNGNC 8; N4957 and the case of State –v- Sapik Tommy [2014] PGNC 103; N5647. In those cases, the the following decision making process was used:

17. The prescribed maximum penalty under the Summary Offences Act is a fine of K 4, 000.00 or 2 years imprisonment. This is reserved for the worst case scenario.

19. In many cases where the offender pleaded guilty, the Courts held that the proper starting point would be the mid-point. In our case, the mid-point would be K 2000 fine or 1 year imprisonment.

20. It is also important to look at the sentencing trend and similar cases when deciding on the starting point.

21. The table below shows cases where the Courts dealt with equivalent offences

Case	Brief Facts	Weapon or No Weapon?	Sentence	Was the sentence suspended?
*Police –v- Aspi Awinjip [2009] DC936*	Defendant pleaded guilty to assaulting the victim using an iron rod.	Yes (Iron rod)	12 months imprisonment	Yes
*Police v Ruti [2021] PGDC 9; DC5062*	the Offender pleaded guilty to unlawful assault where she used a can to hit the victim on her head which injured the victim’s head.	Yes (Can of coke)	6 months imprisonment	Yes
*Police –v- Maso [2021] PGDC 98; DC6052*	the Offender was found guilty of assaulting another female by hitting her head with a big stone.	Yes (big stone)	12 Months Imprisonment and Compensation of K 300.00	Yes
*Police v Metoa [2014] PGDC 9; DC2060*	the Offender pleaded guilty to assaulting the victim by punching him and using a wooden stool to hit him	Yes (wooden stool)	Fine of K 200	-
*Police –v- Aifarapo [2021] PGDC83; DC6040*	the Offender was found guilty of unlawfully assaulting his sister by punching her with his folded fists	No	Fine of K 300 and Compensation of K 200
*Police –v- Rose Parapu B. 1980 of 2020, 20.07.2021, Unreported*	the Offender was found guilty of unlawfully assaulting another female by punching her with her fists and breaking her blouse in a public place	No	3 Months imprisonment and compensation of K 200.	Yes
*Police –v- Marcus Kachau [2010] DC948*	The Offender pleaded guilty to one count of unlawful assault where he continuously punched and kicked the victim until he was unconscious	No	6 months imprisonment	Yes
*Police –v- Kavip Tetenge [2008] DC896*	the offender pleaded guilty to unlawful assault where he punched his pregnant wife all over her body and the wife had a miscarriage later that day	No	6 Months imprisonments	Yes

22. The Offender pleaded guilty so he will be given the benefit of the doubt on mitigating factors. The mitigating and aggravating factors are listed below.

25. Prosecutor Wilson Golina of Police Prosecutions submitted that this is a serious offence where the victim suffered injury on his chin from the assault where a weapon was used. He also submitted that the offence is prevalent in the city. That is, people like the Defendant loiter around busy places in the city and prey on innocent citizens. He asked for the maximum custodial sentence.

26. In response, the Offender asked the Court for mercy and for a non-custodial sentence given the fact that he is a student.

27. From the precedents in the table, cases that involved the use of weapons and carried severe aggravating factors drew sentences of imprisonment for 6 to 12 months.

28. In this case, I take into account the fact that this particular offence and the circumstances surrounding it are so prevalent in the city. Every day innocent people are being attacked, robbed and assaulted in the manner in which the victim in this case was assaulted.

30. On that day, the victim and his family were minding their own business walking home when they were attacked by the Offender at a Public place. The action by the offender is totally uncalled for. He had no right to do what he did to the victim and his family.

31. The Offender’s mitigating factors do not work in his favour in this case. The aggravating factors overshadow the mitigating factors.

32. I now remind myself of the purposes of sentences. Sentences must be for deterrence, separation, rehabilitation and retribution (Acting Public Prosecutor –v- Aumane, Boku, Wapulai and Kone [1980] PNGLR 510).

33. I am of the view that the sentence in this case must rehabilitate the Offender. It must also send a message out to others and deter them from committing this particular offence or offences similar to such. It is my view that a custodial sentence is the most appropriate form of penalty for the Offender if he is to be rehabilitated and if others as well as himself are to be deterred from committing this offence.

34. I therefore sentence the Offender to twelve (12) months imprisonment in hard labour.

35. In dealing with this particular question, I take into account the offender’s age and his guilty plea. However, they do not work in the offender’s favour.

36. The Offender is a repeat offender. He has two prior convictions; one for being drunk and disorderly and the other for unlawful assault. There is no guarantee that he will not commit any other offence if his sentence is suspended.

37. The Pre-Sentence report provided by the Probation Officer showed that his parents are also fed up of his actions. It is not favourable to the Offender.

39. Yes. The Offender’s time in custody shall be deducted from the Total Sentence pursuant to section 3(2) of the Criminal Justice (Sentences) Act 1986. He was in custody since 18^th June 2021.

40. Taking into consideration all the factors, I find that the appropriate penalty is twelve (12) months imprisonment in hard labour at Bomana Corrections Institution.

Papua New Guinea District Court

Police v Mori [2021] PGDC 104; DC6059 (28 July 2021)