State v Mamaris [2021] PGDC 148; DC7003 (6 October 2021)

DC7003

PAPUA NEW GUINEA

[IN THE DISTRICT COURT (GRADE V JURISDICTION) OF JUSTICE]

CR NO 5-8 OF 2021

THE STATE

V

DAVID MAMARIS
1^st Defendant
V

LESTER MAMARIS
2^nd Defendant

V

ALFRED KOROATS
3^rd Defendnat

V
TERENCE GIOBUN
4^th Defendant

BUKA: TASIKUL B, PM
2021: 06^th October

CRIMINAL LAW – Appropriate sentence -Unlawful assault causing bodily harm-Defendants were drunk causing serious injuries-Plea of guilty not a mitigating factor- Compensation as part of the sentence.18 months suspended sentence.

Cases Cited:
Legislation: Criminal Code Act,

Counsel: Mr. Kuusa of Public Solicitor
Prosecution: Senior Constable Chris Makoe of Buka Police Station

JUDGMENT ON SENTENCE

06^th October, 2021

1. TASIKUL PM: The defendants each and severally pleaded guilty to the charge of Unlawfully Assaulting John Hamel and by doing so cause bodily harm. The following facts they pleaded guilty to.
   
2. It is alleged that on the 1^st January,2021 the victim namely John Hamal woke up and went to go to see his parents and greet them as it was a new year day. After greeting them he walked back to his house. On the way back he met the defendant David Mamaris, whom he asked him where he was coming from. The victim told him that he came from his parents’ house.
   
3. The defendant David Mamaris responded and said, I also want to shake hand with Ignatius. The victim asked him for what reason. The defendant replied and told him that the had a fight last night. The victim then told him to leave as he was very drunk and once the are sobber they can sort their problem at a later date.
   
4. When the victim was saying this the defendant got up and told him as baby sense. As they were talking the other defendant Lester Mamaris came up and also brand him as baby sense. The victim responded and told them both that they were Teachers and should use their common sense to solve their problem after they are sobber.
   
5. When the victim was still talking the defendant, David Mamaris started punching him. The victim escapes to Paul Token house but the two defendants followed him where the other two defendants namely; Alfred Koroats and Terence Giobun joined up with them and the four of them started assaulting the victim. They use their fists and boots to assault him. The four defendants continued to assault the victim until he jumped down from the house and escape from them. As the result the victim sustain serious injuries all over his body.
   
6. The victim reported the matter to police and the four defendants were arrested and charged.
   
7. When the charge was read to the defendants each and severally pleaded guilty to the charge and facts before the Court. I am satisfied that the defendants understood the nature of their plea. I therefore confirm the plea of guilty.
   
8. The issue now before this Court would be the question of what would be the appropriate sentence this court should pass on the defendants?
   
9. Mr Kuusa from the Public Solicitor appearing for the four defendants submitted that 18 months suspended sentence would be appropriate. He cited the two cases for comparable in sentencing; State Vs Sabuin (2006) N4475, Buka Cannings J In this case the three co-accused pleaded guilty to assaulting another person. It was a fight amongst friends who were drunk at that time. The argument started as the result of the victim accusing the three offenders of stealing his fuel. The Court took into consideration the degree of involvement of each individual and sentenced each individual accordingly. The victim received serious injuries and was admitted to Buka Hospital. The injuries however were not permanent. One offender received 18 months, second offender 2 years and third 2 years. The Court then wholly suspended the sentence of all offenders with strict conditions. The Court also ordered the offenders to pay a total of K1300.00 compensation to the victim.
   
10. Secondly State v Dustan Laukai DC 3015 which I preside over. The court sentence the defendant to 2 years imprisonment but wholly suspended the whole of the sentence with strict condition. The court ordered the defendant to pay K1000.00 compensation to the victim and ordered for a customary reconciliation.
    
11. He further submitted that there was a degree of provocation. That is when they saw the victim threw David a relative high from the veranda to the ground resulting him being unconscious.
    
12. The prosecution however did not provide the court with a proper submission on sentence. The prosecution submitted that the court should exercise its discretion to sentence the four defendants
    
13. The probation officer submitted a pre-sentence report which speaks favourable to the 4 defendants. The probation report indicated that the victim wants the defendants to compensate him. He wants both David and Lester Mamaris to pay K10,000.00 each and Alfred Koroats and Terrence Giobun to pay K5000.00 each, a total of K30,000.00. The report recommended for the offenders be placed on a 12 months’ probation.
    
14. Section 340 (1) of the Criminal Code states that a person who unlawfully assaults another person and by doing so does him bodily harm is guilty of misdemeanour. Penalty imprisonment for a term not exceeding three years.
    
15. While the prescribe penalty under this provision is serious as prescribe by the law, the maximum penalty is reserved for the worst category of the offence- see Goli Golu v The State (1979) PNGLR. Section 19 of the code also authorised the Court to impose a lesser sentence taking into account the circumstance of the case.
    
16. In this present case the strong aggravating factor is that the defendants were all under the influence of alcohol when the committed the offence. The victim sustains serious injuries as result he was hospitalised. Even though the medical report states the victim did not sustain permanent injuries, he suffered pain and swollen all over his body.
    
17. A plea of guilty in my view must not be considered as a mitigating factor in sentencing of an offender. Waste of time and cost is irrelevant as the court is duty bound to perform its services as a government institution. The only mitigating factor in this matter is the defendants have no previous conviction and they did cooperate well with the police when they were arrested.
    
18. Unlawful assault causing bodily harm is one of the most prevalent offences of violence today in our society. People no longer respect the rule of law in addressing some of their issues. People continued to restore to violence and ignore established institutions to address their problems.
    
19. The court has the duty to enforce the laws to its fullness and to protect its citizens if people continued to restore to violence and other unlawful behaviour.
    
20. Sentencing of offenders must reflect the seriousness and the circumstances of the offence. It must also consider the degree of injuries sustained by the victim.
    
21. Having considered the seriousness of the offence and the injuries sustain by the victim and the victim willingness to reconcile with the defendants as per pre-sentence report. I propose to order compensation.
    
22. I noted that both David and Lester Mamaris are teachers by profession and both are employed with the Education Department. If I convict and imposed a custodial sentence, both will lose their jobs and their family will suffer. However, they must bear the consequence of their action.
    
23. For the defendant Alfred Koroats is a Village Court Peace officer. His duty is to maintain peace in the village. His action speaks otherwise.
    
24. Having considered all of the above I hereby sentence the defendants to 18 months imprisonment each. The whole of their term be suspended and each be release on probation for a period of 18 months. In additional to their probation the defendants pay compensation to the victim as follows;
    
    1. David Mamaris pays K1300.00
    2. Lester Mamaris pays K1300.00
    3. Alfred Koroats pay K1200.00
    4. Terence Giobun pay K1000.00
    25. The payment be made when they opt to reconcile and be witness by the Probation officer. It must be done within or before November,2022.
    26. The probation Officer to submit a report on the progress of the payment and reconciliation.
        
27. In the event any probationers’ breaches any of this term and condition, they be brought before this court and be sentence accordingly.