State v Linus [2021] PGDC 150; DC7005 (6 October 2021)

DC7005

PAPUA NEW GUINEA

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

CR NO 21 OF 2020

THE STATE

V

JONATHAN LINUS
Defendant

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

CRIMINAL LAW – Unlawful Assault s. 340 (1) CCA –Plead Guilty-First time offenders- Appropriate sentence to imposed
Cases Cited: State V Goli Golu (1979) PNGLR,

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

JUDGMENT ON SENTENCE

9^th June 2021

1. TASIKUL PM: The prisoner Jonathan Linus of Tegese Village, Haku pleaded guilty for unlawfully assaulting the victim namely Fonsenia Larrence.
2. Facts
3. It is alleged that on 2^nd November, 2020 the prisoner was with the victim; his wife was at their residence on Sohano Island. The prisoner was questioning his wife what was her nice speaking about in their local language. The victim replied and told him that she was talking about her mobile phone. The prisoner accused her that she was lying and punch her with his fist all over her body.
4. He then removed his belt and whips the victim on her left arm. The victim sustains serious injuries and was taken to the hospital for treatment. She was admitted with a fractured bone on her left arm.
5. On the 15^th November, 2020 the prisoner again was drinking homebrew at their house on Sohano Island. Seeing her husband been very drunk she escapes to another house. The prisoner then when searching for her. He found her at their member’s residence. He dragged the victim out and starts punching her again. She also received serious injuries and was admitted to the hospital.
6. The prisoner was arrested and charge.
7. The issue: As the prisoner has pleaded guilty, the issue before this court is to determine what would be the appropriate sentence to impose on the prisoners.
   
8. The Law

Section 340 (1) of the Criminal Code Act states; (1) A person who unlawfully assaults another person and by doing so does him bodily harm is guilty of a misdemeanour. Penalty: imprisonment for a term not exceeding three years.

9. The prisoner is liable to be imprisonment for a term not exceeding three years. It is however, trite that the maximum penalty is usually reserved for the worst instance of a particular offence. The court has discretion to impose a lesser sentence, though, if the circumstances of the case warrant it pursuant to s. 19 of the Criminal Code. See. Goli Golu V The State (1979) PNGLR 653
   
10. In considering what would be the appropriate sentence to impose on the prisoner. I took into consideration the following factors. This includes prisoners’ personal particulars, mitigating factors, aggravating factors, submissions by both defence and prosecution and the pre-sentence report.
    
11. Personal Particulars.

The prisoner is 24 years old and comes from Tegese village, Haku Constituency, Buka Island. He is married with no children. He is unemployed. He completed his Grade 8 education at Sohano Primary School in 2014.

12. Mitigating Factors

The prisoner pleaded guilty to the charge, which saves everyone’s time, he express genuine remorse and a first time offender.

13. Aggravating Factors.

The offence committed is very serious where the victim sustains serious injuries on her head, arm and body. The victim suffered pain and loss of blood. The prisoner was drunk and attacks her in the night. He has no respect to her wife. He assaulted her on two separate occasions.

14. Submissions on Sentence

The defence through his lawyer submitted that the prisoner should be given a suspended sentence of 12 months based on the following factors. First, the mitigating factors I have mentioned above.

The defence lawyer also drew my attention to two similar cases. Firstly, State VS Amoka (2016) N6467 Unreported. Secondly, State VS Kupiyo (2017) N6991. In both of these two cases the prisoners each were given a suspended sentence of two years and three years respectively by the National Court.

The prosecution on the other hand failed to file their written submission.

15. Pre-Sentence Report

I noted from the pre-sentence report is willing to compensate the victim with K500.00. He is also willing to change for a better if given a suspended sentence. The victim however is not willing to go back to him as the prisoner is a violent person.

Allocutus

16. Before considering the sentence I ask the prisoner if he have anything to say. He reply that he is sorry for what happen.
    
17. Yes, it is trite law that the maximum penalty is always reserve for the worst type of offence committed. I do not think this is the worst type of case that warrants a maximum sentence. However, violence against women has become a major concern in the community. Husband this days do not respect their wives likewise women do not respect their husband. Cases that come before the court are determined on their own merits and the circumstance on how the offence was committed.
    
18. The case on hand display how disrespectful the prisoner was. The prisoner assaulted the victim his wife on the first occasion on the 2^nd November, 2020 and while she was still recovering he assaulted her again on the 15^th November 2020 a two week interval.
    
19. The medical report reveal that the victim suffered from fractured upper arm bone, soft tissue facial injuries, soft tissue right upper arm injuries and cause blunt trauma.
    
20. The court hereby make the following orders;
    
    1. The prisoner Jonathan Linus is hereby convicted and sentence to one year and six months imprisonment.
    2. His bail of K300.00 is refunded and converted as compensation to be paid to the victim
       
21. Order Accordingly.