Police v Maso [2021] PGDC 98; DC6052 (22 July 2021)

DC6052

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS SUMMARY JURISDICTION]

B. No 833 of 2021

CB No. 1408 of 2021
BETWEEN

THE POLICE
Informant

AND

STEPHANIE MASO
Defendant

Boroko: S Tanei

2021: 22^nd of July
      

SUMMARY OFFENCE – Unlawful Assault – s 6(3) – Summary Offences Act.

PRACTICE AND PROCEDURE- Sentence – Trial – principles of sentencing discussed and considered – Unlawful Assault- Serious Assault- Aggravating and Mitigating Factors Considered – Imprisonment for 12 Months – Fully Suspended- Good Behaviour Bond – Compensation – s 6(4) – Summary Offences Act 1977.

Cases Cited

State –v- Dua [2013] PGNC 8; N4957
State –v- Sapik Tommy [2014] PGNC 103; N5647
Police –v- Aspi Awinjip [2009] PGDC 104; DC936
Police –v- Marcus Kachau [2010] PGDC 1; DC948
Police –v- Kavip Tetenge [2008] PGDC 128; DC896
Police v Ruti [2021] PGDC 9; DC5062
Police v Joe [2021] PGDC 11; DC5064
Police v Metoa [2014] PGDC 9; DC2060
Acting Public Prosecutor –v- Aumane, Boku, Wapulai and Kone [1980] PNGLR 510
Police –v- Aifarapo [2021] PGDC 83; DC6040
Police –v- Rose Parapu B. 1980 of 2020, 20.07.2021, Unreported

References

Legislation

District Courts Act 1963
Summary Offences Act 1977
Summary Offences (Amendment) Act 2018

Counsel

Constable Tarrabie Agu, for the Informant

The Offender in Person

RULING ON SENTENCE

22^nd July 2021

S Tanei: Stephanie Maso was charged with one count of Unlawful Assault contrary to section 6(3) of the Summary Offences Act 1977.

2. After a trial, she was found guilty of committing the Offence on 30^th June 2021

3. On 15^th July2021, submissions on sentence were made.

4. This is my ruling on sentence.

FACTS:

5. The following are the facts that the Court found the Offender guilty of.

6. On 15^th May 2021 at around 4pm, the Offender was at her home at Petrol Street, North Waigani, NCD.

7. The victim and her friends went to the Offender’s street to leave another friend of theirs after church. They did not know that the Offender resided there. To their surprise the offender attacked the victim with a big stone on the back of her head. She was assisted by bystanders to assault the victim. She accused the victim of posting defamatory remarks against her on Facebook in January 2021.

8. The victim sustained a deep cut to the back of her head and lost blood as a result. She was rushed to the Gerehu Hospital where she received treatment.

9. She later laid a complaint at Waigani Police Station and the Offender was arrested and charged.

ANTECEDENT REPORT

10. The Offender is 24 years old and hails from Wapenamanda, Enga Province. She is married with no children. She is a student at International Training Institute and has no prior convictions.

ALLOCOTUS:

11. During Allocotus, the Offender said “Me first time offender, me rong na me tok sorry, me askim kot lo marimari lo me na me nonap mekim gen.” When translated, it means “I am a First time Offender, I was wrong and I apologise. I ask the Court to have mercy on me. I will not do it again”.
ISSUES:

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

THE LAW

13. Section 6 (3) of the Summary Offences Act 1977 provides that;

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

14. The Penalty provision in section 6 (3) has been amended by Section 5 of the Summary Offences Amended 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:

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence?
• Step 5: should all or part of the sentence be suspended?
  

Step 1: what is the maximum penalty?

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.

Step 2: what is a proper starting point?

18. It is important to have a starting point in a ruling on sentence.

19. The Offender was found guilty through a trial and so she will not be given the benefit of the doubt on mitigating factors.

19. As I have held in other cases where the Offender was found guilty through trial, the starting point will depend on similar cases and sentencing trends. I will apply this method in this case.

Step 3: what sentences have been imposed for equivalent offences?

20. The following are sentences passed on equivalent offences.

21. In the case of Police –v- Aspi Awinjip [2009] DC936, the offender pleaded guilty to one count of unlawful assault where he used an iron rod to attack the victim. He was sentenced to 12 months imprisonment, fully suspended and placed on Good Behaviour Bond.

22. In the case of 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. He was given a sentence of 6 months imprisonment (wholly suspended with conditions). He was also ordered to pay Compensation pursuant to Section 6 (4) of the Summary Offences Act.

23. In 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. He was sentenced to 6 months imprisonment in hard labour. The sentence was fully suspended with the offender placed on Good Behaviour Bond and the offender was also ordered to pay compensation to the victim.

24. In the case of 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. She was sentenced to 6 months imprisonment but that sentence was fully suspended and she was put on Good Behavior Bond and ordered to pay compensation to the victim.

25. In the case of Police v Joe [2021] PGDC 11; DC5064 the Offender pleaded guilty to using a knife to assault the victim. He was sentenced to 12 months imprisonment. However, this sentence was fully suspended and the Offender was placed on Good Behavior Bond given his age and other considerations.

26. In the case of 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. He was fined K 200 and ordered to pay compensation to the victim.

27. In the case of Police –v- Aifarapo [2021] PGDC83; DC6040, the Offender was found guilty of unlawfully assaulting his sister by punching her with his folded fists. He was fined K 300 and ordered to pay K 200 compensation.

27. In 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. She was sentenced to three (3) months imprisonment wholly suspended and was placed on Good Behaviour Bond. She was also ordered to compensate the victim a sum of K 200.

Step 4: what is the head sentence?

28. I am bound by law and practice to consider all mitigating and aggravating factors despite the fact that the Offender was found guilty through a trial. The following are the mitigating factors and aggravating factors;

29. The mitigating factors are;

1. Expression of remorse
2. First time offender
   

30. The aggravating factors are;

1. The victim suffered injury to her head
2. She used a weapon (a big stone)

100. She used aggravated violence

4. It was an unprovoked assault
5. She was assisted by bystanders
   

31. Prosecutor Tarrabie Agu of Police Prosecutions submitted that this is a serious offence where the victim suffered injury to her head. He also submitted that a penalty in this case must deter the Offender and other people from committing this offence in the manner the offender did. He further submitted that the victim wishes for the Offender to get the maximum penalty.

32. In response, the Offender asked the Court for a non-custodial sentence such as Good Behaviour Bond.

33. A closer look at the circumstances of aggravation and mitigation show that the aggravating factors outweigh the mitigating factors.

34. I am mindful of the purposes of sentencing. That is, sentences must be for deterrence, separation, rehabilitation and retribution (Acting Public Prosecutor –v- Aumane, Boku, Wapulai and Kone [1980] PNGLR 510).

35. From the precedents mentioned above, those that involved the use of weapons and carried severe aggravating factors drew custodial sentences of 6 to 12 months.

36. The Offender in this case must be given a penalty that will not only punish her but rehabilitate her and deter her and others from committing the same offence.

37. At that particular day, that assault on the victim was unprovoked, it was violently carried out with the help of bystanders and a weapon (a big stone) was used to hit a vulnerable part of the victim’s body, her head. The offender is lucky to have not been charged with an indictable offence as the circumstances of this case show that it is a serious assault.

38. I note the Offender is an educated person. She is attending International Training Institute. She ought to have known the consequences of breaking the law. She should have exercised restraint or even better, employed the most appropriate avenue to air her frustration for her allegation of Defamatory Publication against the victim. The most correct avenue would be for her to lay a Complaint with the Police for Defamatory Publication under the Cyber Crime Code Act so the victim could be dealt with according to law. Despite the availability of this mode of dispute resolution, the Offender chose violence and used a big stone to assault the victim the way she did.

39. The Offender’s mitigating factors do not work in her favour in this case.

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

Step 5: Should all or part of the sentence be suspended?

41. I take into consideration the Offender’s age, her expression of remorse and most importantly, the fact that she is a first time offender who has not committed any other offence before. She is a youthful offender and may be exposed to hardened criminals in custody. This will negatively impact her life as a young woman.

42. I will therefore suspend all of the sentence and put the Offender on Good Behaviour Bond for the length of her sentence.
CONCLUSION

43. Taking into consideration all the factors, I find that the appropriate penalty is twelve (12) months imprisonment, wholly suspended with the Offender placed on Good Behaviour Bond.

44. The Offender will also pay Compensation to the victim in the Sum of K 300 pursuant to section 6 (4) of the Summary Offences Act for the injury that the victim sustained on her body.

SENTENCE

45. The following is the sentence of this Court;

1. Stephanie Maso, having been found guilty and being convicted of the offence of Unlawful Assault under section 6 (3) of the Summary Offences Act 1977 is sentenced to twelve (12) months imprisonment.
   
2. The Offender’s sentence of twelve (12) months imprisonment is fully suspended and she will be Placed on Good Behaviour Bond commencing this instant under the following conditions;
   
   1. The Offender shall not consume any form of alcohol or dangerous throughout the length of her sentence.
   2. The Offender shall attend her local church every Sunday.
   100. The Offender shall do one day of Community service every fortnight under the Supervision of the Probation Officer and the Police Prosecutor.
   4. The Offender is restrained from harassing and or assaulting the victim in any manner or form and shall not reoffend or commit any other Offence while on Good Behaviour Bond.
   5. In default, the Offender shall be brought before the Court and if found guilty of breach of any of the Conditions listed above, the Good Behaviour Orders will be lifted and the Offender shall be committed to Bomana Prison to serve her full imprisonment term.
   6. The Good Behaviour Orders shall expire on 21^st July 2022.
      
3. Pursuant to section 6(4) of the Summary Offences Act 1978, the Offender shall compensate the victim in the sum of K 300.00.
   
4. The Offender’s Bail of K 300 shall be converted to compensation and shall be used to compensate the victim.
   

Lawyer for the Informant Police Prosecutions

Lawyer for the Offender: In Person