Nup v Hambuga [1984] PGNC 40; [1984] PNGLR 206; N478(M) (2 August 1984)

N478(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

FREDA NUP

V

CHRIS HAMBUGA

Madang
Bredmeyer J

1-2 August 1984

CRIMINAL LAW - Sentencing - Statutory dispositive powers - "Character" - "Antecedents" - "Trivial nature of the offence" - "Extenuating circumstances - District Courts Act 1963, s. 138.

INFERIOR COURTS - District Court - Sentencing - Statutory dispositive powers - "Character" - "Antecedents" - "Trivial nature of the offence" - "Extenuating circumstances" - District Courts Act 1963, s. 138.

SUMMARY OFFENCES - Assault - Provocation - Not available as defence - Summary Offences Act 1977, s. 6(1).

CRIMINAL LAW - Particular offences - Assault - Summary offence - Provocation - Not available as defence - Summary Offences Act 1977, s. 6(1).

The District Courts Act 1963, s. 138, provides:

"138(1) Where a person is charged before a court with a simple offence, and the court thinks that the charge is proved but is of opinion that, having regard to the character, antecedents, age, health or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, it is inexpedient to inflict punishment, or other than a nominal punishment, or that it is expedient to release the offender on probation, the court may, without proceeding to conviction," make orders dismissing the charge or discharging, either conditionally or unconditionally, the offender.

Held

(1) One or more of the factors mentioned in s. 138 must be established before the court may impose the punishment provided therein.

(2) "Character" refers to positively good character, as shown by for example voluntary work in the church or community: it means more than simply the absence of prior convictions.

(3) "Antecedents" refers to prior convictions, if any, the existence of which would preclude application of the section, the absence of which does not automatically lead to application of the section.

(4) The "trivial nature of the offence" is to be ascertained separately from the place which the criminal conduct might occupy in the seriousness of crimes of that type.
R. v. Morse (1979) 23 S.A.S.R. 98, referred to.

(5) "The extenuating circumstances under which the offence was committed" are circumstances which lessen the seeming magnitude of guilt by a partial excuse, and may include:

(a) provocation which is not sufficient to constitute the defence of provocation; and/or

(b) domestic or emotional stress.

Held further

(6)1 The defence of provocation is not available to a charge of assault under the Summary Offences Act 1977, s. 6, but may be an important mitigating factor on punishment.
Aipa Peter v. James Kapriko [1984] P.N.G.L.R. 179, followed.

Cases Cited

Aipa Peter v. James Kapriko [1984] P.N.G.L.R. 179.
John Mongo and Lazarus Pisu v. Simon Saun (Unreported judgment N470, Pratt J. of 13 July 1984).
Mogia Widu v. Koda Ubia (Unreported judgment N473, Pratt J., of 11 May 1984).
R v. Morse (1979) 23 S.A.S.R. 98.

Appeal

This was an appeal against conviction and sentence on a charge of assault brought pursuant to the Summary Offences Act 1977, s. 6(1).

Counsel

M. Konido, for the appellant.
R. Auka, for the respondent.
Cur. adv. vult.

2 August 1984

BREDMEYER J: This is an appeal from the District Court at Lorengau. The appellant was convicted of assault and sentenced to the minimum penalty prescribed by s. 6(1) of the Summary Offences Act 1977, namely six months imprisonment.

At the trial the police read a statement of facts as follows:

"That on Saturday 14 April 1984 at about 7.30 a.m. at Lorengau Patrol Boat Base the complainant namely Jean Kawos was going to the gate to a bus with her wantoks to Lorengau. While the complainant and another wantok were walking towards the gate, the defendant now before the court Freda Nup walked towards the complainant and grabbed the complainant on her neck and bite her (compl) on the side of her face. As a result, the complainant had a cut on the side.

After that the complainant reported the matter to the police, the police then followed up the matter and took both the complainant and the defendant now before the court to the police station. At the police station the defendant was questioned regarding the alleged assault that occurred on 14 April 1984, at Lombrum and the defendant freely admitted the offence by saying "that she assaulted her because some of her friends had told her that her husband usually went out with the complainant so she assaulted her."

The appellant said it was correct but added the following:

"The reason why I hit the complainant was because my husband usually gets involved with the complainant. Lipusu saw my husband with the complainant then he came and told me about it. Therefore I was angry so I fought the complainant. When I hit the complainant she also told me about it when I hit her. Guran my husband told me about it. That is all."

The magistrate was told that the appellant was aged 26, married with one child, employed as a sister at the Lombrum Naval Base Hospital. She had no prior convictions.

The first ground of appeal is that the magistrate erred in law in convicting on a plea of guilty when the statement of facts and the allocutus disclosed a defence of provocation. I adhere to the view I expressed in Aipa Peter v. James Kapriko [1984] P.N.G.L.R. 179 and John Mongo and Lazarus Pisu v. Simon Saun (Unreported judgment N.470 of 13 July 1984) that provocation is not a defence to assault under s. 6 of the Summary Offences Act. Contrast this with the offence of assault under s. 335 of the Criminal Code; provocation is a defence to that offence by virtue of s. 266 and s. 267 of the Criminal Code. Although not a defence to the offence of assault as created by s. 6, provocation is an important mitigating factor on punishment, see Thomas, Principles of Sentencing (2nd ed. 1979), at 206.

Counsel for the appellant has argued that the magistrate should have applied s. 138 of the District Courts Act 1963 to this offence.

Section 138 provides:

"Conditional release, etc

138(1) Where a person is charged before a court with a simple offence, and the court thinks that the charge is proved but is of opinion that, having regard to the character, antecedents, age, health or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, it is inexpedient to inflict punishment, or other than a nominal punishment, or that it is expedient to release the offender on probation, the court may, without proceeding to conviction, make an order either:

(a) dismissing the charge; or

(b) discharging the offender conditionally on his entering into a recognizance, with or without sureties, to be of good behaviour and to appear for conviction and sentence when called on at any time during such period, not exceeding three years, as is specified in the order.

(2) Where an order is made under the last preceding subsection, the order shall, for the purpose of:

(a) revesting or restoring stolen property;

(b) enabling the court to make orders as to the restitution or delivery of property to the owner;

(c) the payment of money upon or in connexion with that restitution or delivery; and

(d) an appeal against conviction,

have the same effect as a conviction."

Section 138 remains open to the District Court despite the minimum penalties legislation. By way of contrast s. 206 of the District Courts Act, another general mitigating section, by express amendment does not apply to minimum penalties: see District Courts (Amendment) Act No. 34 of 1983.

There are seven factors mentioned in s. 138 one or more of which must be established before the court can impose the punishment provided by that section. The first factor mentioned in the section is "character". I consider it means more than simply the absence of prior convictions. It means positively good character as shown by voluntary work in the church or community for example. The defendant’s prior convictions, if any, fall for consideration under the heading of "antecedents". There is nothing in the appellant’s personal particulars which suggests positively good character as contemplated by this section. She is a sister in a hospital which is a most responsible and worthwhile position but it is a paid position, it is her job, and is not evidence of positively good character.

"Antecedents" in s. 138 refers to the defendant’s prior convictions, if any. In this case the appellant has no priors. I do not consider that in every case where the defendant has no priors, s. 138 should be applied, but the existence of priors would almost invariably preclude s. 138 being applied. This appellant had no priors; it does not automatically lead to the application of s. 138 but it is a factor which, when taken with other factors, may lead to the application of s. 138. Section 138 mentions "age, health or mental condition" as factors. There is nothing unusual in the appellant’s age, health or mental condition which justifies applying s. 138 to her.

Section 138 mentions the "trivial nature of the offence". In this case the appellant grabbed the victim by the neck and bit her on the side of the face. As a result she had a cut on the side of the face. There is no evidence as to whether the victim received medical treatment. I do not regard the injury as trivial. The victim would regard it as a nasty and painful experience being attacked at the bus stop, grabbed on the neck and bitten on the face. It is not the least serious kind of assault such as a touching with the finger or an open hand; that the skin was cut suggests an assault occasioning bodily harm and/or possibly a wounding.

Although I do not regard the assault as trivial I regard it as a minor assault. Under common law principles of sentencing the sentencer must always look at the place which the criminal conduct occupies in the scale of seriousness of crimes of that type: see R. v. Morse [1979] 23 S.A.S.R. 98. And the less serious the violence the greater the importance of personal mitigating factors, Thomas, op. cit., at 101 and 105. If I was fixing a sentence or reviewing a sentence on appeal I could apply these common law principles but I do not think I can in applying s. 138. The assault was minor but not trivial, and the phrase "extenuating circumstances" which I discuss in a moment refers not to the seriousness of the assault so much as the circumstances, under which, and the reasons why, it was committed.

The seventh factor mentioned in s. 138 is "the extenuating circumstances under which the offence was committed". Counsel have been unable to assist me with argument on the meaning of the phrase and I have not researched it through legal dictionaries. I apply the Oxford Dictionary meaning of "extenuate" to the word "circumstances" to get a definition. Extenuating circumstances are circumstances which "lessen the seeming magnitude of guilt by a partial excuse". In this case the appellant acted under provocation when she bit the victim because she was told by friends that her husband was going around with the victim. The District Court papers do not show when the appellant was told about that. She may have been told on the day of the offence, the day before, or several days before. In my view, and I express it tentatively because I have not heard argument on it, whenever she was told does not matter in this context. It seems to me that provocation which reduces punishment is wider in scope than provocation which reduces murder to manslaughter. In the latter case the provocation must be words or actions by the deceased to the accused which would cause any reasonable person and actually causes the accused to lose his self control. Also he must act immediately on the provocation before his passion has time to cool. Archbold, Criminal Pleading, Evidence and Practice (38th ed., 1973), pars 2501 and 2508. It seems to me that an offender can get a reduction in sentence from provocation even though, for example, his response was late and was made after his passion had time to cool. On this view the appellant assaulted the victim under mitigating or extenuating provocation whenever she was told about it.

Whether I be right or wrong on that view, Thomas mentions that domestic or emotional stress is accepted by the courts as a mitigating factor and should in my view also be regarded as an extenuating circumstance. Thomas at 207 states:

"A frequent explanation of uncharacteristic offences is that they result from acute emotional stress. The most common example is the offence of violence committed against a wife or husband, or a third party who has become involved with one of them, as a result of a deteriorating marriage. In such cases the circumstances which precipitate the violent act are usually treated as significant mitigating factors."

I now propose to apply this discussion of the law to the facts of this case. I consider that only two of the seven factors listed in s. 138 are relevant: the appellant’s antecedents — no prior convictions — and the extenuating circumstances under which the offence was committed. Of these two the latter is the more important. I consider that the offence was committed under the extenuating circumstances of provocation and/or domestic stress. I therefore consider that s. 138 should have been applied and that the learned magistrate erred in law in not applying it. That amounts to a substantial miscarriage of justice: s. 236(2) of the District Courts Act. I therefore allow the appeal and I order the release of the appellant from custody forthwith.

Although the appellant has served over three months of her sentence I consider that I should apply s. 138. I do not consider that I can quash the conviction, without more, because the elements of the offence were proved. Nor do I consider that I can simply allow the appeal against sentence and substitute for the six months imposed by the magistrate, the period of custody already served, because the offence carries a minimum penalty of six months and I cannot in effect substitute a sentence of three months on appeal. The magistrate who heard the case had only two options open to him: to impose six months imprisonment or apply s. 138. On appeal I have the same powers by virtue of s. 256 of the District Courts Act but no more. I can substitute an order which the magistrate ought to have given but I can do no more. I therefore propose to apply s. 138. I allow the appeal against conviction and sentence. I quash both conviction and sentence. I consider that the charge of assault has been proved but having regard to the antecedents of the appellant and the extenuating circumstances under which the offence was committed, I consider it expedient to release the appellant on probation. I order the appellant to enter into a recognizance under s. 138 before the senior magistrate at Lorengau in the sum of K100 cash, and without sureties, to be of good behaviour and to appear for conviction and sentence when called upon at any time within one year from 24 April 1984 which was the date of conviction. I direct the appellant to enter into that recognizance before the magistrate in Lorengau within two weeks of her release from prison.

Since orally delivering the above judgment I have read Pratt J.’s judgment to the contrary in Mogia Widu v. Koda Ubia (Unreported decision N473 of 11 May 1984). I hope that the Public Solicitor will appeal against my decision so that the Supreme Court can resolve the conflict.2 I agree with Pratt J. to this limited extent: until 1978 provocation was a defence to assault because the only offence of assault was created by the Criminal Code and that offence was normally prosecuted as a summary offence in the Local and District Courts. There was no offence of assault in the Police Offences Act of Papua or the Police Offences Act of New Guinea. When the Summary Offences Act 1977 came into force on 23 March 1978 the police began to prosecute under s. 6 of that Act rather than under the Criminal Code. In 1980 common assault in the Criminal Code became an offence triable by a grade V magistrate. It became a Sch. 1A offence by the Criminal Code (Indictable Offences) Act 1980. Despite the existence of the Code offence of common assault which is triable summarily or on indictment, since 1978 it seems that the police have prosecuted for assault under s. 6 of the Summary Offences Act and not under the Criminal Code.

Orders accordingly.

___________________________

Lawyer for the appellant: Public Solicitor.
Lawyer for the respondent: Public Prosecutor.

[1984] PNGLR 212 - SCR No 1 of 1984; Morobe Provincial Government v The State and Michael T Somare