N2815

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 337 0F 2005

THE STATE

V

A JUVENILE, M

BUKA: CANNINGS J
17, 23 MARCH 2005

SENTENCE

Criminal law – indictable offence – Criminal Code, Division V.5, Assaults – Section 335, common assault – sentence on plea of guilty – offender aged 14 years – juvenile offender – Juvenile Courts Act – special procedures – victim working in her garden when offender grabbed her from behind, touched her breasts and slapped her face – offender acted alone – no weapons used or aggravated physical violence – no physical injury – isolated incident – offender did not surrender – cooperated with police – no trouble caused with victim since the incident – nothing tangible done towards repairing his wrong – determination of maximum penalty – expression of remorse – first offender – youthful offender – no educational background – starting point for head sentence – identification of relevant considerations – application of relevant considerations – sentence of 3 months. 

Cases cited:
There are no cases cited in the judgment.

Counsel:
L Rangan for the State
L Siminji for the accused

CANNINGS J: 

INTRODUCTION

This is a decision on the sentence for a male juvenile who pleaded guilty to a charge of assault.

BACKGROUND 

Incident

The incident giving rise to the charge took place in southern Bougainville on 2 October 2004. It was alleged that the accused assaulted a woman who was working in her garden.

Arrest and detention

On 18 November 2004 he was arrested and charged with attempted rape under Section 348 of the Criminal Code. He was then brought from south Bougainville to Buka. He was brought before the District Court on several occasions. On 27 January 2005 he was granted bail by the District Court. But he was apparently unable to raise the K300.00 cash on which the bail was conditioned. So he has remained in custody at the Buka police lock-up. On 17 February 2005 he was committed to stand trial in the National Court. 

Indictment

On 17 March 2005 the accused was brought before the National Court and faced an indictment charging him with unlawful assault. The indictment was presented under Section 335 of the Criminal Code (common assault). He was no longer facing the charge of attempted rape, which is a much more serious crime than assault.

STATUS AS A JUVENILE

Jurisdiction of National Court

It was evident that the accused was a young person so at the commencement of the proceedings I asked what his age was. It was agreed that he was aged 14 at the time of the incident, which is less than six months ago, and that he is still aged 14. He is therefore a "juvenile", being aged not less than seven years and less than 18 years, as defined by Section 2 of the Juvenile Courts Act 1991. That Act provides for appointment of Juvenile Court Magistrates for particular areas and for establishment of Juvenile Courts and prescribes special procedures for dealing with criminal charges against juveniles. None of these special provisions have been invoked in relation to Bougainville. 

I queried whether the National Court had jurisdiction to determine the matter. I heard from counsel, who agreed that the court had jurisdiction. The Constitution provides that the National Court is a superior court of record. Subject to the role of the Supreme Court, it has an inherent power to review the exercise of judicial authority. It has an inherent power to make, in such circumstances as seem to it proper, orders in the nature of prerogative writs or such other orders as are necessary to do justice in the circumstances of a particular case. It is a court of unlimited jurisdiction. (See Constitution, Sections 163(2), 155(3)(a), 155(4), 166(1).)

Section 17(1) of the Juvenile Courts Act provides that a court of summary jurisdiction may exercise jurisdiction conferred by the Act on a Juvenile Court in any of the following situations:

•	no Juvenile Court has been established in an area; or

•	a Juvenile Court Magistrate has not been appointed or is absent from duty; or

•	it is impracticable for a juvenile to be brought before a Juvenile Court.

All of those situations apply here, so this confirms that it is appropriate and necessary for the National Court to assume jurisdiction. 

Special procedures

In exercising jurisdiction I have taken into account the provisions of the Juvenile Courts Act, in particular the following:

•	in proceedings and actions under the Act the interests of a juvenile shall be the paramount consideration (Section 4); 

•	a court exercising jurisdiction under Section 17(1) shall so far as is practicable, sit and conduct proceedings in accordance with the Act (Section 17(2)); 

•	the proceedings are to be conducted in camera (Section 23); 

•	the court is not bound by the strict rules of evidence (Section 25);

•	special procedures apply when taking a plea (Section 27); 

•	publication of the proceedings is restricted (Section 28).

Restriction of publication of proceedings 

I expressly authorise the publication of this judgment as a report of these proceedings, pursuant to Section 28(1)(a). I do that as I think it is important that there be a record of these proceedings and that people understand the special status given by the law to juveniles and how their cases are dealt with. However, consistent with Section 28(2), I cannot and do not authorise the publication of the juvenile’s name or the name of the school, if any, that he is attending or the name of his village or any other particulars which are likely to lead to identification of those matters. That is why the accused is referred to as ‘a juvenile, M’.

FACTS 

Allegations

The following allegations were put to the accused for the purpose of obtaining a plea.

On the afternoon of 2 October 2004 the accused was at his village and went to a garden where he found a woman working. As she was bending down the accused approached her from behind, grabbed her and they both fell to the ground. He touched her breasts and slapped her face. The woman shouted. Someone heard her and came to her rescue. The accused ran away. There was no lawful reason for him to assault the woman. 

Conviction

The accused pleaded guilty to those facts. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted the accused. He is now referred to as the offender.

ANTECEDENTS

The offender has no prior convictions.

ALLOCUTUS

I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

I am wrong. This is my first time to appear before the court. I have learned a lesson in the cell. I am sorry for what I have done. If I go home, I will lead a good life. I will stay with my mother and look after her. 

SUBMISSIONS BY DEFENCE COUNSEL

Mr Siminji referred to a number of mitigating factors. The offender has pleaded guilty, saving the trouble and expense of a trial. He admitted to the police at the outset what he had done. He knows he has done wrong. He committed the offence at a tender age. He is only 14. He is the fourth-born in a family of seven. He was only educated to Grade 1 and has never had formal employment. He has already spent more than four months in custody, which is more than enough punishment. 

SUBMISSIONS BY THE STATE

Mr Rangan did not counter the defence submissions.

RELEVANT LAW

Section 335 of the Criminal Code (common assault) states:

A person who unlawfully assaults another person is guilty of a misdemeanour.

Penalty: If no greater punishment is provided, imprisonment for a term not exceeding one year.

DECISION MAKING PROCESS

To determine the appropriate penalty I will adopt the following decision making process: 

•	step 1: what is the appropriate head sentence? 

•	step 2: should all or part of the sentence be suspended? 

•	step 3: if all or part of the sentence is suspended, what conditions should be imposed? 

STEP 1 - WHAT IS THE APPROPRIATE HEAD SENTENCE? 

Approach

In setting an appropriate head sentence I will take this approach:

•	first, I will identify an appropriate starting point or reference point;

•	secondly, I will set out the considerations that should be taken into account in deciding whether to impose a sentence equal to, lesser or greater than the starting point; and

•	thirdly, I will apply those considerations to the facts of the present case.

Starting point

Judges often refer to a starting point when they are determining a sentence. By that they mean a reference point – a sentence in a previous case – against which the case being dealt with can be assessed. The judge assesses whether the case being dealt with is more, or less, serious than the starting point case. If it is, to what extent is it more serious or less serious?

In the present case I have been unable to locate a suitable precedent, so I will use the maximum penalty of one year imprisonment as the starting point.

Relevant considerations

There are a number of considerations that I consider should be taken into account in determining an appropriate head sentence. These are: 

1	Did the offender not cause any physical injury to the victim?

2	Was there only one offender?

3	Did the offender not use a threatening weapon and not use aggravated physical violence?

4	Did the offender not cause the victim to be concerned about her safety? 

5	Was the assault not an aggravated assault due to the offender’s own actions?

6	Was it an isolated incident?

7	Did the offender give himself up after the incident?

8	Did the offender cooperate with the police in their investigations?

9	Has the offender done anything tangible towards repairing his wrong, eg offering compensation, engaging in reconciliation ceremony or personally or publicly apologising for what he did?

10	Has the offender not caused further trouble to the victim or the victim’s family since the incident?

11	Has the offender pleaded guilty?

12	Has the offender genuinely expressed remorse?

13	Is this his first offence?

14	Can the offender be regarded as a youthful offender?

15	Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?

Rationale

The above considerations have been drafted so that an affirmative (yes) answer to any one can be regarded as a mitigating factor, a negative (no) answer will be an aggravating factor and a neutral answer will be a neutral factor. The more mitigating factors that are present, the more likely it is that the head sentence will be reduced. The more aggravating factors present, the more likely it is that the head sentence will be at or near the starting point. However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be ‘strongly mitigating’. Others may be ‘mildly mitigating’. The same goes for aggravating factors.

Another thing to note is that there are, in general, three sorts of considerations listed. Numbers 1 to 6 focus on the circumstances of the incident. Numbers 7 to 12 focus on what the offender has done since the incident and how he has conducted himself. Numbers 13 to 15 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

Application of considerations

I apply the above considerations as follows:

1	Yes the offender did not physically injure the woman he assaulted.

2	Yes there was only one offender.

3	Yes the offender did not use a threatening weapon and did not use aggravated physical violence.

4	No it is reasonably to be inferred that it was a most unsettling and frightening incident for the victim. 

5	No the assault was not aggravated due to the actions of the offender. A third party intervened when the victim’s shout was heard. 

6	Yes it was an isolated incident.

7	No the offender did not give himself up after the incident.

8	Yes the offender cooperated with the police in their investigations.

9	No he has not done something tangible towards repairing his wrong by paying compensation to the complainant and her family. 

10	Yes he has not caused further trouble to the victim or the victim’s family since the incident.

11	Yes the offender pleaded guilty.

12	Yes the offender genuinely expressed remorse.

13	Yes this is his first offence.

14	Yes he can be regarded as a youthful offender. He was only 14.

15	Yes the other fact I take into account, as highlighted by Mr Siminji, is that the offender has little education. He appeared to be a simple person. He did not speak English or Tok Pisin. Communication with him in the courtroom was in his tok ples. 

Conclusion

There are many mitigating factors in this case. The head sentence must be considerably less than the maximum. I regard consideration No 4 as a strong aggravating factor. However, there are strong mitigating factors in Nos 1, 3, 8, 11, 12, 13, 14 and 15. The other factors are not significantly aggravating (5, 7 and 9) or not significantly mitigating (2, 6 and 10). 

I have weighed all the above considerations carefully and fix a head sentence of three months imprisonment.

STEP 2 - SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED? 

The offender has been continuously in custody in relation to this matter since 18 November 2004, a period of more than four months. As that is longer than the term of imprisonment that has been imposed, it is not necessary to consider steps 2 and 3 of the sentencing process. He will be immediately released from custody.

SENTENCE

The Court makes the following order:

1	the juvenile M, having been convicted of the offence of unlawful assault, is sentenced to 3 months imprisonment in hard labour; and

2	he, having already been detained in custody in relation to this matter for longer than that period, shall be released from custody forthwith. 

Sentenced accordingly.
_____________________________________________________________

Lawyer for the State			:	Public Prosecutor
Lawyer for the accused		:	Public Solicitor