State v Sabuin [2006] PGNC 76; N4475 (25 August 2006)

N4475

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 921 & 922 0F 2006

THE STATE

V

MATHEW SABUIN, GABRIEL PINIA & PHILIP KIT

Buka: Cannings J
2006: 11, 14, 17, 24, 25 August

SENTENCE

CRIMINAL LAW – assault occasioning bodily harm – Criminal Code, Section 340(1) – sentences on pleas of guilty – 18 months; 2 years; 2 years.

Three men pleaded guilty to assaulting another man. The first offender twice kicked the victim in the head. The second and third offenders kicked the victim all over his body as he lay on the ground. They were all drunk.

Held:

(1) The starting point for sentencing for assault under Section 340(1) is 18 months imprisonment.

(2) When sentencing co-offenders it is proper to take account of their different degrees of involvement in the commission of the offence.

(3) The first offender had a lesser degree of involvement in the assault than the other two, whose degrees of involvement were equal.

(4) The first offender was sentenced to 18 months imprisonment. The second and third offenders were each sentenced to 2 years imprisonment.

(5) All offenders had spent time in custody already, so the balance of each sentence was suspended on conditions including payment of compensation to and reconciliation with the victim.

Cases cited

The following cases are cited in the judgment:

Ignatius Pomaloh v The State (2006) SC894
Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
Tom Longman Yaul v The State (2005) SC803

Abbreviations

The following abbreviations appear in the judgment:

ARB – Autonomous Region of Bougainville
CR – Criminal
DCJ – Deputy Chief Justice
J – Justice
N – National Court judgment
No – number
PNGBC – Papua New Guinea Banking Corporation
SC – Supreme Court judgment
SCRA – Supreme Court Criminal Appeal
TB – tuberculosis
v – versus

PLEAS

Three men pleaded guilty to assault occasioning bodily harm and the reasons for sentence are given below.

Counsel

R Luman, for the State
P Kaluwin, for the accused

INTRODUCTION

1. CANNINGS J: This is a decision on the sentence for three men who pleaded guilty to unlawfully assaulting John Pote ("the victim") at Solos, Buka, on 4 July 2005. They were indicted under Section 340(1) of the Criminal Code.

2. The first offender, Mathew Sabuin, was dealt with first. He indicated at the start of the current Buka circuit that he would plead guilty. The second and third offenders, Gabriel Pinia and Philip Kit, did not give the same early indication; but later they did, so they were dealt with separately.

CONVICTION

3. Mathew Sabuin pleaded guilty to the following facts:

• The incident happened at 5.30 am at Tsibabarung, Solos.
  
• The victim, John, asked Mathew about a missing 20-litre container of fuel, which he suspected had been stolen by Mathew and his friends.
  
• Mathew denied stealing the fuel and a fight broke out.
  
• John punched Mathew three times: in the neck, shoulder and stomach. One of the other offenders pushed John to the ground.
  
• Then Mathew kicked him in the head, twice, while he was on the ground. Mathew left him there and walked away.
  

4. Gabriel Pinia and Philip Kit pleaded guilty to the following additional matters:

• When Mathew walked away, they continued the assault on John by kicking him all over his body while he lay on the ground.
  

ANTECEDENTS

5. None of the offenders has prior convictions.

ALLOCUTUS

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

Mathew Sabuin: The victim, John Pote, is a very good friend of mine. I have looked after him for a long time. At one stage he was in prison for rape and I looked after him. When he got sick, I paid for his medicine. I say sorry to John for what I did and I say sorry to the court. I do a lot of community work. I am chairman of our primary school and vice-chairman of the health centre. I am being sponsored by the Catholic Mission to go to Divine Word University to study human resource management.

Gabriel Pinia: I apologise for what we have done. I promise not to do such a thing again. I ask the court for mercy and a non-custodial sentence.

Philip Kit: I say sorry for what I have done. This is my first time in court. I promise that I will not make the same mistake again. I ask for mercy and a suspended sentence.

OTHER MATTERS OF FACT

7. As the offenders have pleaded guilty, they are entitled to the benefit of the doubt on mitigating factors that are apparent from the depositions, the allocutus or matters raised by defence counsel that are not contested by the prosecutor (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06, Supreme Court, Jalina J, Mogish J, Cannings J). This provides an incentive for accused persons to plead guilty and is a benefit accorded to them for saving the State extra resources that would have been committed to the case if a trial were necessary.

Depositions

• This was a fight amongst friends who were all drunk.
  
• A medical report shows that the victim, John Pote, was admitted to the surgical ward of Buka General Hospital the day after the incident, 5 July 2005. He had fast breathing and was in pain. He had a right pneumothorax (air between chest wall and lung), a ruptured spleen and a pre-existing TB condition. On the day of the report, 13 July 2005, he was in a stable condition and recovering well. This shows that though the victim was badly assaulted, the blows to the head inflicted by the first offender, Mathew, did not cause his major injuries.
  
• Each offender made admissions to the police and co-operated fully.
  

Allocutus

• The first offender, Mathew, has cared for the victim on previous occasions when he was in trouble.
  
• All expressed remorse.
  

Matters raised by defence counsel

• The victim has recovered well from the assault and his injuries are not permanent.
  

PERSONAL PARTICULARS

8. The first offender, Mathew Sabuin, is aged 43 and is married with six children. His parents are deceased and he is the fourth in a family of ten. He was educated to grade 10 and was employed as a bank officer by PNGBC from 1983 to 1996.

9. The second offender, Gabriel Pinia, is aged 32 and is married without children. His father is deceased; his mother alive. He is the third born in a family of six. He was educated to grade 6, in 1984. He has never been formally employed.

10. The third offender, Philip Kit, is aged 39 and is married with eight children. His father is deceased; his mother alive. He is the second born in a family of six. He was educated to grade 6, in 1982. He has never been formally employed.

SUBMISSIONS BY DEFENCE COUNSEL

11. Mr Kaluwin highlighted the following mitigating factors: the offenders pleaded guilty; expressed remorse; it was the victim who started the fight; no weapons were used. He submitted that suspended sentences would be appropriate.

SUBMISSIONS BY THE STATE

12. Mr Luman, for the State, conceded that the medical report went in the first offender’s favour as it showed that the victim did not suffer any head injuries. The second and third offenders should get a heavier sentence than the first offender.

DECISION MAKING PROCESS

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

• step 1: what is the maximum penalty?
  
• step 2: what is a proper starting point?
  
• step 3: what should the head sentence be?
  
• step 4: should the pre-sentence period in custody be deducted from the term of imprisonment?
  
• step 5: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

14. The indictment was presented under Section 340(1) (assaults occasioning bodily harm) of the Criminal Code, which states:

A person who unlawfully assaults another and by doing so does him bodily harm is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years.

15. The maximum penalty is therefore three years imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

16. In the present case I have been unable to locate a suitable precedent, so I will use the mid-point of 18 months as the starting point.

STEP 3: WHAT IS THE HEAD SENTENCE?

17. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be reduced below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point.

18. Three sorts of considerations are listed. Numbers 1 to 8 focus on the circumstances of the incident. Numbers 9 to 13 focus on what the offender has done since the incident and how he has conducted himself. Numbers 14 to 16 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

19. When sentencing co-offenders it is proper to take account of their different degrees of involvement in the commission of the offence (Ignatius Pomaloh v The State (2006) SC894, Supreme Court, Jalina J, Mogish J, Cannings J).

20. I will apply the relevant considerations to the first offender, Mathew Sabuin, and arrive at a head sentence for him. I will then compare his case to those of the second and third offenders, Gabriel Pinia and Philip Kit. I will deal with them together as their degrees of involvement in the assault were equal.

Mathew Sabuin

1. Did the assault on the victim consist of just a single blow? No – the offender kicked the victim twice in the head.
   
2. Was just one person involved in the assault? No – there were two others.
   
3. Was there some other cause of bodily harm, ie did the injury not result directly from the assault committed by the offender? Yes – the serious injuries the victim suffered were not due directly to the offender’s actions.
   
4. Was the victim injured by only a fist? No – the offender kicked him in the head.
   
5. Did the offender not set out to hurt anyone? No – he was involved in a three-on-one fight.
   
6. Did the victim or any other person provoke the offender in ‘the non-legal sense’, eg did the deceased abuse or assault the offender? Yes – the victim accused the offender of stealing his fuel and then punched the offender three times before he retaliated.
   
7. Did the victim have a pre-existing condition making him susceptible to injury by a moderate blow? Neutral – although he was suffering from TB, this did not make him susceptible to head injuries.
   
8. Can the assault on the victim be classed as ‘not vicious’? No – any kick to a person’s head must be regarded as vicious.
   
9. Did the offender give himself up after the incident? No.
   
10. Did the offender cooperate with the police in their investigations? Yes.
    
11. Has the offender done anything tangible towards repairing his wrong, eg offering compensation to the victim, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what he did? No.
    
12. Has the offender pleaded guilty? Yes.
    
13. Has the offender genuinely expressed remorse? Yes.
    
14. Is this his first offence? Yes.
    
15. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence? No.
    
16. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Yes – this was a fight amongst friends, who were all drunk. It was the victim who instigated the fight.
    

21. To recap, mitigating factors are:

• No 3 – did not cause major injuries;
• No 6 – the victim provoked the offender;
• No 10 – co-operated with police;
• No 12 – pleaded guilty;
• No 13 – expressed remorse;
• No 14 – first offender;
• No 16 – it was a drunken fight, instigated by the victim.
  

22. Aggravating factors are:

• No 1 – he hit the victim twice;
• No 2 – others were involved;
• No 4 – a kick, rather than fist;
• No 5 – no accident;
• No 8 – vicious assault;
• No 9 – did not give himself up;
• No 11 – no reconciliation;
• No 15 – not a youthful offender.
  

23. No 7 is a neutral factor.

24. After weighing all these factors and bearing in mind that there are seven mitigating factors compared to eight aggravating factors, the head sentence will remain at the starting point. I impose a head sentence of 18 months imprisonment.

Gabriel Pinia and Philip Kit

25. Unlike Mathew Sabuin, they inflicted very serious injuries on the victim. The degree of provocation was not as great in their case. It was not them who the victim accused of stealing his fuel. They are fortunate not to have been charged with the more serious offence of doing grievous bodily harm. The head sentence will be two years each.

STEP 4: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

26. The offenders have spent the following periods in custody in connexion with this offence:

• Mathew Sabuin: 1 week;
• Gabriel Pinia: 6 months, 1 week, 4 days;
• Philip Kit: 6 months, 1 week, 4 days.
  

27. It is proper that each period be deducted from the respective total sentences. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, as shown in the table below:

CALCULATION OF FINAL SENTENCES

Calculation	1st offender: Mathew Sabuin	2nd offender: Gabriel Pinia	3rd offender: Philip Kit
Length of sentence imposed	18 months	2 years	2 years
Pre-sentence period to be deducted	1 week	6 months, 1 week, 4 days	6 months, 1 week, 4 days
Resultant length of sentence to be served	1 year, 5 months, 3 weeks	1 year, 5 months, 2 weeks, 3 days	1 year, 5 months, 2 weeks, 3 days

STEP 5: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

28. This is an appropriate case in which to consider suspended sentences in view of the mitigating factors identified. However, strict conditions must be imposed.

29. The offenders must not be allowed to forget that they are still under sentence – even when they are serving the sentence outside jail. The rest of the sentences will be suspended on the following conditions:

1. must within three months pay the following cash compensation to the victim, John Pote, and participate in a reconciliation ceremony in accordance with custom:
   
   • (a) Mathew Sabuin = K 300.00
   • (b) Gabriel Pinia = 500.00
   • (c) Philip Kit = 500.00

Total = K1,300.00

2. Mathew Sabuin to reside at Hapan village, Gabriel Pinia to reside at Tsibabarung village, and Philip Kit to reside at Hakoh village; and nowhere else except with the written approval of the National Court;
   
3. must each not leave Bougainville without the written approval of the National Court;
   
4. must each perform at least six hours unpaid community work each week at Hapan School under the supervision of Dominic Keneh and Josephine Surei;
   
5. must each attend Gagan Catholic Church every Sunday for service and worship and assist the church in its community activities under the supervision of the Parish Priest;
   
6. must each report to the senior Correctional Service officer at Buka Police Station every government payweek Friday between 9.00 am and 3.00 pm and sign the register;
   
7. must each not consume alcohol or drugs;
   
8. must each keep the peace and be of good behaviour;
   
9. must each have a satisfactory probation report submitted to the National Court Registry at Kimbe every three months after the date of imposition of sentence;
   
10. the person responsible for filing the probation report will be the ARB senior welfare officer;
    
11. if any offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.
    

30. The last condition is very important. If any of these conditions is breached, any person may report the matter to the police or to any person nominated to supervise the offenders or to the ARB senior welfare officer, any of whom may bring the matter to the attention of the National Court. The Court can then issue a warrant for arrest of the offender and he can be brought before the Court to show cause why he should not be sent to jail to serve the rest of his sentence. (See Tom Longman Yaul v The State (2005) SC803, Salika J, Mogish J, Cannings J.)

SENTENCE

31. Mathew Sabuin, Gabriel Pinia and Philip Kit, having been convicted of the crime of assault are sentenced as follows:

Calculation	1st offender: Mathew Sabuin	2nd offender: Gabriel Pinia	3rd offender: Philip Kit
Length of sentence Imposed	18 months	2 years	2 years
Pre-sentence period to be deducted	1 week	6 months, 1 week, 4 days	6 months, 1 week, 4 days
Resultant length of sentence to be served	1 year, 5 months, 3 weeks	1 year, 5 months, 2 weeks, 3 days	1 year, 5 months, 2 weeks, 3 days
Amount of sentence suspended	1 year, 5 months, 3 weeks	1 year, 5 months, 2 weeks, 3 days	1 year, 5 months, 2 weeks, 3 days

Sentenced accordingly.
_________________________

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