N5030
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 676 OF 2006

THE STATE

V

DAVID TIKI

Kimbe: Cannings J
2007: 11, 20, 25 July

CRIMINAL LAW – sentencing – unlawful assault – Criminal Code, Section 335 – sentence on plea of guilty – offender struck neighbour with iron bar.

The offender became angry with a man who was drunk and caused a disturbance at the local market and assaulted and abused the offender's wife. The offender struck the drunken man with an iron bar, fracturing his left shoulder bone.

Held:

(1)	The starting point for sentencing for this sort of assault is six months imprisonment.

(2)	A sentence of nine months was imposed, fully suspended on conditions.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
Tom Longman Yaul v The State (2005) SC803

PLEA

A man pleaded guilty to unlawful assault and the following reasons for sentence were given.

Counsel

F Popeu, for the State
R Beli, for the accused

25th July, 2007 

1. CANNINGS J: This is a decision on the sentence for a man, David Tiki, who pleaded guilty to one count of unlawful assault under Section 335 of the Criminal Code, arising from the following facts. At 11.00 am on 29 December 2005 the victim, Marcus Sugapia, was at the Buvussi market near Kimbe. He was drunk. He accidentally bumped into an esky belonging to David's wife. She left the market and went to her house and told David what happened. David came to the market and confronted Marcus. They exchanged heated words then David got an iron bar and struck Marcus four times, rendering him unconscious. Marcus was taken to hospital, suffering from swelling on the right hand and back and a fractured left shoulder bone.

2. David qualified his guilty plea by saying that there was a reason for what he did. Marcus did not accidentally bump into his wife's esky, he said. He deliberately knocked over the esky. He caused trouble with three different women at the market and assaulted and abused his wife while she had a two-month-old baby on her lap. When he asked Marcus why he had done such things, Marcus abused him and started a fight. That is when he found the iron bar and struck him. David was originally charged with causing grievous bodily harm under Section 319 of the Criminal Code. After hearing his explanation in arraignment, I vacated the original guilty plea. He was re-arraigned and pleaded guilty to the lesser offence of unlawful assault under Section 335. I was satisfied that the extent of the assault he inflicted on Marcus was out of proportion to the provocation endured. The assault was not justified and David was convicted accordingly.

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. 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 apologise to the court for what I did. I am married with two children and I am self-employed. I do not have a criminal record. I ask for a suspended sentence.

OTHER MATTERS OF FACT

5. As the offender has pleaded guilty, he is entitled to the benefit of the doubt on mitigating factors that are apparent from the depositions, the allocutus (or plea) or matters raised by his defence counsel that are not contested by the prosecutor (Saperus Yalibakut v The State (2006) SC890). The most significant thing is that there was a strong element of de facto provocation. Though the offender's actions were out of proportion to the trouble caused, it is easy to see why he committed the offence.

PRE-SENTENCE REPORT

6. I received a pre-sentence report from the Community Corrections and Rehabilitation Service, which is summarised below.

DAVID TIKI: 28-year-old male.

Residence: has been living at Buvussi since 2000 in a semi-permanent house.
Family background: parents (both deceased) are from Dagua, ESP – grew up in WNBP and regards it as home – has three brothers in WNBP and two sisters in ESP.
Marital status: married with two children – happily married.
Education: grade 10, Kimbe Secondary School, 1996.
Employment: never formally employed.
Health: excellent.
Financial status: OK – self-employed – runs a PMV and breeds pigs and poultry.
Plans: stay at Buvussi, develop his businesses.
Victim's attitude: wants compensation as he has had to use hired help to work on his oil palm block.
Attitude of community: regarded as a quiet and law-abiding member of the Buvussi community, whereas the victim is portrayed as a troublemaker with an attitude problem.
Assessment: a low-risk offender, prepared to reconcile with the victim.
Recommendation: suitable candidate for probation, subject to conditions including paying compensation to the victim and doing community work at Buvussi.

SUBMISSIONS BY DEFENCE COUNSEL

7. Mr Beli submitted that the offender had received a good pre-sentence report and therefore he should be given a fully suspended sentence.

SUBMISSIONS BY THE STATE

8. Mr Popeu, for the State, submitted that the pre-sentence report favoured a non-custodial sentence subject to the payment of compensation.

DECISION MAKING PROCESS

9. 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?
•	step 5: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

10. Section 335 (common assault) of the Criminal Code 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.

11. The maximum penalty is therefore imprisonment for one year. 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?

12. I have been unable to locate a suitable precedent, so I will use the mid-point of six months as the starting point.

STEP 3: WHAT IS THE HEAD SENTENCE?

13. 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.

1	Did the assault on the victim consist of just a single blow? No.

2	Was just one person involved in the assault? Yes.

3	Was there some other cause of bodily harm, ie did the injury not result directly from the assault committed by the offender? No.

4	Was the victim injured by only a fist? No.

5	Did the offender not set out to hurt anyone? Neutral.

6	Did the victim or any other person provoke the offender in 'the non-legal sense'? Yes, the victim was drunk and disorderly, was causing a disturbance and assaulted and abused the offender's wife.

7	Did the victim have a pre-existing condition making him susceptible to injury by a moderate blow? No.

8	Can the assault on the victim be classed as 'not vicious'? No.

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? No.

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? Neutral.

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

14. After weighing all these factors and bearing in mind that there are eight aggravating factors compared to five mitigating factors, the head sentence should be above the starting point. The offender is lucky not to have been charged with a more serious offence. I impose a head sentence of nine months imprisonment.

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

15. The court has not been informed of any pre-sentence period in custody. I remind all lawyers appearing before the National Court in sentencing hearings that this information must be made available to the court. Defence counsel have a special duty, both to the court and to their clients, to get this information before the court. I have devised a form that simply has to be filled in, signed by the defence counsel and the prosecutor and filed in court. I cannot make it much easier. Failure to provide this important information amounts to a dereliction of duty by defence counsel. In this case the sentence is not going to be a long one so this offender is not going to be unduly prejudiced. I therefore do not deduct any pre-sentence period in custody from the head sentence.

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

16. This is an appropriate case in which to consider a suspended sentence. Although it was a serious case of unlawful assault and the offender has not paid compensation or expressed genuine remorse, the favourable pre-sentence report justifies a fully suspended sentence. He has a good reputation in the local community, he has businesses to run and a family to look after. He should, however, because of the vicious nature of the assault on the victim, be required to pay compensation. A reasonable amount of compensation, in view of the strong element of provocation is K500.00, payable within three months. I will suspend the entire sentence on the following conditions:

1	must within three months after date of sentence pay K500.00 cash compensation to the victim and participate in a reconciliation ceremony in accordance with custom, to be witnessed by a probation officer;

2	must reside at Buvussi and nowhere else except with the written approval of the National Court;

3	must not leave West New Britain without the written approval of the National Court;

4	must perform at least six hours unpaid community work each week at Buvussi Community market, under the supervision of Pastor Herman of the Assemblies of God Church;

5	must attend Assemblies of God Church, Buvussi, every Sunday for service and worship and assist the church in its community activities under the supervision of Pastor Herman;

6	must report to the Probation Office at Kimbe on the first Monday of each month;

7	must not consume alcohol or drugs;

8	must keep the peace and be of good behaviour;

9	must have a satisfactory probation report submitted to the National Court Registry at Kimbe every three months after the date of sentence;

10	if the 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.

17. 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 offender or to the Probation Office, any of whom may bring the matter to the attention of the National Court. The Court may 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 (Tom Longman Yaul v The State (2005) SC803.)

SENTENCE

18. David Tiki, having been convicted of the crime of unlawful assault is sentenced as follows:

Length of sentence imposed	9 months	
Pre-sentence period to be deducted	Nil	
Resultant length of sentence to be served	9 months	
Amount of sentence suspended	9 months	
Time to be served in custody	Nil, subject to compliance with conditions of suspended sentence	

Sentenced accordingly.
_________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused