State v Yama [2014] PGNC 50; N5574 (22 April 2014)

N5574

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 831 OF 2012

THE STATE

V

MANU DIYA YAMA

Madang: Cannings J
2014: 5 February, 13 March, 22 April

CRIMINAL LAW – sentencing – unlawful assault – Criminal Code, Section 335 – sentence on plea of guilty – offender punched victim in head without warning.

The offender assaulted the victim outside a nightclub in the early hours of the morning, without warning. He was angry with him for reasons unknown. The victim fell heavily and suffered a laceration to the head, requiring four stitches, but suffered no permanent injury. The offender pleaded guilty to a charge of unlawful assault.

Held:

(1) The maximum sentence is 12 months imprisonment.

(2) A sentence of ten months was imposed, fully suspended on conditions including payment of K5,000.00 compensation.

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

SENTENCE

This is a judgment on sentence for unlawful assault.

Counsel

R Auka & F Popeu, for the State
A Meten, for the accused

22nd April, 2014

1. CANNINGS J: This is a decision on sentence for Manu Diya Yama who pleaded guilty to one count of unlawful assault under Section 335 of the Criminal Code, arising from the following facts. At 3.00 am on 6 October 2012 he came out of Pil's Rapa Nightclub at Redscar, Madang town. He saw the victim, Peter Dumba, standing outside, talking to somebody. He approached the victim from behind and without warning punched him in the head. The victim fell heavily to the bitumen. He was rushed to hospital. His head wound required four stitches. He suffered no permanent injuries but was traumatised by what happened.

2. There has been some confusion over the charge. When the indictment was presented, the prosecutor Mr Auka said that it contained one count of unlawful assault under Section 340(1) of the Criminal Code. When submissions were made on sentence, both counsel presumed that the offender had pleaded guilty to and been convicted of an offence under Section 340(1). In fact he pleaded guilty to and has been convicted of a charge of unlawful assault under Section 335. The indictment stated:

Manu Diya Yama of Snopas village, Bundi, Madang Province, stands charged that he on the 6th day of October 2012 at Redscar, Madang, Papua New Guinea, unlawfully assaulted Peter Dumba.

3. To have been charged and convicted under Section 340(1) (an offence which has a maximum sentence of three years) the indictment would have had to include the extra element of doing "bodily harm" to the victim. "Bodily harm" is not part of the indictment, so the offender will not be sentenced under Section 340(1). He will be sentenced under Section 335, which carries a maximum of one year imprisonment.

ANTECEDENTS

4. The offender has no prior convictions.

ALLOCUTUS

5. 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 taking up its time. This case has taken a toll on my personal life, business and family. I have tried to resolve this matter outside court but the victim has not been cooperating. He has taken the law into his own hands and caused a lot of trouble to me and my close friends, two of whom he has badly assaulted. My business has suffered. I am supposed to be in the bush running my small mill but I have not been able to because of this case. I am sorry for the assault that I committed. I was not thinking right. I ask for leniency. I am a first time offender. I want to resume a normal life and contribute to the community. I am willing to compensate the victim but he is asking far too much.

OTHER MATTERS OF FACT

6. 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). There is, however, not much for the court to go on. The offender spoke about the victim taking the law into his own hands and assaulting other people but the details are vague. The court still does not know why he did what he did. In his police interview he said that he would explain to the court why he acted so violently. The explanation has never been forthcoming.

PRE-SENTENCE REPORT

7. The offender is aged 33. He is married with four children. He has a grade 12 education. He is self-employed. He lives at the Coffee Mill area, not far out of Madang town. He comes from the Bundi area of Madang Province. His health is sound.

SUBMISSIONS BY DEFENCE COUNSEL

8. Mrs Meten submitted that the offender had received a good pre-sentence report and therefore he should be given a fully suspended sentence as he has pleaded guilty, he has no prior convictions and he is prepared to compensate the victim.

SUBMISSIONS BY THE STATE

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

DECISION MAKING PROCESS

10. 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?

11. 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.

12. 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?

13. 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?

14. I am going to sentence near the maximum as this was a very serious case and the offender is lucky that he has not been charged with a more serious offence. In fact he is lucky, as is the victim, that the injuries of the victim were not more serious. This was a king hit – a coward's punch. The victim was given no warning. He could have easily been killed. The offender will be given credit for pleading guilty and for having no prior convictions. The sentence is 10 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. There is nothing to deduct.

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, 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 is K5,000.00, payable within three months. I will suspend the entire sentence on the following conditions:

1. must within three months after date of sentence pay K5,000.00 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 Coffee Mill Area and nowhere else except with the written approval of the National Court;
3. must not leave Madang Province without the written approval of the National Court;
4. must perform at least six hours unpaid community work each week, in accordance with community work program to be endorsed by the National Court;
5. must attend his nominated church every weekend for service and worship and assist the church in its community activities;
6. must report to the Probation Office at Madang 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 Madang 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. Manu Diya Yama, having been convicted of the crime of unlawful assault, is sentenced as follows:

Length of sentence imposed	10 months
Pre-sentence period to be deducted	Nil
Resultant length of sentence to be served	10 months
Amount of sentence suspended	10 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