State v Amoko [2016] PGNC 272; N6467 (1 September 2016)

N6467

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1153 AND CR No.1154 OF 2014

THE STATE

V

BESSO AMOKO

Popondetta: Auka, AJ
2016: 28^th July, 1^st September

CRIMINAL LAW – Sentence – Particular offence – Accused a Policeman –Two Counts of Unlawful Assault causing bodily harm - Committed on same victim at different times – Guilty pleas – Use of fist and boots – Multiple abrasions and bruises – Injuries including partial deafness and permanent loss of lower premaster tooth – Not life threatening – Mitigation and aggravating factors considered – Cumulative sentence appropriate – Totality principle – Sentences to be serve cumulatively found crushing – Sentence for the second count to be served concurrently – To serve 2 years – Further suspended 2 years with condition – Criminal Code S.340 and S.19

Case Cited:
Acting Public Prosecutor v. Haha [1981] PNGLR 205
Avia Aihi v. The State (No.3) [1982] PNGLR92
Goli Golu v. The State [1979] PNGLR 653
Lawrence Simbe v. The State [1994] PNGLR 38
Paul Mase & Another v. The State [1991] PNGLR 88
Public Prosecutor v. Kerua & others [1985] PNGLR 85
The State v. David Tiki (2007) N5030
The State v. Pangil (2004 ) N2676

Counsel:
Ms Babra Gore, for the State

Mr. E Yarisa, for the Accused

DECISION ON SENTENCE

1^st September, 2016
1. AUKA AJ: The Accused pleaded guilty to two (2) Counts of Unlawful assault causing bodily harm pursuant to Section 340 of the Criminal Code.

2. The brief facts of the case were that on 23^rd October, 2009 there was a complaint on a rape case at Mumba Village in Afore area of Oro Province. The victim in that case was a married woman. The suspect to the rape case was named as Daniel. Mr. George Turuna the husband of the rape victim was the person who laid the complaint at Afore Rural Police station and wanted the suspect Daniel to turn up at the Rural Police station on 25^th October, 2011 so that police can interview him. However the suspect did not turn up so no discussion about the rape case took place at the rural police station. So the complainant Mr. George Turuna became frustrated and he burnt the house of the suspect to the rape case Mr. Daniel. That caused Daniel to come to Popondetta town and reported the matter to the accused Besso Amoko who was the Policeman on duty at that time. So both the accused person and Daniel drove to George Turuna’s village of Nomba and located him at his village. Mr Turuna and his In-law by the name of Neville Keiba who was also suspected of burning Daniel’s house were taken into Popondetta Police Station and were both arrested and charged for arson. Mr. Turuna was detained at the station for 2 weeks and later released on K400.00 cash bail.
Mr. Turuna made two (2) appearances in the District Court but his name did not appear on the Court’s list on those 2 occasions.

3. On 13^th January, 2013 Mr. Turuna who is the victim in this case went and approached the arresting officer who is the accused and told him that his name was not on the court list on two (2) occasions and further said that he had waisted his time and money travelling to and back from his village.

4. The accused was frustrated and he assaulted the victim George Turuna very badly. He used both of his fist and his boots and hit the victims face and mouth. The victim tried to escape but accused held him and stabbed him twice with a biro. The victim was detained in the cell for another week.

5. After a week the accused released him and told him not to return to the town of Popondetta. The victim stayed away but he came into town on 14^th September, 2016 to do marketing when he was spotted by the brother of Daniel and reported that to the accused. The accused arrested him and took him to the police cell.

6. In the cell accused asked him why he came to town and he assaulted him again. He punched him twice on his face and he booted him too. The victim suffered injuries to his mouth and as a result one of his tooth was cracked. The victim was not taken to the hospital or not allowed to go to the hospital for immediate medical attention. However, after some weeks the victim went to the hospital and was appropriately attended to and treated. After been treated he later went to the Police station and laid the complainant. Accused was arrested and charged for unlawfully assaulting the victim two times and causing him bodily harm.

7. There are two (2) Medical reports. The first Report dated 24^th November, 2012 and the second Report dated 30^th July, 2013. Both were prepared and signed by Health Extension Officer or GOPD Mr. M. K. M Siluwedi.

8. The first Report showed that the victim had fractured left lower canine tooth and lost lower left 1^st premolar tooth. The victim also had 1cm scar on his left lip, 2.5cm scar on his right forearm and multiple bruise and abrasive scars on bilateral knees and elbows.

Furthermore the victim complained of deafness (difficult hearing) due to blows on both ears.

9. Hence, examination showed dull impanic membrane of his right ear; moist, inflamed and bleeding on his left ear canal. The victim was treated with amoxicillin for his ear condition.

10. The Medical Officer certified that he examined the victim and his situation did not guarantee him to confirm or verify the extent of the injuries as he was not immediately seen for Medical attention following the alleged beatings.

11. The second Medical Report dated 30^th July, 2013, Medical examination showed scars on his upper lips, forearm, knees and elbows form abrasions and bruises he sustained during the beating. He also has difficulty hearing (particular deafness) and a fractured left lower canine.

12. According to the Medical Officer the victim George Turuna had recovered of the physical injuries. However, he still has partial deafness and permanently lost his tooth.

The Medical Officer certified that the victim sustained serious injuries as a result of the alleged assaults.

13. In his statement on Allocatus the accused said that Police Officers are frustrated sometimes. He said sorry for what he did. He also said sorry to the court for its time. He said he is one of the very Senior NCO’s at Popondetta Police Station with the service for 40 years. He said he is married with 5 grown up children who are now independent. He only maintains six (6) grand children and 3 grand grand children. He asked the court to consider all those factors.

14. On the request of Mr. Yavisa of counsel for the accused, the Court directed the Probation Officer to prepare and file a pre-sentence Report on the accused and directed the matter to return on 20^th July, 2016 at 1:30pm. I am now in possession of the reports which I have perused and I find that the report is in favour of the accused. The report recommended that he is a good candidate for probation and is willing to pay compensation to the victim.

15. Mr. Yavisa of counsel for the accused submitted that the accused is 61 years old and is married. He is from PIE village in Baimura area of Gulf Province. Married with 5 grown up children. His wife is still alive. Has 6 grand children, and 3 grand grand children and he looks after all of them.
He joined the Papua New Guinea Police Force in 1975 and has been serving the Force for 41 years. He attends Seventh Day Adventist Church.

16. Mr. Yavisa submitted and urged the court to consider that the accused have apologised to the court and also have said very sorry to the victim. The accused have pleaded guilty early and saved courts time and money. The accused is willing to compensate the victim in the sum of K1,000.00. Mr. Yavisa also urged the court to consider that the accused is still a serving Policeman and earns a salary. Mr. Yavisa submitted that all these factors should be considered in accused’s favour in sentence. Mr. Yavisa submitted that a non custodial sentence on condition including payment of compensation to the victim with the amount of K1,000.00 should be a appropriate sentence.

17. Mr. Yavisa referred the court to the National Court case of State v. David Tiki (2007) N5030. In that case accused pleaded guilty to Unlawful Assault. Its a case where the accused strucked the victim with an iron bar and fractured his left shoulder bone. Accused was in a drunkard state when he assaulted the victim. He was sentenced to 9 months but the sentence was wholly suspended on condition including payment of compensation.

18. Ms. Gore of counsel for the state submitted that the court should consider the total circumstances surrounding the case. She submitted that the accused is a high rank police officer. The victim was assaulted in front of many policeman. And such action painted a bad picture or image on the police department. She said the court should condemn this action so that it can send message to other policeman and woman that such behaviour is not acceptable. She submitted that police officers are there to protect people and not mistreat them like the way accused treated the victim in this case. She said that this was a serious case in that the accused who is a senior police officer has breached a trust bestowed on him.

19. Ms. Gore referred the court to the case of The State v. Pangil (2004) N2676. The accused pleaded guilty to Unlawful assault. Accused was sentenced to 3 years but the sentence was wholly suspended with conditions. She submitted that the court should imposed appropriate sentence on this accused including ordering him to pay compensation to the victim.

20. The maximum punishment for the crime of Unlawful Assault causing bodily harm is 3 years imprisonment.

21. The court has general discretion to impose a lower sentence with or without other forms of punishment enumerated in section 19 of the Criminal Code Act.

22. `On Authority of the cases of Goli Golu v. The State [1982] PNGLR 653 and Avia Aihi v. The State (No3. ) [1982] PNGLR 92, the maximum penalty must be reserved for the worst type case. In my view the case is a worst type of unlawful assault causing bodily harm.

23. It is also an established principle that each case must be considered on its own facts and circumstances Lawrence Simbe v. The State [1994] PNGLR 38.

24. It is also a principle that Sentencing on Unlawful Assault causing bodily harm cases depend entirely on the facts of it case.

25. In considering the appropriate sentence I consider the following factors in favour of the accused:
1. That he pleaded guilty to two (2) counts of Unlawful Assault causing bodily harm and saved courts time.
2. That he is a first offender;
3. That he has a prior good character;
4. That he expressed remorse to the victim and said sorry to the court;
5. That he has raised his willingness to pay compensation to the victim in the sum of K1,000.00
6. That he has been a long serving Police Officer for 40 years.

26. The aggravating factors considered against the accused are that;
(a) The assaults on the victim consist of many punches and kicks;
(b) That the injuries received by the victim were caused by the many punches and kicks by the accused.
(c) The victim received more than two injuries including permanent lost of a tooth.
(d) There was no provocation on the part of the victim
(e) The assaults were vicious
(f) The accused did not surrender himself
(g) The accused did not pay any compensation to the victim and did not arrange with victim to make peace;
(h) The most aggravate factor is that he is a senior Police Officer who went out of line and took the law into his own hands and unlawfully did what he did. What he did painted a bad picture or image on the Police Force. And this court condemn what the accused did. The policeman and woman are supposed to uphold the law and protect people and property.

27. When policeman commits an offence and in particular a serious offence, the confidence, respect and the good name of the force is put into question. The public look upon and look to and aspect member of the police force like other offices in the law and justice sector to set the standard and be role models for a peaceful law abiding community. Accordingly, I consider the commission of a violent crime by a policeman, in particular a senior, an experienced policeman, a serious aggravating factor.

19. In carefully weighing both the factors in mitigating as well as those against the accused and the sentencing trend I have briefly discussed above, I consider that a sentence below the pre-scribed maximum sentence of 3 years is appropriate in the circumstance of the case. Accordingly I consider a sentence of 2 years for each count in hard labour.

28. The final issue for determination in this case is whether the sentence of 2 years each should be cumulative or should they be made concurrent. The accused did not asked for concurrent sentence in the event that the court decides to impose custodial sentence. His counsel did not make any submission on that aspect.

29. The cases on point amongst others are acting Public Prosecutor v. Haha [1981] PNGLR 205 and Public Prosecutor v. Kerua & Others [1985] PNGLR 85. From those cases, it is apparent that three principles are involved when it comes to determining the issue. These are set out in Kerua’s case at page 90 in the following terms;

“The National Court has discretion whether a Sentence should be concurrent or cumulative but that discretion should be exercise in accordance with well-known principles. The best local case on these principle is Acting Public Prosecutor v. Konis Haha [1981] PNGLR 205. We follow that case and useful statement of the English Law found in Thomas Principles of Sentencing (2^nd Ed, at 53-61. The first principle is what Thomas call ‘the one transaction rule’ where two or more offences are committed in the course of a single transaction all sentence in respect of the offences should be concurrent. The Supreme Court in Tremellan v. The Queen (1973) PNGLR 116 made the same point in different words (at117).
‘Although it is neither desirable or possible to lay down any all embracing rule as to when sentences for two or more convictions should be made concurrent, sentences for two or more convictions should be made concurrent, sentences should generally speaking be made concurrent where a Congeries of offences are committed in the prosecution of a single purpose or the offences arises out of the same or closely related facts.’
The facts of Tremellan’s case illustrate this rule. The Courts were paired for stealing and for fraudulent and false accounting and the Supreme Court on appeal imposed concurrent sentences. Other examples are a series of sexual assaults or frauds on the same victim.
There can be exceptions on this rule and the Court of Appeal in England has upheld sentences which appear to offend this rule because the Court considered that the totality of the Sentence was correct. it is more a rule of thumb or a guiding principle than a strict rule and it is subject to the totally principle which we mention in a moment.
The second rule is that where the offences are so different in character, or in relation to different victims, cumulative sentences are normally applicable. Example given by Thomas are burglary and violence to the householder, assault plus escaping from custody, and sexual assaults on different victims. Wari Mugining v. The Queen [1975] PNGLR affords a local example. Cumulative sentences were upheld for grievous bodily harm and assault with intent to commit rape. Konis Haha case (supra) supplies another local example; cumulative sentences for robbery with violence and rape were imposed. This rule, like the first one, is flexible; it is a rule for guidance only and like the first rule is also subject to the totality rule.
The third rule, the totally rule or principle, is that when the sentence has arrived at appropriate sentences and decided whether they should be concurrent or cumulative he must then look at the total sentence and see if it is just and appropriate. If it is not, he must look at the total sentence and see if it is just and appropriate for the totality of the criminal behaviour”.

30. These principles have been adopted and applied in many subsequently cases. An example of that is Paul Mase & Another v. The State [1991] PNGLR 88 at page 91 to 92.

31. In the present case, the offences are unrelated in that they were committed at two different times. However it involves the same victim. The first offence was committed on the 13^th January, 2010 at Popondetta Police Station.
The second offence was committed on 14^th September, 2010 again at Popondetta Police Station involving the same victim. This is my view qualifies this case for sentence to be made cumulative having regard to the principle enumerated and applied by the cases cited above.

32. What is left for the court to do is to decide on whether the totality of the sentence to be served is appropriate. In other words I have to decide whether the total of 4 years is crushing on the accused.

33. Given the circumstances in which the offences were committed, I consider giving a sentence to be served cumulatively so crushing against the accused who is of old age.
I therefore make the 2 years for the second count to be served concurrently to the 2 years term for the first count.

34. The accused will therefore serve the term of 2 years imprisonment.

35. By virtue of Section 19(d) (1) of the Criminal Code. The term of 2 years is wholly suspended on the conditions that;

(a) Accused enter into his own recognizance to keep peace and be of good behaviour for 2 years and further subject to the following conditions;
(b) Accused must pay K1, 000 .00 cash to the victim payable within one month after the sentence;
(c) He must reside at his current residential location and nowhere else;
(d) He must not leave Popondetta town without the approval of the National Court;
(e) He must keep the peace and be of good behaviour and must not cause trouble or harass the victim and his family;
(f) If he 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 whole of the suspended sentence term.

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