State v Andrew [2017] PGNC 314; N6987 (30 October 2017)

N6987

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1098 & 1099 OF 2017

THE STATE

V

ALFRED ANDREW

Porgera: Auka AJ
2017: 20^th June & 30^th October

CRIMINAL LAW – Sentence – Particular offences – Two counts of Unlawful Assault causing bodily harm – Committed on different victims at different times – Guilty pleas – Use of fists and legs – Multiple abrasions and bruises –One victim lost 3 teeth - Not life threatening – Mitigation and aggravating factors considered – Cumulative sentence appropriate – Totality principle – Sentences to be served 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 Konis Haha [1981] PNGLR 205
Avia Aihi v The State (No.3) [1982] PNGLR 92
Goli Golu v The State [1982] 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 Helen Wamingi (2013) N5733

Counsel:
Ms. Rebecca Koralyo, for the State
Mr Jeffrey Kolowe, for the Accused

DECISION ON SENTENCE

30^th October, 2017
1. AUKA AJ: An Indictment was presented by the State against the accused on 20^th June, 2017. The State charged the accused with two (2) counts of Unlawful Assault causing bodily harm pursuant to Section 340 of the Criminal Code Act. That followed a plea bargain between the parties from the more serious offences of attempt Rape under S.348 of the Criminal Code. The accused pleaded guilty to two (2) Counts of Unlawful Assault causing bodily harm.

2. The brief facts of the case were that on 27^th April, 2016, the accused, Alfred Andrew was at Tumundan Primary School. And that at all material times Alfred Andrew was a resident of Tumundan Primary School community because his wife is a teacher at the school. On the mention date, the accused walked into the house of one Miss Diminaca Baduk, to question her about alleged rumours he heard that his (accused’s) wife was having an affair with another man. However, instead he met her house mate Miss Brednie Wantanikam, and together they went out to look for Miss Baduk. They left the house and located Miss Baduk at a nearby store and by then it was dark and they used torch light to walk back. On their way back, a heated argument arose between Miss Baduk and the accused. Seeing that the accused was getting angry, Miss Wantanikam switched off the torch, making it difficult for the accused to see and that allowed Miss Baduk to run away. In his frustration the accused picked on Miss Wantanikam and beat her by punching her mouth, twisted her fingers and kicked her legs. Then later on that same night in the early hours of the morning of 28^th of April, 2016, the accused entered the house of Miss Baduk and also beat her up by punching and kicking her on her mouth, face and legs. Accused beat both victims up in his anger over his wife’s affair. As a result both victims suffered bodily harm from accused’s unlawful assaults.

3. A Medical Report of Dr Moises Grandra dated 9^th May, 2016 confirms that victim Dominica Baduk was seen at Paiam Hospital on 28^th April, 2016 at 11:00 am. On examination she received minor Laceration to the lower lips and minimal bleeding and painful lower canine tooth. Examination of left 4^th phalanx showed minimal swelling, non tender, able to flex and entered inter-phalangeal joints. The doctor reported that he saw the victim again on 2^nd May, 2016 and victim complained of tooth ache and left flank pains. He saw lose 3 lower central incisors and 2 canines still moving slightly. X-ray of the left mandible show no fracture/dislocations. She was discharged with Panadol 1g oral gid.

In his concluding remarks the doctor said: “Patient sustained psychological and physical trauma when the incident happened that will take time to heal”. She also lost three of her teeth permanently.

4. No Medical Report of victim Brednie Wantanikam was produced in court.

5. In his statement on Allocatus, the accused said:

“I would like to apologise to the court for hearing my case. I also apologise to the two (2) victims for assaulting them and their family members. Thirdly I apologise to my family members. This is my first time to commit a trouble. I would have not caused the problem but I left my 3 kids with my wife and went to Lae for an interview. I stayed in Lae for 3 months and when I came back from Lae to the Primary School, the surrounding community told me that my wife left the kids in the house and escorted two ladies and went to the club to visit the two ladies boyfriends. First I did not take the law into my hands when the community members told me that. I kindly went to their house and asked them. When they provoked me by putting off the torch and running away, that caused me to assault both of them. Today HIV is spreading rapidly and my wife had sexual intercourse with another man and she left me and went away. I would like to ask the court to have mercy on me so that I can stay out of prison and look after my kids. The medical report which was obtained by the victim was one sided. The medical report which shows that she (Miss Baduk) lost 3 teeths is a lie. I paid K600.00 to both of them as they agreed. Thank you. That’s all”.

6. In relation to accuseds personal particulars, Mr Kolowe submitted that he is 27 years old, married with 3 children ages between 2 years and 7 years. Both parents are alive. His father married four (4) wives and accused’s mother is the first wife and has ten (10) children. Accused is the first born. He completed grade 12 Education in Bugandi Secondary School, Lae in 2008. He completed his Heavy Equipment Fitter course in 2011. Currently he is unemployed. He is member of the Lutheran Church.

7. On address on Sentence, Mr Kolowe submitted and urged the Court to consider in accused’s favour the following mitigating factors:

1. He pleaded guilty and saved Court’s time and resources;
2. He co-operated with Police and admitted the offence in the Record of Interview;
3. He pleaded guilty at his earliest opportunity;
4. He has expressed remorse to the victim and his family;
5. He is a first time offender;
6. That there was provocation involved in that the victims switched off the torch and ran away from him without giving any explanation to him; and
7. That he paid K600. 00 in cash to both victims.
   

8. Mr Kolowe submitted and urged the Court to consider that this is not a worst type of case and as such urged the Court to impose a term between 6 months and 1 year and the sentence be served concurrently and the remaining term be wholly suspended.

9. Mrs Koralyo of Counsel for the State submitted and urged the Court to consider against the accused the following factors;

1. That the victim suffered injuries;
2. That victims suffered Psychological Trauma;
3. He had blatant disrespect for the women;
4. There was no provocation and the victim’s were assaulted for no good reason without warning; and
5. He took the law into his own hands.
   

10. Ms Koralyo referred the Court to the case of The State v Helen Wamingi (2013) N5723 and urged the Court to consider the injury the victim received on her ear which was permanent. A term of 18 months was imposed upon his plea of guilty. The Pre-Sentence period in custody was deducted and none of the sentence was suspended. She submitted that the appropriate sentence is 1 to 2 years on each count and the sentences be served cumulatively as the offences were committed on 2 different victims and on two (2) different times and places.

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

12. 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.

13. On authority of the cases of Goli Golu v The State [1982] PNGLR 653 and Avia Aihi v The State (No.3) [1982] PNGLR 92, the maximum penalty is reserved for worst type of case. In my view this case is a serious type of unlawful assault causing bodily harm.

14. 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.

15. In considering the appropriate sentence I consider the following factors in favour of the accused:

1. That he at his earliest opportunity pleaded guilty to two (2) Counts of Unlawful Assault causing bodily harm and saved Court’s time and resources;
2. That he is a first time offender;
3. That he has a prior good character;
4. That he expressed remorse to the victims and said sorry to the Court;
5. That no weapon was used;
6. That he paid K600. 00 in cash to both victims.
   

16. The aggravating factors considered against the accused are that:

1. The assaults on the victims consists of punches and kicks;
2. That the injuries received by victim Dominica Baduk were caused by the punches and kicks by the accused;
3. The victim Dominica Baduk received injuries including permanent loss of 3 teeths;
4. The victims also suffered Psychological trauma;
5. There was no provocation on the part of the victims;
6. He did not show respect to the victims;
7. He took the law into his own hands; and
8. The offence is a prevalent offence.
   

17. A further aggravating factor considered against the accused is that he without permission entered victim’s house. I consider accused’s action as an invasion of privacy and family life. And this is considered along one of the basic right enshrined in the constitution which is “Protection for the Privacy of homes”. A person’s home whether it is a mansion or a shack is his or her castle and therefore I think the punishment for offences committed in homes should reflect those values.

18. In carefully weighing both the factors in mitigation as well as those against the accused and the sentencing trend I have briefly discussed above, I consider that a sentence below the maximum sentence of 3 years is appropriate in the circumstances of the case. Accordingly I consider a sentence of 1 year for the first count and 2 years for the second count.

19. The final issue for determination in this case is whether the sentences of one (1) year and two (2) years should be cumulative or should they be made concurrent.

20. The cases on point amongst others are Acting Public Prosecutor v Konis 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 principle. The best local case on these principle is Acting Public Prosecutor v Konis Haha [1981] PNGLR 2015. 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 (at 117).

‘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 for the totality of the criminal behaviour”.

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

22. In the present case, the offences are unrelated in that they were committed at two different times and it involves different victims. The first offence was committed on early evening of 27^th April, 2016 on the road outside of Tumudan Primary School boundary area. The second offence was committed on 28^th April, 2016 inside the house of the victim Dominica Baduk. This in my view qualifies this case for sentences to be made cumulative having regard to the principle enumerated and applied by the cases cited above.

23. What is left for the court to do is to decide on whether the totality of the sentences to be served is appropriate. In other words I have to decide whether the total of 3 years is crushing on the accused.

24. 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 a father with three young children. I therefore make the one (1) year for the first count to be served concurrently to the 2 years term for the second count.

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

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

1. Accused enter into his own recognizance to keep peace and be of good behaviour for 2 years and further subject to the following conditions;
   
   1. He must not leave Porgera town without the approval of the National Court;
      
   2. He must keep the peace and be of good behaviour and must not cause trouble or harass the victim’s and their families;
      
   100. 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 term of sentence.
        

I order that Accused’s bail money be refunded.

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