State v Sete [2021] PGNC 462; N9316 (22 November 2021)

N9316

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 43 & 105 of 2020

BETWEEN:
STATE

AND:
GEORGE SETE AND KONNIE KUK

Waigani: Wawun-Kuvi, AJ
2021: 27^th October, 17^th & 22^nd November

CRIMINAL LAW-SENTENCE-Guilty Plea-Assault occasioning bodily harm, 340(1) Criminal Code-police officers-conduct unbecoming- victim defenseless 14 year old boy- kicked and hit with a pvc pipe on multiple parts of the body

Cases Cited

State v Anton (2021) Cr No 88 of 2021 Unnumbered (published in PNGSD)
State v Malko [2018] PGNC 486; N7606
State v Puring [2018] PGNC 394; N7506
State v Andrew [2017] PGNC 314; N6987
State v Kutumano [2017] PGNC 50; N6673
State v Kogen [2016] PGNC 39; N6211
State v Pari [2015] PGNC 43; N5962
State v Peter [2011] PGNC 345; N4320
State v Aiwa [2008] PGNC 321; N3330
State v Piries [2007] PGNC 186; N4982
State v Sabuin [2006] PGNC 76; N4475
Goli Golu v The State [1979] PNGLR 653
State v Tardrew [1986] PNGLR 91

References

Criminal Code Ch 262

Counsel

Ms Gretel Gunson, for the State
Mr Joshua John, for the Defence

DECISION ON SENTENCE

22 November, 2021

1. WAWUN-KUVI, AJ: Konnie Kuk and George Sete
   (offenders) were young police officers attached with the Air Tactical Wing of the Special Services Division of the Royal Papua New Guinea Constabulary. In response to a call for police assistance to curb the rising lawlessness in West New Britain, the two police officers and their squad were deployed.
   
2. The 28 of July 2018 is a day insignificant to most. For Konnie Kuk, George Sete, and the young victim, it is a day etched in stone. For Konnie Kuk and Goerge Sete an otherwise routine day of patrolling the streets of Kimbe town. For the 13-year-old victim, it was another day of teenage mischief.
   
3. The path was set in motion when all three were placed at a crossroad in decision making, and all of them ultimately choosing the wrong path. Each of their individual decision, is the type of decision that most offenders fail to contemplate before embarking on life changing behavior.
   
4. For the young 13-year-old victim, his choice was to be path of a group of hooligans that stole a mobile phone from a woman at the Talasea bus stop. For the police officers, it was a decision to pull the boy out of the water, kick him and hit him with a Polyvinyl Chloride (PVC) pipe.
   
5. Both men have pleaded guilty to the assault. I am now to decide the appropriate penalty.
   

Purpose of Sentencing

6. In considering the offender’s sentence, I remind myself of the purpose of sentencing which includes but is not limited to, considerations such as punishment of the offender, rehabilitation, specific and general deterrence, communicating clearly that the community and society does not condone the offender’s conduct and in cases of violent and serious offences for the protection of the community.

The Charge

7. The offenders pleaded guilty to the charge of Assault Occasioning Bodily Harm pursuant to section 340(1) of the Criminal Code.
   

Penalty

8. The maximum penalty is 3 years.
   
9. The maximum penalty is reserved for the most serious case: Goli Golu v The State [1979] PNGLR 653.This is not such a case.
   

Submissions

10. Defence submit for a term of imprisonment of 2 years and that the whole or part of the sentence be suspended.
    
11. The defence submit that the aggravating factors are that the assault was by multiple offenders, the use of police boots to kick the victim, the use of a pvc pipe to strike the victim and the throwing of the naked victim into the water. In mitigation, is the plea of guilty, the offenders have no prior convictions and that the victim did not sustain permanent injuries.
    
12. The defence submit that whilst there has been a rise in police brutality the Court must balance this with the fact that there is a rise in petty crimes in which majority of the victim are women and children.
    
13. I fail to appreciate counsel’s submission as to the relevance of the increase of petty crimes as opposed to the rise of police brutality. Police should never abuse their authority under any circumstances.
    
14. Defence referred to the following comparable cases:
    
15. In State v Sabuin [2006]^[1],Cannings, J: the offenders pleaded guilty to assaulting the victim. The first offender kicked the victim twice in the head and walked off, whilst the second and third offenders were responsible for the rest of the serious injuries to the victim. They were all drunk. The victim accused the first offender of stealing his outboard motor. He punched the 1^st offender twice which caused the offender to assault him. The victim had pre-existing conditions but suffered serious injuries that required hospitalization. The first offender was sentenced to 18 months whilst the 2^nd and 3^rd offender were sentenced to 2 years each. Time spent in custody was deducted and the balance of the sentences were wholly suspended on conditions including compensation. They were all first-time offenders.
    
16. In State v Pari [2015]^[2]Toliken, J, the offender and the victim were consuming alcohol. The offender became disorderly, and the victim attempted to calm him. The victim’s elbow was fractured when he blocked a pipe that the offender swung at him. He was a first-time offender. He was sentenced to 18 months imprisonment. The pre-sentence custody was deducted, and no part of the balance was suspended.
    
17. The State submits for a term of imprisonment of 2 years.
    
18. The State contend that the only mitigating factors are the plea of guilty and that the offenders are first time offenders. In aggravating is that the victim was a 14-year-old student, he was defenseless, was assaulted in a public place, victim suffered multiple injuries to various parts of his body and that there was more than one offender.
    
19. The State referred to the Court the case of State v Puring [2018]^[3]. In that case the offender was found guilty after a trial on one count of assault occasioning bodily harm under s 340 of the Code and one count of going armed as to cause fear under s 70 of the Code. The offender was a policeman who armed himself with a police firearm and went to the victim’s home with an intent to cause fear. He shot the victim in the foot. He was not performing police duties. He was sentenced to 2 years imprisonment. No part of the sentence was suspended.
    
20. Additionally, the following are comparable cases that I have been able to find. The cases involve guilty pleas, first time offenders and kicking or striking of the victim with the use of weapons or objects.
    
21. State v Andrew [2017]^[4], Auka, AJ (as he then was): This is a case that involves two victims. The offender was indicted under section 340 of the Code. The offender pleaded guilty to assaulting two of his wife’s friends by punching and kicking them. He had heard stories by the community that his wife was having an affair and so he took it out on her friends when they failed to assist him in uncovering the truth of the information. He was sentenced to a concurrent sentence of 2 years. The sentence was wholly suspended, and the offender was placed on a good behavior bond.
    
22. State v Kutumano [2017]^[5], Ipang J: The offender pleaded guilty to assaulting the victim over allegations of sorcery. There were two charges. One of deprivation of liberty and the other for assault occasioning bodily under section 340 of the Code. The victim was kicked and punched and taken to another location where he was rescued by police. The Court sentenced him to 18 months imprisonment. The sentence was wholly suspended.
    
23. In State v Anton, (2021)^[6], Liosi, J, the victim was drunk and insulted the offender. The offender punched the victim until he lost consciousness. He pleaded guilty and was a first-time offender. The victim suffered a lacerated lip and lost three of his lower front teeth. He was sentenced to 2 years imprisonment which was wholly suspended on him entering into his own recognizance. He was ordered to compensate the victim.
    
24. In State v Kogen [2016]^[7] Cannings J, the offender hit the victim with a piece of wood resulting in the victim suffering from a fracture. She was angry over the victim holding her child. She endangered the child. There was no lawful justification. The victim did not want compensation. The Court said that the victim’s views must be considered. The offender was a first-time offender. The offender was sentenced to 2 years imprisonment. Time spent in custody was deducted and the balance was not suspended.
    
25. In State v Peter [2011]^[8], Cannings, J: the offender was found guilty after a trial for assaulting a female neighbor with whom there was a series of neighborhood disputes. The mitigating factors were that she was the sole attacker, the victim's injuries were not that serious she was the first-time offender and there was going to be adverse effects on her children. The aggravating features were that there was a dangerous implement, facial injuries, lack of remorse and no evidence of reconciliation with the victim. The court held that the aggravating factors outweighed the mitigating and imposed a sentence of two years.
    
26. In State v Aiwa [2008]^[9] David, J: the offender pleaded guilty to using a short metal rod to hit the victim on her right pointer finger. The victim suffered a fracture. The offender and victim were known to each other. The offender was aggrieved over the refusal of the victim to assist her recover debts or what is termed as ‘dinau mani’. The victim was a middle woman who had introduced the borrowers to the offender. The injury was sustained when the victim raised her hand to defend herself. This was the offenders first offence. The prisoner was sentenced to 14 months imprisonment. Time spent in custody was deducted and the balance of the sentence was wholly suspended with conditions including compensation.
    
27. In State v Piries [2007]^[10]Cannings J: the offender went to his in-law’s house in search of a friend. He was informed that the friend was not there. He was drunk at the time. He was not aggrieved by the response from his in-laws and uttered some words at them. His brother-in-law confronted him. He hit his brother-in-law with a guava stick. His sister-in-law went to her brother’s aid and was also hit with the same guava branch. His mother-in-law went to the aid of her children and was also hit with the same guava stick. The offender pleaded guilty to all three counts of assault causing bodily harm. This was a first offence. He was sentenced to 8 months for each count. The sentence was cumulative, and the resultant sentence was 2 years. Time spent in custody was deducted and the balance was suspended with conditions including compensation.
    
28. In the present case, the offenders are police officers, a pvc pipe was used to hit the victim and the injuries were not permanent or life threatening. The victim had sores and scratches. The victim was also kicked by the offenders.

Sentencing Factors

29. Before proceeding on to determine sentence, I again remind myself that sentencing is not an exact science, it is an exercise of discretion which involves the balancing of various factors against the peculiar circumstance of an offender’s case.
    
30. Some important factors include the offender’s character, age, education, intellectual capacity, nature and seriousness of the offence, the criminal intent, degree and extent of an offender’s involvement, extent of the injury or harm, the complainant or victim’s views, the existence of aggravating or mitigating factors, prevalence of offence, assistance given to police, pleas of guilty and time spent in custody.

Personal Antecedents

George Sete:

31. The offender is 30 years old. He is from Tewai-Siasi, Morobe Province. He is the first born in a family of four children. His mother is a home maker, and his father is gainfully employed with ESS Security in Lae.
    
32. He is in a relationship with a woman from East New Britain. From this relationship he has a four-month-old daughter. His partner and child presently reside in East New Britain Province.
    
33. The offender completed primary school at St Mary’s Primary School in Lae. He went on to complete secondary school at Bugandi Secondary. He obtained a diploma in Information Technology at the International Training Institute in Lae.
    
34. In 2015 he applied and was accepted to undergo basic police training at the Bomana Police College. He passed out in September 2015. He joined the Special Services Division (SSD) in 2016. He was attached with SSD until his dismissal on 26 September 2019.

Konnie Kuk

35. The offender is 30 years old. He is from Vunadawai Village, Gazelle District in the East New Britain Province. He is the second child in a family of three. His mother is deceased, and his father is alive and still working.
    
36. He is single and has no children.
    
37. The offender completed primary school at Vunadawai Primary School in his home village. He later attended Malabanga Secondary School. He later attended the Commercial Training College in Lae.
    
38. In 2015 he applied and was accepted to undergo basic police training at the Bomana Police College. He passed out in September 2015. He joined the Special Services Division (SSD) in 2016. He was attached with SSD until his dismissal on 26 September 2019.

Allocutus

George Sete:

39. The Offender states:
    

“Firstly, say sorry to the Court. the police department and to the victim’s family and my family. Those others I have missed out, I also apologize to them. As my co-accused has already mentioned, we have been faithfully attending court since 2018. Although they suspended and then terminated us, we still attended to Court. I am the eldest in my family. My father is the only person employed. While working I supported him and supported by youngest siblings. I also have a small family and a small child. Since terminated by police I have sent them to the village. While being on the outside, whatever small job I find, I have been able to support them.

I ask for the mercy of the Court and if the Court can be lenient on use so that we are able to help and sustain our families.”

40. I accept the statement in allocutus as genuine remorse.

Konnie Kuk:

41. The Offender states:
    

“Since arrested in 2018 we have been appearing in Court. We have not missed any days. While attending to Court we had been penalized administratively as we were suspended. After suspension they put us off pay for almost 3 months. Although we had been given those penalties were still managed to attend to Court. Since they put us off the pay, they served the notice of penalty last year. They had us dismissed. We both that the penalties were too harsh. They dismissed us and we found it difficult to live in the city but because we had our matters in Court we attended.

Secondly, I’d like to apologies for what happened. To the Police Department even though they dismissed us. We say apologize.

Lastly to the family of the boy victim. We say very sincere apologize to the family members of the boy. If we are able to communicate with then we can settle the matter.

Lastly, I ask for Court’s leniency for myself and my co-accused. We have suffered administratively and beg for mercy for myself and my co-accused.”

42. I accept the statement in allocutus as genuine remorse.

Complainant’s views

43. The Probation Officer was not able to locate the victim to obtain his views.
    
44. The State did not provide a Victim Impact Statement.

Mitigating Factors

45. The offenders pleaded guilty and have no prior convictions.

Aggravating Factors

46. The aggravating features are that it was a vicious attack on the victim, the victim was a young boy, the offenders were police officers. The attack was not justified. A pvc pipe was used to hit the victim multiple times over his body and he was also kicked. Police assaults are becoming prevalent.

Nature and Seriousness of the Offence

47. This was a serious offence. As police officers, the men abused the position that was entrusted to them. They hold a higher degree of responsibility to conduct themselves appropriately within the ambits of the law that they have sworn to uphold. It is apparent from the high number of police brutality cases that six months basic training is not enough time to instill a sense of discipline and integrity. Many police officers who embark down the road of extra judicial beatings forget that it is their uniform and the way they conduct themselves that either upholds or destroys public confidence in the justice system. They are after all the first contact for victims of crime.

Deterrence

48. A strong message must be sent to likeminded policemen that they must first respect the law.

Head Sentence

49. In considering all the above factors and the relevant case laws, I find the appropriate sentence to be 18 months imprisonment.

Suspension

50. A pre-sentence report was prepared to assist the Court. The community and the victim were not interviewed. One Constable Jason Wangut was interviewed. He speaks highly of both men and states that they have been law abiding citizen and have been living peacefully in the barracks at McGregor. He pleads for leniency for both men.
    
51. Both men were suspended and later dismissed as a direct result of the offences. The record of their dismissal proceedings is attached to the Pre-Sentence Report.
    
52. In State v Tardrew [1986] PNGLR 91, the Supreme Court held that suspension should only be exercise in three broad categories, (1) promotes personal deterrence, reformation, or rehabilitation of the offender, (2) encourages the repayment or restitution of stolen money or goods and (3) imprisonment would cause excessive degree of suffering, for example, because of bad physical and mental health:
    
53. I find partial suspension is appropriate. It recognizes the prevalence of the offence and the need to restore public confidence in the justice system on the one hand, and on the other recognizes personal deterrence and rehabilitation.
    
54. The offenders were terminated from their employment. This in no doubt has affected them significantly. They have lost job security, housing, and promising careers.
    
55. A wholly suspended sentence is not justified because the offence is prevalent and public confidence must be restored.
56. In the exercise of my direction 12 months of the sentence is suspended.
    

Orders

57. The Orders of the Court are as follows:
    
    1. The Offenders George Sete and Konnie Kuk are sentenced to 18 months imprisonment.
    2. Twelve (12) months of the sentence is suspended on the condition that the offenders shall enter into their own recognizance upon release and be of good behavior for the balance of the sentence.
    3. Six (6) months of the sentence shall be served in custody.
    4. Bail shall be refunded to the prisoners.

________________________________________________________________
Office of The Public Prosecutor: Lawyer for the State
Office of The Public Solicitor: Lawyer for the Defence

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^[1] PGNC 76; N4475 (25 August 2006)
^[2] PGNC 43; N5962 (5 March 2015)
^[3] PGNC 394; N7506 (15 October 2018)
^[4] PGNC 314; N6987 (30 October 2017
^[5] supra
^[6] Cr No 88 of 2021, Unnumbered (published in PNGSD)
^[7] PGNC 39; N6211 (19 February 2016)
^[8] PGNC 345; N4320 (22 June 2011)
^[9] PGNC 321; N3330 (7 May 2008)
^[10] PGNC 186; N4982 (18 September 2007)