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State v Boas [2014] PGNC 166; N5778 (19 August 2014)

N5778

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 102 0F 2014

THE STATE

V

JETHRO PASSINGAN BOAS

Kimbe: Cannings J
2014: 13, 14, 19 August

CRIMINAL LAW – sentence – unlawful assault – Criminal Code, Section 335 – guilty plea

The offender pleaded guilty to unlawfully assaulting a woman. The victim and her daughter were walking along a country road. The offender saw them and called out to them to stop, but they did not stop; the offender then approached the victim, grabbed her by the waist and tried to tackle her to the ground. The victim resisted and used a bushknife she was holding to hit the offender on the head, and he ran away. This is the judgment on sentence.

Held:

(1) The maximum penalty for unlawful assault under Section 335 of the Criminal Code is one year imprisonment.

(2) A starting point of six months imprisonment was used.

(3) Mitigating factors: pleaded guilty; did not physically injure victim.

(4) There were no aggravating factors.

(5) A sentence of nine months imprisonment was imposed. The pre-sentence period in custody was deducted and no part of the sentence was suspended.

Cases cited

The following case is cited in the judgement:

Saperus Yalibakut v The State (2006) SC890

SENTENCE

This was a sentence for an offender who pleaded guilty to unlawful assault.

Counsel

F K Popeu, for the State
D Kari, for the offender

19th August, 2014

1. CANNINGS J: Jethro Passingan Boas pleaded guilty to unlawfully assaulting Christine Vagoli, and has been convicted of that offence under Section 335 of the Criminal Code. The incident occurred at Dami, West New Britain on 24 August 2013. The victim and her daughter were walking towards Dami research station. The offender saw them and called out to them to stop, but they did not stop; the offender then approached the victim, grabbed her by the waist and tried to tackle her to the ground. The victim resisted and used a bushknife she was holding to hit the offender on the head, and he ran away.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. The offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:

I apologise to the victim and I would like to compensate her.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of reasonable doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). However, nothing of any significance appears in those materials. He was charged with attempted rape and he is lucky to have been indicted only on a charge of assault.

PERSONAL PARTICULARS

Personal details of Jethro Passingan Boas

SUBMISSIONS BY DEFENCE COUNSEL

5. Mr Kari highlighted the guilty plea and the preparedness of the offender to reconcile with the victim and sought a suspended sentence.

SUBMISSIONS BY THE STATE

6. Mr Popeu was content, in view of the small sentencing range available, to leave the sentence to the discretion of the court.

DECISION MAKING PROCESS

7. 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 sentences have been imposed for equivalent offences?
• step 4: what is the head sentence?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

8. The maximum penalty under Section 335 (common assault) is one year imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

9. I will use the midpoint of six months.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

10. There is no precedent readily available.

STEP 4: WHAT IS THE HEAD SENTENCE?

11. Mitigating factors are:

• pleaded guilty;
• did not injure physically the victim.
  

12. There are no aggravating factors. However, a sentence above the starting point is warranted. I impose a sentence of nine months imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

13. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is four months, four days.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

14. No. A term of imprisonment is warranted. The victim is related to the offender and it is to be expected that this matter can be sorted out in the family. The offender will spend his time in custody, she will see that he has been punished and when he is released they should both move on with their lives in peace.

SENTENCE

15. Jethro Passingan Boas, having been convicted of one count of unlawful assault contrary to Section 335 of the Criminal Code, is sentenced as follows:

Sentenced accordingly.
__________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender