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State v Aisipel [2014] PGNC 174; N5777 (18 August 2014)

N5777

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 728 0F 2000

THE STATE

V

ROBIN AISIPEL

Kimbe: Cannings J
2014: 18 August

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

The offender pleaded guilty to unlawfully assaulting a man during a course of a melee that resulted in the victim having a hand chopped off. The offender was not the person who chopped off the victim's hand. He was only convicted of unlawfully assaulting the victim. 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 directly inflict any physical injury on the victim; made early admissions and eventually surrendered.

(4) The aggravating factor is that the victim suffered a very significant injury during the melee and the offender bears some responsibility for that as his actions made the victim vulnerable to attack.
(5) A sentence of six months, one week imprisonment was imposed. The pre-sentence period in custody of six months, one week was deducted and the court ordered that the offender be released from custody forthwith.

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

18th August, 2014

1. CANNINGS J: Robin Aisipel pleaded guilty to unlawfully assaulting Robert Amkom, and has been convicted of that offence under Section 335 of the Criminal Code. The incident occurred at Aumo Logging Camp in the Cape Gloucester area of West New Britain on 15 June 1999. The victim Robert Amkom came to the Logging Camp at 10.00, looking for his wife. He found her and assaulted her. In response a number of men who were not happy with what Amkom did to his wife, entered the scene and assaulted him. Another man came in to try to stop the assault on Amkom. Then the offender, Aisipel, came in and joined the assault on Amkom. He only punched him, not badly. Then another man, allegedly it was Stanley Galapo, entered the melee and he attacked Amkom with a bushknife and chopped off Amkom's left hand. For the purposes of the present case Aisipel is the offender and Amkom is the victim. Aisipel has been convicted of the assault on Amkom.

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 declined to say anything.

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). I take into account that he did not directly inflict any physical injury on the victim, he made early admissions and eventually surrendered.

PERSONAL PARTICULARS

5. The offender is 42 years old. He is married with five children and is a subsistence farmer.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Kari highlighted the guilty plea and the fact that the incident occurred many years ago and submitted that the offender should be given a fully suspended sentence.

SUBMISSIONS BY THE STATE

7. 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

8. 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?

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

STEP 2: WHAT IS A PROPER STARTING POINT?

10. I will use the midpoint of six months.

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

11. There is no precedent readily available.

STEP 4: WHAT IS THE HEAD SENTENCE?

12. Mitigating factors are:

• pleaded guilty;
• did not directly injure physically the victim;
• the offender made early admissions and eventually surrendered.
  

13. The aggravating factor is that the victim suffered a very significant injury during the melee and the offender bears some responsibility for that as his actions made the victim vulnerable to attack.

14. I will impose a sentence that will result in the offender's release from custody forthwith. He spent six months on remand soon after commission of the offence, then he was released on bail. He apparently broke bail and has been living in a remote location without committing any other offence. He surrendered to the Police a week ago as he heard that the Court would be sitting on old cases and he wanted to have the matter resolved. In total he has spent six months and one week in custody, and that is the sentence I impose.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED?

15. 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 six months, one week.

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

16. No. There is nothing to suspend.

SENTENCE

17. Robin Aisipel, 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