DC939

PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS CRIMINAL (SUMMARY) JURISDICTION

DCR 1018 & 1020/2009

BETWEEN:

POLICE
Informant

AND:

EZEKIEL MICHAEL
Defendant

Madang: J.Kaumi
22/09/, 25/09 & 28/09/09

SUMMARY: Sentence –Possession of offensive weapon contrary to Section 12 (b) and Stealing contrary Section 48C (1) of the Summary Offences Act– Pleas of Guilt – Sentencing Guidelines – Mitigating and Aggravating Factors – Expression of Remorse –Prior Conviction-No appreciation for prior non custodial sentence- Prevalent Offence – Need for Deterrence.

PRACTICE AND PROCEDURE: Usual purposes of criminal sentencing such as Deterrence, Restitution or Rehabilitation are also relevant factors for consideration.

PRACTICE AND PROCEDURE: Courts not to be unnecessarily restricted in the exercise of sentencing discretion by principles such as no “disparity of sentence between co-accused” or no “quantum leap”. 

PRACTICE AND PROCEDURE: It is incumbent on criminal sentencing courts to exercise the people’s power vested in them by the Constitution to impose sentences that are in touch with the aspirations and attitudes of the people of PNG.

Cases cited
State v Jason Dungoia (13/12/00) N2038
State v Michael Kamban Mani (21/05/02) N2246
State v Fabian Kenny (2002) N223
The State v Jack Vutnamur & Kaki Kialo (No.3) (2005) N2919
The State v A. Juvenile “TAA” (2006) N3017
The State v Lucas Soroken Sembengo, Bob Alois Wafi & Raphael Lawrence Mandal N2801 
State v Iari (2006) N3238
Kila v Kisa DC22 (14/10/97)
State v Solomon Luemifa DC (14/05/07)
State v Patrick Kueho DC076 (10/09/07)
Police v Kawi Karoiwe DCR 901/2009
Legislation

Constitution of PNG
District Court Act, Chapter 40
Summary Offences Act, Chapter 264

Abbreviations

The following abbreviations appear in the judgment

CONST Constitution
COURT District Court
DC District Court
GBB Good Behavior Bond
J Justice
MP3 
NC National Court
PARA Paragraph
SOA Summary Offences Act
ST State
S C Supreme Court
SECT Section
SOA Summary Offences Act
ST State
SUBS Subsection

Counsel
Police Woman First Constable Rose Bussil; for the State.
Defendant in person.

28th September 2009.

INTRODUCTION

1. Kaumi. M. Ezekiel Michael, you will now be sentenced on two offences contrary to Section 7. (b) And Section 48C (1) SOA on two separate informations.

The Facts

2. The facts upon which I will proceed to sentence you arise out of the same transaction and are as follows: 

(a). On Independence Day 16/09/09 at around 1:25pm you with a friend were at the Madang Golf course. 

(b). At that time the victim, namely Ruben Tabel was on his way to his house at Kalibobo when you both and asked him a few questions and then you swung a bush knife at him.

(c) The complainant managed to avoid your swinging bush knife.

(d) You took advantage of the situation the victim was in and and grabbed his MP3 which valued at K136:00 and left him.

(e) The victim persisted in going after you and your friend and with the assistance of some responsible people caught up with you and managed to recover his MP3 but not before you assaulted him.

(f) The victim reported the matter to Police a few minutes later and as a result you were arrested along Bougainville Drive, escorted to the Jomba Police Station where you were cautioned and questioned about the matter and you admitted to stealing the victim’s MP3 and thereafter you were arrested.

ALLOCATUS AND SUBMISSION

3. In your address on sentence, you stated the followed:-

a. You were sorry for what you did;

b. You asked for the mercy of the Court.

4. Your Antecedent Report provided to Court is as follows;-

a. You are a single man;

b. You are unemployed;

c. You live at Gav Store settlement;

d That you have a prior conviction by this Court for begin in possession of a Dangerous Drug in December 2008 and placed on a six months (6) GBB. 

5. The Police Prosecutor made no submission on sentence but left it to the sentencing discretion of the Court.

6. I take into consideration these above matters when I deliberate your sentence.

ISSUE

7. These submissions give rise to only one issue for this Court to determine and that is, what the appropriate sentences are in your case.

The Offence and Sentencing Trend.

8. This issue can be decided by having regard to the sentence prescribed by Parliament, the sentencing guidelines and trends per the judgments and the particular circumstances in which you committed the offence from which come the factors in your aggravation as well as those in your mitigation. 

9. The practice in the higher Courts has been for the Supreme Court to give sentencing guidelines in the course of deciding criminal appeals or reviews. These guidelines are often coined as ‘starting points for various types of cases’ The National Court then applies those starting points in the course of looking at the circumstances peculiar to each case i.e. identifying the aggravating and mitigating circumstances.

10. Whilst the practice in the District Court as a ‘creature of statute’ has been to adjudicate within the precincts of the empowering legislation, it should also bear in mind and apply where necessary the guidelines used for sentencing in the National Court.

11. I have conducted a search of publicized decisions on sentence for the offense of being in possession of offensive weapons, specifically guns both factory and home made but only came up with a few. This does not mean in any way that the incidents of this offence are few hence the relatively low number of publicized judgments, certainly not by any stretch of the imagination. On the contrary, what it highlights is the fact that not all judgments have been publicized.

12. With the due respect, none of the publicized judgments up to now provide a guideline as to what are appropriate considerations to be taken on board in arriving at a sentence for this type of offence and there is need for guidelines for purposes of uniformity and consistency of sentence.

13. I am therefore inclined to go higher for guidance and analogy and in doing so adopt as a matter of practice, His Honor Kandakasi. J’s guidelines on sentencing in St v Michael Kamban Mani (1) that:-

a. The maximum prescribed penalty should not be imposed but should be reserved for the worst type of the offence under consideration;

b. Guilty pleas and the offender being a first time offender and the existence of “such good “factors operate in the offender’s mitigation and sentence lower than the prescribed maximum may be imposed.

c. The prevalence or otherwise of the offence which could be reflective of the ability of the previous sentence to either deter or not to deter would be offenders.

d. The kind of sentences that one being imposed in similar but less serious offences should be considered to ensure that sentences in a higher or serious offense is not lower than these imposed for the less serious offences.

14. And I hasten to add what I consider to be a fifth appropriate consideration and that is that the use of the offensive weapon in the commission of another offence should attract a higher sentence. .

15. I adopt from my judgment in Police v Kawi Karoiwe (2) at paragraph paragraphs 12 to 19 my discussion of the relevant published cases of Kila v Kisa (3), St v Solomon Luemifa (4), St v Patrick Kueho (5) and cases from Madang and note that the “starting point” is a fine of K1000: 00 or imprisonment of one (1) year and Courts can go higher or lower from this starting point dependent of course on the peculiar circumstances of a matter before it.

16. I note also in Madang in 2009 that the penalties for Sect 12 (b) offences where firearms are involved have ranged from a fine of K50.00 up to K1000.00 and sentences ranging from six months to two (2) years for the possession of firearms both factory and homemade.

17. For the offence of carrying offensive weapons such as firearms the imposition of fines under K1000.00 and imprisonment for less than one (1 year) represent a departure from what would appear to be the general sentencing trend that I have already alluded to above and I note that the immediate matter involves the possession and use of a bush knife in the crime.

THE LAW

18. The relevant law creating the offences which the defendant is charged with is provided for under the empowering legislation, the Summary Offences Act and at Sect12 (b) –Carrying Offensive Weapons and Sect 48C (1) Stealing.

19. Firstly, Section 12 (1) of the SOA provides for the offence being in possession of an offensive weapon as follows:-

“Section 12. Carrying Weapons

(1) A person who without reasonable excuse-

(a) carries, or

(b) has in his possession, custody or control,

any offensive weapon is guilty of an offence.

Penalty: A fine not exceeding K2000.00 or imprisonment for a term not exceeding five years.

(2) Where a person is convicted of an offence against Subs (1), the court that convicts him may order that the weapon the subject of the charge be destroyed or forfeited to the State.

Secondly, Section 48C Stealing

(1) A person who steals or attempts to steal anything, capable of being stolen, of a value not exceeding K500:00 is guilty of an offence under this Act.- 

Penalty: A fine not exceeding K400:00 or imprisonment for a term not exceeding 12 months.

The Mitigating Factors

20. In your favor, I note the following:

(a) You pleaded guilty to the offence. That saved the State the time and money it could have spent to successfully have you tried and convicted. It also saved the Court the time it could have spent in conducting a trial on the issue of your guilt or innocence. Further, it avoided the need for the relevant witnesses to bear the inconveniences of going to Court to testify against you.

21. I further note that you expressed remorse for what you did.

THE AGGRAVATING FACTORS

22. Against the factors in your favor, I take into account the various aggravating factors against you. First you have a prior conviction, by this court December 2008 for an offence of being in possession of a Dangerous Drug and you were given a 6 month G B B which ended this year and you reoffended just three months later. You reoffending demonstrated in my view, that the first sentence did not have the desired deterrence effect on you. What it means is that in this present case the sentence to be imposed on you invariably must have the desired element of deterrence. 

23. Secondly, I note that these offences are prevalent in Madang and this alone calls for more stiffer penalties to send a clear message to other like minded persons that the sentences are going to increase in correlation to it.

24. Thirdly, that these offences were committed in broad daylight which is an indication to this Court of your contempt for the law.

25. Fourthly, these offences were committed in company and when offences are committed in this manner the offenders are said to take “Dutch courage” in one another’s company. What it means is that their togetherness strengthens, emboldens and encourages them to commit the offence than say if it were a solo effort and so logically those that act in company deserve stiffer penalties. See The State v Iari (6) at Para 18.

OTHER RELEVANT CONSIDERATIONS

26. This is a democratic country with a well defined set of constitutional rights and everyone should enjoy his rights and freedoms anytime without having to be on the constant lookout for predators like you.

27.Every man, woman and child from our rural villages to the cities have every right to come and go as they please anywhere, anytime and any place and indeed our freedom of movement is guaranteed by our Constitution. You and your friend had no right whatsoever to accost Ruben Tabel in the manner you did on the afternoon of the 16/09/09 at the Madang Golf course.

28. It is the conduct of persons like you who interfere with the rights of peace loving and law abiding citizens of this country and non citizens alike, that not only tarnishes our good name but inhibits would- be investors from investing in this country which in turn contributes to the “underdeveloped nation” status it so undeservedly has tagged to it and you must be punished as a personal deterrence to you and also as a general deterrence to others who might be like minded.

29. You are charged just with these two summary offences but I help thinking out aloud that the reality is that what you did has all the hallmarks of armed robbery and I cannot for the life of me understand how the Police have trivialized it by choosing to prosecute the matter in this manner.

30. Nevertheless I can only make comment as the Office of the Police Commissioner is a constitutional one and this Court certainly has no control over its prosecutorial powers. 

31. Another matter I wish to highlight here is the date of the commission of the offences. This was the victim’s Day of Independence just as much as it was yours and the rest of us for that matter. It is becoming frightening just how much little national pride the youth of PNG have today. Where has that national pride our founding fathers once cherished gone to? There is a general breakdown of respect for our cultures and those values which provide that cohesiveness for a peaceful and law abiding society. There is very little no respect for fellow citizens and non citizens alike. On a day when you as a citizen of this country should have been celebrating, you were stealing off another fellow citizen by choice. What you did on that day runs contrary to what was expected on this important day of all citizens of this country.

32. One way of instilling respect for others is to mete out deterrent sentences and the circumstances of this particular matter demand that this Court exercise the people’s sentencing power vested in it by the Constitution and impose a sentence that is in touch with their aspirations and attitudes.

CONCLUSION

33. To suit the purposes of retribution and rehabilitation sentences should not be too lenient so as to firstly cause a disservice to the community by failing to deter such offenders and secondly to not adequately correspond to the gravity of the offence and having the desired resultant impact on the rehabilitation of the offender.

34.Kandakasi.J in St v Jason Dungoia (7) stated that “The usual purpose of criminal sentencing such as deterrence, restitution or rehabilitation are also relevant factors for consideration and so are requirements to carefully consider and take into account the factors for and against a prisoner before sentencing him or her”.

35. Weighing the factors for and against you, I note that the aggravating factors out weigh those in your mitigation.

36. No court should be unnecessarily burdened in the exercise of their sentencing discretion by such principles, as no “disparity of sentence between co-accused” or no “quantum leap” for there is nothing legislated dictating this and they should be guided by the purposes of criminal sentences more than not., And so Courts should impose sentences that though might be viewed by some as “quantum leaps” or “disparity of sentence” are nevertheless sentences that correctly reflect the peculiar circumstances of a particular case. The authority for these sentiments was stated by Kandakasi. J in St v Fabian Kenny (8). 

37. The two charges for which you have pleaded guilty to arise out of the same or closely related facts or “one transaction”, and I will treat them as part and parcel of the same transaction for purposes of sentencing.

38. I note that the “one transaction” rule dictates that where two or more offences are committed in the course of a single transaction, all sentences in respect of the offences should be concurrent. See The St v Jacky Vutnamur and Kaki Kialo No 3)( (9); The St v Lucas Soroken Sembengo, Bob Alois Wafu & Raphael Lawrence Mandal (10); and The St v A Juvenile, "TAA" (11). They were armed robbery cases but the same principles apply irrespective of the nature of the crime. 

39. I am also conscious of the "totality principle", that when the court has arrived at appropriate head sentences and decided whether they should be concurrent or cumulative, it must look at the total sentence and see if it is just and appropriate. If it is not, one or more of the sentences should be varied to get a just total.

40. Having alluded to these principles of sentence this Court in contemplating the appropriate sentence has started from the midway point of 6 months which it considers as fair to you but notes on the same token that you have benefitted from a 6 months G B B in the very recent past and therefore not a first offender.

41. This Court is of the view that a concurrent sentence would correctly reflect the serious and peculiar circumstances of the immediate matter and corollary that it would not be crushing on the defendant and indeed not manifestly excessive but just. These offences were committed in company against an innocent man and in broad daylight. Offences of this nature are commonplace in contemporary PNG society and must be stamped out and in my adamant view its prevalence does not in any way or form lend it any legitimacy or credence.

SENTENCE

42. Ezekiel Michael, having been convicted of one count of stealing contrary to Sect 48C (1) and one count of carrying an offensive weapon contrary to Section 12 (b) are sentenced in the following manner: 

Count One	Fined K100 I/D 6 months IHL	
Count Two	Fined K200 I/D 6 months IHL 	
Both sentences to be served concurrently if I/D of payment of fine	6 months effective sentence	
Amount of sentence suspended 	Nil.	

Police Prosecutor for the Police 
Defendant in person

______________________________________________________________________________
[1] (21/05/02) N2246
[2] DC R 901/ 2009
[3] DC22 (14/10/97)
[4] DC519 (14/05/07)
[5] DC076 (10/09/07)
[6] (2006) N3238
[7] (13/12/00) N2038.
[8] (2002) N223
[9] (2005) N2919
[10] N2801 
[11] (2006) N3017