DC938

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

DCR 1074&1075/2009

BETWEEN:

POLICE
Informant

AND:

COLIL SOK & COLIL KATI
Defendant

Madang: J. Kaumi
2009: 30th September, 14th, 15th, 29th October, 17th November

CRIMINAL: Sentence – Carrying Weapons –contrary to Section 12 subsection 1 of the Summary Offences Act Chapter 264-Plea of Guilt-Court can use depositions to extract the relevant factors for purposes of sentence-Need for proper Guidelines to be followed in the course of deciding appropriate sentence for purposes of Uniformity and Consistency.

Cases Cited

Public Prosecutor v Yapuna Kaso (1977) PNGLR 209 
Public Prosecutor v Tom Ake (1978) PNGLR 469
State v Sabarina Yakal (1988-89) PNGLR 129
Acting Public Prosecutor v Don Hale SC564
Kila v Kisa DC22 (14/10/97)
State v Michael Kamban Mani (21/05/02) N2246
State v Robert Lorou Sevese (2004) N3453 
State v Solomon Luemifa DC519 (14/05/07)
State v Patrick Kueho– DC076 (10/09/07)
Police v Kawi Karoiwe DCR 901/2009 (8/09/09)

Legislation 
Constitution of PNG
Criminal Code Act, Chapter 246
District Court Act, Chapter 40
Summary Offences Act, Chapter 264

Abbreviations
The following abbreviations appear in the judgments

CBC Community Based Corrections
NAT CT National Court
PSR Pre Sentence Report
SECT Section
SOA Summary Offences Act
ST State
SUBS Subsection
SUP CT Supreme Court

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

INTRODUCTION

1. KAUMI M. You both pleaded guilty to a charge of possessing offensive weapons contrary to Section 12 (1) of the Summary Offenses Act .You both pleaded for leniency so the Court requested a pre sentence report from the Community Based Correction office here in Madang and reserved its decision on sentence to pending receipt of that report by Friday 09/10/09 and further submission thereafter if any.

2. The Court did not receive this PSR on the 14th of this instant, and so matter adjourned to 15/10/09 for Mr. Sapush of CBC office, Madang to explain to Ct why the PSR was not filed on time despite begin allowed two weeks to prepare it.

3. On the 15/10/09 Mr. Sapush explained that he was not informed by Senior Constable Bel despite the latter being directed by CT to do so. The matter was again adjourned to the 29/10/09 for sentence.

4. On the 29/10/09 the co-defendants were not brought to Ct due to Police transportation problems and he PSR was not filed with the Ct by this time as yet. Matter adjourned for another two weeks to30/10/09 to allow CBC to file the PSR.

5. On the 30/10/09 the matter was given a final adjournment to 17/11/09 to allow Mr. Sapush time to file the PSR.

THE FACTS

6. On Friday 18th of September 2009 at about 6:30 pm the co-defendants were at Mainan Village, Braim, Madang.

7. At this time aforementioned, Police personal conducted a raid at Mainan village in search of firearms that were illegally possessed by certain people there, causing law and order problems, especially, rape, attempt murder, arson etc.

8. The Police personal went to Marinan on the night of 17/09/09 where they overnighted and conducted the raid in the early hours of 18/09/09.

9. They surrounded a double bush material building and called the occupants of the house to come out.

10. The two defendants came out of the house and were asked by the police personal if they had guns in the house to which they said that they had none.

11. The police then searched the said bush material house and discovered a home made shotgun and pistol.

12. The Police personal then questioned how the guns were in their possession and defendant Colil Sok said he had bought it from a Mr. George from Lae for K150.00.

13. The co-defendants were escorted back to Jomba Police station, cautioned of their rights, arrested, charged and placed in the police cell.

ALLOCATUS AND SUBMISSIONS

14. Colil Sok – a. In you’re your allocatus, you asked for the Court to have mercy on the both of you.

15. You asked to be allowed to go home and stay under the custody of the law there because you were villagers.

16. Colil Kati – you said in your allocatus that your comments were the same as Sok’s.

17. Senior Constable Bel for Police Prosecution stated in his response on sentence that serious offences were in the rise in the province and country as a whole because of weapons such as home made shot guns and pistols in the hands of people illegally.

18. He further submitted that the Ct consider a deterrence sentence to deter like minded persons.

ANTECEDENT

19. Your antecedent reports are as follows:-

a. Colil Sok- married, 3 children, unemployed villager and no prior convictions,

b. Colil Kati – married 3 children unemployed, villager with no prior convictions.

20. Senior Constable tendered the offensive weapons to Court.

ARRAIGNMENT

21. Upon your arraignment, you both pleaded guilty to the charge.

22. The relevant facts as put to you when I arraigned you and the statement of facts are as follows and there is authority for the use of such depositions to extract the relevant facts for sentencing purposes, State v Sabarina Yakal (1), Public Prosecutor v Yapuna Kaso (2) and Public Prosecutor v Tom Ake (3).

THE OFFENCE AND SENTENCING TREND

23. These submissions gives rise to only one issue for this Court to determine and that is, what the appropriate sentence in your case is. 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.

24. 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.

25. 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.

26. 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.

27. 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.

28. 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 (4) 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.

29. 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. 

30. I note and adopt from my judgment in Police v Kawi Karoiwe (5) at paragraph paragraphs 12 to 19 my discussion of the relevant published cases of Kila v Kisa (6 ), St v Solomon Luemifa ( 7), St v Patrick Kueho (8 ) and cases from Madang 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.

31. 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.

32. 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.

THE MITIGATING FACTORS

33. Before anything else, I take into account Colil Sok’s personal background from your Antecedent Report that you are aged 32 years old and come from Mainan village,, Madang Province, are married with three (3) children and are an unemployed villager. Colil Kati you are 58 years old, are married with 3 children and are an unemployed villager. 

34. In addition to your family background, in your favor, I note that you pleaded guilty to the offence. That saved the St 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.

35. Next you are both first time offenders in other words you have no prior convictions.

36. Your expressions of remorse are genuine when I consider your request to be both placed under the custody of the law but to stay in your village as you both are villagers.

37. These are the only three factors that can be said in your favour.

THE AGGRAVATING FACTORS

38. You both had concealed in your house two dangerous weapons, a home made shot gun and pistol. The uses of fire arms in the commission of any offence must always be viewed as a serious aggravating factor either on its own or coupled with other aggravating factors. There is no evidence that you were authorized to manufacture the said offensive weapon. In fact it is a contravention of the law to manufacture guns and have in one’s possession guns both without licenses. In recent years Papua New Guinea has seen a great proliferation of the use of offensive and dangerous weapons in the commission of crimes such as murders, arm robbery and rape etc. Accordingly it is incumbent upon the Courts to impose such sentences that will deter the possession and use of such dangerous weapons.

39. I note that your offence of possession of offensive weapons is a very prevalent one and the Courts have acted justifiably in increasing the kind of penalties they have imposed against offenders like you. Indeed in recent years a National Guns Summit was held through out the whole country to find solutions to address this problem.

40. You both expressed no remorse whatsoever for your actions and indeed from the first time the police questioned the both of you about whether you had guns in your house you chose deception to try to conceal the dangerous weapons you had in there and indeed after they were discovered, Colil Sok told the police that he had bought the guns from a Mr. George in Lae for K150:00 for what purpose he did not tell the police. He later told this Ct that the weapons belonged to a man from Manus who had given them to him for safekeeping.Colil Sok has given three (3) different accounts regarding these weapons and I consider him to be a scheming character and indeed his actions did nothing to help police with their investigations as he led them on what can best be described as" a wild goose chase".

Other relevant considerations

41. I consider the fact that had it not been for the police searching your house there is very little doubt that you both would never have surrendered these offensive and dangerous weapons to law enforcers voluntarily as an aggravating factor. This behavior is prevalent in the community today and the excuse advanced by most people caught with these weapons is that it is for personal safety reasons. What people must be made to realize is that if they going to arm themselves with guns as some form of protection against their enemy, it highly likely their enemy is going to equally arm himself as well in this self created atmosphere of fear and distrust. It is a vicious cycle and is rather like a tiger trying to catch his tail but never quiet succeeding.

42. I also note that the police in searching your house was a result of reports that firearms were being illegally possessed by certain people who were causing law and order problems, especially rape, attempted murder, arson etc.And though you both have not been charged with any other serious offence I cannot help but wonder whether these offensive and dangerous weapons were ever used in the commission of any indictable offence but nevertheless this not a factor I take into consideration when contemplating the appropriate sentence for the both of you.

43. The circumstances of this matter are very serious.

44. Though you are a first time offender the aggravating features in your case far outweigh the mitigating ones.

45. The sentence the Court imposes must reflect the common man’s attitude towards a particular offence and the gravity of that particular matter so as not to impose a sentence that is too high so as to be a ‘quantum leap and not too low so it may be interpreted as trivializing it and the SUP CT in Acting Public Prosecutor v Don Hale (9) expounded this stating that 

"If a judge is to consider some leniency on sentence ... it is incumbent on him to obtain the relevant report such as a pre-sentence report, especially around the age of 17 to 19. ... Then for such a drastic suspension of sentence a further help to the court would be a community report from the community to which the offender belongs and whether the community, seeing that the incident happened within that community, has any views on an appropriate punishment or whether the community is prepared to assist with any community management of any bond period. The Courts are bound under the philosophy of the Constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment of criminals definitely has an effect on the ordinary people. So, community involvement with the punishment of offender should be considered especially if the court wishes to return an offender to the community instead of imposing imprisonment."

46. His Honor Kandakasi .J in St v Robert Lorou Sevese (10) reiterated this authority when he stated." In Acting Public Prosecutor v. Don Hale (11), the SUP CT said sentencing is a community responsibility. For the courts exercise a power that belongs to the people by virtue of s. 158 (1) of the Constitution." 

47. This Court has addressed the other sentencing principles as enunciated by His Honor Kandakasi .J in St v Michael Kamban (12) and the fifth sentencing principle it suggested at paragraph 29 of this judgment.

SENTENCE 

48. Colil Sok and Colil Kati, having been convicted of one count of possession of offensive weapons contrary to Sect 12 (1) are sentenced in the following manner: 

Head Sentence	One year IHL	
Amount of sentence suspended	6 months - 12 months GBB 	
Balance to serve	6 months 	
Custody deducted 	1 month seventeen days 	
Effective sentence to be served 	3 months thirteen days	

49. By virtue of Sect 12 subs 2 I order the homemade shotgun and pistol to be destroyed.

Police Prosecution for the Informant 
Defendants in person 

______________________________________________________________________________
1. (1988-89) PNGLR 129
2. (1977) PNGLR 209
3. (1978) PNGLR 469
4. (21/05/02) N2246
5. (8/09/09) DCR 901/2009 
6. DC22 (14/10/97) 
7. DC519 (14/05/07)
8. DC076 (10/09/07)
9. SC564
10. [2004] N2557
11. Supra Nine
12. Supra Four