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State v Johnny [2008] PGNC 268; N3861 (25 September 2008)

N3861

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1458 of 2004

THE STATE

v

BAIMON JOHNNY

Balimo: Kandakasi, J.
2008: 23rd And 25th September

DECISION ON SENTENCE

CRIMINAL LAW – Rape of married woman by relative after rape by other men – Breach of trust – Use and threat of force – Premature termination of pregnancy – Guilty plea by first time offender – Expression of remorse and cooperation with authorities - Sentence of 15 years imposed - Section 347 Criminal Code .

CRIMINAL LAW – PRACTICE & PROCEDURE – Offence committed prior to amendments to Criminal Code – Accused to be charged and dealt with under the then prevailing law – Sentencing trend and tariffs as applicable prior to amendment relevant and applicable.

Cases cited:

John Aubuku v. The State [1987] PNGLR 267.
The State v. Joe Kanau Tomitom (2008) N3301.

Thomas Waim v. The State (1997) SC519.
Lawrence Hindemba v. The State (1998) SC593
The State v Donald Angavia, Paulus Moi and Clement Samoka (No 2) (2004) N2590.
The State v. Eddie Peter (No 2) (2001) N2297.
The State v. Kunija Osake (2003) N2380.
The State v. Ian Napoleon Setep (2001) SC666.
Public Prosecutor v. Don Hale, (1998) SC564.
Re Application by Anderson Agiru (2001) SC671.
Re Application of John Mua Nilkare (1997) SC536.
Avia Aihi v. The State [1981] PNGLR 81.
Tau Jim Anis & Ors. v. The State, (2000) SC642.
The State v. Irox Winston (2003) N2347.
The State v. Pais Steven Sow (2004) N2588.
The State v. Junior Apen Sibu (N0. 2) (2004) N2567.
State v. Eki Kondi & 4 Ors (No.2) (2004) N2543
The State v Luke Sitban (No 2) (2004) N2566.
The State v Henry Nandiro (No 2) (2004) N2668.
The State v. Dibol Petrus Kopal (2004) N2778.
The State v. James Yali (2006) N2989.
Rudy Yekat v. The State (2000) SC665.
Public Prosecutor v. Don Hale (1998) SC 564.
Edmund Gima v. The State & Siune Arnold v. The State (2003) SC730.
The State v. Danny Makao (2005) N2996.

Counsel:

D. Mark, for the State.
M. Norum, for the Prisoner.

25th September, 2008

1. KANDAKASI J: Baimon Johnny pleaded guilty to a charge of rape under s 347 of the Criminal Code of a married woman who is one of his relatives on 26th September 2002. Shortly before Baimon committed the offence, a group of men had already raped the victim with threats of violence using a knife, which caused her husband who was with her to flee. She was heading home after that ordeal when she came into contact with Baimon in whom she confided in confidence as a relative of what had happened to her. Instead of showing compassion and sympathy toward the victim and offer her assistance, Baimon further sexually violated her through the use of threats and intimidation. The sexual attack of the victim by Baimon and the other men earlier resulted in a premature termination of the victim''s fetus. She was two months pregnant, with a child.

2. Having regard to the law and types of sentences imposed by the Court as at the time of the commission of the offence, Baimon, through his lawyer argued for a sentence between 8 and 12 years whilst the State through its lawyer argued for a sentence of up to 14 years.

Issue for Determination

3. Hence, the main issue for the Court to decide is whether Baimon''s sentence should be up to a maximum of 14 years or should it be lesser than that?
   

The Relevant Considerations

4. The issue before the Court can only be determined by reference to the relevant facts of the case as noted above, Baimon''s personal and family backgrounds, the factors operating both for and against him and the kinds of sentences imposed in similar cases.
   

The Offence and Sentencing Trend

5. Starting firstly with the offence and sentencing trend, the Court notes that s 347 of the Criminal Code, creates and prescribes the offence of rape with its penalty. At the time of the commission of the offence in this case, the law provided for life imprisonment as its penalty. Decisions of both the Supreme and National Courts make it clear that, Parliament considered the offence of rape very serious and decided to prohibit it. It did so by enacting s 347 and prescribed the maximum penalty of life imprisonment. The case law such as the decision of the Supreme Court in John Aubuku v. The State,[1] have set and elaborated on the relevant sentencing guidelines in this kinds of cases. These cases make it clear that, the offence of rape is a serious crime. Therefore, it requires an immediate punitive custodial sentence unless wholly exceptional circumstances exist.
   
6. As this Court noted else where,[2] these guidelines which were set more than 10 years ago suggest sentences between 5 years for rape in less serious cases of rape to life imprisonment. In the lower end are cases with no aggravating factors while those on the higher end, have factors in aggravating such as, perverseness, mental disorders or other serious aggravating factors.
   
7. Subsequent judgments of both the National and Supreme Courts have varied and increased the recommended sentences. In Thomas Waim v. The State,[3] the National Court imposed a sentence of 25 years in a case of multiple rape of the worse kind on a plea of guilty. On appeal against that sentence, the Supreme Court reduced it to 18 years. In so doing, the Supreme Court said:
   

""This is a particularly very serious case of rape. But we are of the respectful view that the sentence of 25 years was a ""quantum leap"" under the circumstances. A progressive increase in sentencing for particular offences is reasonable and justified, depending on the particular circumstances of each case. But a sentence that constitutes a huge jump or increase from the prevailing practices ought not be imposed.""

8. Almost a year after the decision, the Supreme Court in Lawrence Hindemba v. The State,[4] increased a sentence of 10 years to 15 years. That was again in a case of guilty plea. The Court in that case, surveyed some of the cases decided up to the date of the judgment (some of which Mr. Mark, lawyer for the State, referred to in his submission before this Court), and said:
   

""The crime of rape is a violent and prevalent offence. The seriousness of the crime and abhorrence of the society have been repeatedly re-iterated in many cases by this Court and the National Court including the much celebrated case of John Aubuku v. The State, ante. In recent times, the Supreme Court has expressed the need to review the sentencing guidelines for rape set out in John Aubuku v. The State with a view to increasing the sentences given the prevalence of the offence and the society''s demand for tougher sentences: see James Meaoa v The State SC 504 (1996), Thomas Waim v. The State SC519 (1997), and Sinclair Matagal v. The State Unreported Judgment in SCRA No. 95 of 1996 (4 June, 1998). These and many other cases show that sentences for plea to rape with aggravating features such as young age of victim, injury to victim, abduction and use of force or threatened force attract sentences in the range of 14-18 years.""

9. The Supreme Court in arriving at that decision found that, the appellant displayed a strong pervasive behaviour, used threats and force after having abducted the victim, a young schoolchild from school and secured her rape. It also found that the offence was committed in the presence of the victim''s schoolmates who ran away.
   
10. In a number of this Court''s own decisions as in The State v. Donald Angavia, Paulus Moi and Clement Samoka (No 2)[5], the Court observed that, since the decision in the above case in 1998, there has been an increase in the commission of the offence. The society has therefore been calling for increases in the kind of penalties imposed. This Court responded to that call by imposing a sentence of 17 years, for a rape of a young pupil in breach of a de facto trust with some violence and threats of violence after a trial. That was in The State v. Eddie Peter (No 2),[6] in a case of one on one rape. In arriving at that sentence, the Court noted that, the sentences in the past-decided cases are only guides.
    
11. The Court further noted that, what is an appropriate sentence in any case is dependant on the particular circumstances or facts of each case and that the Court has a wide discretion under s 19 of the Code to impose such sentence as it considers fit. To this, this Court adds that, the discretion vested in the Court cannot be restricted or taken away by the Supreme Court or any other person in the guise of providing guidelines. Only Parliament can through deliberate legislative enactment which meets the safeguards enshrined in the Constitution can.
    
12. The Court noted furthermore that, since the pronouncement of the various sentences in rape cases up to 2004, there has never been a decline in the number of rape and other sexual offences. The Court attributed this increase in part to the kind of sentences imposed up to then, and observed that, the past sentences appeared not to serve their intended purposes of deterring other would be offenders. In view of that, this Court expressed the view that the courts have to seriously examine the kind of sentences imposed to date, thereby repeating what the Supreme Court said in Lawrence Hindemba v. The State (supra). This Court then observed that the kind of sentences that have been imposed, since even Lawrence Hindemba''s case, have not meaningfully reflected that need, which is evidenced by the growing number of rape and other sexually related offences. The Court then went on to note that, even though the Courts have issued numerous warnings of increases in the sentences, they have failed to follow that through with appropriate sentences, except for Justice Sevua, who tried to meaningfully review and impose a sentence much higher than those imposed before his judgment in Thomas Waim v. The State (supra) and imposed varying sentences with a maximum of 25 years. Unfortunately, the Supreme Court struck it down to 18 years on the basis, that the sentence imposed by the National Court was a ""quantum leap.""
    
13. This Court considered the concept of ""no quantum leap"" and noted that, there was no expressed legislative prohibition against ""quantum leaps."" Instead, Parliament after having considered all things, prescribed the maximum penalty of life imprisonment subject to section 19 of the Criminal Code. That provision does not even prescribe a minimum term of years or for that matter, a range. However, the judges have considered it appropriate to start as low as 5 years as per John Aubuku''s (supra) and are yet to impose the maximum prescribed penalty of life, except in one case, which we will shortly mention. In the meantime, this serious offence against society is on the increase. In the circumstances, this Court expressed the view that, it is:
    

""...[I]nappropriate that sentencing judges should be unnecessarily limited by concepts such as no ""quantum leaps"" or ""disparity in sentencing of co-accused"" or such other concepts that have no reflection of the particular circumstances of a case. They should instead be left to be guided by the main purposes of sentencing such as deterrence, rehabilitation and the rest to meet the society''s expectation of stiffer penalties to deter the recurrence of such unacceptable evils in our society.""

14. Bearing these in mind, this Court decided to impose the term of 17 years as an appropriate pronouncement against the offence in The State v. Donald Angavia, Paulus Moi and Clement Samoka (No 2) (supra) case. The Court imposed that sentence in a bid to meet the society''s call for tougher penalties to deter other would be offenders and consequently restore the safety of our girls and women, both on and off the streets and in all manner of relationships.
    
15. Since this Court''s decision in The State v. Eddie Peter (No.2) (supra), there has been no significant increase in the sentences by the National Court. The only exception to that is the judgment by the late Jalina J in The State v. Kunija Osake.[7] In that case, his Honour imposed a sentence of 18 years in hard labour on a guilty plea. It was for the rape of an eleven (11) year old girl, in breach of a trust relationship as brother and sister in-law. The victim suffered some physical injuries to her genital area because of forceful sexual intercourse.
    
16. The only case that has imposed the maximum prescribed sentence of life imprisonment was a decision by Salika J., which went on appeal to the Supreme Court. In that case, the Supreme Court delivered a judgment, which is one of the latest judgments of the Supreme Court on abduction and rape. The judgment is in circulation as The State v. Ian Napoleon Setep.[8] That was a case of gang abduction and rape at gunpoint. A convicted murderer serving time escaped from prison and led the gang. The victim was raped repeatedly at various locations and finally at a house where she was introduced as the appellant''s wife. The National Court imposed life imprisonment but the Supreme Court on appeal had it reduced to 25 years following the no quantum leap principle in Thomas Waim v. The State (supra). At the same time, it accepted that sentences require progressive increases rather than jumping from a term of years to life imprisonment.
    
17. This Court has noted that, the two National Court judgments cited above do in fact progressively increase the sentences in rape cases. Also, this Court noted that, despite the need for a progressive increase in sentences in view of the increase and prevalence of the offence, some National Court judges have been imposing lenient sentences. This Court went on to say that whilst it accepted that public outcries against lenient sentences cannot be the sole reason to suddenly increase sentences, a sentencing judge should nevertheless note that, this is an indication and response by the community to the kind of sentences imposed. After all, the sentencing power the sentencing judges exercise, is a power that belongs to the community and as such, they should respond appropriately to the community''s reaction to the offence of rape or any other offence, with higher sentences than those imposed to date in similar cases.
    
18. This Court has given a number of reasons for the views it expressed. These reasons are firstly, the courts have given sufficient warning of an increase in sentences in many judgments of both this Court and the Supreme Court. Secondly, the nature of the offence itself is such that, it is a serious violation of a woman or a girl. Thirdly, past sentences have not deterred other would be offenders from offending. In that regard, this Court notes what the Supreme Court in Public Prosecutor v. Don Hale,[9] said is relevant. There, the Supreme Court said:
    

""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 for criminals definitely as an effect on the ordinary people. So community involvement with the punishment of offenders should be considered.""

19. This Court noted that, these principles acknowledge in a more practical way and allows for an exercise at least, in that limited way, by the people themselves, in their judicial process and exercise of their judicial power. The Constitution does acknowledge and affirms in s. 158(1) and elsewhere that the judicial power that the courts exercise belongs to the people. The Supreme Court judicially acknowledged this in a number of cases, such as that of Re Application by Anderson Agiru[10] and Application of John Mua Nilkare[11] citing with approval Avia Aihi v. The State.[12] In subsequent judgments of Supreme Court, as in Tau Jim Anis & Ors. v. The State,[13] these principles have been cited with approval. Many other judgments of both the Supreme and the National Courts have adopted and applied these principles. Some of these are this Courts own judgments as in The State v. Irox Winston,[14] where the Court said:
    

""The Courts are charged with the judicial power of the people under our constitutional framework to appropriately deal with offenders on their behalf. The Courts therefore, have a constitutional duty to seriously take into account the peoples wishes in relation the kind of sentence an offender should receive in each case when they give consideration to the appropriate penalty to be imposed. Not only that, they should ensure at the same time that, the kind of sentence they arrive at is reflective of the people''s wish. This is in addition to taking into account all the other considerations a sentencing judge should take into account and then arrive at a sentence that is reflective of all of those considerations.""

20. Bearing this in mind, this Court imposed a sentence of 15 years on a guilty plea by an adult male offender in aggravating circumstances. That was in the cases of The State v. Pais Steven Sow.[15] In that case, the offender, a mature single man related to the victim, abducted and raped a married woman in the presence of two of the victim''s small children. The offence was committed in a breach of trust situation.
    
21. On the same day, this Court imposed a sentence of 13 years after a short trial against a young first time offender who raped his niece. Apart from the breach of trust as a close relative, there were no other aggravating factors. That was in The State v. Junior Apen Sibu (N0. 2).[16]
    
22. Again, on the same day, in The State v. Eki Kondi & 4 Ors (No.2),[17] the Court imposed varying sentences of 25 years against one, 22 years against another and a sentence of 20 years and 18 years respectively for a group of gang rapists. The offenders were armed and they forcefully abducted a young girl, who they specifically targeted. They then repeated several acts of rape at various locations against the victim. They exposed her to further sexual attacks and others in fact further raped her as a result of the offenders taking her clothes away and causing her to walk naked. The varying sentences where given in view of the different roles each of the offenders played and their ages.
    
23. Finally, in The State v Donald Angavia, Paulus Moi and Clement Samoka (No 2) (supra) case, this Court noted all of the foregoing and went on to note that, given the numerous calls for stiffer penalties throughout the country, Parliament intervened with amendments to the Criminal Code in the year 2002 and reworded s. 347 in the way it is presently. Previously, it did not distinguish between rape with aggravation and those without aggravation with acts of simple rape having a maximum sentence of up to 15 years whilst aggravated rape having a maximum sentence of up to life imprisonment. Given that, this Court took the view that, this change in the law meant that:
    

""... where a rape case is not aggravated, it attracts a sentence of up to 15 years. However where there are aggravating factors, then the sentence should be beyond 15 years. If it was otherwise, then this amendment has no meaning and purpose because it makes no difference between the previous position and the new provisions.""

24. This Court followed this approach in the cases of The State v. Luke Sitban (No 2)[18] and The State v. Henry Nandiro (No 2),[19] and in The State v. Donald Angavia, Paulus Moi and Clement Samoka (No 2) (supra) itself. Justice Lay did likewise in his decision in The State v. Dibol Petrus Kopal.[20] Cannings J in The State v. James Yali[21] referred to these cases and endorsed the first part of what this Court said in The State v. Donald Angavia, Paulus Moi and Clement Samoka (No 2) (supra) and refrained from making any comment in relation to the second part.
    
25. For the purposes of sentencing in your case, I accept both yours and that of the State''s lawyer''s submission that the developments and practice in the case law after the change in the law by Parliament in 2002, does not apply in your case. This is because the change to the law and its operation did not take effect as at the time of you committing the offence. This Court will therefore allow itself to be guided by the law and practice as they were prior to the change in the law.
    
26. A case authority that should guide this Court in arriving at its decision on sentence is the Supreme Court decision in Rudy Yekat v. The State.[22] The decision in that case carefully had regard to the sentencing trends and tariffs in rape cases as they were prior to the change in the law. The Court then concluded in this way:
    

""We fail to find how the learnt trial judge erred in his judgment and the decision to impose the 8 years sentence. Indeed, the sentencing trend in this sort of cases is on the increase since the Aubuku case as shown above. This is reflective of the fact that the crime of rape is on the increase and the sentences imposed by the courts appear not to be deterring would be offenders from committing such offences. Society is becoming unsafe for our women and girls because of offenders like the Appellant. The Appellant is very fortunate to have, in our view received the sentence of 8 years which is light.

This Court does have the power under s. 23(4) of the Supreme Court Act (Ch. 37) to increase the sentence as was done in the case of Lawrence Hindemba v. The State (supra). However, this Court was not asked to exercise that power, correctly through a cross appeal on sentence by the State. Instead this Court has been asked to dismiss the appeal and confirm the sentence. Accordingly, for these reasons, the appeal is dismissed and the sentence of 8 years is confirmed.""

27. That was in a case of an appeal against a sentence of 8 years for a rape of a married woman on a guilty plea. The offender used a bush knife to threaten and secure the rape of the victim. It is apparent that, if the Court was asked to, it would have increased the sentence of 8 years to something beyond that sentence.
    
28. It is obvious on proper consideration of the above development of the law and the sentencing trend, sentences for rape has increased passed the 8 years mark prior to the change in the law. After the change in the law, all rape cases without aggravating features received and are liable to sentences up to 15 years, while cases of aggravated rape start from 15 years and go up except in some exceptional cases.
    

Sentence in Your Case

29. Duly noting the foregoing sentencing trends and tariffs, the Court needs to take into account and weigh both the factors operating for and against you, to arrive at an appropriate sentence for you. Before doing so, this Court notes that, you are an ordinary villager aged 32 living a subsistence style of dwelling, herein Balimo. You are married with 2 children. You are the 3rd born in a family of 6 children. By way of religion, you are a member of the Evangelical Church of Papua New Guinea. Education wise, you have reached grade 6 primary education at the Biula Primary School, here in Balimo.
    
30. Now, considering first the factors in your favour, the Court notes that, you are a first time offender. That means, until the commission of offence for which you are in Court, you have been a good law abiding citizen. All of that has now been tarnished by your own conduct.
    
31. Secondly, the Court notes in your favour that, you did not use any weapon such as a bush knife or anything like that to commit the offence, as has been the case in some of the earlier cases.
    
32. Thirdly, the Court notes in your favour that, you pleaded guilty to the charge against you and cooperated with the police and other authorities. These spared the victim from coming into Court and relive the ordeal you put her through, in the presence of other strangers. This is usually a very onerous task placed on a victim of any sexual offence because people do not normally talk about sexual conducts in public. This also saved the State extra time and costs it could have taken and spent to establish your guilt. Further, it also saved this Court time it could have taken to hear and determine your guilt or innocence.
    
33. Finally, in your favor, the Court notes that, you did say sorry in your allocatus for what you have done, appreciating that it was wrong. You said sorry to the victim and her relatives as well as your family members for doing this shameful thing. You also expressed appreciation for this Court coming to Balimo to hear and determine your case. Unfortunately, you did not take any tangible steps such as any payment of compensation to demonstrate that you are in fact very sorry for what you have done. Usually, a genuine expression of remorse operates in favour of an offender. Where an offender has taken steps toward showing his remorse by paying compensation or taking such other steps to demonstrate in a tangible way his or her remorse and freely and readily admits guilt that would operate in the offender''s mitigation. Nevertheless, this Court notes that, an expression of remorse in the presence of members of an offender''s community as opposed to an offender saying sorry in a Court room miles away and far removed from his people and that of the victim should be given appropriate consideration and that ought to be reflected in the offender''s sentence. Accordingly, this Court will take your expression of remorse in the way you have in your favour.
    
34. Turning now to the factors against you, the Court firstly notes that, you engaged in an act of sexual penetration of married woman in circumstances which were serious. The victim had been just sexually attacked, in fact, raped by a group of men. She was on her way home when you met her and she confided in you as a relative. Instead of showing sympathy and provide such support as she might have needed and you could provide, you further abused her and raped her. This kind of conduct does not reflect well of you, your family and your community.
    
35. Secondly, the Court notes that, the victim was related to you. You thus, committed the offence in breach of the trust she had in you as a relative. Usually, all thinking and conscious human beings do not commit crimes or offences against their own. There is no evidence before me of your thinking or your mental ability or your consciousness was seriously impaired that you did not know what you were doing. The Court notes in the circumstances, that you knew what you were doing and did commit the offence against your own any way. It is well established law that, an offence committed in breach of a trust reposed in the offender is more serious than one in which there is no trust and breach of it.
    
36. Thirdly, the Court notes against you that, you contributed to the victim prematurely terminating her two months old pregnancy. That meant the loss of another innocent life. You contributed to a deprivation of a person''s right to be born and brought into this world. Other than that, this Court is mindful of the fact that, the victim had to go through a lot of pain due to and associated with the rape of her and the consequential premature termination of her two months old fetus.
    
37. Finally, the Court notes that, you committed an offence that is very prevalent in our country. It is being committed nationwide without exception even in very remote and rural areas like Balimo, where practically everyone knows everyone else. The level of trust and respect for each other as peoples and members of our respective communities are fast eroding. That is why Parliament has increased the penalties in most sexual offence cases and the Courts have increased the kinds of sentence they have been imposing.
    
38. Weighing carefully the factors for and against you, this Court finds that the factors against you outweigh those in your favor. Further, this Court finds your case coming closer to the case of The State v. Pais Steven Sow (supra) where this Court imposed a sentence of 15 years. That was as noted, was a case in which there was abduction and rape of a married woman in the presence of two of her children by a close relative. In your case, you also raped a married woman. Although you did not abduct her and raped her in front of any of her children, the other aggravating factors in this case as this Court noted above, brings your case much closer to that case. This Court notes at the same time that, the decision in The State v. Pais Steven Sow (supra) case came after the amending legislation came into force.
    
39. Carefully, considering all of the foregoing, this Court accepts your lawyer''s submission that, your sentence must be somewhere between 10 and 16 years. The State''s submission without the support of any comparable case authority is for a sentence between 12 and 14 years. The Court considers an appropriate sentence in all of the circumstances of your case should be 10 years and the Court imposes that sentence against you. Of that sentence, the Court orders a deduction of the period of 5 years, 11 months and 27 days you have already spent in custody, whilst waiting for your trial. That should leave you with the balance of 4 years and 3 days yet to serve.
    
40. The Court has also given serious consideration to your plea for a suspension of the whole or part of your sentence in view of your family and personal background and needs as outlined by yourself in your allocutus and your lawyer''s submissions. The Court has decided against any suspension of any part of your sentence for a number of reasons. Firstly, there is no pre-sentence report supporting the imposition of such a sentence. The Supreme Court has made it clear that, there should be no suspension of sentence unless there is a well balanced pre-sentence report supporting such a sentence particularly for a person below age 19 years. The relevant cases on point are the cases of Public Prosecutor v. Don Hale[23] and Edmund Gima v. The State & Siune Arnold v. The State.[24] In your case, you are well passed 19 years.
    
41. Secondly, the law is very clear that, the personal and family backgrounds and needs should have no bearing on sentencing an offender. This proceeds on the basis that, an offender should carefully consider his family and personal backgrounds and needs before committing an offence. This Court restated that position in the case of The State v. Danny Makao,[25] in this way:
    

""These factors are however, of no consequence has any adverse impact your sentence might have against your family, is the very consequence of your own actions. As I noted in a number of cases already as in The State v. Raphael Kimba Aki (No.2) (28/03/01) N2082, the Supreme Court in Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000 observed that an offender should consider his background first before committing any offence. Implicit in that is the fact that, it is a little too late to talk about an offender''s personal background including the needs of his family once proven guilty according to law. His background and concerns should have little or no weight against the need to impose a sentence or punishment that best befits an offence he has committed in the particular circumstances in which the offence was committed.""

42. Ultimately, you are left with the balance of your sentence to serve in hard labour. This Court orders that you serve your remaining sentence of 4 years and 3 days in hard labour at the Nigerum Correction Service. However, noting that it is presently over crowded, the Commander of that institution is granted the discretion to have you transferred to another facility, at his discretion in consultation with the Commissioner of Correction Services. Formal orders and a warrant of commitment in these terms shall issue forthwith.
    

_________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner

^[1] [1987] PNGLR 267.
^[2] See for example, the case of , The State v Joe Kanau Tomitom (2008) N3301.
^[3] (02/05/97) SC519.
^[4] (1998) SC593.
^[5] (29/04/04) N2590.
^[6] (12/10/01) N2297.
^[7] (2003) N2380.
^[8] (2001) SC666.
^[9] (1998) SC564.
^[10] (2001) SC671.
^[11] (1997) SC536.
^[12] [1981] PNGLR 81.
^[13] (2000) SC642.
^[14] (2003) N2347.
^[15] (2004) N2588.
^[16] (2004) N2567.
^[17] (2004) N2543.
^[18] (2004) N2566.
^[19] (2004) N2668.
^[20] (2004) N2778.
^[21] (2006) N2989.
^[22] (2000) SC665.
^[23] (1998) SC 564.
^[24] (03/10/03) SC730.
^[25] (2005) N2996.