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S.W. v State [2018] PGNC 70; N7132 (20 February 2018)

N7132

PAPUA NEW GUNIEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (APP) 12 & 13 OF 2018

S. W. & P. J.

V

THE STATE
Kokopo: Susame AJ
2018: 19^th, 20th February

CRIMINAL LAW – Bail –Applicants charged with armed robbery under s386 of Criminal Code (Ch. 262) – Applicants both juveniles – s 155 (4) of the Constitution – ss 4 & 6 of Bail Act Ch. 340

CRIMINAL LAW – Juveniles – considerations in Part V ss 52, 54, 55, 56 & 57 of Juvenile Justice Act 2014 – Bail authorities to observe obligations provided in the Act to give effect to the intent and spirit of the legislation.

Cases cited:

Nil

Counsel:
Ms. J Ainui, for the Applicants

Mr. J. L. Rangan, for the Respondent

RULING

20^th February, 2018

1. SUSAME AJ: Both applicants are juveniles so for their best interest and protection they have not been named except by their initials. Hearing of this application was held in camera. This is to give effect to the intent and spirit of the recently enacted Juvenile Justice Act of 2014, (N0.11 of 2014), which calls for special considerations to be given by the courts in dealing with juveniles.
   
2. The matter came to my attention during the call over proceedings earlier in the month when court heard both juveniles had been in custody awaiting their trial in the National Court on a charge of stealing with actual violence under section 386 (1)(2)(a)(b)(c) of the Criminal Code, Ch. 262. Both were committed to face trial by the committal on 8^th December 2017.
   
3. Court also heard there does not exist a separate detention section for juveniles at Kerevat jail and the both applicants have been kept at the police cells at Kokopo waiting for trial of their case.
   
4. I indicated to both lawyers being juveniles their case is given special consideration. Both lawyers agreed. Ms. Ainui indicated to the court while pending fixture of a trial date an urgent bail application will be filed for and on behalf of the juveniles. She has done that on 13^th February 2018. Application was set down for hearing at 9.30 am on 19^th February 2018.
   

APPLICATION

5. Application was heard as initially set and ruling reserved till 1:30pm on 20^th February 2018.
   
6. Mr. Rangan representing the State did not raise any objection to the application. His only concern was over non-attendance of parents and Juvenile Court Officer in court for this application. Court expressed similar concerns. Mr. Rangan stated amongst other things the court had the discretion to grant bail even if one or more considerations in section 9 (1) of the Bail Act were present considering the fact the applicants are juveniles.
   

LAW

7. The accused person’s right to bail emanates from section 42(6) of the Constitution, which is the primary source. That right of course is regulated by the Bail Act. Grant of bail by a bail authority is not automatic. An applicant must persuade a bail authority to exercise its discretion to grant bail.
   
8. In respect of juvenile offenders considerations must also be had of the Juvenile Justice Act of 2014 (JJA) by all sectors in the criminal justice administrations. The Act imposes certain obligations to observe, consider and perform in dealing with juveniles from day of arrest, the court process until jailed upon conviction. So it is the obligation of those of us involved in the criminal justice administration to ensure and give effect to those obligations detailed in the JJA.
   
9. Part V, sections 54 – 57 provides for considerations of granting of bail by the relevant bail authority. Section 52 in particular imposes obligations on a police officer what he or she is obliged to do whenever a juvenile is arrested and taken in custody. It is also noted that section 55 restates in part what is stated in s 4 of the Bail Act and removes the powers of the Juvenile Court or District Court exercising Juvenile court powers from considering bail of a juvenile charged with an offence of murder, rape or any other offence punishable by death or life imprisonment however, leaving it open for an application to be lodged and considered by the National or Supreme Court pursuant to ss. 4 & 6 of the Bail Act.
   
10. Section 4 of the Act vests jurisdiction in this court and the Supreme Court to grant bail to an accused person charged with offences of “wilful murder, murder, or offences punishable by death, rape, abduction, piracy. Burglary, stealing with violence, robbery, kidnapping. Assault with intent to steal, breaking and entering a building or dwelling house, and in the commission of which a firearm is involved, irrespective of whether or not the firearm was actually used in the commission of the alleged offence.
    
11. The applicants are charged with offence of arm robbery or stealing with actual violence under s 386(1)(2)(a)(b)(c) which carries a maximum penalty of death sentence on conviction. By operation of the law obviously Committal Court as bail authority or police for that matter lacked power to grant bail on both juveniles because of combined effect of both sections 4 & 55 of the Bail Act and JJA respectively. Rightly so, bail was left open for the juveniles to file an application in the National Court which they have now done.
    
12. The following documents were filed in support of the application:
    
    1. Two separate affidavits of proposed guarantors, Allan Ronney and Peril Alman, both dated 13^th February 2018.
    2. Two separate affidavits of juveniles, P.J. and S.W both dated 13^th February 2018
    3. Copy of information charging the applicants and summary of police facts.
13. Applicant P.J. is 16 years of age and he hails from Duke of York Islands and resides with his parents at Sea View Banana Camp. He attends Kabian Primary School in Duke of York Islands. It is not stated in his affidavit what grade he was doing at the time the allege crime was committed. It is not stated in his affidavit if he will re-enroll in the same school if he is released on bail. Accused has denied committing the alleged crime. He stated he will reside with his family at Sea view, Takubar, Kokopo if granted bail.
    
14. Applicant S.W. is 13 years old and hails from Tambunum village, Angoram, ESP. He lives with his family at Sea View banana camp Takubar, Kokopo. He stated he attends Kokopo Primary School. He denies committing the alleged crime. If he is granted bail he stated he will reside with his family at the Sea View Banana Camp.
    
15. Allan Ronney one of the nominated guarantors is a Ward Committee member and is willing to act as a guarantor. He is married and has 4 children and reside at the Sea View banana camp. He stated the applicants are well known to him. Applicant S.W. is doing grade 6 at Kokopo Primary School while applicant P.J. is attending school at his village at Duke of York Islands. He stated both applicants are well mannered persons with good character. They both are members of the Catholic Church and involve themselves in church and community activities. He stated the applicants had had no problems with the law before this alleged incident. Mr. Ronney has pledged K200.00 surety and family is willing to pay K500.00 cash bail for each of the applicants. He has undertaken to ensure the applicants do not get into any more trouble and they each comply with the bail conditions the court imposes. He is also aware of his responsibilities as a guarantor as advised by Ms. Anui and the consequences of not living up to his responsibilities.
    
16. Peril Alman the other nominated guarantor is a law and order committee member at the Sea View banana camp. He has been the law and order committee member at the camp for 2 years. He is married and has 5 children. He stated he knows the applicants very well as they all reside in the same camp. He stated both applicants are well mannered and of good character in the community. They get themselves involve in community and church activities. Mr. Alman has also pledged a K200.00 surety in addition to K500.00 cash bail the applicants family are willing to pay. He is also aware of his responsibilities as a guarantor and consequences of not living up to those obligations as advised by Ms. Ainui. Mr. Alman stated he will ensure the applicants stay away from any more trouble and ensure they each comply with whatever conditions court imposes.
    
17. The court has considered the merits of the application and also considerations in ss. 56 & 57 of JJA. Section 56 is titled, “GENERAL PRINCIPLES RELATING TO BAIL.”
    
18. Subsection (1) reads:
    

“ A juvenile arrested or detained for an offence is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require.

(2) A bail authority, when deciding whether to grant or refuse bail to a juvenile, shall have regard to all relevant factors, including the following;

(a) the best interest of the juvenile; and
(b) the juvenile’s character, background and criminal history; and
(c) the availability of a parent or other responsible person to supervise the juvenile; and
(d) the availability of appropriate remand facilities to ensure that the juvenile is detained separately from adults and in conditions that will reduce the risk of harm to the juvenile; and
(e) the nature and seriousness of the offence; and
(f) the strength of the evidence against the juvenile relating to the offence, and
(g) the likelihood that, if the juvenile is convicted of the offence, a sentence of imprisonment will be imposed; and
(h) the risk that the juvenile might be a danger to any other person; and
(i) any recommendation from a juvenile justice officer; and
(j) the principle that a juvenile shall not be detained as a substitute for appropriate child protection measures; and
(k) the principle that a juvenile is to be detained only as a measure of last resort.”

19. And section 57 states:
    

“If a juvenile is granted bail, the bail authority, as a condition of bail-

(a) Shall place the juvenile in the care of a parent or a responsible person who has agreed to accept the juvenile and, in the opinion of the bail authority, is capable of caring for the juvenile, and
(b) If paragraph (a) does not apply, may place the juvenile-

(i)Under the supervision of a juvenile justice officer, or

(ii)In the care of the Director of Lukautim Pikinini; and

(c) May require the juvenile to report to the juvenile justice officer or the Director of Lukautim Pikinini at such as the bail authority considers necessary; and
(d) May impose such other conditions as the bail authority considers to be necessary.”

20. In the absence of any information on the contrary both applicants have no past criminal records and generally have a favorable back ground from information provided by Messers Allan Ronney and Peril Alman who are leaders of the banana camp community. With such a good background I doubt the applicants pose a real threat to others in the community and will re-offend if granted bail. Both applicants reside with their parents although the parents were not in court during the hearing. Both Messers Ronney and Alman are elderly community leaders at the banana camp, they both have expressed willingness to ensure applicants behave and do not re-offend and ensure the applicants comply with whatever bail conditions the court may impose.
    
21. I also bear in mind the gravity or seriousness of the crime the applicants are alleged to have committed and the community interest in particular the complainants. Robbery is a serious crime especially when weapons and threatened or actual violence is adopted in the commission of the crime.
    
22. The police charge sheet and summary of facts states inter alia that on the afternoon of 29^th September 2017 between 4:00 & 4.30 both applicants threatened and demanded from three complainants named and stole from them 3x android mobile phones of an estimated value of K1, 990.00. One of the complainants was assaulted with an empty “kulau “on the face. Other than that no firearms or other offensive or dangerous weapons like knives were used in the commission of the crime alleged.
    
23. I am also mindful of the many cases being delayed from being finalized because accused persons who are out on bail have it their way and decide not to turn up for trial when required and bench warrants are issued against them. According to bench warrant list issued on 29^th September 2017 (list yet to be updated) there are 248 cases on bench warrant against accused persons who had escaped from custody or absconded bail.
    
24. Having said that though the applicants are still innocent until proven guilty by the court. Bail is a guaranteed right under the Constitution. There is no appropriate holding cell facility for juveniles at Kerevat jail or even at the police station lock up at Kerevat, Kokopo or Rabaul to separate juveniles from the adult offenders or prisoners. Juveniles are therefore in a vulnerable situation with a greater risk of being negatively influenced, harassed or abused by stronger adult prisoners or detainees.
    
25. In view of the reasons and foregoing discussions discretion shall be dispensed with in the granting of bail to the applicants.
    
26. Accordingly this is the order of the court:
    
    1. Both S.W. & P.J are each and severally to pay K500.00 cash bail forthwith;
    2. That court approves Messers Allan Ronney and Peril Alman of Sea view Banana Camp as guarantors for the juveniles S.W. & P.J.
    3. The court is of the view K200.00 surety pledged by each guarantor is insufficient. The amount pledged or undertaken to pay is increased to K500.00 which they each will owe to the State in the event they each failed to ensure the juveniles comply with their bail conditions and they are called upon to show cause.
    4. That the approved guarantors are to ensure both juveniles strictly comply with their bail conditions imposed by the court.
    5. The following conditions are imposed:
       1. Both S.W & P.J are to attend all sittings of the National Court at Kokopo as and when required.
       2. Both, S.W. & P.J. are to be accompanied and escorted by their guarantors for court Proceedings or their respective fathers or mothers as and when required by the court.
       3. Both S.W. & P.J. are to report to Assistant Registrar and bail reporting register at Kokopo National Court Registry on Mondays of every week between 8:00am and 3:00pm starting forthwith.
       4. Both S.W. & P.J. are restrained from taking alcohol or other prohibited drugs.
       5. Both S.W. & P.J. are to remain with their respective parents at the Sea View Banana block and not to leave Kokopo at any time and breach condition (iii) above without the express permission of the Court.
       6. Both S.W. & P.J. are to keep peace and refrain from behaving in any anti-social behavior in the community, in Kokopo, Rabaul or anywhere else in ENBP.
       7. Both S.W. & P.J. are restraint from interfering with or threatening State witnesses at any time.
    6. Applicants to remain in custody, to be released on evidence of payment of cash bail ordered.
    7. Bail certificates and guarantors certificates to be issued forthwith.
       

Orders accordingly.
____________________________________________________________
Public Solicitor: Lawyers for the Applicants
Public Prosecutor: Lawyers for the Respondent