State v A.W.P (Juvenile) [2021] PGNC 459; N9279 (1 September 2021)

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AND:
A.W.P. (Juvenile)

Waigani: Ganaii, AJ
2021: 13^th, 27^th August, 01^st September,

CRIMINAL LAW – SENTENCE – Murder – Section 300 (1) (a) of the Criminal Code – Guilty Plea – Juvenile Offender - Sentencing principles for Juvenile offenders under the Juvenile Justice Act – One stab wound – to chest and piercing heart and lungs

CRIMINAL LAW – PROCEDURE – Pre Sentence Reports - No evidence in PSR of supervision by a responsible adult – No parents or responsible adult present in court during taking of plea – Absence of view of Director of Juvenile Justice - Imprisonment of 8 years in light labour – Time in custody deducted – Further reduction in consideration of guilty plea – Offender to serve balance of Five years imprisonment in Light Labour - With recommendation for Flexible Learning and Life Skill Courses to be taken

The Criminal Code Act, Chapter 262 of 1974
The Juvenile Justice Act, Chapter 11 of 2014

Ms. Trisha Aihi & Ms. Violet Ningakun, for the State
Ms. Priscilla Mangi, for the Defendant

1. GANAII, AJ: INTRODUCTION: This is a decision on what is the appropriate sentence to impose and factors at play in considering an appropriate sentence for a guilty plea to a charge of murder for a juvenile offender.

2. The juvenile offender pleaded guilty to one count of Murder of another person and was convicted of the offence under section 300 (1) (a) of the CCA. The incident occurred at Sabama, Port Moresby in the NCD on the 08^thDecember 2020.

3. The offender was with two of his friends returning to home from a local Primary School where they had attended a school party. They were walking along a footpath towards the deceased. The deceased was with other family members walking home. The deceased thought that the offender was going to steal from them and he punched the offender on the mouth. The offender retaliated and used a knife to stab the deceased once on his chest piercing his lungs, pulmonary blood vessels and heart resulting in blood loss, respiratory failure and eventual death.

4. The issue is what is the appropriate penalty to impose for the juvenile offender in the specific circumstances of this case?

5. The task of appropriating a suitable penalty to this case requires the court to take into account various consideration.

6. The following considerations are discussed: the brief statement of facts that the offender pleaded guilty to; the antecedent report of the offender; what the offender said in allocatus, the submissions of parties inclusive of the aggravating and mitigating factors; comparable case precedents; the Pre-Sentence Report, the Victim Impact Statement (VIS); the applicable and general sentencing legal provisions, guidelines and principles and the specific sentencing legal provisions, guidelines and principles for a case involving a juvenile offender.

7. Defence say the offender is now 17 years old. According to the committal Court depositions, the offenders mother appeared at the Committal Court on the 28^th of January 2021 and informed the court that the offender was born in May 2004. That would make the offender 16 years and 7 months old at the time of the commission of the offence. The offender is now 17 years and three months old. He comes from Tavuni Village, Goilala in the Central Province. His father is employed as a driver with a real estate company and his mother is a subsistence farmer. At the time of taking of the plea, none of the parents of the juvenile were in court. The juvenile court officer and counsel for the juvenile were present. The offender has no prior convictions.

8. In Aieni v Tahain [1978] PGNC 13; [1978] PNGLR 37 (24 February 1978) the court held that not administering allocutus to any of the appellants was a denial of natural justice and rendered each sentence pronounced a nullity: Moses Aikaba and Others v. Tami [1971-1972] P. & N.G.L.R. 155 followed.

9. The offender was given an opportunity to say what matters the court should take into account when considering and imposing a punishment. I have heard the prisoner in allocutus. He said the following:

“I say sorry for what I have done. I apologise and say sorry to the family of the deceased. I also say sorry to my family. That is all”.

10. I take into account that the offender did not initiate the altercation with the deceased according to the agreed statement of facts. It was the deceased who provoked him by punching him because he (the deceased) thought that the offender was going to rob him. It was after the deceased had swung the first punch that the offender stabbed the deceased on the chest.

11. The report shows that the offender is aged 17 years old and is a single male. At the time of commission of this offence, the offender was a student attending a Technical College. The offenders’ family home is at a block of land along Pari Road where he resides under the custody of his parents. His parents have provided for him. He however, stated that he also spends most times with his grandmother at another location away from his family home. The offender has sound health and has a dream of completing his education.

12. The following persons were also interviewed: M.K, sister of offender; Joe Vali, Community Leader and Liny Rex, wife of deceased. A summary of their interview answers in the PSR are as follows:

M.K – stated that she will speak on behalf of their parents. The offender is a good person and they were shocked to learn of the incident. Their father was a strict disciplinarian and made sure that he provided for all his children’s daily needs and school fees and wanted them to get an employment. She believed that the offender, got in trouble because of the influence of their cousins when he went to live with his grandmother. The family understands that a life has been lost and will never be replaced. They seek the court’s leniency considering the offender is youthful and has many years ahead of his life.

Joe Vali – stated that there was no reconciliation done for maintenance of peace between the deceased’s line and the offender’s line. However, the community did contribute an amount of K1, 000 towards the deceased’s family.

Liny Rex – stated that she lives at Karama village in Kerema, Gulf Province with her late husband. They have a child who was eight months old when her husband was killed. The child is now one year and four months old. She has left the child with the deceased’s parents in order for her to travel to Port Moresby for the case. She also stated that she and her husband are subsistence farmers and resided in Karama Village. They travelled into Port Moresby for three weeks to sell their produce when her husband was killed and it has been a painful experience for her. She said the offender should be sentenced to imprisonment.

13. The father of the deceased Mr. Ela Oa is aged 50 years old and had made a Victim Impact Statement (VIS). A summary of his statement is as follows:

16. Defence submitted that section 77 of the JJA does apply whereby in determining sentence for a juvenile offender, the sentencing court is not bound by strict precedents in sentencing juveniles.

17. A sentence of between 5-8 years imprisonment is sufficient in the circumstance.

- Death and Loss of Life
- Use of weapon
- Stab wound to the chest, a vulnerable part of the body
- Killing of innocent and harmless person
- Prevalence of the offence

19. The State did not make any reply on an important aspect of this sentencing exercise. That was the State’s attitude towards the defence submission under sections77 of the JJA. Upon the court’s invitation, the state prosecutor Ms. Ningakun responded by stating that those provisions of the JJA do apply.

(1)[103] [104]Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:–

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person;
....

Penalty: Subject to Section 19, imprisonment for life.
The Juvenile Justice Act

21. Provision relevant for consideration of a sentence for a juvenile under the JJA provides as follows:

(a) encourage the juvenile to understand the consequences of and be accountable for the harm caused by his or her actions; and

(b) promote an individual response which is appropriate to the juvenile's circumstances and proportionate to the circumstances surrounding the offence; and

(c) promote the rehabilitation and reintegration of the juvenile into the family and community; and

(2) A Court that imposes a sentence on a juvenile shall determine the sentence in accordance with the principles set out in Section 6 and the following principles:

(a) the sentence shall be proportionate to the seriousness of the offence and the degree of responsibility of the juvenile for that offence; and

(i) be the least restrictive sentence that is capable of achieving the purposes set out in Subsection (1); and

(ii) be the one that is most likely to rehabilitate the juvenile and reintegrate him or her into society; and

(iii) promote a sense of responsibility in the juvenile, and an acknowledgement of the harm done to the victim and the community; and

(c) the sentence shall have regard to the juvenile's age and limited capacity to appreciate the consequences of his or her actions; and

(d) the sentence shall not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances; and

(e) if appropriate, juveniles shall be permitted to remain in the community; and

(f) deprivation of liberty shall be used only as a measure of last resort, for the shortest period necessary to achieve the purposes set out in Subsection (1).

(1) In determining a sentence to be imposed on a juvenile, a Court shall take into account –

(a) The seriousness of the offence and the circumstances in which it was committed, and

(b) the degree of participation of the juvenile in the commission of the offence; and

(c) the harm done to the victim and whether it was intentional or reasonably foreseeable; and

(d) the age, maturity, education, health, character and attitude of the juvenile; and

(e) the juvenile's previous history in respect of offences and his or her responses to previous orders in relation to those offences; and

(f) the community services and facilities that are available to assist the juvenile and his or her willingness to use those services or facilities; and

(g) any proposals that the juvenile or his or her parents may put forward for the future improvement of the juvenile; and

(i) any views of any person who is involved in the education or custody of the juvenile; and

(l) any time spent by the juvenile in custody on remand in relation to the offence; and

(2) In determining a sentence to be imposed on a juvenile, a Court is not, having regard to the need for an individualised approach to juvenile sentencing, strictly bound by precedent.

(1) If a Court finds a juvenile guilty of an offence, the Court may make one or more of the following orders:

(c) make a good behaviour order for a period of not more than 12 months, requiring the juvenile to abide by an agreement made between the juvenile and his or her parents to comply with certain standards of behaviour; or

(d) order the juvenile to report to a specified person, agency or organisation for counselling, on such terms as the Court may decide; or

(e) make a supervision and guidance order for a period of not more than 12 months, placing the juvenile under the supervision and guidance of a specified adult or peer mentor in order to monitor and guide the juvenile's behaviour; or

(f) order the juvenile to attend a non-residential vocational training or rehabilitation program approved by the Director, on such terms as the Court may decide; or

(g) order the juvenile to make restitution to any other person, including the return of any item taken or repair of any damage done; or

(h) subject to the consent of a person, order that the juvenile compensate the person by way of personal service, at the time and on the terms that the Court may decide, for any loss, damage or injury suffered by the person as a result of the offence; or

(i) having regard to the ability of the juvenile to pay, order the juvenile to pay restitution in kind to a person, at the time and on the terms that the Court may decide, for any loss, damage or injury suffered by the person as a result of the offence, in an amount not exceeding K5,000.00; or

(j) subject to Section 82, order the juvenile to perform community service work under the supervision of a juvenile justice officer, or a specified person or civil society group that has agreed to supervise the juvenile, for a maximum period of up to 100 hours, and to be completed within a maximum period of six months; or

(k) having regard to the ability of the juvenile to pay, order the juvenile to pay a fine, not exceeding K500.00, to be paid at the time and on the terms that the Court may decide; or

(l) subject to Section 83, order that the juvenile be placed on probation in accordance with the Probation Act (Chapter 381) for a specified period, not exceeding three years; or

(m) order that the juvenile be committed to the care of the Director, with a directive that the juvenile be committed to custody in a juvenile institution selected by the Director, for a period not exceeding five years; or

(n) subject to Section 81, order that the juvenile serve a term of imprisonment in the juvenile section of a correctional institution; or

(o) if the order is made by a Juvenile Court or a court of summary jurisdiction, for a period not exceeding six years; or

(p) if the order is made by the National Court, for any period as is prescribed for an adult who committed the same offence in similar circumstances; or

(q) defer passing sentence on the juvenile for a specified period and subject to such conditions as the Court orders.

(2) If a Court orders a term of imprisonment under this section, the Court may -

(b) order the suspension of the term of imprisonment and place the juvenile on probation with the condition that the other order is complied with.

(3) If the other order referred to in Subsection (2) is not carried out, the term of imprisonment originally imposed automatically takes effect.

(b) in the opinion of the Court, the juvenile does not have a parent or responsible person, the Court shall advise the Director of Lukautim Pikinini of the juvenile's imprisonment.

(5) When making an order sentencing a juvenile for an offence, a Court shall take steps to ensure that the juvenile understands -

(b) the consequences, if any, that may follow if the juvenile fails to comply with the order.

(1) A Court shall not impose a sentence of custody or imprisonment under Section 80(1)(m) or (n) unless the Court has considered all alternatives under this Act and has determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purposes and principles set out in this Part.

(2) An order sentencing a juvenile to a term of imprisonment in a correctional institution under Section 80(1)(n) shall not be made unless -

(b) the Court is satisfied that the correctional institution has the appropriate facilities for the imprisonment of the juvenile.

(3) An order sentencing a juvenile to a term of imprisonment in a correctional institution under Section 80(1)(n) shall not include hard labour.

(4) If an order of custody or imprisonment under Section 80(1) (m) or (n) exceeds a period of 12 months, the order shall be subject to a custody review at intervals not exceeding 12 months, or such lesser period as the Court orders.

(5) If an order is made under Section 80(1)(m), the Court may order that the juvenile is detained in a remand centre until the Director is able to accept responsibility for the juvenile as ordered.

(6) A Court shall not impose a sentence of custody or imprisonment as a substitute for appropriate child protection measures.

22. The purpose for sentencing is to ensure that the offender is adequately punished for the offence, to prevent crime by deterring the offender and other persons from committing similar offences, to protect the community from the offender, to promote the rehabilitation of the offender, to make the offender accountable for his or her actions, to denounce the conduct of the offender, and to recognise the harm done to the victim of the crime and to the community. In Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Mason CJ, Brennan, Dawson and Toohey JJ said at 476:

“... sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence ...”.

23. A consideration which the courts must have regards to is the Section 19 discretion of the courts in the CCA. This provision of the law provides for the wider discretion of the courts to impose lesser penalty than the maximum. The case of Goli Golu v The State [1979] PNGLR 653 is applied where it states that the maximum penalty is reserved for the worst type of case.

24. The punishment should be in proportion to the harm inflicted and the level of responsibility of the offender. Although society needs to be protected, an offender is entitled to be punished to the extent commensurate with the seriousness of the crime. The sanction should not be too severe or too lenient. State v Kiaro [2020] PGNC 277; N8610 (30 October 2020. Narokobi, J).

25. The case of Manu Kovi provides useful guidelines however, I do note that pursuant to section 77 (2) of the JJA, the court is not bound by the precedent in determining a sentence to be imposed on a juvenile hence, this case should be given an individual approach.

26. Subject to the JJA, the offence attracts a maximum penalty of life. A summary of the law is stated below.

27. The purposes of sentencing a juvenile are to: encourage the juvenile to understand the consequences of and be accountable for the harm caused by his or her actions; promote an individual response which is appropriate to the juvenile’s circumstances and proportionate to the circumstances surrounding the offence; promote the rehabilitation and reintegration of the juvenile into the family and community; and ensure protection of the public: s. 76(1) of the JJA.

28. The primary consideration on sentence, as for all actions concerning a juvenile, are the best interests of the juvenile: s. 6(b) of the JJA. The sentence shall be determined in accordance with the principles set out in ss. 6 and 76(2) of the JJA.

29. Any sentence imposed shall be proportionate to the seriousness of the offence and the degree of responsibility of the juvenile for that offence. The sentence shall be the least restrictive sentence that is capable of achieving the purposes set out in s. 76 (1) and be the one that is most likely to rehabilitate the juvenile and reintegrate him into society whilst also promoting a sense of responsibility in the juvenile, and an acknowledgement of the harm done to the victim and the community. The sentence shall have regard to the juvenile’s age and limited capacity to appreciate the consequences of his actions and shall not result in a punishment that is greater than the punishment that would have been appropriate for an adult who has been convicted of the same offence in similar circumstances.

30. Appropriate juveniles shall be permitted to remain in the community. Deprivation of liberty shall be used only as a measure of last resort, and for the shortest period necessary to achieve the purposes in 76(1): s. 76(2)(a) to (f) of the Act. Refer to case of the State v SE (A Juvenile), N7971, Cr (JJ) 1385 of 2019, Waigani: Berrigan J, 2019: 12 July, 8 and 19 August.

31. The table contains two relevant comparable case laws. I cite them for what they are worth.

No	Case and Year Decided	Circumstances of the case	Period of sentence ordered
1	St v FT (Juvenile) [2016] PGNC 238	Guilty Plea – Offender passed spear to elder brother who used it to cause GBH resulting in death of deceased. Charged with murder as an accomplice under s 7 of the CCA. *Consideration:* First Time offender Juvenile offender, 16years old at time of commission of the offence No prior conviction Use of dangerous weapon, a spear	5 years imprisonment, less time in custody. Balance suspended with condition
2	St v CJ (Juvenile) [2018] PGNC 491	Guilty Plea- Offender stabbed deceased twice on the back with a knife resulting in his death. Considerations: First time offender Juvenile under the age of 18 at time of commission of offence No prior conviction Use of dangerous weapon, a knife Desire to harm Under the influence of alcohol In company of others	10 years imprisonment, minus time spent in custody,

32. As in all cases, the sentence in this matter will be determined having regard to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38. Pursuant to s. 77(2) of the Act, the Court is not strictly bound by precedent in determining sentence, which is, amongst other things, to promote an individual response appropriate to the juvenile’s circumstances and proportionate to the circumstances surrounding the offence: ss. 76(1)(b) of the Act.

33. The juvenile has been convicted of one count of murder contrary to section 300 (1) (a) of the CCA. The maximum penalty for this offence under the CCA is life imprisonment. Since the offender is a juvenile, the principles of sentencing under the JJA apply. As such, pursuant to s 85 (1) (b) of the JJA, the court shall not impose a sentence of life imprisonment on the juvenile. The circumstances of the case also do not warrant the imposition of a maximum penalty.

34. In the case of the State v SE (A Juvenile), N7971, Cr JJ) 1385 of 2019, Waigani: Berrigan J, 2019: 12 July, 8 and 19 August, explained the applicable provisions of the JJA to a juvenile in consideration of sentence. I find these useful and appropriate and quote in full her summary of the law as follows:

“The JJA provides for the court to use its wider discretion on sentence. The court is mindful that according to established principles, the maximum penalty is reserved for the most serious instances of the offence according to Goli Golu v The State [1975] PNGLR 653. The law under the JJA says life imprisonment is not an option for punishment of a juvenile. Whilst that is so, the circumstances of this case do not make it a worst type of murder case.

Pursuant to section 81 of the JJA, the court may order that the juvenile offender serve a term of imprisonment in a juvenile section of the correctional institution or at a juvenile remand facility for any period as is prescribed by law. Section 80 (1) (m) (n) and (p) provides for the courts to order the juvenile to be committed to the care of the Director of Juvenile Justice with a directive that the juvenile be committed to custody in a juvenile institution selected by the Director for a period not exceeding five years.

Section 76 (2) (d) is specific that on the term of imprisonment for a juvenile by stating that the sentence imposed by the court on a juvenile shall not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances

The best interests of the juvenile are the primary consideration on sentence: s. 6(b). S. 81(1) of the Act provides that a Court shall not impose a sentence of custody or imprisonment under S. 80(1)(m) or (n) on a juvenile unless the Court has considered all alternatives under the Act and has determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purposes and principles of the Act. Furthermore, as above, s. 76 (2) (f) provides that deprivation of liberty shall be used only as a measure of last resort and for the shortest period necessary to achieve the purposes of sentencing contained in s. 76(1).

This must be read in the context of the other principles relevant to this case, including that the purposes of sentencing a juvenile are to: encourage the juvenile to understand the consequences of and be accountable for the harm caused by his actions; promote an individual response which is appropriate to the juvenile’s circumstances and proportionate to the circumstances surrounding the offence, promote the rehabilitation and reintegration of the juvenile into the family and the community; and ensure the protection of the public: s. 76(1)(a)(b)(c) and (d).

In determining a sentence for a juvenile, the court must to take into account a whole range of factors including the seriousness of the offence, the juvenile^’s degree of participation in the offence, the harm done to the victim and whether it was intentional or reasonably foreseeable, the juvenile's age, maturity, education, health, character and attitude, any history of previous offence and, if so, how the juvenile has responded to orders for previous offences, and the views in a pre-sentence report and a whole lot of other factors. The sentencing court is, however, not bound by strict precedence when sentencing juveniles. (Section 77 of the JJA).

The court must therefore impose a sentence within the bounds and restrictions imposed on it by the JJA. Sending a juvenile to prison in the first instance is not automatic it is in fact the last option. The court must impose a sentence that will best serve the juvenile’s interest while holding him accountable for his action and by recognizing the impact the commission of the crime has had on the v\deceased, his surviving spouse and child and family members, his own family and the community as a whole.

The court must be satisfied that there are no other alternative forms of punishment available to it before it can commit the juvenile offender to a corrective institution as an absolute last resort. And if the court does, it must consider the effect of commitment on the juvenile and balance this with the clearly stated objects of sentencing juveniles.”
35. Coming to the question of what an appropriate penalty should then be, and as stated by Toliken. J in State v FT (Juvenile) [2016] PGNC 238, the court must necessarily ask itself; what type of sentence will most likely rehabilitate the juvenile; will it promote reintegrating the juvenile back into the community, is reconciliation with the victim’s family a consideration; is the juvenile a danger or threat to the community so that he should be kept away in jail?; does the juvenile appreciate the harm he has caused to the families of the deceased and does he take full responsibility for his actions?

36. In this present case, for purposes of giving meaning to the consideration under s 76 (e) of the JJA which states that “if appropriate, juveniles shall be permitted to remain in the community”, I go on to ask: Are there responsible adults in the life of the juvenile offender for supervision and control of the juvenile if the court is mindful to suspend sentence and place the juvenile under probation? I ask this question noting that paragraph (m) of section 77 of the JJA on Factors to Consider when Sentencing Juveniles, stipulates that the court can consider any other factors relevant to the case apart from those mentioned.

37. In this case, the juvenile was 16 years and 7 months old when he committed the offence. As stated, his age is calculated from evidence of his estimated date of birth given by his mother who appeared in the committal court before His Worship Magistrate Tanei on the 28^th January 2021. The mother stated that the juvenile was born in May of 2004. In the case of State v Wakupa, [2012] PGNC 229; N4783 (6 September 2012), I consider that David J, accepted a ruling by the Committal Court Principal Magistrate, Her Worship Kup on the age of the juvenile to be under 16 years. Likewise, I accept that Magistrate Tanei of the Waigani Committal Court had accepted and ruled that the juvenile was aged 16 years and was turning 17 years at his first appearance and had transferred the case to the Port Moresby Juvenile Court where the offender underwent the committal process His case was then committed to the National Court.

38. The Defence counsel submitted that this is not a worst case and since the offender is a juvenile without any prior conviction, he ought to be sentenced to a period of between five to eight years. Counsel submitted that there was provocation in the non-legal sense when the deceased punched the juvenile in the mouth.

39. Counsel cited several mitigating factors in favour of the juvenile but did not make submissions for partial suspension or non-custodial sentence in order to advance the juvenile’s interest and welfare, in particular where his desire to continue his education was made known at page three, paragraph six of the PSR. To that extent, also, the PSR also does not show that the immediate family inclusive of both parents and elder sister of the juvenile who gave her views in the PSR have pledged their support for a suspended sentence or that they are ready to provide supervision for the juvenile if his sentence is suspended and he is placed on good behaviour bond.

40. To me, this demonstrates one thing which this court takes into account and which was existent by inference in the facts of the case. That is the lack of proper or adequate supervision and control over the juvenile whilst not being at the family home. According to the juvenile he was spending most of his time with his grandmother. There would not have been any supervision. In my assumption, the incapacity of the grandmother to properly supervise due to her old age has allowed the juvenile to become involved with peers and be unnecessarily armed with a dangerous weapon. In her statement, the offender’s sister M.K. stated that the offender was influenced by his cousins at Sabama where he spent most of his time at. In the absence of any report on parental or adult supervision, I consider that there will be difficulties in providing adequate and required supervision for the juvenile if a suspended sentence is given.

41. The PSR is a balanced report as it did reflect the views of the family of the deceased, particularly his wife, concerns for their young and growing child and his father. I accept that the loss of their husband, father and son has had a negative impact on their lives. I consider also that the family have expressed that the court should consider deterrence when imposing a penalty.

42. The report also shows that the juvenile’s family did not do anything or give anything in cash and kind to show genuine remorse, to allow for reconciliation and to assist towards the funeral expenses for the deceased. The community on the other hand did this. Further, there is no indication that the offender and is family are willing to reconcile to show genuine remorse. The author of the report suggested that the juvenile was not a threat to anyone however, this Court disagrees as the juvenile was armed and readily used a concealed lethal weapon, a knife. Although there was provocation in the none-legal sense, the force used was unreasonable under the circumstance. This makes the presence of the offender in the community a threat to members of that community.

43. It became apparent during submissions that the state’s attitude towards the offender was one where the state gave no consideration of the fact that the offender is a juvenile and the provisions of the JJA were applicable. This position of the State was evident in the manner described below.

44. Firstly, after the court confirmed the guilty plea, and when the defence sought the assistance of a PSR, the state objected submitting that even though the offender is a juvenile the offence he committed was serious in nature and it was not necessary for the court to order a PSR. In this court’s view, the state was demonstrating a position that the court should not consider a non-custodial sentence or a suspension of the juvenile offender’s sentence. That would be in contravention of the sentencing principles in section 81 of the JJA on restrictions on use of custodial sentences, where the Court shall not impose a sentence of custody or imprisonment under Section 80(1)(m) or (n) unless the Court has considered all alternatives under this Act and has determined that there is not a reasonable alternative, or combination of alternatives. Not conceding to the assistance of a PSR in determining a reasonable alternative or a combination of alternatives is not in accordance with the purposes and principles set out in this Part.

45. Secondly, in their submissions, the learned State prosecutor Ms. Ninkagun did not address the court on the considerations on sentencing in the JJA which are very specific, although the defence made submissions on the principles of sentencing in the JJA. The state did not respond to this until the court invited them to do so. The prosecutors only submissions which was not helpful at all was that ‘the provisions are applicable’.

46. Thirdly, in their citation and reliance on comparable case law although court is not bound by strict use of precedence so that an individualised approach is taken, the State relied on cases involving adult offenders and did not respond to the defence submission in their reliance on applicable cases involving juvenile offenders. This was against the principles in s76 (2) (d) of the JJA.

47. Finally, the state submitted that despite the youthfulness of the offender he ought to be sentenced to a period of imprisonment between 16 – 20 years saying that this case lies in category 2 of the Manu Kovi case. The state did not consider sentencing principles in sections 76 (2) (d) and 81 of the JJA.

48. State prosecutor submitted that the case demonstrated a strong desire to cause bodily harm with the use of an offensive weapon on a defenceless and unarmed person, effect of the crime on the deceased’s family and said the aggravations outweighs the mitigations.

49. Guided by Manu Kovi, and not disregarding that a life has been lost, this is not a worst case of murder but one that shows some intent to do GBH. For the worth of the categories in Manu Kovi, this case in my respectful view falls within the lower end of category one. Even though the juvenile was provoked in the non-legal sense, the use of a readily available lethal weapon such as a knife that is easily concealed under the clothing and used on unarmed and unsuspecting members of the community show that the juvenile offender’s objective culpability was high. There was infliction of a stab wound to a vulnerable part of the body and through the medical report, the stab wound had pierced the pulmonary arteries, the lungs and the heart resulting in death. The extent and nature of the injuries exhibit use of some force and a strong desire to cause grievous bodily harm.

50. The court is mindful that it must consider the offenders’ best interest in determining an appropriate sentence and that the court accepts that it may impose a custodial sentence only as a last resort. However, these considerations must be balanced with the interest of justice and particularly with the need to exact out of everyone

adults and juveniles alike — respect for the sanctity of life. Juveniles must be made to take responsibility for their actions and for those who take a life they must accept the fact that they may lose their freedom for a considerable amount of time. Unless exceptional circumstances or compelling reasons can be shown, such as minimal culpability, juveniles can be given a custodial sentence that befits their crime with the objective of rehabilitating them. These view from Toliken J in State v FT (Juvenile) [2016] PGNC 328 in adopted.

51. Both counsels have cited case authorities, however, as is stated, the court does not have to take those into consideration in determining a sentence. Hence, I will treat the case on an individualised basis as the JJA stipulates so the offender serves a sentence that fits the peculiar circumstances of his case.

52. To that end I find the following mitigating factors in the offender’s favour:

• He pleaded guilty to the charge very early saving the court time and resources

• He attacked him on a vulnerable part of his body i.e., on his chest. The medical report exhibited that force used was intentional on causing GBH and as such there was a strong desire on your part to cause harm

54. This is yet another case in which another young man has unnecessarily lost his life at the hands of another youth. This is a case where a life has been unnecessarily and unlawfully taken away by someone who was had a concealed weapon readily available for use on an unsuspecting member of the community. The deceased lived in Kerema with his young family. His wife, now a widow stated that they were only married for two years and have a young child. They came to Port Moresby to sell their produce. The deceased was a subsistence farmer and an industrious man who provided for his nucleus and extended family. He did not deserve to die in this manner. No one should.

55. This is yet a matter in which another young may lose his freedom because has acted without regard for the sanctity of life whilst left walking around unsupervised and misguided by his youthful peers.

56. The court agrees with the comments in the PSR and the VIS, that an incarceration must also serve to deter the offender personally and others as well. Juveniles and youthful offenders must be made to know that crime must pay. The juvenile will lose his liberty and when that happens, he will lose a part of his humanity, his freedom. Much of the crimes committed in this country today are committed by people in the offender’s age group. They loiter around in public with the trend being that they possess readily available kitchen or pocketknives, concealed under the clothing and used on unsuspecting and innocent members of the community.

57. On that note, and in passing, the actions of carrying concealed lethal weapons such as knives must be denounced in the strongest terms by the courts. The police must enforce provisions of the Summary Offences Act by doing foot beat patrols in hot spots like in the suburbs of Sabama, Koki, and Kilakila and other areas in the city. The Police are empowered to and must stop and search loiterers, disarm them or where it warrants arrest and charge them appropriately for being in possession of dangerous and lethal weapons before the weapons are used on unsuspecting members of the public.

58. Cases that are coming through the courts show that this trend of young men and boys concealing lethal weapons such as knives and screwdrivers under their clothing is ever increasing and the use of such readily available dangerous weapons or tools turned into weapons resulting in commission of serious homicides is prevalent.

59. A sentence that reflects the seriousness of the crime and one that denounces in the strongest terms use of concealed kitchen knives must be imposed.

60. The JJA stipulates that before committing a juvenile to a period of imprisonment, I must ensure that no alternative forms of punishment are available. Where there is none, I must at the first instance commit to a juvenile institution. And only if no juvenile institution is available will I commit you to a corrective institution but only if the institution has a juvenile section.

61. This court ordered the PSR to give meaning to the provisions of the law in the JJA in sentencing juveniles, including being mindful that a suspended or non-custodial sentence is a start for sentencing juveniles. However, I am not satisfied through the report (PSR) that there will be proper and adequate supervision of a non-custodial or suspended sentence if imposed.

62. I am aware that if an order of custody or imprisonment under Section 80(1) (m) or (n) exceeds a period of 12 months, the order shall be subject to a custody review at intervals not exceeding 12 months, or such lesser period as the Court orders.

63. I am aware that if an order is made under Section 80(1)(m), the Court may order that the juvenile is detained in a remand centre until the Director is able to accept responsibility for the juvenile as ordered. To this end, the views of the Director for Juvenile Justice must be gauged in all PSRs for all juvenile offenders.

65. So what should be an appropriate sentence for the juvenile after all that I have said? Learned counsel for the offender Ms. Mangi has referred me to the cases State v FT and State v CJ (supra) as a reference case in deciding an appropriate sentence. As I said the court is not bound to follow precedence, but for all its worth, I will say this. The culpability of the offender in State v FT is low. The offender was only involved in fetching the weapon and charged by virtue of section 7 of the CCA. In considering his minimal participation, the court imposed a sentence of five (5) imprisonment. In this present case the offender was armed, had concealed his weapon and was able to readily use it. The extent of the injury shows use of force and strong intent to do GBH. Imposing a sentence of five (5) years imprisonment as in State v FT or lower will not reflect the strong intention of the juvenile to do GBH in the present.

66. In State v CJ (supra), the aggravations were more and were different to this case namely that the offender stabbed the deceased twice exhibiting a strong desire to do GBH, he was under the influence of alcohol and there was a gang attack. A sentence of 10 years in that case was appropriate. It may not be so in this present case given that in this present case, the offender stabbed once (though it was fatal); he was not under the influence of alcohol, there was provocation in the non-legal sense and there was no gang attack. A sentence lower than ten (10) years is appropriate in the circumstance.

67. The cases relied on by the State with due respect were not appropriate as they related to adult offenders.

68. The circumstances of the present case are entirely different and as I have said demonstrated a high level of culpability. In consideration of the sanctity of life where a young life had been taken away prematurely, and for the protection of the community against dangerous youth, such as this offender, I am of the view that an appropriate head sentence in the circumstance for the offender ought to be eight (8) years imprisonment.

69. Having regard to s. 81(1), and having considered all of the above matters and the alternatives under the Act, I have determined that there is no reasonable alternative or combination of reasonable alternatives, that is in accordance with the purposes and principles of the Act, for a probation order, other than to impose a head sentence of 8 years of imprisonment pursuant to s. 80(1)(n), less the time already spent in custody since arrest on the 14^th of December 2020, which is eight (8) months and 18 days, leaving a balance of six (6) years, three (3) months and 13 days to be served in light labour.

70. For the guilty plea, and in discount of that the court will deduct one (1) year, eight (8) months and 18 days.

71. The balance of five (5) years shall be served in light labour in the Juvenile Section of the Bomana Juvenile Detention Centre up until the juvenile attains the age of 18 years next year in May 2022, noting that imprisonment in a correctional institution under s. 80(1)(n) shall not include hard labour: s. 81(3).

72. This court is satisfied that the Bomana Juvenile Detention Centre has appropriate facilities for the imprisonment of the juvenile pursuant to s. 81(2)(b). Upon the offender attaining the age of 18 years he shall serve the balance of his sentence in the adult prison at Bomana. A review of his prison term as a juvenile may not be necessary after he attains the age of 18.

73. I further recommend that the Commander of Bomana Correctional Institution make arrangements for the offender to undergo any Flexible Open and Distance Learning (FODE) programs or any life skill courses and studies during the term of your imprisonment.

1) Juvenile Offender is sentenced to eight (8) years imprisonment in light labour;

2) Time spent in pre- trial custody is deducted, i.e., eight (8) months and 18 days, leaving a balance of six (6) years, three (3) months and 13 days to be served in light labour at Bomana Juvenile Centre of CIS;

3) In consideration of the offender’s guilty plea and in discount of that, deduct one (1) year, three (3) months and 13 days as pretrial custody period; offender will serve the balance of five (5) years imprisonment in light labour; and

4) Recommends that the Commander of Bomana Correctional Institution make arrangements for the offender to undergo any Flexible Open and Distance Education (FODE) or and life skill courses during the term of imprisonment.

Orders accordingly.
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Public Prosecutors: Lawyers for the State
Public Solicitors: Lawyers for the Defendant

National Court of Papua New Guinea

State v A.W.P (Juvenile) [2021] PGNC 459; N9279 (1 September 2021)