State v Moide [2006] PGDC 20; DC585 (9 June 2006)

DC585

PAPUA NEW GUINEA
[Juvenile Court of Justice]

JC 209/05; 22,149/06

THE STATE

v

KEVIN MOIDE

Tabubil: P. Monouluk
2006: 17th February; 10th, 24th, 29th March; 26th April; 26th May; 09th June

Sentencing

Criminal law – Sentence – Break and enter and stealing – Section 398(a)(i) Criminal Code Act Chp. 262 – Producing illicit spirit – Section45(b) Distillation Act Chp. 305 – Damaging property – Section47(2) Summary Offences Act Chp. 264 – Pleads guilty to all charges – Peculiar circumstances – Habitual offender – Mother’s employer demands offender’s removal from its lease – Father lives and works elsewhere in Lihir on single status – Offender has no place to go to for proper guidance – Neglected child – Parents proven incapable to guide offender – With proper guidance offender can change for the better – Appropriate penalty – Offender declared an award of the State.

Juvenile Courts Act 1991 – Courts of summary jurisdiction power of sentence limited(s.17) – Interest of the juvenile paramount(s.4) – Interest of child offender shall be the paramount consideration – Everything else under the Act is considered secondary – Peculiar circumstances of the case demands no delay in complying wit certain requirements of the Act – Court of summary jurisdiction must act in the best interest of the child offender without delay and pass sentence deemed appropriate.

First Constable PW Stellar Warmanai for the State
Juvenile in person

09th June 2006.

1. P. Monouluk: You have pleaded guilty to three offences against you. Their respective sentences will be dealt with together in this one decision. Your first offence is that of break and enter and stealing computers with their accessories from Tabubil Primary School on the night of Monday 28th November 2005 contrary to Section 398(a)(i) Criminal Code Act Chp. 262. Your second offence is that of having, with others, made illicit spirit commonly known as home brew on Saturday 06th May 2006 at Wopkai Street, Tabubil contrary to Section 45(b) Distillation Act Chp. 305 and your last offence is that of having willfully damaged property namely the wind screen of a motor vehicle owned by Ok Tedi Mining Ltd at Wangbin Street, Tabubil on the evening of Wednesday 13th April 2005 contrary to Section 47(2) Summary Offences Act Chp. 264. The value of the damage done was K771.82. This third offence, although registered in court, for some unknown reasons was outstanding since its inception on the 18th April 2005.

2. The various statements of facts presented to the court and reaffirmed by you revealed that for the first offence, you acted on your own and broke into one of the school buildings and removed computers and their accessories to the value of K6,060.00. This offence happened late at night. As for the second offence, it was committed during the day while you were out on parental custody awaiting completion of your first offence. You were with friends when that happened. The third offence was committed during one evening in April last year – once again you were on your own when this offence was committed.

3. Being a juvenile and as is required by law, you were then referred to the Juvenile Court Officer to have a pre-sentence report prepared to assist the court make its final decision on your penalty. The Report is comprehensive for its purpose, covering your family background and your relationship with your family members. It also covers certain aspect of your relationship with those outside of your home, meaning your former school which you had broken into and your church. I do note with interest that from the interviews you had with the Juvenile Court Officer which she reports, and I quote:

"The offender is of some potential danger to individuals and the community if not properly supervised and rehabilitated well. ... He is classified as a leader and not a follower and can easily influence others ..."

4. And in the same breath the Officer says that she considers appropriate that you be placed on a long supervised probation with additional conditions that you are aware of.

5. On the other hand, the State says in its written submissions that your attitude, behaviour and conduct warrant nothing less than an order declaring you as a ward of the State and send you off to a juvenile rehabilitation center which is commonly referred to as a ‘boys town’. The State’s contention is that you are a habitual offender and your continuous breach of the law despite numerous warnings and promises are a testimony of your lack of respect for those who have tried to help you change your ways. The State also say that your conduct in stealing the school computers have resulted in many primary school students missing out on computer lessons therefore your juvenile status cannot be seen as an excuse thus the court must not be lenient on you but be firm, bearing in mind the number of offences you have committed and their seriousness.

6. I am reminded that under Section 17 Juvenile Courts Act 1991 there are certain things I can do by virtue of my court as a court of summary jurisdiction sitting as a Juvenile Court. One of these is my ability to pass certain type of sentences. However Section 4 of the same Act makes it expressly clear that the interest of the juvenile in question must be of paramount consideration over anything else. Section 4 says in this manner:-

"4. Interests of Juvenile paramount.

In the proceeding and actions under this Act, the interest of a juvenile shall be the paramount consideration" (emphasis mine).

7. Despite what s. 17 has to say, s. 4 of the Act makes it mandatory upon a Juvenile Court (including a court of summary jurisdiction) to give due recognizance to the interest of a juvenile before it in its deliberations. Everything else under the Act is secondary; the interest of the juvenile must take precedence even over the requirement of s.17. It is my opinion that the peculiarity of your case is such that it demands my court to act without delay into passing an appropriate sentence rather than send you away elsewhere for the same sentence. To do so would mean a continued delay in your case hence may defeat the whole purpose of s. 4.

8. It is therefore my belief that it is your best interest that my court must deal with your matter without delay in respect to sentencing without having to comply with the requirement of s. 17 of the Act to adjourn the matter and send you to somewhere else in the country for sentencing. To do that would mean that the process would take much longer and costly, and no doubt would continue to delay your education. I am also reminded that the Ok Tedi Mining Limited, being the landlord of the Tabubil Township, has demanded that you leave Tabubil immediately or your mother’s employment with it would be affected. I am also aware that your father lives and works at the Lihir Mine on a single status.

9. Furthermore, I believe that a continued delay in your education and also any possible adverse effect on your mother’s employment would not be in your best interest and that of your younger siblings. Based on these considerations it is my firm belief that s.4 of the Act does gives me the power as a court of summary jurisdiction to proceed further beyond the limitations of s. 17 for your best interest as a juvenile and promptly issue sentences or penalties deemed appropriate to your peculiar circumstances.

10. I am now left to decide what will be the best penalty you deserve based on all the troubles you have got yourself into and your circumstances. However, before I do that may I highlight the various laws you have breached.

11. Firstly, the offence of break and enter and stealing is prescribed for under Section 398(a)(i) Criminal Code Act Chp. 262 as follows:-

"S. 398 Breaking into buildings and committing crime.

A person who –

(a) breaks and enters –

(i) a schoolhouse, shop, warehouse, counting-house, office, store, vehicle, garage, hanger, pavilion, factory, workshop, tent, caravan, petrol-station, ship, aircraft, vessel or club; ...

and commits a crime in it; ...

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 14 years."

12. Secondly, the offence of making illicit spirit is prescribed for under Section 45(b) Distillation Act Chp. 305 as follows:-

"45 Illicit stills and spirit.

A person who knowingly –

(a) ...

(b) makes illicit spirit; ...

is guilty of an offence.

Penalty: A fine not exceeding K5,000.00."

13. And lastly, the offence of damaging property is prescribed for under Section 47(2) Summary Offences Act Chp. 264 as follows:-

"S. 47 Damaging property.

(1) ...

(2) A person who, without reasonable excuse, destroys, damages or injures any property belonging to another person is guilty of an offence.

Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding two years."

14. From these offences the more serious one is that of break and enter and stealing which is classified as an indictable offence, hence those charged under this head usually appears before the National Court and faces the prospect of being sentenced to a period of up to 14 years imprisonment, subject to Section 19 Criminal Code Act. In your case you may consider yourself lucky because of your status as a juvenile therefore by law you be dealt with summarily under the regime of the Juvenile Courts Act. This now means that being a juvenile any imposition of penalty or sentence, irrespective of how serious your crimes may be, must be governed by the 1991 Act even though the penalty provisions of the breached law may say something else. This is also the same for the other two summary offences of illicit spirit and damaging property.

15. Part VII of the 1991 Act (ss. 29 – 33) makes it explicit the powers of a Juvenile Court when considering imposing sentences on juveniles. It is mandatory upon a Juvenile Court when considering such imposition to give due recognition to the welfare of a juvenile, meaning that the interest of a juvenile that is before the court is of paramount importance and any order made by the court must go to protect and sustain that interest to the exclusion of others.

16. The question I have posed to myself strenuously is that what will be the best possible penalty for all your wrongs and your circumstances put together, bearing in mind that your interest is of paramount importance.

17. My review of the pre-sentence report tells me of few things. Firstly, you as a child to your parents have been neglected. Your own parents have no quality time for you. Your father lives in Lihir away from you while your mother is always busy at work. They have given you a house but failed to make it a home. The fact that you move around in the community at night freely with no concern from your parents is an indication that your parents do not care where you end up. Such attitude may amount to child abuse. Your parents being the first people in life to provide you direction have failed in their parental roles. Your behaviour out in the community as we have seen was an attempt by you subconsciously to get their attention. It is unfortunate that they failed to see the writing on the wall when you had your first encounter with the law.

18. Secondly, the fact that you now have three criminal convictions against you, each one happening at different times, is quite apparent to me that you may have had counseling sessions from various people including your own parents but your appearance now is an indication that their time and effort meant nothing to you. You have not learnt from your first, even the second conflict with the law and those respective counseling sessions that may have followed. Not even the words and advice from your parents, which should mean more, had any positive impact on you. You have no respect and a don’t-care attitude for anyone as put forward by the Juvenile Court Officer and, I quote:

"He is mentally mature, lacks self-control and respect, has a don’t-care attitude and does not make his own decision whether it being of any good or bad."

19. Thirdly, you have against your person three convictions for different offences at different times. One of the offences is an indictable one while the two others, one of which you have paid damages for, were of nature less serious however they all do go to show that you have a serious problem and is an indication that you are slowly working your way up and, if nothing drastic is done sooner to curtail your negative behaviour you may possibly end up in a much worse situation than now. May I reiterate here what the Juvenile Court Officer has said in her report that you do pose a certain degree of danger to those around you if not properly supervised and rehabilitated.

20. And fourthly, your mother’s employer which basically provides for free accommodation and school fees for yourself and those of your siblings has now demanded your departure from its premises. This means that you now have to go and live your life else where. You cannot go to your father because he lives on a mine site on a single status. You may possibly go to your extended family but you are not their responsibility. Hence, you basically have no place you can call home and go to with peace of mind for appropriate parental guidance and supervision, after all your home is where your mother and your siblings are.

21. Having considered the various input from everyone including yourself through the Juvenile Court Officer and also based on the points I have raised, it is my belief that in your best interest you must be properly supervised and rehabilitated in order to develop well to reach your full potential as a fine young man and later contribute meaningfully to this nation. To achieve that I believe that the best people to help you would not be your parents at this time but those at a juvenile rehabilitation center. In your own interest I hereby declare you as an award of the State of Papua New Guinea and further more commit you to the custody of the Director of the Juvenile Court Services.

22. In your best interest still and for the purposes of expediting this matter, I hereby sentence you to the rehabilitation and care of the Wewak Juvenile Rehabilitation Center (boys town) until you attain the age of 18 years and not a day longer and furthermore, in the interest of the school and its innocent students, you are ordered through your parents to immediately meet all reasonable costs into replacing those school’s property that now stands damaged.

Orders accordingly.