State v Kreho [2007] PGDC 125; DC676 (10 September 2007)

DC676

PAPUA NEW GUINEA
[The District Court of Justice]

CASE NO. 251 OF 2007

THE STATE

v

PATRICK KREHO

Tabubil: P. Monouluk
2007: 27th August; 10th September

SENTENCING

Summary offence – In possession of offensive weapon – Section 12 Summary Offences Act Chp 264 – Defendant in possession of a home-made shotgun – Circumstances warrant imprisonment – Defendant a home-made gun manufacturer –Defendant possess gun-making skills – Skills harmful to community – Defendants with gun-making skills be treated differently – Guilty plea – No extenuating circumstances – Deterrence – Appropriate penalty – Imprisonment.

First Constable Paul Irie for the State.
Defendant in person.

10th September, 2007.

1. P. Monouluk: On Monday 27th August 2007 the defendant pleaded guilty to one charge of having in his possession an unlawful weapon namely, a home-made shot gun (marked Exhibit ‘A’) contrary to Section 12(1)(b) Summary Offences Act Chp. 264.

2. The statement of facts presented to the court and subsequently reaffirmed by the defendant revealed that the defendant was approached by the police at his Yenkenai village near the Ningerum Government Station soon after it was reported by one of his two wives that he had in his possession a home-made shot gun. Following the report the police approached the defendant who co-operated and handed the gun over to the police personnel. In his explanation the defendant said that he had made the gun twelve (12) months ago and had used it for game hunting ever since.

3. In its submission for leniency, the defendant prayed for a court fine instead of imprisonment. He explained that he has two wives (one of which is pregnant) and has two children. At the time of his arrest he was working on a new family home. He further said that he has a widow mother who relies on him for support. The State, on the other hand, called for the defendant to be imprisoned. It says that the defendant has no excuse for his offence. He knew that such item is forbidden by law yet had it in his possession for more than twelve (12) months. The State further called upon the court to disregard the family consideration points raised by the defendant for reasons that he knew well the possible consequences of his actions/inactions upon his family should he be convicted by a court.

4. It is important that before I can pass sentence, may I take this opportunity to refresh my mind as to what the relevant law is on this matter. Section 12 of the Act (supra) says in this manner:

"12 Carrying weapons

(1) A person who without reasonable excuse –

• (a) ...
• (b) has in his possession, custody or control,

any offensive weapon is guilty of an offence.

Penalty: A fine not exceeding K2,000.00 or imprisonment for a term not exceeding five (5) years."

5. For our purposes a home-made gun is classified as an ‘offensive weapon’ by virtue of its definition as perceived by Section 1 of the Act (supra) which deemed such as a shotgun imitation. The exhibit tendered to the court in fact resembles a factory-made shot gun, however it was made from scrap metals, etc. yet is able to fire buck shots one at the time as confirmed by the defendant.

6. Looking at the penalty provision of this offence, it is clear that a sentencing court does have the discretionary power to impose either a court fine or an imprisonment order. The exercise of such penalty option depends on the circumstances surrounding the matter before it.

7. In the present case it is clear that the defendant had pleaded guilty to the charge that he had build the shotgun in question and has been with him for the last 12 months. He says that he had been using the gun for game hunting and for some reason one of his two wives decided to turn him in to the police. Although the State says that he had used the gun to threaten the informant wife, the defendant denied that such had taken place which I would like to believe. I am reminded that the defendant does have two wives, one of whom is pregnant, and he has two child children to look after. He is an unsophisticated villager and this is his first offence in so far as such offence is concerned. Nevertheless, he does have a previous conviction for a charge of unlawful assault which he was sentenced to six (06) months imprisonment in 1993.

8. The question I must ask myself as a sentencing court is whether the circumstances of this case as already highlighted do warrant an imprisonment term? I am reminded that the offence was not committed under any extenuating circumstances. In other words the defendant knew of the possible consequences of his action in building the gun and to keep it in his possession. He knew it was illegal to do so. Despite that he went ahead and constructed such a gun and kept it in his possession for more than 12 months. He would have continued to keep the gun had it not for one of his wives. Looking at this backdrop, it is clear that the defendant cannot now plea for leniency and uses his family background as one of his reasons for doing so. In fact such consideration is not a good ground for seeking leniency especially in offences where there is an element of premeditation found as in this case.

9. I had the opportunity to review the exhibit and it is interesting to note that the gun in issue was made using skills that can only be possessed by an experienced person. From a distance this gun looked so real as if it was made in a gun factory. Since it was made by the defendant, it gives me a picture that the defendant does possess some good amount of gun-making skills. It is apparent that this gun may not be the first he had made. He may have made few others more in the past for him to now come to such a refine state in his gun-making skills.

10. To impose a court fine on a person with gun-making skills will not be deterrent enough even though he may have pleaded guilty and has no previous conviction as compared to a person who may have got his gun from elsewhere. This is to say that a person who possesses gun-making skills over and above mere possession of guns must be treated differently to a person who got one from else where. In this case we are dealing with a person who has in his mind and locked away in his memory gun-making skills and, in all possibility, may go right back into building himself a new one after this case. This is frightening for the community because it now has in its midst a gun-making expert from whom more guns can be sourced.

11. To hopefully prevent a reoccurrence of the same offence it would be appropriate in the circumstances that I use my discretionary power to imprisoned the defendant to indicate to him in no uncertain terms that apart from being in possession of the gun, the knowledge he possess in gun making be best left unattended to for his own safety and convenience, and that of the community at large. This will also be a strong warning to those other liked-minded to seriously reconsider their trade and the community can be assured that heavier penalties will be meted out to those who not only possess but produce such offensive weapons as we see today.

12. Having considered all that is said by the defendant and the State in respect to the penalty and also reviewing the circumstances surrounding the case I believe that it is in the best interest of the community that the defendant be condemned to prison and I consider a term of twelve (12) months as appropriate.

Orders accordingly.