State v Auwi [2007] PGDC 66; DC584 (23 May 2007)

DC584

PAPUA NEW GUINEA
[District Court of Justice]

DCCr 113 OF 2007

THE STATE

V.

BOBBY AUWI

Tabubil: P. Monouluk
2007: 04th, 18th, 25th April; 23rd May

SENTENCING

Firearms Act – Sentencing – Defendant discharged his licensed pistol in a location within the vicinity of dwelling quarters – Defendant fired eight rounds of bullets at close range at a parked motor vehicle – Defendant intended and damaged the vehicle – Discharge unreasonable and without excuse – Guilty plea – No previous conviction – Remorseful and regretful – License to own firearm for personal protection – Firearm misused – Firearm used to damage property – Action not for personal protection – Appropriate penalty – Fine and property deprivation.

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

23rd May, 2007.

1. P. MONOULUK: On the 04th April 2007 you appeared before this court and pleaded guilty to one charge of having unlawfully discharged a firearm towards an unoccupied motor vehicle and in the process damaged the motor vehicle in contravention of Section 28(3)(a)(ii) Summary Offences Act Chp. 264.

2. The statement of facts together with the photo annexure of the damaged motor vehicle which were presented to the court and subsequently reaffirmed by you revealed that on the evening of Tuesday 27th April 2007 at about six o’clock the police received information that you had differences with your father and out of frustration you fired about eight rounds of bullets from your licensed pistol into an empty parked motor vehicle. Your antecedent report presented to the court says that you are about 24 years old and single. You own an ammunition shop and have no previous conviction. Following that the court adjourned for submissions on penalty and subsequently to today for its decision.

3. In your submission on penalty you pray that the court be lenient by imposing a fine instead of an imprisonment order against you. You explained that your action on that date was done out of frustration because of differences you and your siblings had with your father. You say that your action was not intended to harm anyone but you intended solely to immobilize the motor vehicle that was used to ferry certain undesirable associates of your father that were responsible for the frustration, anger and embarrassment you and your siblings had to endure for about four years.

4. In anticipation of the possibility of loosing your firearm, you also pleaded that the court must take into account that you are its license holder and being a licensed ammunition dealer also, the pistol in question is for your protection. You added that you are a member of a Pentecostal church and you now regret acting the way you did on that date.

5. The State on the other hand seeks your imprisonment instead. It says that the nature surrounding the commission of the offence by you was serious. You had discharged several rounds of bullets from your pistol in the vicinity of a workshop and a residential area and would have caused harm to those within the premises. In the end your action still resulted in the damage to a company owned motor vehicle in which you are a director of. The State further added that based on your conviction the court is now bound by s. 28(4) of the Act (supra) to have your firearm forfeited to the State because the severity of the offence is based on you misusing the said firearm.

6. Having received both of your submissions it is now up to the court to decide what are the best possible penalties for your crime based on what I have observed from the evidence and your submissions. To be able to pass a sentence that takes into consideration your conduct from the beginning of the commission of the offence to your appearance in court, may I first review the laws that are applicable to your situation. The first law is s. 28(3)(a)(ii) of the Act (supra). This is the provision you have pleaded guilty to of having breached. This law says in this manner:

"28 Use of missiles, firearms, etc.

(1).........

(3) A person -

• (a) who without reasonable cause, discharges a firearm with intent

to, or in a manner likely to –

(i) .........
(ii) damage any property; ......

is guilty of an offence.

Penalty: A fine not exceeding K1,000.00 or imprisonment for a term not exceeding two (2) years."

7. This provision of the law gives a sentencing court discretion to impose a court fine of up to K1,000.00 or an imprisonment term of up to two (2) years against an offender. The nature and the circumstances of the case coupled with the offender’s background and his attitude towards the offence itself also has an impact on the final outcome of the case.

8. In my assessment of your case, it is apparent that the circumstances are quite serious and does warrant a heavier penalty to be imposed upon you. Evidence revealed that you planned your act about thirty (30) minutes prior to the commission of the offence which you had intended to damage the motor vehicle using your firearm. There is no evidence you acted out of provocation or self defense. You had a choice to say no to carrying out such an act instead you opted to damage the motor vehicle oblivious to the fact that the location of the motor vehicle was within a premise that houses a workshop and a residential accommodation for employees. You obviously had no regard for those nearby who may be possibly affected by your conduct. You were more concerned about how you feel and have no regard to how others may feel especially in the open use of firearms.

9. The second provision of the law that is applicable to your situation is s. 28(4) of the Act (supra) which the State relies on to seek forfeiture of your pistol. Subsection (4) says that:

"(4) where a person is convicted of an offence against subsection (3) the court before which he is convicted may order that the firearm, the subject of the charge, be forfeited to the State."

10. This subsection makes it clear that while a person may possess a license or permit to hold and use a firearm, he stands to loose such in the event he is convicted under subsection (3) for having misused or abused that privilege.

11. The State, on its part, is claiming that you have no excuse at all to justify the use of your pistol at that time. Your action was intentional and amounted to a breach of your duty of care. Your action resulted in a damaged company motor vehicle and also placed at risk the lives of those present at the scene of the incident.

12. In my observation it is not denied that the pistol in question was intentionally used which subsequently resulted in a property being damaged due to some frustration, anger and embarrassment elsewhere. The use of this firearm in that respect undermines the whole intention and purpose for which the license was issued to you in the first place by the State to own the pistol. It is understood that being involved in an ammunition business the State agreed to allow you a license to own a pistol for your own safety and protection. And in return the State now places a responsibility upon you to use the firearm in accordance with its original purpose. The incident of the 27th April, 2007 clearly contradicts and differs from that original purpose. You planned the move thirty (30) minutes prior to the offence and then put into action your intention by approaching the motor vehicle and fired your pistol at it discharging a total of eight rounds thereby causing damage to it. There was no evidence you were under some form of threats or attack to justify your action of that evening.

13. Anyone who is privileged enough to have a license to own or possess or buy a certain type of property like this firearm has an added obligation and responsibility to use such property within the accepted standards placed upon the him by the law. Our rights over certain types of property depend on how we have obtained them in the first place and how we are using or taking care of them. Any inappropriate use of such property can see us loose our right to own or possess this property in the end and the State is at liberty to ask the court to impose property deprivation orders such as the one now being asked of from the court, pursuant to s. 28(4) of the Act (supra).

14. Another law that is relevant to our discussion is Section 73 Firearms Act Chp. 310 which is more stringent. It says that anyone convicted of a firearm offence under any law must surrender his firearm unconditionally to the State. This law says in this manner.

"73 Forfeiture of firearm used in commission of an offence.

(1) Where an offence with a firearm, pistol, high powered- firearm or machine gun whether or not licensed, against a law in force in the country has been proved, then that firearm, pistol, high-powered firearm, or machine gun is unconditionally forfeited to the State.

(2) Subsection (1) applies to all cases in which no conviction is recorded by virtue of the operation of section 132 of the District Courts Act."

15. Even if there were no express provisions of the law that allow property deprivation order under the Summary Offences Act and the Firearms Act, Section 9 District Courts Act Chp. 40 still gives the court an assumed jurisdiction to make such an order. These laws which give power to the court to order property deprivation in fact originate from the Holy Bible. As a Christian you do understand that our sin can result in us loosing our property rights. Take Adam and Eve, for instance. They had the Garden of Eden to themselves, however when they sinned God removed their rights to possess the garden and they had to leave in despair. The same is true for the people of Judah. When their king sinned God removed his protection over them and then Babylonians invaded the city of Jerusalem and took them away from their city and held them in exile in Babylon – they lost their city because of their sin. As a parent I may loose my rights to my children if I fail to diligently look after them and the State can assume responsibility over them in place of me. It is therefore very clear that anyone who misuses or abuses his rights over something stands to loose his rights to maintain ownership or possession over that property in issue. It seems that certain rights and privileges we enjoy are not absolute at all.

16. Having considered all aspects of your case and what you and the State has to say, I now rule that even though the circumstances surrounding your case is serious and warrant a heavier penalty against you there are other factors that help in your mitigation. I am reminded that you pleaded guilty to the charge. This helps the State and the court avoid the process of a trial. You also were remorseful and regrettable of your conduct however, you explained that it was out of years of frustration caused by your own father. Other than that you have been a peace loving member of the community and this is your first conflict with the law.

17. In my assessment of the type of penalty I should impose upon you, I am mindful also of the totality effect of the sentence that will be felt by you. To impose a sentence that will destroy you and not operate to help you realize and appreciate the consequences of your misconduct will be against the principle of sentencing before the courts. The effect of a sentence a court seeks to derive must be in accordance with the totality principle so that the sentence imposed must not be too lenient that the offender is not persuaded to change his attitude or too severe that the offender is said to loose hope. A balance must be struck somewhere so that the offender will be made to realize that a breach of a law can be costly yet he be given a second chance to redeem himself.

18. Based on all these considerations I believe that the appropriate penalty for your crime is a fine of up to K1,000.00 with a further order pursuant to s. 28(4) Summary Offences Act (supra) and s. 73 Firearms Act (supra) that you be relieved of your pistol also.

Orders accordingly.