State v Kirokim [2009] PGDC 4; DC691 (3 April 2009)

DC691

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS CRIMINAL JURISDICTION]

DCCr 86-87 of 2009

THE STATE

V

BIUL KIROKIM

Tabubil: P. Monouluk, SM
2009: 27 March; 1, 3 April

RULING

CRIMINAL LAW – Sentencing – Firearm charges – Section 6 Firearms Act Chp 310 – Period spent on remand is deductable from the sentence to be imposed – Voluntary period in custody for safety reasons is a deprivation of liberty as well and is deductable provided that the period was in connection with the offence for which the sentence was imposed – Discretion to deduct period on remand not applicable to minimum penalty provisions – Defendant entitled to sentence reduction from the date of arrest and charge under the Firearms Act and not prior to that.

Cases:

1. The State v. Matthew Peters [1984] PNGLR 387
2. S.C.R. No. 2 of 1981: Re s. 19(1) (f) of the Criminal Code [1982]
PNGLR 150
3. The Public Prosecutor v. Posopon Salaiau [1994] PNGLR 53

References:

1. Firearms Act Chp. 310, s. 6
2. Criminal Justice (Sentences) Act 1986, s.3 (2)
3. Criminal Code (Minimum Penalties) Amendment Act 1983
4. Dangerous Drugs Act Chp. 228

Counsel:

First Constable Paul Irie for the State
Defendant in person

03rd April, 2009.

1. P. MONOULUK, SM: On the 27th March 2009 the defendant Biul Kirokim appeared before this court and pleaded guilty to two (2) charges of possessing two unlicenced firearms contrary to Section 6 of the Firearms Act Chp. 310. He had licenses to these firearms but failed to renew them upon their expiration in February, 2009; he was about four (4) weeks overdue thus the charges.

2. Upon arraignment and receiving submissions on penalty the defendant, among others, pointed out to the court that he had been in police custody for three (3) weeks and two (2) days (which up to now would be four (4) weeks and two (2) days). The State however explained that those times in custody were actually for the defendant’s own safety; that he was kept away from harm as a result of another matter in which a prominent leader was murdered and the defendant was suspected to have been involved. The State said that the court should not consider the period in which the defendant was first brought into custody for his own safety because it was for his own good, and if it has to, then deduction should be from the time he was first arrested and charged with these firearm charges for it believes that that was the actual time the deprivation of the defendant’s liberty had commenced.

3. The question I must now ask myself is whether I can deduct from the defendant’s sentence the time voluntary spent in police custody for his own safety?

4. This is not a typical situation where an offender who is legally held in custody against his will is seeking a sentence reduction from the sentence to be imposed. In the case at hand the defendant had sought refuge from the police station cell as a result of threats made against his safety following the death of another and about two (2) weeks later whilst in custody he was arrested and charged with these two firearm offences.

5. The courts have long enjoyed discretionary powers they possess to make sentence reductions as a result of time spent on remand in police/CIS custody hence do justice where required. Prior to 1986 these powers have been a matter of judicial discretion accorded to defendants by the courts and therefore mitigate their sentences. In 1986 the National Parliament passed the Criminal Justice (Sentences) Act 1986 which made it no longer judicial but statutory for a sentencing court to take into consideration time spent in custody when passing sentence against a defendant. Section 3(2) of the Act (supra) says:

"3. (1) ...

(2) There may be deducted from the length of any term of imprisonment imposed by the sentence of any court any period before the sentence was imposed during which the offender was in custody in connection with the offence for which the sentence was imposed."

6. This statutory discretion does not in anyway remove limitations and boundaries placed on penalties/sentences as set out under other laws one which is the Criminal Code (Minimum Penalties) Amendment Act 1983. This exercise of discretion under s. 3(2) of the Act (supra) ceases to exist where specific laws say otherwise, particularly in relation to minimum penalty provisions and that was the pointed stressed in the case of The State v. Matthew Peters [1984] PNGLR 387 (at that time discretion was still ‘judicial’) where the Supreme Court held among others that:

"(1) where an accused is convicted of an offence the penalty for which is prescribed by the Criminal Code (Minimum Penalties) Amendment Act 1983, any period which the accused has spent in custody awaiting trial cannot be deducted from the minimum penalty".

7. This ruling, although had specifically made mentioned of offences under the Criminal Code (Minimum Penalties) Amendment Act 1983, is also applicable to other legislations that may contain minimum penalty provisions such as the Firearms Act (supra), the Dangerous Drugs Act Chp.228, etc.

8. This discretionary exercise of judicial power was put into perspective as we have seen above where the Supreme Court in reaffirming an earlier decision of the same court in the matter of the S.C.R. No. 2 of 1981: Re s. 19(1)(f) of the Criminal Code [1982] PNGLR 150, clearly restated the law that the inherent power of the Higher Courts under Section 155(4) of the Constitution cannot be used to circumvent or overridden specific laws such as the minimum penalty provisions stipulated by law and therefore make sentence reduction because of time spent in custody or on remand.

9. Eight years after its inception, s. 3(2) of the Act (supra) was considered in the case of The Public Prosecutor v. Posopon Salaiau [1994] PNGLR 53 where the National Court had to consider a similar question like now whether the period voluntarily spent in custody (even though allowed bail) should be deducted from the defendant’s sentence.

10. This matter first came before the Lorengau District Court after the respondent Posopon Salaiau who in December of 1992 had dangerously driven a motor vehicle causing the death of his passenger. Fearing reprisal, Salaiau voluntarily stayed at the local police custody even though allowed bail. Although not clear on the records, it would seem that the District Court upon passing sentence on Salaiau made deductions on the time spent in custody because of his safety prompting the public prosecutor to appeal to the National Court arguing, among others, that the time spent in custody on voluntary basis should not have been considered at all by the District Court and therefore deducted from the sentence imposed.

11. The National Court in giving effect to s.3 (2) of the Act (supra) held that:

"2. The time spent in custody, even though voluntary, constituted a deprivation of liberty. Accordingly, the court (District Court) took that time into account in determining sentence."

12. On the face of it, this holding by the National Court would appear to mean that irrespective of the purpose of being held in custody, a defendant is entitled to have that period deducted from his overall sentence to be imposed. However, in the reasoning leading up to the holding by the National Court, Her Honour Madam Justice Teresa Doherty did highlight a certain qualification within s.3 (2). Her Honour pointed out that the time spent in custody whether voluntarily or not may be deducted provided that the term in custody was in connection with the offence for which the sentence was imposed (emphasis mine).

13. This is an important qualification for a sentencing court to take note of particularly when faced with a situation like now where a defendant had voluntarily given up his freedom for safety reasons or otherwise. The court must be able to ask itself whether the defendant’s reason to be kept in custody for his safety or otherwise is connected to the offence he was subsequently charged with and now faces sentencing. Furthermore, it must ascertain, as seen in the Mathew Peters case, whether or not the defendant is subjected to a minimum penalty provision.

14. In the case before Her Honour the defendant was in fear of reprisal and obviously sought protection at the police station. Some days later he was arrested and charged for dangerous driving causing death. Subsequently he was allowed bail but for obvious reasons refused to avail himself of it. Thereafter he was found guilty and called upon for sentencing. It is clear that the defendant had sought refuge at the police station in fear of his safety because of the death of another in which he was subsequently convicted and sentenced. No doubt there was a connection as described under s. 3(2) of the Act (supra) between the reason why the defendant had first sought protection at the police station, the charge so laid and the subsequent sentence upon him thereafter.

15. In the case at hand, although the facts appear to be similar to the Posopon Salaiau case, there appears to be a slight difference. The defendant Kirokim was brought to the police station for his own safety as a result of the death of another person and not because of these firearm charges he is now facing sentence. At no time he was charged with the death of the deceased but with unregistered firearm charges therefore he cannot now avail himself of the period he was first brought into custody to now seek a sentence reduction because, as I have said earlier, safety refuge sought at the police station was for a reason not connected to these unregistered firearm charges.

16. The State however gave hope saying that the defendant may still gain a sentence reduction but starting from the date of his arrest on these firearm charges and not prior to that. It would seem that the State’s view is logical and makes sense bearing in mind the qualification set out under s.3(2) of the Act (supra) and reiterated in the Posopon Salaiau case.

17. In answering the question I first posed, may I say that I do have the power under s. 3(2) of the Act (supra) to deduct the period in which the defendant had voluntarily spent in custody because it still amount to a deprivation of his liberty, subject to the qualification thereof. For our purposes, the period to be deducted from the sentence I am about to impose against the defendant is from the date these information were laid and not from the date he was first placed in custody.

Orders accordingly.