Police v Bisar [2009] PGDC 97; DC944 (8 September 2009)

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PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS CRIMINAL (SUMMARY) JURISDICTION

CRIMINAL: Sentence – Carrying Weapons –contrary to Section 12 subsection 1 of the Summary Offences Act Chapter 264-Plea of Guilt-Court can use depositions to extract the relevant factors for purposes of sentence-Need for proper Guidelines to be followed in the course of deciding appropriate sentence for purposes of Uniformity and Consistency-

PRACTICE AND PROCEDURE: Particular offence-Carrying weapon-Whether imitation toy Sig pistol is an offensive weapon-Test to be applied-Test both objective and subjective

PRACTICE AND PROCEDURE: It is incumbent on criminal sentencing courts to exercise the people’s power vested in them by the Constitution to impose sentences that are in touch with the aspirations and attitudes of the people of PNG.

Hama;Regina v.[1963] PNGLR 9
R v Yoka Kiok (1970) No. 607
Public Prosecutor v Yapuna Kaso (1977) PNGLR 209
Public Prosecutor v Tom Ake (1978) PNGLR 469
State v Sabarina Yakal (1988-89) PNGLR 129
Acting Public Prosecutor v Don Hale SC564
Kila v Kisa DC22 (14/10/97)
State v Michael Kamban Mani (21/05/02 N2246
State v Robert Lorou Sevese (2004) N3453
State v Solomon Luemifa DC519 (14/05/07)
State v Patrick Kueho– DC076 (10/09/07

Legislation
Constitution of PNG
Criminal Code Act, Chapter 246
District Court Act, Chapter 40
Summary Offences Act, Chapter 264

Abbreviations
The following abbreviations appear in the judgment
J Justice
NAT CT National Court
PNGLR Papua New Guinea Law Report
R Regina
SECT Section
SOA Summary Offences Act
ST State
SUBS Subsection
SUP CT Supreme Court
V Versus

Police Woman First Constable Rose Bussil; for the informant
Defendant in person.

1. KAUMI M. You pleaded guilty to a charge of possessing offensive weapon contrary to Section 12 (1) of the Summary Offenses Act.

2. The relevant facts as put to you when I arraigned you and the statement of facts are as follows and there is authority for the use of such depositions to extract the relevant facts for sentencing purposes, State v Sabarina Yakal (1), Public Prosecutor v Yapuna Kaso (2) and Public Prosecutor v Tom Ake (3).

3. On Monday the 28/12/09 at around 4:30pm the defendant was with another person at Baidal Road Junction.

4. At this time, duty police received a call from the said location that a few drunkards were teasing innocent members of the public who were trying to go marketing at Balisogo Market.

5. A motorized police unit patrol at the time responded quickly to the call and went the said location and stopping behind two youths.

6. The defendant was one of the two youths and upon realizing that the police were upon him quickly lifted his shirt pulled out an object and threw it into the drain.

7. The police personal in the police vehicle apparently caught the furtive actions of the defendant got off it and searched the area and to their surprise, found a toy Sig pistol which was an exact replica of a factory made one.

8. The defendant was then escorted to the Jomba Police Station where he was formally arrested, charged, cautioned, given his constitutional rights under Sect.42 (2) and placed in the cell.

9. In your address on the sentence when allocatus was administered to you, you did not express any remorse for what you did. On the contrary your comment was self serving, you stated the following:-

(a). What the defendant did on that day caused fear to members of the public who were going about their own business especially the one going to Balisogo market.

(c).This was prevalent offence in Madang and the country and so there was a need for a deterrent sentence.

13. The defendant pleaded guilty upon arraignment so I entered a provisional plea of guilty after reading the statement of facts and confirming them with the defendant convicted him as charged. This is my judgment on sentence for an appreciation of the reasons.

14. The defendant pleaded guilty to carrying a weapon, specifically an imitation toy Sig pistol. Under the Interpretation clause “offensive weapon” means (c) without prejudice to the general descriptions contained in Paragraphs (a) and (b) the following:-(I ) any imitation of a pistol, revolver, rifle...unless such article is obviously a child’s toy, of a type, class and description approved by the Registrar.

15. The issue that arises here is whether the imitation toy Sig pistol in the peculiar circumstances of the immediate case could be viewed as an offensive weapon. The relevant offence provides that a person who without reasonable excuse (a) carries, or (b) has in his possession, custody or control, any offensive weapon is guilty of an offence. This court in deciding whether or not to accept the defendant’s plea has to decide whether, according to the ordinary standards of decent, reasonable and honest people, the defendant had a reasonable excuse for being in possession of the toy Sig pistol. (See St v Francis N.Laumadava (4) per Injia .J as he then was.) This case involved dishonest application of money but the principle is equally applicable in so far as the question of reasonableness is concerned. The test here is an objective one but on the same token it is a subjective one.

16. This court must look into the mind of the defendant and determine whether, given his intelligence and age, he would have appreciated, as right-minded people would have, that what he was doing was wrong. In other words the test here is of propriety of the conduct of the defendant, a subjective one.

17. The defendant and his friend at the material time were drunk and causing sufficient fear into people that one of them contacted police about their behavior. The defendant had the toy pistol in his possession and upon realizing that the police were onto him furtively threw it away in the vain hope that the police wouldn’t see it. This action of the defendant was suspect and definitely not of a person who had in his possession an innocent toy to play with. This defendant was not an 8 year old but an 18 year old married with one child. The actions of the defendant show that he had the imitation toy Sig pistol for a more sinister purpose.

18. The test for reasonableness involves an objective one applying the standard of the ordinary man coming from the defendant’s community (See R v Yoka Kiok (5) (1970) No 607).

19. The ordinary person means an ordinary person in the environment and culture of the defendant. (See Hamo:Regina v (6) (1963)PNGLR 9).

20. The people going in the direction of Balasigo market were definitely frightened by the actions of the defendant and his friend. This market serves the people living in the locality in which the defendant lives and those living in other neighboring suburbs. They were obviously frightened by and did not consider the actions of the defendant and his friend as acceptable and so one of them contacted police.

21. When this court applies both subjective and objective tests it finds that the defendant was aware that what he was doing was wrong. He was wrong to be in possession of the imitation toy Sig pistol in those circumstances and guilty of carrying a weapon.

22. These submissions give rise to only one issue for this Court to determine and that is, what the appropriate sentences are in your case is.

23. This issue can be decided by having regard to the sentence prescribed by Parliament, the sentencing guidelines and trends per the judgments and the particular circumstances in which you committed the offence from which come the factors in your aggravation as well as those in your mitigation.

24.. The practice in the higher Courts has been for the Supreme Court to give sentencing guidelines in the course of deciding criminal appeals or reviews. These guidelines are often coined as ‘starting points for various types of cases’ The National Court then applies those starting points in the course of looking at the circumstances peculiar to each case i.e. identifying the aggravating and mitigating circumstances.

25. Whilst the practice in the District Court as a ‘creature of statute’ has been to adjudicate within the precincts of the empowering legislation, it should also bear in mind and apply where necessary the guidelines used for sentencing in the National Court.

26. I have conducted a search of publicized decisions on sentence for the offense of being in possession of offensive weapons, specifically guns both factory and home made but only came up with a few. This does not mean in any way that the incidents of this offence are few hence the relatively low number of publicized judgments, certainly not by any stretch of the imagination. On the contrary, what it highlights is the fact that not all judgments have been publicized.

27. With the due respect, none of the publicized judgments up to now provide a guideline as to what are appropriate considerations to be taken on board in arriving at a sentence for this type of offence and there is need for guidelines for purposes of uniformity and consistency of sentence.

28. I am therefore inclined to go higher for guidance and analogy and in doing so adopt as a matter of practice, His Honor Kandakasi. J’s guidelines on sentencing in St v Michael Kamban Mani (7) that:-

a. The maximum prescribed penalty should not be imposed but should be reserved for the worst type of the offence under consideration;

b. Guilty pleas and the offender being a first time offender and the existence of “such good “factors operate in the offender’s mitigation and sentence lower than the prescribed maximum may be imposed.

c. The prevalence or otherwise of the offence which could be reflective of the ability of the previous sentence to either deter or not to deter would be offenders.

d. The kind of sentences that one being imposed in similar but less serious offences should be considered to ensure that sentences in a higher or serious offense is not lower than these imposed for the less serious offences.

29. And I hasten to add what I consider to be a fifth appropriate consideration and that is that the use of the offensive weapon in the commission of another offence should attract a higher sentence.

30. Section 12 (1) of the SOA provides for the offence being in possession of an offensive weapon as follows:-

Penalty: A fine not exceeding K2000.00 or imprisonment for a term not exceeding five years.

(2) Where a person is convicted of an offence against SUBS (1), the court that convicts him may order that the weapon the subject of the charge be destroyed or forfeited to the State.

31. I adopt from my judgment in Police v Kawi Karoiwe (8) at paragraph paragraphs 12 to 19 my discussion of the relevant published cases of Kila v Kisa (9 ), St v Solomon Luemifa (10), St v Patrick Kueho (11 ) and cases from Madang and note that the “starting point” is a fine of K1000: 00 or imprisonment of one (1) year and Courts can go higher or lower from this starting point dependent of course on the peculiar circumstances of a matter before it.

32. I note also in Madang in 2009 that the penalties for Sect 12 (b) offences where firearms are involved have ranged from a fine of K50.00 up to K1000.00 and sentences ranging from six months to two (2) years for the possession of firearms both factory and homemade.

33. For the offence of carrying offensive weapons such as firearms the imposition of fines under K1000.00 and imprisonment for less than one (1 year) represent a departure from what would appear to be the general sentencing trend that I have already alluded to above and I note that the immediate matter involves the possession and use of a toy Sig pistol in the crime.

34. In order to arrive at an appropriate sentence for you, I need to take into account the foregoing sentencing guidelines as well as the sentencing trend or tariff and the particular circumstances of your case, in particular, the factors for and against you. Before anything else, I take into account your personal background. You are a married man with one child come .You are unemployed and live at Wasala.

35. In addition to your family background, I also take into account in your mitigation first, your plea of guilt. That saved the State the time and expense that would have been incurred in the successful conduct of a trial on the issue of your guilt or innocence. Further, it avoided the need for the victims of your offence to incur further costs and suffer inconveniences by coming into Court and testify against you.

38.There is a need for a deterrent sentence because of the prevalent use of imitation weapons particularly firearms to terrorize the public particularly in the commission of robberies, the imitation Sig pistol according to my observation is an exact replica of the real thing. And you are an eighteen year old man and not some eight years old to have had it in your possession for purposes of playing with as a toy whilst singing nursery rhymes. You had it in your possession when you were accosting the public. Your actions in trying to ditch this offensive weapon, by quickly throwing it into a nearby drain is highly suspicious and definitely, not the actions of a person who would have it in his possession for an innocent purpose such as a play toy.

b. The weapon in your possession was obviously not for a lawful purpose as indicated by your actions after Police came upon you.

c. You were drunk whilst in possession of this offensive weapon and accosting members of the public who were going to Balasigo Market or going about their own business.

40. In recent years Papua New Guinea has seen a great proliferation of the use of offensive and dangerous weapons in the commission of crimes such as murders, arm robbery and rape etc. Accordingly it is incumbent upon the Courts to impose such sentences that will deter the possession and use of such dangerous weapons.

41. I note that your offence of possession of offensive weapons is a very prevalent one and the Courts have acted justifiably in increasing the kind of penalties they have imposed against offenders like you. Indeed in recent years a National Guns Summit was held through out the whole country to find solutions to address this problem.

42. It is without doubt that your actions with your friend traumatized innocent people. You violated their rights.

44. Though you are a first time offender the aggravating features in your case outweigh the mitigating ones.

45. The sentence the Court imposes must reflect the ordinary man’s attitude towards a particular offence and the gravity of that particular matter so as not to impose a sentence that is too high so as to be a ‘quantum leap and not too low so it may be interpreted as trivializing it and the SUP CT in Acting Public Prosecutor v Don Hale (12) expounded this stating that

"If a judge is to consider some leniency on sentence ... it is incumbent on him to obtain the relevant report such as a pre-sentence report, especially around the age of 17 to 19. ... Then for such a drastic suspension of sentence a further help to the court would be a community report from the community to which the offender belongs and whether the community, seeing that the incident happened within that community, has any views on an appropriate punishment or whether the community is prepared to assist with any community management of any bond period. The Courts are bound under the philosophy of the Constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment of criminals definitely has an effect on the ordinary people. So, community involvement with the punishment of offender should be considered especially if the court wishes to return an offender to the community instead of imposing imprisonment."

46. His Honor Kandakasi .J in St v Robert Lorou Sevese (13) reiterated this authority when he stated.” In Acting Public Prosecutor v. Don Hale (14), the SUP CT said sentencing is a community responsibility. For the courts exercise a power that belongs to the people by virtue of s. 158 (1) of the Constitution.”

47. This Court has addressed the other sentencing principles as enunciated by His Honor Kandakasi .J in St v Michael Kamban (15) and the fifth sentencing principle it suggested at paragraph 24 of this judgment.

48.In consideration of the afore sentencing principles relating to offences of carrying weapons this is an appropriate case in which to consider a suspended sentence. However strict conditions be imposed.

49. There is a risk immediately suspending the sentence that the offender might too quickly forget that he has been convicted of criminal offence involving the possession of offensive weapon.

50. The sentence should provide a deterrent against similar acts by other persons.

52. The whole term of imprisonment is suspended and the defendant is placed on Good Behavior bond for 12 months.

53. This suspension is to allow the defendant the opportunity to rehabilitate him and also to avoid him congregating with more hardened criminals and possibly coming out of prison worse than when he first went in.

54. Junior Jerry Bisar having been convicted of one account of being in possession of an offensive weapon is sentenced as follows:

Length of sentence is imposed	12months
Pre-sentence period to be deducted	Nil days
Resultant length of sentence to be served	12months
Amount of sentence suspended	12months subject to conditions as prescribed herein

Papua New Guinea District Court

Police v Bisar [2009] PGDC 97; DC944 (8 September 2009)