Police v Karoiwe [2009] PGDC 98; DC945 (8 September 2009)

DC945

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

DCR 901/2009

BETWEEN:

POLICE
Informant

AND:

KAWI KAROIWE
Defendant

Madang: J. Kaumi
2009: 1st, 04th, 08th September

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-Court has little regard or no regard for first offender but repeat offender.

Cases Cited

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 Keni Ruben Irowen (24/04/02) N2239
State v Amos Kiap (19/03/03) N2452
State v Peter Lare (2004) N2557
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
NAT CT National Court
PSR Pre Sentence Report
SECT Section
SOA Summary Offences Act
ST State
SUBS Subsection
SUP CT Supreme Court

Counsel

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

INTRODUCTION

1. KAUMI M. You pleaded guilty to a charge of possessing offensive weapon contrary to Section 12 (1) of the Summary Offenses Act .You pleaded for leniency so the Court requested a pre sentence report from the Community Based Correction office here in Madang and reserved its decision on sentence pending receipt of that report and further submission thereafter if any.

2. The Court received this PSR on the 04th of this instant, and will refer to it at a later juncture of this judgment.

THE FACTS

4. 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).

5. On the night of 22nd August 2009 you were at your family house at Yabob Village in the early hours of the morning around 1:30 am when Police arrived there in response to a complaint that you had assaulted and was threatening your sister Dadod Karoiwe and brother in law Michael Kautem. When Police arrived they found you holding the gun and in the process of dismantling and wrapping it in a bilum. You were intoxicated at this time and the gun was confiscated by the police.

ALLOCATUS AND SUBMISSIONS

6. In your address on the sentence, you did not express any remorse for what you did. On the contrary all your comments were self serving, you stated the following:-

a. This was your first time to appear in Court;

b. That you were the only son in a family of four children;

c. That your father and mother were living under the care of you and your spouse;

d. That you also had responsibility for the well being of your deceased sister’s two children;

e. That in January 2010 you would be undertaking a course at the Maritime College;

f. You asked for mercy and leniency;

g. You asked for a non custodial penalty either in the form of a Court fine or Probation.

7. The Police Prosecutor made no submission in response but left the sentence to the discretion of the Court.

THE OFFENCE AND SENTENCING TREND

8 These submissions gives rise to only one issue for this Court to determine and that is, what the appropriate sentence in your case is. 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.

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

“Section 12. Carrying Weapons

(1) 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.

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.

10. 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.

11. 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.

12.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.

13. One of the earliest ones, publicized, is Kila v Kisa (4) by Manuhu.M, as he then was where he sentenced the prisoner for being in possession of a firearm to two (2) years imprisonment on a guilty plea sentence. The main reason for the sentence being that the offence was committed by the young defendant in the city and this was prevalent causing residents to live in fear of such persons. Guns were the cause of rise of crimes.

14. Since that decision, there have been a number of other cases in which this Court has imposed varying sentences given the difference in the facts of each case. These cases demonstrate that sentences range as low as 3 months and as high as 3 years for a worse case.

15. In the majority of published cases the starting point appears to be one year to three (3) years, term being dictated by the peculiar circumstances of a particular case.

16. In the St v Solomon Luemifa (5) Manue. M on a guilty plea sentenced the prisoner to three (3) years for possession of a home made shotgun. The defendant had stated that he was carrying the gun in Goroka town for his own safety after an attack on an enemy earlier in the day when his tribal enemy was chopped to death by his tribesmen in cold blood.

17 In the St v Patrick Kueho(6) Monouluk.M on a plea of guilty for possession of a home made shotgun sentenced the prisoner as a first offender to one(1) year imprisonment The Deft had manufactured the gun himself, knowing well that what he was doing was contrary to the law.

18. In Police v Puksie Silau + others Sareng. M on 23/03/09 imposed a fine of K1000 in default one (1) year on the defendants for being in possession of a home made pistol.

19. In Police v Levai Andrew Asi, Sareng.M on 23/03/09 sentenced the prisoner to two (2) years being in possession of a home made pistol.

20. I note also in Madang in 2009 that there in 2009 the penalties have ranged from a fine of K50.00 up to K1000.00 and sentences ranging from six months to two (2) years.

21.For the offence of carrying offensive weapons 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.

22. 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.

23. 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.

24. 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. .

THE MITIGATING FACTORS

25. Before anything else, I take into account your personal background as outlined in the PSR. That outline shows amongst others that, you come from a family of 6 including your parents who are both alive. You have reached up to grade 9 high school education levels in 1992 and did some sea time training with Lutheran Shipping and were supposed to go to the Maritime College in July this year but were unable to due to non payment of medical fees for the requisite medical check. You have been married for thirteen years and have no children.

26. In addition to your family background, in your favor, I note that you pleaded guilty to the offence. That saved the St the time and money it could have spent to successfully have you tried and convicted. It also saved the Court the time it could have spent in conducting a trial on the issue of your guilt or innocence. Further, it avoided the need for the relevant witnesses to bear the inconveniences of going to Court to testify against you.

27. Next you are first offender in other words you have no prior convictions.

28. These are the only two factors that can be said in your favour.

THE AGGRAVATING FACTORS

29. You were armed with a dangerous weapon, a home made shot gun. The uses of fire arms in the commission of any offence must always be viewed as a serious aggravating factor either on its own or coupled with other aggravating factors. There is no evidence that you were authorized to manufacture the said offensive weapon. In fact it is a contravention of the law to manufacture guns and have in one’s possession guns both without licenses. 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.

30. 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.

31. It is without doubt that your very own blood relatives that night were traumatized for it is not a pleasant thing for one to be assaulted and then threatened with a gun. You violated the rights of your relatives.

32. You expressed no remorse whatsoever for the physical pain and mental anguish you caused to the victims of your actions. You bit the very hand that had been feeding you and your wife.

33. Next, you are a first time offender. That means this is the first time for you to stand before this Court or any court for committing an offence. If this is taken in isolation, this would be right. However, when we consider this in the context of the full background leading to the charge against you, it is clear that you have in fact been continuing to offend against your family by committing a number of offences against them over a number of years repeatedly.

34. Therefore I note that you have over the years repeatedly offended against your own family members and that makes you not necessarily a first offender but a repeat offender and the only reason why you have no prior convictions is because your family has never laid any complaints against you with law enforcing authorities. There are NAT CT authorities for my categorization of you in this respect (St v Peter Lare (8), St V Keni Ruben Irowen (9), St v Amos Kiap (10)).

35. The NAT CT in cases like your case, have had little or no regard to a plea of being a first time offender In The St v. Kenny Reuben Irowen (11). There the prisoner, did not have any prior convictions but did have a history of beating up his wife and therefore the NAT CT had no or little regard to him being a first time offender. Other judges have done likewise an example of which is Justice Jalina’s judgment in The St v. Amos Kiap (12). In both these cases, the Court imposed the maximum prescribed sentences of 7 years.

OTHER RELEVANT CONSIDERATIONS

36. I note the PSR .and cannot turn a blind eye to the comments by your father , mother and sister and medical reports collated in it and I make mention briefly that they highlight what a frightening life they have had to endure in your company and under your “care” in the last few years.

a. You assaulted your blood father so badly that he had to undergo an operation to repair the physical damage you caused to his eyes (Medical report provided) and now he pleads to this Court for a five year liquor ban to be imposed on you and that you are incarcerated.

b. You assaulted your mother to the extent that as a result she dislocated her hip bone.

c. You burnt down your family home destroying all important property and documents such as certificates etc.

d. You have continually assaulted your family threatened them with the subject ‘home made shotgun’.

37. These statements were obtained from your blood relatives and not from total strangers or enemies and they certainly fly in the face of your comments in allocatus that you as the only son in the family of six children ‘cared’ for your mother, father and nieces.

38. The circumstances of this matter are very serious.

39. Though you are a first time offender the aggravating features in your case far outweigh the mitigating ones rendering them of no use to you.

40. The sentence the Court imposes must reflect the common 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 (13) 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."

41. His Honor Kandakasi .J in St v Robert Lorou Sevese (14) reiterated this authority when he stated.” In Acting Public Prosecutor v. Don Hale (15), 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.”

42. The whole thrust of the PSR is that incarceration is the only option for you as a consequence of your actions.

43. There are certainly no’ such good factors’ in this matter so as to warrant any consideration of a non-custodial sentence by this Court.

44. This Court has addressed the other sentencing principles as enunciated by His Honor Kandakasi .J in St v Michael Kamban (16) and the fifth sentencing principle it suggested at paragraph 24 of this judgment.

45. These people did nothing to deserve such an ordeal. You will be receiving the just rewards of your own actions in accordance with the law and in a more civilized way as opposed to your law of the jungle justice inflicted against them.

46. You need time to reflect on your past conduct towards your family as you have an issue with:-

a. Anger Management

b. Alcohol abuse

HEAD SENTENCE

47. You are sentenced in the following manner:-

a. One year imprisonment at Beon CI with hard labor.

b. By virtue of Sect 12 subs 2 order the homemade gun to be destroyed.

Police Prosecution for the Informant
Defendant in person

______________________________________________________________________________
1. [1988-89] PNGLR 129
2. [1977] PNGLR 209 at 212
3. [1978] PNGLR 469
4. DC22 (14/10/97)
5. DC519 (14/05/07)
6. DC076 (10/09/07)
7. (21/05/02) N3453
8. [2004] N2557
9. (Unreported judgment delivered on 24/05/02) N2239
10 (Unreported judgment delivered on 19/03/3) N2452
11. 12. Supra Note 9
12 Supra Note 10.
13. SC564
14. (2004) N3453
15. Supra Note 13
16 .Supra Note 7