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Police v Saol [2011] PGDC 43; DC2036 (8 July 2011)

DC2036

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

DCR 688/2011

BETWEEN

POLICE
Informant

AND

BALA SAOL
Defendant

Madang: J. Kaumi
2011:09th, 17th, 27th, 29th June 1st, 4th, 5th, 8th July

SUMMARY-Offence of In Possession of Ammunition Without License-Firearms Act 1978 Chapter 310, Part XI, Offences Generally – Section 65A.

PRACTICE AND PROCEDURE- Sentence – Offence of In Possession of Ammunition Without License-Firearms Act 1978 Chapter 310, Part XI, Offences Generally – Section 65A.

PRACTICE AND PROCEDURE- Plea of Guilt- Sentencing is a community responsibility and Courts exercise the people’s power by virtue of section 158(1) of the Constitution - Need for proper Guidelines to be followed in the course of deciding appropriate sentence for purposes of Uniformity and Consistency

PRACTICE AND PROCEDURE- The determination of appropriate punishment for a particular case is an exercise of judicial discretion, the process involving the consideration of certain factors which curtail the use of a tariff.

PRACTICE AND PROCEDURE-Court can use depositions to extract the relevant factors for purposes of sentence

A youthful offender pleaded guilty to being in possession of ammunition without license and matter was for sentence.

Held:
(1). It is trite case law that the employment of judicial discretion in sentencing must follow principles that are settled.

(2). Sentencing is a community responsibility and Courts exercise the people’s power by virtue of section 158(1) of the Constitution.

(3). Need for proper Guidelines to be followed in the course of deciding appropriate sentence for purposes of Uniformity and Consistency.

(4). The determination of appropriate punishment for a particular case is an exercise of judicial discretion, the process involving the consideration of such factors as:-

(i). the seriousness of the offence;

(ii). the gravity or otherwise of the offence;

(iii).the personal circumstances of the defendant which aggravate or mitigate the punishment;

(iv). the interests of the community in ensuring the punishment achieves its purposes and thereby curtailing the use of a tariff. Kovi v The State.

(5). Guidelines on sentencing 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. St v Michael Kamban Mani. Kandakasi.J

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

Cases Cited

Public Prosecutor v Yapuna Kaso (1977) PNGLR 209
Public Prosecutor v Tom Ake (1978) PNGLR 471
State v Sabarina Yakal (1988-89) PNGLR 129
Acting Public Prosecutor v Don Hale SC564
State v Jason Dungoia (13/12/00) N2038
Kovi v The State [2005] SC 789 (31/05/05)
State v Michael Kamban Mani (21/05/02 N2246 Kandakasi.J
Saperus Yalibakut SCRA No.52 of 2005; 27.04.06 (Jalina.J, Mogish.J Cannings.J
State v Raka Benson (2006) CR 447& 450 Cannings.J
Yarepea v Wasage [2007] DC540 (5/01/07)
State v Solomon Luemifa DC 519 (14/05/07)
Police v Samuel Bugatar DCR 1006 (18/11/10)
Police v Langke Michael DCR 1063 (7/12/10)
Police v Junior Wangi Homis DCR 1160 (30/12/10)
Police v Rex Aiye DCR 695/2011
Police v Weiman Marley DCR 793/2011

Legislation

Constitution of Papua New Guinea
Firearms Act

Abbreviations

The following abbreviations appear in the judgment
CR Criminal
DC District Court
DCR District Criminal
FFA Firearm Act
J Justice
M Magistrate
MM Millimeter
N National Court
PNGLR Papua New Guinea Law Reports
SC Supreme Court
SCRA Supreme Court Reference
ST State
V Versus

Counsel

Sergeant Nonao ; for the informant
Defendant in person.

INTRODUCTION

1. KAUMI M. You pleaded guilty to a charge of possession of live ammunition contrary to Section 65A of the Firearms Act.

ARRAIGNMENT

2. When I arraigned you, you pleaded guilty so I entered a provisional plea of Guilty after reading the Statement of facts and confirming them with you I found you guilty as charged and proceeded to enter a conviction against you.

THE FACTS

3. 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].

4. In the afternoon of 3rd June 2011 at around 3pm you and two others were at the Botanical garden in Madang Town when you three were noticed by Police personal on a motorized patrol to be acting in a suspicious manner so you were stopped and searched. Police discovered four 5.56mm bullets inside your black wool cap so you were taken to the Police Station, formally arrested, told of your rights and placed in the cells.

ANTECEDENTS

5. Your Antecedent Report provided to Court is as follows;

(a) You are 20 years of age and come from Amele village in the Madang District of the Madang Province;

(b) You are single and reside at Newtown in Madang Town;

(c) You are unemployed;

(d) You have no prior convictions.

ALLOCATUS

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) You worked as a caretaker at the Takok Tourism Park which is situated along the North Coast Road in this province;

(b) That there is a dispute over the land which this Park is situated on;

(c) You had been threatened with death and that’s why you had them in my possession for your protection and not to commit a robbery.

7. I take into consideration these above matters when I deliberate your sentence

SUBMISSION BY POLICE

8. Sgt Nonao made a short verbal submission and a paraphrased summary of his response follows:-

(a.) The use of firearms and ammunition by unlicensed people for illegal activities is very prevalent in Madang Province and the rest of Papua New Guinea for that matter;

(b.) If the defendant was concerned about his safety he should have applied for a license but he didn’t;

(c.) I ask for a deterrent penalty to be imposed and leave the sentence to the discretion of this court.

OTHER MATTERS OF FACT

9. As the offender has pleaded guilty he will be given the benefit of doubt on mitigating matters raised in the depositions, the allocatus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State ^[4], (Jalina J; Mogish J Cannings.J )

ISSUE

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

DECISION MAKING PROCESS

11. To determine the appropriate sentence I will adopt Canning’s. J’s decision making process in The St v Raka Benson ^[5] and that is;-

Step 1: what is the maximum penalty prescribed by Parliament?

Step 2: what is a proper starting point?

Step 3: what are the type of sentencing guidelines and trends per judgments for this type of offence?

Step 4: what are the particular circumstances in which you committed this offence from which come the factors in your aggravation as well as those in your mitigation?

Step 5: what is the starting point for the Head sentence for the offence?

Step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY PRESCRIBED BY PARLIAMENT?

12. The offender has been found guilty of an offence contrary to sect 65A of the Firearms Act.

Section 65A. UNAUTHORIZED POSSESSION OF AMMUNITION.

[72]A person who is in possession of ammunition and who is not–

(a) the holder of an ammunition licence; or

(b) the holder of a gun-dealer’s licence; or

(i) a firearm licence; or

(ii) a high-powered firearm licence; or

(iii) a pistol licence,

for a firearm, high-powered firearm or pistol, as the case may be, capable of discharging ammunition of the specific calibre or gauge of that which is in his possession,

is guilty of an offence.

Penalty: [73]Imprisonment for a term not less than six months and not exceeding 12 months.

STEP2.WHAT IS A PROPER STARTING POINT

13. Sentencing guidelines are often coined as 'starting points for various types of cases'. The Court should apply these starting points in the course of looking at the circumstances peculiar to each case i.e. identifying the aggravating and mitigating circumstances.

14. The District Court has imposed sentences for possession of ammunition without licence contrary to section 65A of the FAA however I have been unable to locate a suitable precedent in our jurisdiction so I will use the middle range of the prescribed penalty of 6 months as the starting point for the offence.

STEP3.WHAT ARE THE TYPES OF SENTENCING GUIDELINES AND TRENDS PER JUDGMENTS FOR THIS TYPE OF OFFENCE

SENTENCING TRENDS

15. I have stressed in my previous judgments and I reiterate that it is essential to study sentencing judgments to glean what the sentencing trends are for a particular offence. It is therefore imperative initially for such judgments to be published.

16. I have conducted a search of publicized decisions on Pacli on sentence for the offence of unauthorized possession of ammunition however the amount of cases reported were not sufficient enough to allow me to discern suitable trends, guidelines or tariffs. Again I state here that the lack of relevant reported cases in relation to this offence does not necessarily depict an accurate picture, it goes without saying that a lot of such cases have been dealt with in our jurisdiction over the years just have not been published.

17. Section 65Aof the FA Act prescribes a penalty of not less than six months and not more than twelve months.

18. In Yarepea v Wasage ^[6] Gauli.M (as he then was) sentenced a defendant for contravening sect 65A to six months.

19. In Police v Luemifa ^[7] Manue.M sentenced the defendant to twelve months imprisonment for the unauthorized possession of one .22 bullet to twelve months.

20. In Police v Langke Michael ^[8] Sareng.M sentenced for the unauthorized possession of one 7.62mm bullet to six months imprisonment.

21. In Police v Junior Wangi Homis ^[9]Sareng.M sentenced a defendant for the unauthorized possession of one 7.62mm bullet to six months.

22. In Police v Samuel Bugatar ^[10] Sareng.M sentenced a defendant for the unauthorized possession of four 7.62mm bullets to six months imprisonment.

23. The sentencing trend if it could be called that emerging from these cases show terms of imprisonment from six months and up to twelve months imprisonment, terms being dictated by the circumstances of a particular case.

SENTENCING GUIDELINES

24. 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.

25. Having alluded to the above comments I also bear in mind that the determination of appropriate punishment for a particular case is an exercise of judicial discretion, the process involving the consideration of such factors as:-

(i). the seriousness of the offence;

(ii). the gravity or otherwise of the offence;

(iii).the personal circumstances of the defendant which aggravate or mitigate the punishment;

(iv). the interests of the community in ensuring the punishment achieves its purposes and thereby curtailing the use of a tariff. Kovi v The State ^[11]

26. I also consider and adopt as a matter of practice, His Honor Kandakasi. J's guidelines on sentencing in St v Michael Kamban Mani ^[12] 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.

27. 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.

STEPS 4.WHAT ARE THE PARTICULAR CIRCUMSTANCES IN WHICH YOU COMMITTED THIS OFFENCE FROM WHICH COME THE FACTORS IN YOUR AGGRAVATION AS WELL AS THOSE IN YOUR MITIGATION

28. It is trite case law that the employment of judicial discretion in sentencing must follow principles that are settled and as such I adopt the technique used by Cannings.J in Raka Benson ^[13]to highlight the particular circumstances of this case from which will come the aggravating and mitigation factors, a technique which I consider as being not only relevant but also pertinent in giving effect to the guidelines I have suggested above given the want of or absence of relevant guidelines in our jurisdiction

29. These considerations are as follows:

Considerations

(i). Was only a small amount of ammunition involved? Yes, there were only four 5.56 live bullets involved.

(ii). Did the offender's actions have only a small adverse effect on other persons eg: the members of his family and his community? No, as he indicated in his allocatus that he was a caretaker of a Tourism Park in this province and so his actions that have lead to his arrest and appearance in court now means the local landowners of the park have to look for another person capable of caretaking the park and withstanding threats of death from disputing landowners and this is an adverse effect on his community.

(iii). Did the offence take place over a short period and not involved a pre-meditated, cunning plan of deceit? No, it is reasonable to infer from the brief facts that this offence took place over a long period of time for two reasons that firstly this defendant had to have purchased the bullets from someone as he did not have the capacity to make them and secondly that he had been employed as a caretaker in a Tourism park for some time and had these bullets in his possession all the time and his manner of concealing them in his black wool cap speaks of a pre-mediated cunning plan of deceit to avoid detection by law enforcement agents in the event that he was searched.

(iv). Did the offender give himself up before being detected? No, he was detected by the police who searched him after the suspicious behavior of his group attracted Police surveillance of them.

(v). Has the defendant pleaded guilty? Yes, he pleaded guilty

(vi). Has the offender genuinely expressed remorse? No, his comments were all self centered and he never any expressed genuine remorse when given the opportunity to do so.

(vii). Is this the defendant's first offence? Yes.

(viii). Has the defendant been a good member of his school and the community in which he lives? Neutral, there is no evidence of whether or not he is a good member of his community.

(ix). Is the defendant a person of good health both physically and mentally? Yes, he was of good health both physically and mentally when he appeared in court on two occasions.

(x). Has the offender and his family already paid a heavy price for his actions? Neutral, there is no evidence of this before the court.

(xi). Can the defendant be regarded as a youthful offender? Yes, he can be regarded as a youthful offender.

(xii). Are there any other circumstances of this particular offence or the offender that warrant mitigation of the head sentence? No, firstly, the defendant obviously knew that having the live bullets in his possession was illegal yet by choice, decided to continue keep them in his possession and had it not been for the alert law enforcers he would still have them in his possession unlawfully.

Secondly, if he had security issues at the park he should have sought help from those tasked under section 197 (1) of the Constitution to preserve peace and good order in the country, the Royal Papua New Guinea Constabulary instead of taking matters into his own hands, and unlawfully if I may add. Another matter arising from the circumstances that bothers me is the fact that the defendant has only spoken about the bullets. Bullets are only bullets and of no harm to any one unless another deadly ingredient is added to the portion, a gun. In other words what use are bullets if there is no gun to discharge them from, this akin to having a roadworthy car with no fuel to cause it to function. The point I am trying to highlight here is that this defendant has said absolutely nothing about the gun (or its whereabouts) which he obviously needed to fire these bullets from for his safety and this is a strong aggravating factor especially as it is an instrument of death and in the wrong hands the possibilities for serious offences to be committed with its use are real and a cause for alarm.

Thirdly, this defendant was not a holder of ammunition, gun dealing, firearm, high-powered or pistol license and I quite agree with Sgt Nonao that if the defendant had any issues or concerns for his safety he should have lawfully applied for a firearm license but he chose not to do what he lawfully able to do and instead to do what contravened the law.

(xiii). Is this offence not a prevalent one? No, it is a prevalent one in Madang.

(xiv). Do these types of offences not have an adverse effect on the community at large? No, they do have an adverse effect on the community at large.

Rationale
30. The rational behind the above considerations is as follows:-

(i). an affirmative (yes) answer = mitigating factor;

(ii). a negative (no) answer = an aggravating factor;

(iii). a neutral answer = be a neutral factor;

(iv). more mitigating factors = likely reduction of head sentence;

(v). more aggravating factors = likely lifting of head sentence above starting point.

(vi). sentencing is not an exact science rather it is a discretionary process;

(vii). Mitigating factors may be mild or strong and weighed accordingly;

(viii). Aggravating factors may be mild or strong and weighed accordingly. The St v Raka Benson. ^[14]

31. I adopt my comments I made in Police v Rex Aiye ^[15]:

"In furtherance to (vii) and (viii) it should be noted that not only might ordinary mitigating factors be given less weight than special mitigating factors but then they must be weighed against the circumstances peculiar to a case and this involves considering the gravity of the offence, it prevalence, the time of committing of offence and its maximum penalty. The aggregate result of this juggling act of judicial discretion is a sentence that befits the crime.

The above comments on mitigating factors are also applicable in the context of aggravating factors"

Categorization of the listed considerations

32. There are three sorts of considerations listed:

(a). Numbers 1 to 3 focuses on the circumstances of the possession of the cannabis.

(b). Number 4 to 7 focus on what the offender has done since he committed the crime and how he has conducted himself.

(c). Number 8 to 14 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

STEP 5: WHAT IS THE STARTING POINT FOR THE HEAD SENTENCE FOR THE OFFENCE?

33. The sentencing trend if it could be called that emerging from these cases show terms of imprisonment from six months and up to twelve months imprisonment, terms being dictated by the circumstances of a particular case.

34. The current point being imposed by courts is six months for possession of one to four bullets and I see no plausible reason why I should deviate from the range of this tariff given the enormity of the problem of this offence in the country.

35. After weighing all these factors and bearing in mind that there are five mitigating factors compared to seven aggravating factors, and two neutral factors and going by the current available tariff, the head sentence should be the starting point of 6 months.

36. The total potential sentence is six months.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

37. In consideration of whether or not all or part of the head sentence should be suspended I consider some principles of sentencing that are relevant to this issue in the following paragraphs.

38. To suit the purposes of retribution and rehabilitation sentences should not be too lenient so as to firstly cause a disservice to the community by failing to deter such offenders and secondly not adequately correspondent to the gravity of the offence and having the desired resultant impact on the rehabilitation of the offender.

39.Kandakasi.J in St v Jason Dungoia ^[16]stated that "The usual purpose of criminal sentencing such as deterrence, restitution or rehabilitation are also relevant factors for consideration and so are requirements to carefully consider and take into account the factors for and against a prisoner before sentencing him or her".

40. In Acting Public Prosecutor v. Don Hale ^[17], the S C 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.

41. I adopt my comments I made Police v Weiman Marley ^[18]paragraghs 37,38 and 39 which I consider pertinent in this matter as this defendant is the same age as the defendant in that matter and also for the reason that I consider this offence to be serious for the above factors:-

"37. I am conscious of the fact that the defendant is a youthful offender but on the same token equally cognizant of my duty to protect the community. One way to protect the community and stamp out crime is to impose imprisonment. Defendants' rights are enshrined in the Constitution of this country and enforced when they are infringed upon as is expected, this however begs the question, where does this leave the victims, this latter category must also be protected as they also have constitutionally guaranteed rights and this can be achieved thru imprisonment.

38. The responsibility that goes with the unenviable task of sentencing a youthful offender to prison for the first time is grave and onerous and one I am only too conscious of.

39. I am also conscious of the fact that the imprisonment of the category of defendants this defendant finds himself in has not in itself deterred its occurrence nor prevalence nevertheless the cogent fact that the fear of imprisonment or its severity will undoubtedly have a desired deterrent effect on this defendant and other likeminded persons is a factor that I bear in mind".

42. Therefore it is incumbent on the criminal sentencing courts to exercise the people's judicial power vested in them by virtue of the Constitution to portray the above virtues if I may put it in their sentences.

43. When I consider the factors in favour and those against the defendant on this issue of partial or whole suspension of the head sentence of six months I find that those against you outweigh those in your favour so that suspension of any nature is emphatically out of question.

44. In consideration of the above sentencing principles this is not an appropriate case in which to consider a suspended sentence.

SENTENCE

45. Bala Saol having been found guilty of being in possession of live ammunition whilst not being licenced, you are sentenced in the following manner:

(a.) You are sentenced to six months imprisonment;

(b). I order that you serve that sentence in hard labor at the Beon Correction Institution;

(c). A warrant of commitment in those terms shall issue forthwith.

Police Prosecution for the State
Defendant in Person

^[1] [1988-89] PNGLR 129

^[2] [1977] PNGLR 209

^[3] [1978] PNGLR 471

^[4] SCRA No.52 of 2005;27.04.06 ( Jalina.J, Mogish.J, Cannings.J)

^[5] (2006) Cr 447 & 450 Cannings.J

^[6] [2007] DC 540 (5/01/07) Gauli.M

^[7] [2007] DC 519 DCR (14/05/07) Manue.M

^[8] DCR 1063 (30/12/10) Sareng.M