Police v James [2021] PGDC 113; DC6069 (25 August 2021)

DC6069

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS SUMMARY JURISDICTION]

B. No 2185 of 2020

CB No. 3632 of 2020

BETWEEN

THE POLICE
Informant

AND

SARAH JAMES
Defendant

Boroko: S Tanei

2021: 25^th of August

SUMMARY OFFENCE – Unlawfully on Premises– s 20 – Summary Offences Act.

PRACTICE AND PROCEDURE- Sentence – Trial – principles of sentencing discussed and considered – Mitigating Factors considered – Offender sentenced to three months imprisonment – Fully Suspended and Placed on Good Behaviour Bond.

Cases Cited

State v Dua[2012] PNGNC 8; N4957
Police v-Anton [2018] DC3098
Nivani v Manakom [2008] DC902
Police v Boki [2020] DC5065
Police v Marley [2011] DC2029
Nup v Hambuga [1984] PNGLR 206
Police –v- Belden Utera [2021] PGDC 30; DC5085

References
NIL

Legislation

District Courts Act 1963
Summary Offences Act 1977
Summary Offences (Amendment) Act 2018

Counsel

Sergeant Wilson Golina, for the Informant

The Offender in Person

RULING ON SENTENCE

25^th August 2021

S Tanei: The Offender, Sarah James, was found guilty of the offence of Being Unlawfully on Premises on 22^nd July 2021. This is my ruling on sentence

FACTS:

2. The Offender was invited by the Complainant and his wife to care for their property at Kesi Settlement, Manu, National Capital District, in 2016.
   
3. They agreed that the Offender would stay in the property, look after it and put it on rent. The money from the rentals would be split and sent to the Complainant and his wife as the landlords. The complainant and his wife then went to their home province in the Highlands.
   
4. However, a dispute arose regarding the rentals and their relationship turned sour.
   
5. In June 2020, the Complainant came down to Port Moresby and told the Offender that he did not want her to stay on his property anymore. He gathered leaders and everyone at Kesi Settlement and told them of his intention.
   
6. Despite that, the Offender continued to remain on the property up until October 2020 when the Complainant reported the matter to the Police and the Offender was arrested and charged for being unlawfully on premises.
   
7. The matter went for trial and the Court found the Offender guilty of the Offence.
   

ANTECEDENT REPORT

8. The Offender is 39 years old and comes from Hangi Village in Wapendamanda, Enga Province. She is married with four (4) children and she resides at Kesi Settlement, NCD. She is unemployed and has no prior convictions.
   

ALLOCOTUS:

9. During Allocotus, the Offender said she was sorry for what happened. However, she said she was invited by the Complainant and that she has nowhere to go. She asked if the Court could Order the Complainant to pay for her ticket to go back to her home village.
   

ISSUES:

10. The Court is faced with the issue of what sentence it should impose on the Offender.
    

THE LAW

11. The Offender was charged with being Unlawfully on Premises under section 20 of the Summary Offences Act.
    
12. Section 20 of the Summary Offences Act 1977 provides that;
    20. UNLAWFULLY ON PREMISES.

A person who, without lawful excuse, is in, on or adjacent to any premises is guilty of an offence

13. The Penalty provision in section 20 has been amended by the Summary Offences (Amendment) Act 2018. This offence now carries a penalty of a fine not exceeding K3, 000.00 or imprisonment for a term not exceeding two (2) years.
    

SUBMISSIONS ON SENTENCE

14. Apart from her statements in allocotus, the Offender did not make any submissions as to her sentence.
15. Sergeant Wilson Golina of Police Prosecutions submitted that because the Complainant and the Offender are relatives, the Court should consider imposing a sentence that will have them reconcile.
    

SENTENCE

16. I adopt the decision making process applied by His Honour Justice Cannings in the case of State –v- Dua [2013]PNGNC 8; N4957 and used in numerous other cases. In that case, the following decision making process was used:
    

step 1: what is the maximum penalty?

step 2: what is a proper starting point for each offence?

step 3: what sentences have been imposed for equivalent offences?

step 4: what is the head sentence for each offence?

Step 1: what is the maximum penalty?

17. The maximum penalty under Section 20 is a fine of K 3, 000.00 or 2 years imprisonment.
    
18. The maximum is usually reserved for the worst case scenario.
    

Step 2: what is a proper starting point?

19. In our case, the offender was found guilty through a trial and so she will not be given the benefit of the doubt on mitigating factors.
    
20. The Court will look at similar cases and sentencing trends as well as the circumstances of this case to decide on the appropriate starting point.
    

Step 3: what sentences have been imposed for equivalent offences?

21. The following are some cases that dealt with the offence of being unlawfully on premises contrary to section 20 of the Summary offences Act.
    
22. In the case of Police –v- Anton [2018] DC3098, the Defendant pleaded guilty to one count of being unlawfully on premises. He was ordered to pay a fine of K 100 and also ordered to perform community service in Goroka Town.
    
23. In the case of Nivani v Manakom [2008] DC902, the Defendant pleaded guilty to one count of being unlawfully on premises. She was fined K 200. She was further ordered to compensate the victim.
    
24. In the case of Police v Boki [2021] DC 5065, the Defendant pleaded guilty to being unlawfully on premises. He was given a sentence of 3 months imprisonment fully suspended and placed on Good Behaviour Bond.
    
25. For the offence of being unlawfully on premises, the sentences range from K 100 to K 200 fine, compensation to the victim and 3 months imprisonment.
    

Step 4: what is the head sentence?

26. The Court has a duty to consider both the mitigating factors and the aggravating factors in order to come up with the head sentence.
    
27. The following are the mitigating factors;
    1. First time offender
    2. She was initially invited by the Complainant.
       
28. The aggravating factors are;
    1. She intentionally continued to remain on the property after she was told to vacate it.
       
29. Sentences must be for the purposes of deterrence, separation, rehabilitation and retribution (Acting Public Prosecutor –v- Aumane, Boku, Wapulai and Kone [1980] PNGLR 150).
    
30. The Court must look at the principles and choose which one applies to the case of the Offender in this case. In this case, I am of the view that the relevant sentence must be for rehabilitation of the Offender and to deter the offender from committing this offences again.
    
31. In this case, there are more mitigating factors than aggravating factors.
    
32. I also note that the Prosecution do not support a custodial sentence in this matter.
    
33. I note that the Complainant and the Offender are relatives and there is a dispute relating to rentals. I will not make any ruling on the issue of rentals or the Offender’s request for the Court to order the Complainant to pay for her airfares to her home province. It is my view that the Court does not have any power to do that. The Court’s powers are limited by the provisions of the Summary Offences Act relating to the Offence.
    
34. However, that does not stop the Offender from filing a civil claim against the Complainant regarding their agreement and alleged damages suffered if she wishes to.
    
35. This Court also does not have the power to order the parties to reconcile. It is entirely up to the parties to reconcile.
    
36. The Offender was on another person’s property and refused to leave when the Owner of the property told her to leave. She broke the law and must be punished accordingly.
    
37. I now turn back to the sentence.
    
38. I do not consider this offence to be in the worst case scenario. Also the mitigating factors work for the Offender in this case. She is a first time Offender and she was initially invited by the Complainant to be on the premises. However, that license was removed when the Complainant told her to leave the property in June 2020.
    
39. I do not consider a fine an appropriate sentence because the Offender is unemployed and will be unable to meet a fine.
    
40. Considering the sentencing trends and the sentencing powers relating to this Offence under the Summary Offences Act, I will impose a sentence of 3 months imprisonment.
    
41. However, I will suspend the Sentence and place the Offender on Good behaviour Bond because of the fact that the Offender is a first time offender and that she has children to look after.
    

CONCLUSION

42. The Offender is sentenced to three (3) months imprisonment.
    
43. However, taking into account her mitigating factors, the Court will suspend all her sentence and put her on Good Behaviour Bond the conditions of which are listed hereunder.
    

SENTENCE

44. The Following are the orders of the Court;

1. Sara James, having been found guilty and convicted of the offence of being Unlawfully on Premises under section 20 of the Summary Offences Act 1977 is sentenced to three (3) months imprisonment.
   
2. All of the Offender’s Sentence is suspended and she is placed on Good Behaviour Bond under the following conditions;
   
   1. The Offender shall not consume any form of alcohol and or dangerous drugs throughout the length of her sentence.
   2. The Offender shall attend her local church every Sunday.
   3. The Offender shall not reoffend or commit any other Offence while on Good Behaviour Bond.
   4. The Offender shall vacate the Complainant’s property within seven (7) days if she has not done so.
   5. In default, the Offender shall be brought before the Court and if found guilty of breach of any of the Conditions listed above, the Good Behaviour Orders will be lifted and the Offender shall be committed to Bomana Prison.
   6. The Good Behaviour Orders shall expire on 25^th October 2021.
      
3. The Offender’s Bail money of K 300 shall be refunded forthwith.
   

Lawyer for the Informant Police Prosecutions

Lawyer for the Offender: In Person