Police v Micka [2021] PGDC 124; DC6079 (1 September 2021)

DC 6079

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS SUMMARY JURISDICTION]

B. No. 1254 of 2021

C.B. No. 2212 of 2021
BETWEEN

THE POLICE
Informant

AND

AKO MICKA
Defendant

Boroko: Seth Tanei

2021: 1^st of September

SUMMARY OFFENCE – Carrying Offensive Weapon – s 12(1) (a) – Summary Offences Act 1977.

PRACTICE AND PROCEDURE- Sentence – Plea– Carrying Offensive Weapon - principles of sentencing discussed and considered –Imprisonment for 12 months.

Cases Cited

State –v- Benson [2008] PGNC 68; N4481
Police –v- Michael [2009] DC939
Police –v- Junior Jerry Bisar [2009] DC944
Police –v- Colil Sok & Colil Kati [2009] DC938
Acting Public Prosecutor –v- Aumane, Boku, Wapulai and Kone [1980] PNGLR 150
Police v Anton [2021] PGDC 10; DC5063
State v Taru [2007] PGDC 114; DC645
State v Kaivi [2007] PGDC 50; DC557
State v Balilai [2018] PGNC 335; N7452
Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91
Nup v Hambuga [1984] PNGLR 206.
Police –v- Kal [2021] PGDC 42; DC5099

References
NIL

Legislation

District Courts Act 1963
Summary Offences Act 1977
Summary Offences (Amendment) Act 2018
Criminal Justice (Sentences) Act 1986

Counsel

Constable Bernadette Kunjip, for the Informant

The Offender in Person

RULING ON SENTENCE

1^st September 2021

S Tanei: The Offender, Ako Micka pleaded guilty to the charge of Carrying an Offensive Weapon on 16^th August 2021.

2. On 25^th August 2021 submissions on sentence were made.
   
3. This is my ruling on sentence.
   

FACTS:

4. The Offender, Ako Micka was charged with one count of Carrying an Offensive Weapon under section 12 (1) (a) of the Summary Offences Act 1977.
   
5. He pleaded guilty to the following facts;
   
6. On 6^th August 2021 at 11.30 pm at Boroko Motors, Waigani Drive, NCD, the Offender was with a group of boys when they stopped and opened a Toyota Apen Bus.
   
7. Police were notified by Security Guards and they chased the boys. While all the others escaped, the Police caught and apprehended the Offender. When they apprehended him they found in his possession a homemade gun and a kitchen knife. He was then brought to Six (6) Mile Police Station where he was formally arrested, charged and detained.
   

ANTECEDENT REPORT

8. The Offender is 18 years old. He is from Surinki Village in Laiagam, Enga Province. He is single and resides at Hohola 1, NCD. He is unemployed and he was previously convicted twice for being in possession of dangerous drugs.
   

ALLOCOTUS:

9. During Allocotus, the Offender said “Me tok sorry lo me bin mekim disla rong”. When translated to English, it means, “I apologise to this Court for doing what I did”.
   

ISSUES:

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

THE LAW

11. Section 12 (1) of the Summary Offences Act 1977 provides that;
    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.

12. The Penalty provision in section 12 (1) has been amended by the Summary Offences (Amendment) Act 2018. This offence now carries a penalty of A fine not exceeding K 4, 000.00 or imprisonment for a term not exceeding two (2) years.
    

PRINCIPLES OF SENTENCING

13. I adopt the decision making process applied by His Honour Justice Cannings in the case of State –v- Benson [2008] PGNC 68; N4481. I also used this process in the cases of Police v Anton [2021] PGDC 10; DC5063 and Police –v- Kal [2021] PGDC 42; DC5099.
    

Step 1: what is the maximum penalty?

Step 2: what is a proper starting point?

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

Step 4: what considerations should be taken into account in determining the head sentence?

Step 5: what is the head sentence for each offence?

Step 6: should the sentences be served concurrently or cumulatively?

Step 7: what is the effect of the totality principle?

Step 8: should the pre-sentence period in custody be deducted from the term of imprisonment?

Step 9: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

14. The maximum penalty for this Offence under the Summary Offences Act 1977 is a fine of K 4, 000.00 or 2 years imprisonment.
    
15. Cases classed as the worst case scenario are usually given the maximum sentence.
    

STEP 2: WHAT IS A PROPER STARTING POINT?

16. In many cases where the Offender pleaded guilty, the Courts held that the proper starting point would be the mid-point. The Court can then work its way up or down depending on the mitigating and aggravating factors.
    
17. Looking at the penalty provisions in the Summary Offences Act, the mid point in this case would be K 2, 000.00 fine or 1 year imprisonment.
    

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

18. It is important to look at cases that dealt with this particular offence when handing down the sentence for guidance. The following are cases that dealt with the offence of being in possession of an offensive weapon.
    
19. In the case of Police –v- Michael [2009] DC939, the offender pleaded guilty to one count of carrying an offensive weapon namely a bush knife. He was fined K 200.00.
    
20. In the case of Police –v- Junior Jerry Bisar [2009] DC944, the offender pleaded guilty to one count of carrying an offensive weapon namely a toy pistol. He was given a sentence of 12 months imprisonment (wholly suspended with conditions).
    
21. In Police –v- Colil Sok & Colil Kati [2009] DC938, the offenders pleaded guilty to carrying offensive weapons namely a homemade shotgun and a pistol. They were sentenced to 1 year imprisonment in hard labour. Half of their sentences (6 months) were suspended.
    
22. In the case of Police v Anton [2021] PGDC 10; DC5063, the Offender pleaded guilty to carrying an offensive weapon namely a kitchen knife. He was sentenced to four months imprisonment in hard labour.
    
23. In the case of Police v Peter Kal [2021] PGDC 42; DC5099, the Offender was found guilty of carrying an offensive weapon namely a kitchen knife. He was sentenced to six months imprisonment in hard labour.
    
24. As I mentioned in the case of Police v Peter Kal [2021] PGDC 42; the sentences depended on the type of weapon that the Offender was found to be in possession of or carried at the time of the offence and the the circumstances surrounding the case itself. From the reported cases, the sentences ranged from K200 fine to 12 months imprisonment.
    
25. In this case, the Offender carried a kitchen knife and a homemade gun and was in the company of a group of young men when they tried to hold up a vehicle.
    

STEP 4: WHAT CONSIDERATIONS SHOULD BE TAKEN INTO ACCOUNT IN DETERMINING THE HEAD SENTENCE?

26. Because the Offender pleaded guilty, he will be given the benefit of the doubt on mitigating factors.
    
27. I will consider both the mitigating factors and the aggravating factors.
    
28. The mitigating factors are;
    
    1. Early Guilty Plea
       
29. The aggravating factors are;
    
    1. He was in the company of others
    2. He carried two offensive weapons (1x knife and 1x homemade gun)
    100. He attempted to commit an offence with those weapons
    4. He has 2 prior convictions
    5. He did not surrender but was caught by Police as he escaped.
       
30. In submissions on sentence, Constable Bernadette Kunjip of Police Prosecutions submitted that the Offender committed a serious offence. This offence is prevalent and the Offender must be given the maximum sentence. She proposed a custodial sentence.
    
31. I agree with the Prosecutor that this offence is serious and the manner in which the offence occurred warrants a harsh penalty. The Offender was in the company of others when they tried to hold up a vehicle. He had in his possession two offensive weapons and escaped when the Police was called upon. He also has two (2) prior convictions and did not cooperate with Police. This particular offence has become so prevalent in the National Capital District as well as other centres.
    
32. I find that the circumstances of this case and the presence of the aggravating factors warrant a harsh penalty. In this case, the aggravating factors overly outweigh the mitigating factors.
    
33. I am also mindful of the sentencing trend for this particular offence.
    

STEP 5: WHAT IS THE HEAD SENTENCE?

34. From the penalty provisions of the Summary Offences Act 1977, the precedents referred to above and the mitigating and aggravating factors, it is my view that the head sentence for this offence is 12 months imprisonment.
    

STEP 6: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED?

35. Yes. The Offender was in custody since 6^th August 2021. Pursuant to section 3(2) of the Criminal Justice (Sentences) Act 1986, his period in custody will be deducted.
    

STEP 7: SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?

36. Another important step the Court must consider is whether it should suspend the sentence.
    
37. It must also be guided by relevant legal principles when dealing with this aspect of sentencing.
    
38. In doing so, I have sought guidance from the Higher Courts. In the case of State v Balilai [2018] PGNC 335; N7452, His Honour Justice Kaumi affirmed the principles in Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91 and held that;
    

“when considering suspension of sentence held that suspension was appropriate in three categories:

(a) Where suspension will promote the personal deterrence, reformation or rehabilitation of the offender.

(b) Where suspension will promote the restitution of stolen money or goods.

(c) Where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of his bad physical and mental health.”

39. In dealing with the issue of suspension of sentence, considerations under section 132 (1) of the District Courts Act must be taken into account. These considerations were discussed in the case of Nup v Hambuga [1984] PNGLR 206. They are;
    1. The Character of the Offender
    2. The Antecedents
    100. Age of the Offender
    4. Health or Mental Condition of the Offender
    5. Trivial Nature of the offence
    6. The extenuating circumstances
       
40. Sentences must be for the purposes of deterrence, separation, rehabilitation and retribution. (Acting Public Prosecutor –v- Aumane, Boku, Wapulai and Kone [1980] PNGLR 150).
    
41. I take into account all the principles mentioned above and I am of the view that the circumstances of this case do not warrant a suspended sentence,
    
42. Firstly, this particular offence is prevalent and the Offender must be given a sentence that will deter him from doing it again and also rehabilitate him. I note that he is a youthful offender of 18 years old and he runs the risk of being exposed to hardened criminals if he is incarcerated. However, youthfulness is not a favourable consideration in this case because this offender has prior convictions.
    
43. It is my view that the Offender must be separated from his peers whom he hangs around and goes into trouble with. A suspended sentence will not help him. A custodial sentence is the most appropriate sentence for the Offender.
    
44. I also do not find that this case is a suitable case to invoke section 132 (1) of the District Court Act. This is because most of the considerations in section 132(1) work against the Offender.
    
45. Considering all the factors, I will not suspend any of the sentence.
    

CONCLUSION

46. After due consideration of all the factors in this case I impose a penalty of twelve (12) months imprisonment.
    

SENTENCE

47. The following is the sentence of this Court;
    
    1. Ako Micka, having pleaded guilty and being convicted of the offence of Carrying an Offensive Weapon under section 12 (1) (a) of the Summary Offences Act 1977 is sentenced to twelve (12) months imprisonment in hard labour.
       
    2. Pursuant to section 3 (2) of the Criminal Justice (Sentences) Act 1986, his period in custody of 25 days shall be deducted from his total sentence. He shall serve the remainder of his sentence of 11 months 5 days at Bomana Corrections Institution.
       
    3. A Warrant of Commitment is issued forthwith.
       

Lawyer for the Informant Police Prosecutions

Lawyer for the Offender: In Person