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Police v Lo [2021] PGDC 170; DC7031 (6 December 2021)

DC7032

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS SUMMARY JURISDICTION]

B. No 1884 of 2020

CB No. 2861 of 2020
BETWEEN

THE POLICE
Informant


AND

FRANK LO
Defendant


Boroko: S Tanei


2021: 6th of December


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


PRACTICE AND PROCEDURE- Sentence – Trial – principles of sentencing discussed and considered – Mitigating and Aggravating Factors considered – Offender fined
K 1, 000.00.


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
Police –v- James [2021] PGDC 113; DC6069


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

6th December 2021


S Tanei: After a trial, the Court found Frank Lo guilty of the offence of Being Unlawfully on Premises on 22nd July 2021. This is the Court’s ruling on sentence.


FACTS:


  1. In 2011, the Complainant, obtained rights to two blocks of customary land at Hagen Kona, ATS, 7 Mile, NCD from customary landowners. He paid the landowners K 5000 for each block and was allowed to occupy the blocks.
  2. In 2016, the Complainant invited the Offender to enter his block and stay as a caretaker. Whilst on the block, the Offender made improvements to the block without the consent or knowledge of the Complainant.
  3. In 2018, the Complainant wanted to develop the land and so requested the Offender to vacate his block through various mediums.
  4. Despite the requests by the Complainant, the Offender refused to move out of the block.
  5. The matter went for trial and the Court found the Offender guilty of the Offence.

ANTECEDENT REPORT


  1. The Offender is 46 years old and comes from Gumanch Village in Dei, Western Highlands Province. He is married with four (4) children and she resides at ATS, & Mile, NCD. He is self-employed and has no prior convictions.

ALLOCOTUS:


  1. During Allocotus, Frank Lo said he accepted that what he did was wrong and he accepts that he was wrong.

ISSUES:


  1. What sentence should the Court impose on the Offender?

THE LAW


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

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


  1. 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

  1. In his submissions, the Offender repeated what he said in Allocotus and asked for the Court’s mercy.
  2. Sergeant Wilson Golina of Police Prosecutions submitted that because the Complainant was displaced as a result of the Offender’s refusal to vacate the premises and that he has incurred costs and gone through a lot of hardship in trying to remove the Offender from his block.

SENTENCE


  1. 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 is adopted and used in this case. This is the decision making process used in that case:

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?


Step 1: what is the maximum penalty?


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

Step 2: what is a proper starting point?


  1. The offender was found guilty through a trial and so he will not be given the benefit of the doubt on mitigating factors.
  2. However, the Court will consider the sentencing trend and sentences in which the Court made in similar cases for the offence of being unlawfully on premises.

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


  1. The following are some cases that dealt with the offence of being unlawfully on premises contrary to section 20 of the Summary offences Act.
  2. 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.
  3. 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.
  4. 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.
  5. In the case of Police v Serah James [2021] PGDC 113; DC6069, the Court sentenced the Offender to three months imprisonment for being unlawfully on premises. She was sentenced to 3 months imprisonment fully suspended.
  6. 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?


  1. I will consider both the mitigating and aggravating factors when determining the head sentence.
  2. The following are the mitigating factors;
    1. First time offender
    2. He was initially invited by the Complainant.
  3. The aggravating factors are;
    1. He chose to continue remaining on the premises after he was told to vacate forcing the Complainant to take other legal action against him.
    2. He did not co-operate with the Police.
  4. I reiterate the purpose of sentences. They are for the purpose of deterrence, separation, rehabilitation and retribution (Acting Public Prosecutor –v- Aumane, Boku, Wapulai and Kone [1980] PNGLR 150).
  5. I am of the view that the Offender in this case must be deterred from committing this particular offence again. He must also be taught a lesson here in that it is not right to claim a right to something that he does not have ownership over.
  6. The mitigating and aggravating factors are equal in this case. However, each factor has its own weight.
  7. I also note that the Prosecution has asked for the maximum sentence in this case. I therefore ask the question if this case is classed as being under the category of a worst case scenario.
  8. I am of the view that this case is a serious case of the offence of being unlawfully on premises although I do not find it to be under the worst case scenario. I find that it is serious because the Offender refused to leave the block even after he was advised by the Complainant to move out. He even refused to obey mediation directives facilitated by the NCD Mediation Team. Furthermore, he made improvements to the land without the Complainant’s knowledge and approval and refused to move out when requested to do so.
  9. The actions of the Offender were uncalled for. He was an invitee on the block but refused to comply with the Complainant’s request to move out. It got to a point where Police was required to assist and violence was used.
  10. The Offender was on another person’s property and refused to leave when the Owner of the property told him to leave. This is blatant disregard for the law.
  11. I note that the Offender’s reason to not vacate the block was that he made improvements to the property and must be compensated. However, this does not give him the right to remain on the block. There was overwhelming evidence during trial that the Complainant is the owner of the block and the Offender was just an invitee. This means that only the owner can allow him or disallow him to remain on the block. Also, any improvement on the land must be with the Complainant’s knowledge or consent.
  12. I also, note that the Offender has since vacated the Complainant’s property and is now residing in a neighbouring block.
  13. Returning to the sentence. I find that this is a serious case for this particular offence although it is not in the worst case scenario.
  14. I note that the Offender is self-employed. Also, I note that he has people living with him and depending on him. It is my view that a custodial sentence would not be suitable in this case.
  15. Considering the seriousness of this matter, I will impose a fine of K 1, 000.00.

CONCLUSION


  1. Taking into account all the factors in this case, the Court is of the view that the most appropriate sentence is a fine of K 1,000.00.

SENTENCE


44. The Following are the Orders of the Court;


  1. Frank Lo, having been found guilty and convicted of the offence of being Unlawfully on Premises under section 20 of the Summary Offences Act 1977 shall pay a fine of K 1, 000.00.
  2. The Offender shall pay the fine of K 1, 000.00 within seven (7) days from the date of this Order.
  3. If the Offender fails to pay the fine within seven (7) days, he shall serve two (2) months in custody in Hard Labour at Bomana Corrections Institution.
  4. The matter shall return to Court on 14th December 2021 at 9.30 am to check on Compliance with Item 2 of these Orders.
  5. There is no Order as to the Offender’s Bail as he has other charges connected to this Offence.

Lawyer for the Informant Police Prosecutions

Lawyer for the Offender: In Person

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