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Papua New Guinea District Court |
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS SUMMARY JURISDICTION]
B. No 630 of 2021
BETWEEN
THE POLICE
Informant
AND
BELDEN UTERA
Defendant
Boroko: S Tanei
2021: 10th of May
SUMMARY OFFENCE – Unlawfully on Premises– s 20 – Summary Offences Act.
PRACTICE AND PROCEDURE- Sentence – Plea of Guilty – principles of sentencing discussed and considered – Mitigating Factors considered – Trivial matter- Young Defendant – s 132 (1) of the District Courts Act considered - Defendant discharged and put 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
References
NIL
Legislation
District Courts Act 1963
Summary Offences Act 1977
Counsel
Constable Tarrabbie Agu, for the Informant
The Offender in Person
RULING ON SENTENCE
10th May 2021
S Tanei: The Offender, Belden Utera, pleaded guilty to the offence of Being Unlawfully on Premises on 26th April 2021. This is my ruling on sentence
FACTS:
2. The Offender, Belden Utera was charged with one count of Being Unlawfully on Premises under section 20 of the Summary Offences Act 1977. He pleaded guilty to the following facts;
3. The Complainant, Marie Pakara is the lawful occupant of house number 137 at Games Police Barracks in NCD.
4. On 27th March 2021, the Complainant returned from her village to her house and found the Offender with her daughter in their house. The Complainant had not invited him to the house.
5. The Complainant then brought the Offender to Waigani Police Station where the Offender was questioned and later arrested charged for being unlawfully on premises.
ANTECEDENT REPORT
6. The Offender is 20 years old and comes from Koje Village in Tufi, Oro Province. He is single and resides at Gerehu Stage 3A. He is
a Student and is a first time offender.
ALLOCOTUS:
7. During Allocotus, the Offender said he was sorry for what he did. He said that it was the Complainant’s daughter who invited her to go to their house. He asked for the Court’s mercy and promised that he will never do this again.
ISSUES:
8. The Court is faced with the issue of what sentence it should impose on the Offender.
THE LAW
9. The Offender was charged with Unlawfully on Premises under section 20 of the Summary Offences Act.
10. Section 20 of the Summary Offences Act 1977 provides that;
A person who, without lawful excuse, is in, on or adjacent to any premises is guilty of an offence
11. The Penalty provision in section 20 has been amended by the Summary Offences Amended 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
12. In his submissions on sentence, the Offender said he will comply with any condition the court sets if he is given a non-custodial sentence.
13. Constable Tarrabbie Agu of Police Prosecutions submitted that the Offender entered a very early guilty plea and saved the Court and everybody’s time. He submitted that the Offender be put on Good Behaviour Bond for six months with strict conditions.
SENTENCE
14. In deciding on the appropriate sentence the Court must be guided by sentencing principles.
15. 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?
16. The maximum penalty under Section 20 is a fine of K 3, 000.00 or 2 years imprisonment.
17. The maximum is usually reserved for the worst case scenario.
Step 2: what is a proper starting point?
18. In the case provided above, the Court held that the proper starting point would be the mid-point since the Offender pleaded guilty.
19. In our case, the mid-point for unlawfully on premises is K 1, 500 fine or 12 months imprisonment. However, it is my view that sentencing trends for similar offences will have to be considered for a proper starting point.
Step 3: what sentences have been imposed for equivalent offences?
20. It is also very important to consider sentences that have been given in similar cases or for the same offence. This is so that an offender is not punished more than what he ought to be punished.
21. The following cases 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 Offender pleaded guilty and as such he will be given the benefit of the doubt on mitigating factors. Here, the Court will consider circumstances of mitigation and aggravation.
27. The following are the mitigating factors;
28. The aggravating factors are;
29. In the case of Acting Public Prosecutor –v- Aumane, Boku, Wapulai and Kone [1980] PNGLR 150 , it was held that sentences must be for the purpose of deterrence, separation, rehabilitation and retribution.
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.
31. In this case, the mitigating factors outweigh the aggravating factors. He pleaded guilty right after he was arraigned. He is also a first time offender and most importantly he expressed genuine remorse and promised never to do the offence again. There are no serious aggravating circumstances other than being not invited by the complainant to be on her premises.
32. I also note that the Prosecution do not support a custodial sentence in this matter.
33. Furthermore, the Offender is a student and an order for fine or compensation would not be appropriate in this circumstance.
34. The offender is a first time offender. He is a student and he is young. In my view, a custodial sentence would expose him to hardened criminals and this may have an effect on him personally.
35. Section 132 (1) of the District Courts Act gives the power to the Court to dismiss a charge or discharge an offender with conditions taking into consideration certain factors. It provides that;
“132. CONDITIONAL RELEASE, ETC.
(1) Where a person is charged before a Court with a simple offence or an indictable offence triable summarily, and the Court thinks that the charge is proved but is of opinion that, having regard to–
(a) the character, antecedents, age, health or mental condition of the person charged; or
(b) the trivial nature of the offence; or
(c) the extenuating circumstances under which the offence was committed, it is inexpedient to inflict punishment, or other than a nominal punishment or that it is expedient to release the offender on probation, the Court may, without proceeding to conviction, make an order–
(d) dismissing the charge; or
(e) discharging the offender conditionally on his entering into a recognizance, with or without sureties, to be of good behaviour and to appear for conviction and sentence when called on at any time during such period, not exceeding three years, as is specified in the order.”
36. In the case of Nup v Hambuga [1984] PNGLR 206, the Court held that there are seven factors that the Court must consider prior to imposing a sentence under section 138 of the District Courts Act (now section 132). These are Character, Antecedents, Age, Health, Mental Health, Trivial Nature and Extenuating Circumstances. These principles were applied in the case of Police v Marley [2011] DC2029 by His Worship John Kaumi (as he then was.
37. In this matter, the Prosecution made no submission against the Character of the Offender. From his appearance in Court and from my observation during allocotus, he is of good character. Also, the Antecedent Report showed that he does not any prior conviction. Furthermore, he is also a youthful offender. In addition, the matter that gave rise to this proceeding is in my view is trivial. Although he was unlawfully on the premises, he was not there to steal or commit any other unlawful activity. His case is a lot different from the other cases referred to above. He has more mitigating factors than aggravating factors.
38. I also note that the Offender may have been invited to the premises. The facts do not say that he was there for an unlawful activity. However, the facts say that he was with the Complainant’s daughter when the Complainant found them and took the Offender to the Station and had him arrested for being unlawfully on premises. The facts do not disclose as to what the Offender was doing with the Complainant’s daughter but during Allocotus and when pleading guilty the Offender said he was invited by the Complainant’s daughter. I infer from the facts that the Offender is in a relationship with the Complainant’s daughter.
39. I therefore invoke my powers under section 132 (1) of the District Courts Act and will not convict the Offender.
CONCLUSION
40. Taking into consideration all the circumstances, and by virtue of section 132 (1) of the District Courts Act I will discharge the Offender on condition that he enters into a recognizance without surety for three months. He will be placed on Good Behaviour Bond for three (3) months.
SENTENCE
57. The Following are the orders of the Court;
Lawyer for the Informant Police Prosecutions
Lawyer for the Offender: In Person
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