Police v Kal [2021] PGDC 42; DC5099 (24 May 2021)

DC5099

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS SUMMARY JURISDICTION]

B. No 449-450 of 2021

C.B. No. 686 – 687 of 2021
BETWEEN

THE POLICE
Informant

AND

PETER KAL
Defendant

Boroko: S Tanei

2021: 24^th of May

SUMMARY OFFENCE – Carrying Offensive Weapon – s 12(1) – Summary Offences Act 1977 – Threatening Behaviour – s 7 (a) – Summary Offences Act 1977.

PRACTICE AND PROCEDURE- Sentence – Trial – Carrying Offensive Weapon, Plea – Threatening Behaviour - principles of sentencing discussed and considered –Imprisonment for 6 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
Songonae v Gamiha [2008] PGDC 109; DC802
State –v- Mavuug [2012] N4898
State v Kapris [2011]PGNC 51;N4305
Public Prosecutor v Terrence Kaveku [1977] PNGLR 110
Acting Public Prosecutor v Konis Haha [1981] PNGLR 205
Paul Mase and Kopa Lore John v The State [1991] PNGLR 88
Emil Kongian v The State (2007) SC928
State v Balilai [2018] PGNC 335; N7452
Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91
Nup v Hambuga [1984] PNGLR 206.

References
NIL

Legislation

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

Counsel

Constable Tarabbie Agu, for the Informant

The Offender in Person

RULING ON SENTENCE

24^th May 2021

S Tanei: The Offender, Peter Kal was charged with two offences; Carrying an Offensive Weapon and Using Threatening Behaviour.

2. He pleaded guilty to the offence of using Threatening Behaviour on 22^nd March 2021.

3. For the Charge of Carrying an Offensive weapon, he pleaded not guilty and the matter went for trial. He was found guilty of carrying an Offensive Weapon namely a small kitchen knife by this Court on 5^th May 2021.

4. After he was found guilty of the charge of Carrying an Offensive weapon, parties made submissions on sentence on 17^th May 2021.

5. The following is my ruling on sentence.
FACTS:

6. The Offender, Peter Kal was charged with one count of Carrying an Offensive Weapon under section 12 (1) of the Summary Offences Act 1977 and one count of Using Threatening Behaviour under section 7 (a) of the Summary Offences Act 1977.

7. The following are the facts relating to this matter;

8. On 1^st March 2021 at Unagi Oval, Gordons, NCD, the Offender was in the company of two other persons when they attacked a couple namely Bradley Konten and Benielda Tiro and tried to rob them.
   
9. The Offender went straight to the female, threatened her by pointing a kitchen knife towards her and tried to grab her billum. Just then a Police Mobile Unit drove by and disturbed them. His friends ran away while he was caught.
   
10. At the time the victims were attacked by the Offender and his accomplices, the Defendant held a kitchen knife.
    

ANTECEDENT REPORT

11. The Offender is 20 years old and hails from Enduka Village in Kundiawa, Simbu Province. He is single and resides at Bomana Turn Off, NCD. He is unemployed and has no prior convictions.

ALLOCOTUS:

12. During Allocotus, the Offender said “Me tok sorry lo eye blo Kot. Me nonap Mekim ken. Kot please marimari lo me. Em first time blo me lo kam lo Kot”. When translated to English, it means, “I apologise to this Court. I will never do this again. Please have mercy on me as I am a first time offender”.

ISSUES:

13. The Court is faced with the issue of what sentence it should impose on the offender.

THE LAW:

14. Section 7 (a) of the Summary Offences Act 1977 provides that;

7. PROVOKING A BREACH OF THE PEACE.

A person who–

(a) uses threatening, offensive or insulting behaviour; or.......

..........with intent to provoke a breach of the peace or by which a breach of the peace is likely to take place is guilty of an offence.

15. This offence carries a penalty of a fine not exceeding K 3, 000 or imprisonment for a term not exceeding 12 months under Section 6 of the Summary Offences (Amendment) Act 2018.

16. 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.

17. 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
18. The Court must be guided by relevant sentencing principles when deciding on the appropriate sentence for an offender.

19. I adopt the decision making process applied by His Honour Justice Cannings in the case of State –v- Benson [2008] PGNC 68; N4481 where the following decision making process was used;

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?

20. The maximum penalties provided for under the Act is a fine of K 4, 000.00 or 2 years imprisonment for the offence of Carrying and Offensive Weapon and K 3, 000 fine or 1 year imprisonment for the offence of Using Threatening Behaviour.

21. The maximum penalty is reserved for the worst case scenario.

STEP 2: WHAT IS A PROPER STARTING POINT?

22. In many cases where the Offender pleaded guilty, the Courts held that the proper starting point would be the mid-point. However, the offender in this case pleaded guilty to one offence while he pleaded not guilty to another.

23. This means that in this matter, the starting point for the offence of Using Threatening Behaviour would be K 1,500 fine or 6 months imprisonment while it will depend on sentencing trends and the mitigating and aggravating factors for the offence of Carrying an Offensive Weapon.

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

24. The following are cases that dealt with the offences of use of threatening behaviour and carrying offensive weapons.

25. I will first look at the offence of using threatening behaviour.

26. In the case of State v Taru [2007] PGDC 114; DC645, the Offender was fined K100 after he pleaded guilty to the charge of using threatening behavior.

27. In the case of State v Kaivi [2007] PGDC 50; DC557, the Offender pleaded guilty to the offence of using threatening behavior. He was sentenced to 5 months imprisonment but his sentence was suspended on condition that he pays the victim K100 compensation.

28. In the case of Songonae v Gamiha [2008] PGDC 109; DC802, the Offender pleaded guilty to the offence of using threatening behavior. He was fined K 100.

29. From the reported cases, the sentences range from non-custodial sentences (K 100 fine) to 5 Months imprisonment depending on the circumstances of each case.

30. I note that these sentences were made prior to the amendment to the Penalty provisions of the Summary Offences Act in 2018.

31. I will now look at cases that dealt with using carrying an offensive weapon.

32. 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. The Court took into consideration sentencing guidelines and principles established by the National Court.

33. 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). The court considered mitigating and aggravating factors when handing down its sentence.

34. 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.

35. 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.

36. I note from the judgements given above that the sentences varied depending on the type of weapon that the Offender was found to be in possession of at the time of the offence. The circumstances of the offence itself also play an important role in the sentence. The sentences ranged from K200 fine to 12 months imprisonment.

37. In the matter now before this Court, the Offender was in possession of a small kitchen knife in the company of other accomplices who tried to hold up and rob a helpless couple. He also used the knife to threaten them.

STEP 4: WHAT IS THE HEAD SENTENCE FOR EACH OFFENCE?

38. From the penalty provisions of the Summary Offences Act and the precedents referred to above, it is my view that the head sentence for the offences in this case are;

1. Use of Threatening Behaviour – 3 months imprisonment.
2. Carrying an Offensive Weapon – 6 Months imprisonment.
   

STEP 5: WHAT CONSIDERATIONS SHOULD BE TAKEN INTO ACCOUNT IN DETERMINING THE HEAD SENTENCE?

38. The Court must consider mitigating and aggravating factors when deciding on the appropriate sentence.

39. In this case, the Offender did not plead guilty to the charge of Carrying an Offensive Weapon and so he will not be given the benefit of the doubt on mitigating factors on this charge.

40. The mitigating factors are;

1. He cooperated with Police
2. He expressed remorse

100. He is a first time offender.

4. He is a youthful offender
5. The victims possessions were fully recovered.
   

41. The aggravating factors are;

1. He used violence.
2. He was in the company of others

100. He used a weapon on a vulnerable couple

4. It was a calculated attack on the victims
5. The Offender and his accomplices tried to steal from the victims.
6. The victims were traumatised.
   

42. From the factors before the Court, it is obvious that the aggravating factors outweigh the mitigating factors.

43. In submissions on sentence, Constable Tarrabie Agu of Police Prosecutions submitted that this offence is serious and is prevalent and the Court must impose a sentence that will deter people from committing them. He submitted that the maximum sentence must be given to the offender considering the manner in which the offences were committed.

44. He further submitted that the Court must impose the maximum custodial sentence as the Offender is unemployed and will not be able to meet a fine as he is also unknown to the victims. Also, he will not meet Good Behaviour Conditions if given a non-custodial sentence.

45. I uphold the submissions by the Prosecutor in that the circumstances surrounding the commission of the offences by the offender are very serious in nature. I note the rise in petty crimes in the Nation’s Capital. It is almost a daily occurrence in all the suburbs of the City. The Courts and authorities must not let this go unnoticed. The victims in this case have been left traumatised like many other innocent helpless victims. The offender in this case would have escaped if not for the presence of a mobile squad unit in the area at that time.

46. I find that the circumstances of this case and the presence of the aggravating factors warrant a harsh penalty.

47. However, I am mindful of the sentencing trends set out in the reported cases already presented above.

STEP 6: SHOULD THE SENTENCES BE SERVED CONCURRENTLY OR CUMULATIVELY?

48. As stated above, the head sentences for each offence is 3 months and 6 months imprisonment respectively.

49. If the offences were to be served cumulatively, it would be a total of 9 months imprisonment.

49. However, I take into account the totality principle referred to in the cases of State –v- Mavuug [2012] N4898, State v Kapris [2011]PGNC 51;N4305, Public Prosecutor v Terrence Kaveku [1977] PNGLR 110, Acting Public Prosecutor v Konis Haha [1981] PNGLR 205, Paul Mase and Kopa Lore John v The State [1991] PNGLR 88, Emil Kongian v The State (2007) SC928, and am of the view that the sentence should be served concurrently. This is because the offences occurred out of a single transaction and that the victims are the same persons.

50. Therefore, the Offender’s total sentence in this case would be 6 months imprisonment.

STEP 7: WHAT IS THE EFFECT OF THE TOTALITY PRINCIPLE?

51. The totality principle exists to ensure that the sentence that is imposed on the Offender is just and not too crushing. In this case, I find that the sentences that I imposed for each offence are not too crushing as they are within the bounds of the law and within the Courts jurisdiction.

STEP 8: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED?

52. Yes. The Offender was in custody since 1^st March 2021. His period in Custody will be deducted from the total sentence pursuant to section 3(2) of the Criminal Justice (Sentences) Act 1986.

STEP 9: SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?

53. In relation to whether the sentence should be suspended various factors must be considered. 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.”

54. Also, section 132 (1) of the District Courts Act must be considered. These considerations 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
   

55. These considerations were discussed in the case of Nup v Hambuga [1984] PNGLR 206.

56. In the case of Acting Public Prosecutor –v- Aumane, Boku, Wapulai and Kone [1980] PNGLR 150, the Court discussed principles of sentencing and held that the purposes of sentences are for deterrence, separation, rehabilitation and retribution. It is my view that sentence in this case must deter people especially the offender from doing this again. It must also rehabilitate him so he becomes a better citizen.

56. While I note that the offender is a first time offender and a youthful offender of 20 years old, I note that the manner in which the offences were committed do not allow a suspension of the sentence.

57. It is my view that the suspension of the sentence in this matter will not promote personal deterrence, rehabilitation and reformation of the offender. It will only allow the offender to walk free after traumatising an innocent couple. A custodial sentence on the other hand will send a message to those involved in petty crimes that there is no room for petty crimes such as bag snatching and pick pocketing in this country and at law.

58. 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. Apart from being a first time offender and being a youth, the circumstances under which the offences are committed are prevalent, the matter is not trivial and the offender is of sound mind and health. The circumstances do not warrant a suspended sentence.

59. I therefore, will not suspend any of the sentence that I would impose on the Offender.

CONCLUSION

60. Taking into consideration all the circumstances, I find that the appropriate penalty would be six (6) months imprisonment in hard labour.

SENTENCE

61. Peter Kal, having pleaded guilty and being convicted of the offences of Carrying an Offensive Weapon under section 12 (1) of the Summary Offences Act and using Threatening Behaviour under Section 7(a) of the Summary Offences Act 1977 is sentenced as follows;

Length of Sentence Imposed	6 months Imprisonment at Bomana Corrections Institution in Hard Labour
Pre-Sentence period to be deducted	2 Months 23 days
Resultant length of sentence to be served	3 Months 7 days
Amount of sentence suspended	NIL
Time to be served in Custody	3 Months 7 days

Lawyer for the Informant Police Prosecutions

Lawyer for the Offender: In Person