State v Rupinu [2022] PGDC 18; DC8023 (4 March 2022)

DC8023

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

CR NO 30-31 &32-33 OF 2022

THE STATE

V
RONALD RUPINU
First Defendant

AND

SHEENA COOK
Second Defendant

BUKA: TASIKUL B, PM

2022: March 04^th

CRIMINAL LAW – Sentence on two Counts-Firearm Act- pleaded guilty- appropriate sentence- take into account sentencing process applied in the National Court-
Cases Cited:
State v Dua (2013) N4957
State v Peng (2021) DC7045
State v Kennedy (2021) DC5086

Legislation:
Firearm Act-s.27 (1) (b)-s. 65A

Counsel: Mr. Joshua Kuusa of Public Solicitor
Prosecution: Senior Constable Chris Makoe of Buka Police Station

JUDGMENT ON SENTENCE

04^TH March, 2022

1. BRUCE TASIKUL: Ronald Rupinu age 45 years of Keremona village, Kieta District and Sheena Cook age 43 years of Bikora village, Panguna, Autonomous Region of Bougainville were jointly charge with both counts for being in possession of an unlicensed high powered firearm and ammunition.
   
2. Both pleaded guilty to both charges. The following facts in which they pleaded guilty to: It is alleged that on the 11^th February,2022 police received information that the defendants were seen carrying a high powered firearm into the policewomen single barrack at section 22, Arawa town. Upon receiving this information, they proceeded to the said location and found a M16A2 Rifle 556mm serial no 8154268 with a binoculars attached to it. They also found 3 5.56mm life ammunition inside the magazine which was attached to the firearm. This firearm and ammunition were found under the bed owned by the second defendant Sheena Cook.
   
3. Both defendants were apprehended and taken into custody. They were question and both admitted to the offence.
   
4. I am now task to address what would be the appropriate sentence to imposed on the two defendants.
   
5. The defence counsel Mr. Kuusa submitted that a fine is appropriate in this matter as both defendants pleaded guilty. He cited the case of The State v Peng (2021) DC 7045. In this matter the defendant was charged with eleven (11) counts under the Firearm Act. He was fine a total of K130,000.00.
   
6. He submitted that Peng case is very serious case and warrant maximum penalty, whilst this present matter is not that worst type of case that warrant the maximum penalty. He further submitted that Bougainville is still full of unlicensed firearms, and the Government is not doing enough to get rid of theses illegal firearms. I was also refer to the case of Police v Kennedy (2021) DC 5086 which the defendant was sentence to six months’ imprisonment for possession of live ammunition.
   
7. I am disappointed that the police prosecutor has not provided the court with a submission on sentence. Police prosecutor must act fairly and discharge their duties impartially and have a duty to the court to assist the court to come up with an appropriate sentence. It is important that the court must be inform of the circumstance of the case, and provide the court with case authorities and legislations.
   
8. Nevertheless, Section 27 (1) (b) of the Firearm Act states: A person who owns or has in his possession-(b) a high powered firearm or a part of a high-powered firearm unless he is the holder of a high-powered firearm licence in respect of that high-powered firearm is guilty of an offence. Penalty: A fine not exceeding K20,000.00 or imprisonment for a term not exceeding ten years.
   
9. Section 65A states: A person who is in possession of ammunition and who is not- (a) the holder of an ammunition licence is guilty of an offence. Penalty: A fine not exceeding K10,000.00 or imprisonment for a term not exceeding five years.
   
10. This court has the jurisdiction to sentence both defendants either way for a fine or imprisonment. I agreed with the defence that there are not many reported judgment, especially on cases under the Firearm Act.
    
11. Whilst the practice in the District Court as a creature of statue i.e.; the District Court Act, it should also bear in mind and apply where necessary the guideline used for sentencing in the National Court.
    
12. I will adopt his Honour Justice Canning principles in determining an appropriate sentence process in the case of The State v Dua (2013) PNGNC 8 N4957.
    
13. He used 6 step process in addressing these questions:
    1. What is the maximum penalty?

The maximum penalty under s.27 is a fine not exceeding K20,000.00 and imprisonment for a term not exceeding ten years. For s.65A a fine not exceeding K10,000.00 or imprisonment for a term not exceeding five years. Yes, as the law provides for the penalty as prescribes, it is the discretion of the court to imposed lesser penalty taking into account other factors and circumstance of the cases. The maximum penalty is usually reserve for the worst type of cases.

2. What is a proper starting point?

In the case of Dua his honour used the mid-point of three and half years as the prescribe sentence was seven years. In this case. I think the starting point will much depend on the penalty provision as prescribe by law.

3. What sentence have been imposed for equivalent offence?

As counsel has pointed out in his submission, that there are not many cases reported on offences under the Firearm Act. The only recent case is The State v Jamie Pang (2021) DC 7045.

4. What is the head sentence?

I will consider the following factors; Mitigating factors- both defendants pleaded guilty, they express remorse, both have no previous conviction and co-operated with the police. Aggravating factors- This is a very serious offence. Defendant Cook is a senior policewoman and she is well aware of the law. There has been threats issue to the police in Arawa by the defendants.

5. Should the pre-sentence period in custody be deducted?

Both defendants were arrested and charged on the 15^th February, 2022 and they have been in custody for just over two weeks.

14. Having considered all the above may, I make mention herein that yes, there are still many unlicensed firearms out there on Bougainville. People are still holding on to them. Many calls have been made by authorities for people to surrender or destroyed those firearms’, but nobody seems to care or response to the authorities.
    
15. Defendant Sheena Cook is a Senior Police officer and she should know very well the consequences of breaking the laws. Yes, the firearm and ammunition does not belong to her, but she allows her co-defendant to take it into her barrack and hid it under her bed.
    
16. I think the court should impose heavy penalty so that the message is send out to others who are still holding on to those firearms to surrender them to the authorities or have them destroyed. There is no longer any war on Bougainville, so why continued keeping those firearms.
    
17. In this circumstance this court makes the following orders;
    
    1. Both defendants on the first charge of being in possession of an unlicensed high-powered firearm I fined each of you K5000.00 in default be sentence to five (5) years imprisonment.
    2. On the second charge of being in possession of unlicensed ammunition I fined each of you K2000.00 in default be sentence to two (2) years imprisonment each.
    3. Sentence to be serve concurrent.
    4. Each of you will have to pay K7,000.00 each
    5. Both defendants will remand in custody until their fine is paid.
    6. The firearm confiscated together with the ammunition be forfeited to the state and be destroyed forthwith. The Clerk of Court must be present when this firearm is destroyed.
    7. All personal items including their bank cards be return to both defendants forthwith.