Police v JP [2022] PGDC 88; DC9025 (19 October 2022)

DC9025

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS JUVENILE COURT JURISDICTION]

JCSUM 20 of 2021

POLICE

V.

JP

Port Moresby: Rosie A. Johnson

2022: 19^th October

JUVENILE COURT: Summary Offence – damaging property - Guilty plea – Penalty consideration.

JUVENILE JUSTICE ACT 2014: Application of the Act – objectives – guiding principles when dealing with a juvenile – Pre-Sentence Report – penalty under Juvenile Justice Act – definition of diversion -considerations for diversion - caution.

Cases Cited

NIL

References

NIL

Legislation
Juvenile Justice Act 2014
Summary Offences Act (as amended)

Counsel

NIL
Rebecca Malken – Police Prosecutor
Mr Nalu Tiwiye – Juvenile Justice Officer

RULING

19^th October 2022

R A Johnson: The juvenile herein referred to as “JP” is 17 years old and comes from Nguala village, Koroba, Hela Province. At the time of the commission of the offence he was residing at Erima in the National Capital District.

2. He was charged by police under S.47 of the Summary Offences Act.

3 . He was charged that on 21^st February, 2022 at Erima Traffic Lights, PJ willfully and unlawfully damaged a Toyota Coaster bus windscreen, registration N0. P.028E, blue & white in color, the property of one Anis Kewa.

4. Upon arraignment he pleaded guilty to the charge. The court made an order for a pre-sentence report pursuant to S. 79 of the Juvenile Justice Act 2014. The report is now before the court to assist in its deliberation.

FACTS:

5. The juvenile came to Port Moresby towards the end of 2021 by foot from Lae with a group of men from Tari. He found his uncle at Erima and was living with him for about 4 months when got into trouble with the law.

6. On 21^st February, 2022 he was at Erima, under the Kumul Flyover in the vicinity of the traffic lights. He was with youths from the settlement who were collecting money from the travelling public. A PMV bus crew refused to hand money to the youths and a fight broke out. The side windscreen of the bus was damaged in the fight and the juvenile was apprehended and charged for the offence.

ISSUE:

7. What is the appropriate penalty to be considered for a juvenile charged under the Summary Offences Act 1977?

THE LAWS:

8. Section 47 of the Summary Offences Act 1977 provides that:

47. DAMAGING PROPERTY.

(1) In this section, “property” includes any personal property, house or other building, garden, crop, tree, fence, road, bridge, animal, reptile, bird or fish.

(2) A person who, without reasonable excuse, destroys, damages or injures any property belonging to another person is guilty of an offence.

Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding two years.

(3) Where a person is convicted of an offence against Subsection (2), the court before which he is convicted may, in addition to any penalty that it may impose, order the person convicted to pay such amount, by way of compensation, to the person aggrieved as the court thinks fit.

9. The Summary Offences (Amendment)Act 2018 amended the penalty provision of the Principal Act and replaced it with the following;

46. DAMAGING PROPERTY (AMENDMENT OF SECTION 47).

Section 47 of the Principal Act is amended by repealing the penalty provision and replacing it with the following:

"Penalty: A fine not exceeding K4, 000.00 or imprisonment for a term not exceeding two years.".

10. The objective of the Juvenile Justice Act 2014 is to rehabilitate and reintegrate the juvenile back into the community. The purpose of diversion of a juvenile is spelt out by law. Section 27 states:

27. PURPOSES OF DIVERSION.

The purposes of diversion of a juvenile are to –

(a) provide an effective and timely response to the offending behavior of the juvenile; and
(b) hold the juvenile accountable for his or her actions; and
(c) encourage the juvenile to acknowledge and repair the harm done to the victim and the community; and
(d) promote reconciliation..... ; and
(e) allow victims to participate in decision-making; and
(f) encourage the juvenile’s parents .... family members, and the community.....to be directly involved in holding the juvenile accountable, .......; and
(g) prevent stigmatizing the juvenile and prevent adverse consequences .....being subject to the criminal justice system; and
(h) prevent the juvenile from having a criminal record.

28. JUVENILES TO BE CONSIDERED FOR DIVERSION.

(1) A juvenile may be considered for diversion if –

(a) the juvenile voluntarily acknowledges responsibility of the offence; and

(b) consent to diversion ..... is given ......; and

(c) there is sufficient evidence to proceed with the case and the prosecution is not barred at law;

(d) it is in the interest of justice that the matter be resolved informally.

(2) In determining whether diversion is in the best interest of justice, regard shall be had to –

(a) the nature and seriousness of the offence; and

(b) the background and circumstance of the juvenile, including the juvenile’s criminal history and whether the offense is a repeat offence; and

(c) the views of the victim, although such views are not binding; and

(d) the need to ensure public safety; and

(e) the general principles set out in S.6.

11. The Juvenile Justice Act 2014 clearly spells out its objective under S.5. Amongst others but importantly is to establish the basis of the administration of a comprehensive and separate juvenile justice system based on principles of restorative justice, Melanesian tradition and contemporary juvenile justice practices.

12. To make a determination as to the appropriate penalty the Act provides guiding principles. These general principles are provided under S. 6. It makes this category of people “special” and must be treated differently from adult offenders. It specifically sets out the manner and process they be accorded with the aim of rehabilitation and reintegration of the juvenile back into the community.

DISCUSSION OF THE ISSUE:
13. The issue is what is the appropriate penalty to be considered for a juvenile charged under the Summary Offences Act 1977?

14. Section 47 of SOA (as amended) provides the penalty for the offence of damaging property. The Juvenile Justice Act 2014 provides for diversion.

15. A member of the Police Force is empowered under S.40(2) to make diversion and also the Court as provided under S.62. Therefore, I form the view that diversion is the most appropriate manner of dealing with the juvenile and is available at the time of apprehension and whilst going through the formal court process.

16. It is important to understand what diversion means. The interpretation section (S.2) of the Juvenile Justice Act defines “diversion” as follows –

“diversion” in relation to a juvenile, means diverting the juvenile alleged to have committed an offence away from the formal justice system and resolving the conflict through informal measures.”

The Oxford dictionary definition- “the action of turning something aside from its course”.

17. That being the definition, does that mean that the penalty under the SOA is irrelevant and inapplicable to a juvenile? In my view it is relevant and applicable on a case by case basis.

18. I am guided by the general principles in the Juvenile Justice Act. I have also considered the penalty under the SOA (as amended) which is a fine not exceeding K4,000 or a term not exceeding 2 years.

19. I have also considered the recommendations in the Pre-Sentence Report dated 12^th April 2022. It has assisted me with information regarding the juvenile’s family, their background and the parents concern for their child.

20. Having considered all that is before the court, I am of the view that a custodial sentence is inappropriate in the circumstance for the following reasons –

1. juvenile pleaded guilty;
2. first time offender;
3. his parents are in Tari and his uncle failed to take active participatory steps in assisting the juvenile going through the formal justice process;
4. the victim could not be located to establish the extent of damage to the bus;
5. the time spent in custody;
6. parents have been informed and the father has expressed concern and undertaken to arrange a plane ticket for the child to be sent back to Tari to be with the family.
   

CONCLUSION:

21. I am satisfied the juvenile has learnt a lot of lessons when he came in contact with the law. He had to go through the court process alone without family support.

22. I am also satisfied that the time spent in custody is sufficient punishment.

23. I find that the appropriate manner to deal with the juvenile is in accordance with the Juvenile Justice Act 2014. It is an appropriate case for diversion.

24. I therefore make an order for diversion. The juvenile is cautioned. Further, that the Juvenile Justice Officer arrange for juvenile’s repatriation to his parents in Koroba, Hela Province.

SENTENCE:

1. Juvenile is cautioned;
2. Juvenile Justice officer to arrange for the juvenile’s repatriation to his parents in Tari forthwith.