Saka v Sombolok [1978] PGNC 11; N172 (10 November 1978)

Unreported National Court Decisions

N172

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APPEAL NO. 229 OF 1978

APPEAL NO. 313 OF 1978
BETWEEN
BARU SAKA
APPELLANT
AND
ALOYSIUS FRANCIS SOMBOLOK
RESPONDENT
BETWEEN
RAYMOND LAMON
APPELLANT
AND
ALOYSIUS FRANCIS SOMBOLOK
RESPONDENT

Waigani

Wilson J
7 November 1978
10 November 1978

CRIMINAL LAW - appeals against sentence - severity of sentence on first offenders convicted of possessing unregistered firearm and quantity of ammunition - custodial sentence justified because of circumstances of aggravation - fine not appropriate penalty when weapon was sawn-off shot-gun - whether offenders in their 20’s can be characterised as “youthful offenders”. Need for Courts to adopt a firm stance when dealing with offences involving firearms emphasised.

FIREARMS REGULATIONS - Regs. 8(2) and 9A(a).

WILSON J: These two appeals against sentence were heard together by consent. Each of the appellants was convicted on the 22nd September 1978 by a Senior District Court Magistrate sitting at Boroko ofng had in his possession a firearm without being registeredtered as the owner (contrary to reg.9A(a) of the Firearms Regulations) and of having had in his possession a quantity of ammunition (contrary to reg.8(2) of the Firearms, Regulations). Each of the appellants was sentenced to 2 months imprisonment with hard labour on each count (cumulative). Each of the appellants has appealed against the sentences received on the ground that they were in the circumstances manifestly excessive.

The penalty provided in the Firearms Regulations are, for a breach of reg. 9A(a), a fine of K400 or 4 months imprisonment; and, for a breach of reg. 8(2), a fine of K600 or 6 months imprisonment.

I have read the learned magistrate’s Reasons for Decision. I set them out in full:

“Both defendants had been charged on separate Informations on four charges which arose from the same incident, namely, that:

1. ـ O6 the 8th day of A of August, 1978 Barry Saka did have in possession an unregistered firearm, to wit, a “TOPPER” shotgun without being registered as the owner.

2. &ـ҈ On the 8th 8th d8th day ofay of August, 1978 Barry Saka did have in his possession a quantity of ammunition to wit “LORD&#8221nd cartridges.

3. &ـ B60; Betweentween the 1st day of July anly and the 2nd day of August, 1978 Barry Saka being a person other than a gun dealer did, without the permission in writing from a commissioned officer of the Police Force and in aance with such permission dion diminish the overall length of a shotgun, to wit, a “TOPPER” shotgun.

4. ـ O60; On the 2nd day of August, 1978 at Port Moresby Barry Saka did, without lawful excuse, did discharge a rm in a public place namely TAURAMA BEACH, within the boundaries of the town of Port Moresboresby.

Both defendants had elected to be heard jointly and when asked to plead both readily pleaded guilty to all of the four charges against them.

The court however decided to hear evidence on the charges preferred against the two defendants. The TOPPER shotgun tendered in evidence and marked EXHIBIT C did not appear to the Court to be one that could have been found in the grass as claimed by the defendants.

When stopped by the Police on the 8th August 1978 at Badili the defendants were found with 15 live cartridges, EXHIBIT “D” in the glove box and the gun in the booth of the car. Defendant Raymond Lamond when interviewed admitted he had been carrying the shotgun in the car for his protection. The Court did not see any necessity for the defendants to be carrying a shotgun for their protection. The defendant Barry Saka was with the defendant Raymond Lamond at the time they were pulled up at Badili by the Police.

The evidence adduced did prove the alleged charges laid against the two defendants. Both had elected to say nothing in their defence. In respect of punishment both defendants said they wanted to pay a fine.

Bearing in mind the general crime situation in Port Moresby, namely break and enter and a then recent killing with a gun during a break and enter, the court was of the opinion that in the best interest of public safety a gaol sentence on the two would be appropriate.

I feel the sentences imposed on the two defendants are adequate and bearing in mind all other factors viz. no previous convictions, apart from Lamond’s D.U.I. in 1975, the youth of the defendants and the crime situation in Port Moresby.”

The real question raised by these appeals was whether or not the learned magistrate fell into error by imposing a custodial sentence instead of a fine. A subsidiary question concerned the quantum of the penalty actually imposed. To deal with the subsidiary question first I see no merit in the argument that an overall sentence of 4 months imprisonment with hard labour in this case (assuming a custodial sentence was called for) could be said to be manifestly excessive, even for a first offender, in circumstances in which the maximum overall penalty that might have been imposed was 10 months imprisonment with hard labour. It was certainly well within the limit of the Court’s discretion to impose such a sentence. It must be remembered that District Courts are in a very good position to assess the length of a sentence that is appropriate for a particular type of offence.

Turning to the real question raised by these appeals of whether or not the learned magistrate fell into error by imposing a custodial sentence instead of a fine, it must be said of the ordinary case of possession of an unregistered firearm (and especially of the case of a person who is found in possession of a firearm in circumstances where he has previously been the registered owner of it but, because of an oversight, he has omitted to re-register it) that a fine would normally be appropriate for a first offence. Likewise, in the ordinary case of possession of a quantity of ammunition (for instance, by a sportsman inadvertently in breach of the Regulations) a fine would be appropriate, Therefore in the ordinary type of case, a custodial sentence, if imposed, might be said to be manifestly excessive. But this was no ordinary case of possession of an unregistered firearm and possession of a quantity of ammunition. There were circumstances of aggravation here making it a serious case of its type. The appellants had been in possession of the weapon and ammunition on two public occasions. There was a real risk of danger to the public on the first occasion, because not only was the weapon discharged on a public beach but also those who handled the weapon were apparently drunk. The fact that on the second occasion (out of which the subject charges arose) the weapon and ammunition were in a vehicle, and not held in some secure place, is also a circumstance of aggravation. Most importantly of all, this was, as Mr King emphasised, no ordinary shot-gun; it was a sawn-off shot-gun; it was a highly dangerous weapon with sinister implications. I agree that this was not a case of a passive possession for a lawful purpose for which a monetary penalty would almost certainly have been the appropriate penalty.

It was argued on behalf of the appellants that, having regard to the relative youthfulness of the two appellants and the nature of the offences committed by them, more lenient sentences ought to have been ordered. These two appellants are aged 20 and 22 years respectively. I cannot agree that, in the context of the criminal law as it operates in Papua New Guinea at this time (and in particular in Port Moresby), the appellants can be said to be youthful offenders. The principle regarding the avoidance, where possible, of prison sentences for youthful offenders enunciated by Raine J. in Passingan v. BeatonN172.html#_edn139" title="">[cxxxix]¹ (in which the appellant was a teenager) has little application to a case such as the present where the appellants are both in their 20’s.

Mr. Tat forcefully argued that the learned magistrate had over-emphasised the need for deterrence.ence. I would have been more impressed with that argument if the learned magistrate had imposed the maximum penalty open to him or even something near to the maximum penalty. In all the circumstances I am not persuaded that the notion of deterrence was over-emphasised. It was, in my opinion, given some emphasis in a case involving the possession of a dangerous weapon, and properly so.

The learned magistrate who had the advantage of seeing and hearing from the witnesses clearly formed a somewhat adverse view of the appellants. He did not think there was any necessity for the appellants to be carrying a shot-gun “for their protection”; he obviously thought that, by carrying it in those circumstances on the day in question, they were subjecting the public to a greater risk than was reasonable. Quite properly the learned Magistrate was concerned about the public safety. I am satisfied that he gave some (but not too much) emphasis to that matter. He thought it necessary, as is permissible in the exercise of his sentencing responsibility, to impose a penalty which would have the effect of providing a measure of public protection.

At one stage during Mr. Tatireta’s argument, I thought he was suggesting that the learned magistrate had sentenced the two appellants upon the basis that they had been involved in or were planning to be involved in a breaking and entering in the Port Moresby area or had been in some way involved in a recent killing with a gun during a breaking and entering. Although he made reference to such crimes in his Reasons for Decision, he did so only to illustrate the extent to which the public safety is or may be in jeopardy if the Courts do not adopt a firm stance when dealing with offences involving firearms. There is nothing in the Reasons for Decision that leads me to conclude that the learned Magistrate thought that they had any involvement in such serious offences or that he had treated them on that basis.

In my view the Reasons for Decision indicate that the learned magistrate adopted a perfectly proper approach to his sentencing task. I am not persuaded that he made any error or acted upon any wrong principle or gave weight to extraneous or irrelevant matters or made a mistake as to the facts. The sentences imposed in no sense could be said to be unjust or unreasonable. I am satisfied that there was no failure properly to exercise his discretion. Indeed, the Reasons for Decision indicate to me that the learned magistrate approached his sentencing task in an exemplary fashion.

For these reasons the appeals against sentence will be dismissed. The sentences will be affirmed. I order that the appellants serve the balance of their sentences not yet served.

Solicitor for the Appellants: M. Kapi, Public Solicitor

Counsel: G. Tatireta

Solicitor for the State: K.B. Egan, Public Prosecutor

Counsel: N. King

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