State v Bomai [1981] PGNC 6; N327 (27 January 1981)

Unreported National Court Decisions

N327

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
VERSUS
KEMI BOMAI

Waigani Central Province

Quinlivan AJ
12-13 January 1981
26-27 January 1981

CRIMINAL LAW - youthful offender - misunderstandings regarding special provisions regarding. - section 36 (5) of Child Welfare Act - section 613 of Criminal Code Supreme Court decisions in Appeal of Mandatititip and Appeal of Bakiri Pena - Suspended sentence under s. 613 of Criminal Code - Exclusion Order under s. 612 of Criminal Code. - Acceptance of plea on admission of all elements and the problem of deficient depositions. - Observations on deficient depositions and the difficulties they present for Counsel.

SENTENCING - Discount on sentence for pleas of guilty and the reasons for such a discount.

QUINLIVAN AJ: The ac has pleaded guilty ilty to five separate charges - one of stealing and four of burglary - and counsel have argued long and eloquently on what I should do in regard to him. Mr. Salika, the leaState Prosecutor has referreferred me to Appeal of PAULIUS MANDATITITIPN327.html#_edn649" title="">[dcxlix]¹ and Appeal of BAKIRI PENAN327.html#_edn650" title="">[dcl]² (which,st confess, were newe new to me since they were decided after I left the active participationce had on the lower courtcourt Benches) and Mr. Kirriwon has argued, most strenuously, that I should follow PASINGAN v. BEATONN327.html#_edn651" title="">[dcli]³.

I am, of course, bound to loyally follow the instructions handed down by the Supreme Court and that is the end of the matter, provided it is clear that those instructions are, in fact, what is contended for. It appears to me that an unfortunate misunderstanding may have arisen in this field, however (due, no doubt, to a mutilated copy of the report of the New South Wales case of R. v. CUTHBERTN327.html#_edn652" title="">[dclii]⁴ being used). There, the wart was dealing with a case of a gang of youths who got their fun out of going out into places where people congregate and kicking innocent bystanders to deatry natuarally, the court said that “a plea of youth iuth is no longer entirely a satisfactory answer to crime,” as did the English judges in regard to the gangs who deliberately set out to stir up racial hatred in London in the early 1950s and as every court, everywhere, must whenever (as, Please God, it will never happen here) that form of madness first manifests itself.

Because of the Supreme Court ruling I am precluded from execising the discretion conferred by section 36 (5) of the Child Welfare Act. Despite this, however (and it is here that I feel the misunderstanding has arisen) it would be wrong for me to ignore the fact that the Legislature has, by that sub-section, indicated that a certain attitude of mind should exist, in this sort of case, in what the section refers to as “Courts other than the Children’s Court (when they) deal with offences other than homicide, rape or other offence punishable by death or imprisonment for life.”

I say this because, although the depositions and confessions tendered before me by the State are, in some ways, deficient for court-purposes, they do make it clear that this accused is, to use Mr. Kirriwon’s expressive term, a “stooge”. And he is only 17. And nobody else has been caught.

I also say this because, although it is true in the vast majority of cases that the “aider and abettor” who is posted as LOOKOUT (so that warning can be given) is of vital importance to the enterprise of breaking into other people’s homes or warehouses, the facts in these cases are somewhat different. In fact, in one case - the Dalton Robbery - the presence of the accused was clearly irrelevant. He just happened to be a passer-by who, seeing the burglary in progress, had neither the wit nor the courage to resist the invitation to join in and shoulder the blame.

In the other cases he did, in fact, go along with the others before the actual crime was committed but the impression is clearly there that he was “taken along” by the others. Whether he was taken along to be a scapegoat - a possibility which occurs all too often - is not clear so, although it was raised in the submissions, I intend to disregard it.

All that is clear is that this person, who is said to be seventeen years of age by the prosecution and who is clearly well below the age of 21 years mentioned in section 36 (5) of the Child Welfare Act, seems noticeably lacking in ability to resist the invitation of others to join in criminal ventures. The only information before me comes from the Prosecution and the pattern seems to be this: He lives in Tabari Place, one of the highest concentrations of people in the capital, and the outstanding example of an area where people who have nothing to do naturally congregate and talk about things which will fill their rather empty days and nights. He goes to the pictures and that seems to be the extent of his other activities. And when the particular session of the movies is over he comes out and “hangs around” with other people who, like him, have nothing to do. Consequently, when someone suggests that he join them in a burglary, he goes along and “keeps lookout” for them.

The only piece of initiative he seems to have shown is that, having heard that Lahara Pre-school had been left “open” by a group of burglars, he himself went there and stole whatever he could find. And it was, by far, his greatest haul: two ukeleles, two pairs of sunglasses, six cassette tapes, one record player and one cassette player - all, presumably, “used”.

He is a thorough menace to Society and if he is not made to “pull up in his tracks”, those tracks will inevitably lead him to a life in gaol. And, for the periods when he is out of gaol, to a life of crime at the suggestion of the first manipulator of men he comes across - manipulators who get the thrills and the lion’s share of the proceeds while he gets the blame and the punishment. The only benefit he actually derives from this kind of life - which is a life totally different from what his life ought to be - is a certain type of companionship and, on occasion, some easily spared and relatively unimportant part of the proceeds, doled out to him by those who manipulate him and keep him half a man.

He is a person who, very obviously, should be excluded from towns and other areas where people “hand about” with nothing to do. Power for me to do this clearly exists under section 612 of The Criminal Code and, provided he has relatives back home in the Gumine Sub-district who are prepared to look after him, I intend to take action under that section. But mere “exclusion” is far from being enough. It only frees Society for the time he is away - or, to be cynical but more precise, it frees Society of the depredations of those who manipulate him, only for so long as it takes them to find some other “stooge”. And it gives no guarantee that he will stay way for any length of time. Moreover, it does nothing to dissuade others - the other potential “stooges” - from joining in criminal ventures and it does nothing towards reforming this young man. On the contrary, it does the opposite because he will be made to work when he gets home and the life (if that is the correct term for dehumanized emptyness) of hanging about waiting to be “picked up” by the first person with a criminal intention will appear infinitely more attractive.

I mention this last factor because it is the one which, as I have said, the Legislature has directed me to have in the forefront of my mind when I am deciding, on behalf of Society, what should be done with this future citizen. Section 36 (5) of the Child Welfare Act makes it clear that although he is over the age of 16 years he must not be regarded, willy-nilly, as being of full responsibility. This Court must attempt - and everybody else must assist this Court in its attempt - to (subject to the so-called “rule in Manditititip”) use all the means available to cause him to change his course in life so that, having been brought before this Court, he will have a chance to grow up to be a decent citizen. The same “intention of the Legislature” is made clear by section 613 of The Criminal Code (headed: CONDITIONAL SUSPENSION OF PUNISHMENT ON FIRST CONVICTION) as well as in the very fact that a Children’s Court has been created.

The question, however, is one of how I can attempt to make the prisoner “pull up in his tracks” and change the course he is so cearset upon at present. How can I make him realize that the life he has been; eading, and the standards he at present has, can lead only to disaster for himself and for all who live near him; his family, his friends, his neighbours and, even, for Society itself.

I have decided that I cannot act under the provisions of section 36 (5) of the Child Welfare Act because the upward limit of six months imprisonment which it imposes is clearly far too little for me to comply loyally with both the Supreme Court’s direction and that of the Legislature. Moreover, the terms of that section are not mandatory.

Section 613 of The Criminal Code - the CONDITIONAL SUSPENSION OF PUNISHMENT ON FIRST CONVICTION provisions which I have already mentioned - is clearly aimed at achieving the purpose which I must serve. It clearly does not apply to the burglary charges (for they carry a maximum penalty in excess of three years) but it does apply to the STEALING SIMPLICITUR charge which, as I have said, is the only act showing initiative in the whole sorry collection before me - or, as I have discovered too late, with-held for some other judge to deal with (a point to which I will return later).

(At this point the prisoner was asked -in furtherance of the comment at the beginning of the final paragraph on page 3 above - whether he has relatives in the Gumine area who would be prepared to look after him. He says that he has and makes the undertakings referred to later in this judgment. His Honour continued):

I feel that the six months maximum which the Legislature has laid down in the Child Welfare Act is too short. But I also feel that it would be a reasonable term of actual imprisonment under sentence, in the circumstances of this case which are:

(i) ҈ that Prisoner has phas pleaded guilty to the charge;

(ii) ҈& that noat none of e of the other (and toogeminal beenged and brought before the courts;

(iii) < &160; #16e the fact that the Prie Prisoner has not gone a(I noat Mr. Balaghtas htas did ndid not know his house had been burgled until he woke up to see obvious signs of it - but the house was nosackebefou

(iv)>(iv)&#160  ҈ act fact that PrisoPrisoner has been on remand since at least 27th September, 1980 - that is, for four months;

(v) ;ټ the face fact that that, for any order under section 612 to be effective as a reformatory measure, the amount of actual imprisonment should be as light as possible.

By those opening and closing phrases: “term of actual imprisonment under sentence” and “as light as possible” I mean something which brings me to the last of the legislative provisions which I wish to mention. The second paragraph of sub-section (f) of section 19 of The Criminal Code is a provision which, until the amendment of 1979 comes into force, applies only to people convicted before a judge - as this prisoner is. And it is the provision which best suits the purpose which I must seek to achieve. It allows a judge to impose a long term of imprisonment and then split it into what are basically two parts (the second can be split again but this is not important here). The important point is that one portion only is to be served straight away and the remainder is to be held over the head of the convicted person for a stated period (which has nothing to do with the length of the sentence) to make sure that he keeps his promise to do all that he can to reform.

And here let me say two things which I have said countless times but never from such an exalted position. The first is this - and it cannot be said often enough: - “There is only one person who can make a person reform, and that is the person himself”. And the second is that, “Unless we realize this basic fact, we are liable to cause the convict to fail to make the decision to reform, or to have the sustained courage to carry out that decision because, once having taken the “easy path”, it takes courage to say NO to old friends.”

I think that a sentence of two years imprisonment is the shortest term which, in the light of my study of the sentences of other judges, I can give in circumstances such as are disclosed by this case. It also allows me to give three or four years in the case of a burglar who ransacks or befouls the house, four to ten years in the case of a burglar who takes a weapon with him when he does his burglary and five to fifteen for one who uses it. The maximum, after all, is LIFE and the aim of the legislation is to prevent “self help”. Any lesser sentence would be too light. And, by holding eighteen months of it over his head for a period which he can actually visualize, I feel that I can make it attractive for him to think, when temptation next comes his way - as it has, in the past, been coming so often - that it is worth his while to resist it. I say this because “eighteen months” also is a period which he can visualize. To make it a longer period would, I feel, be to run the risk of making him feel that there is no real merit in his attempting to reform. So that is what the order in this case will be.

Since the charge which the Prosecution chose to be dealt with first is that of STEALING SIMPLICITUR, it is primarily that charge that I am imposing the sentence for and I appreciate that it is a little heavier than has been usual. I feel, however, that since I will be talking to the prisoner about three different periods - the sentence to be actually served if all goes well; the sentence to be feared if he does not reform and the period during which the suspended sentence is held over his head - I feel that it is better if I make only one standard order for each of the cases. I would also point out that that charge indicates the way the prisoner is headed if he ever graduates, without reforming, from his traditional role of “stooge” and he must be made to realize that he has to make a meaningful decision to change his course of conduct. He has said that his uncles and his brothers back home will help him to do that and my experience is that, if they co-operate and the defendant is made to feel that the proposition of reform is much better than the alternatives, the chances of him making the change are good.

The only real worry I have is that he will have to spend some time with “other Moresby criminals” in Bomana Corrective Institution and his conversations with them may undo the good which his promises here, and the orders which I have so laboriously made today, have commenced. The fact is, however, that the Legislature does not permit a Judge to order that a person shall serve his sentence in a prison outside of the area where he is sentenced. It is, however, possible for me to make an exclusion order. I wish it brought to the attention of the proper authorities that this is a case where an EXCLUSION ORDER under section 612 of The Criminal Code has been made and that the prisoner has, in Open Court, undertaken to abide by that exclusion order for the four years following his release from gaol which he understands will be in six months time, less the days since the Sittings commenced etc. And I would appreciate it if they could be informed that I have expressed the view that his presence in gaol in this area is contra-indicated.

I also express the view that the fact that the charge which caused me to adjourn this case on 13th January is still outstanding must not be allowed to stand in the way of my Order. If the prosecution goes ahead with that charge - and that, of course, is entirely their affair as I pointed out in In re Emmanuel LavakiN327.html#_edn653" title="">[dcliii]⁵ and in Apof MICHAEL DAI DAI KAUPAN327.html#_edn654" title="">[dcliv]⁶ - the approprsteps can be t be taken to have the prisoner brought back fundiawa (or Gumine, if ther there is an Institution there). The cost of transportation will be infinitismal compared with the casts oing an attempt at reformatirmation frustrated. The company of other Moresby criminals is the very last thing that this young, malleable, person needs at this stage of his life. If he keeps away for four and a half years, Society has a chance of him reforming.

And since a general feeling of despondency in regard to what is currently called THE LAW AND ORDER PROBLEM has unfortunately fallen over everyone, I would like to say that I have personal experience of some hundreds of Papua New Guineans reforming. In fact, I know of no country whose people are so good at doing just that - reforming - or of any other country so divinely blessed.

I also want it brought to the attention of the authorities that the prisoner has, insofar as this could be said to be legally necessary, openly given his permission for them to take photographs of him, and his fingerprints, and to display them in all Police Stations in all parts of Papua New Guinea except those in the Simbu Province so that, if he breaks his promise to remain in his ancestral lands for four years after his release from gaol, he can be easily apprehended.

The only exception to the exclusion order is if an order is made by the Public Prosecutor for him to be moved back to Port Moresby to stand his trial on the charge which is still outstanding.

This brings me to several matters which this case has brought out and which I feel I should mention. (The prisoner was here removed).

After more than fifteen years of getting on well with people who appear before me - people, that is, who do their job to the best of their ability - I do not wish to commence my career on this Bench by a criticism. But I cannot allow the fact that I have had to make those observations on the exclusion order pass unnoticed. Once an accused person is brought before a court the Court is seized of his matters. And in the case of an accused person under the age of 21 years that means ALL of his matters. For cases to be withheld is, in my experience, unheard of. If there are compelling reasons why some of the collection of cases against him cannot go on then the Court should be informed of this and, in the normal course of events, it will say that if the reformative process which it is compelled by the legislation to consider, cannot effectively commence, then it is far better for none of the cases to go on until all are ready.

On a more pleasant note, may I compliment Counsel for both sides on the obvious work they have done in preparing the cases which did come on before me. I will, at a later date, give my view on some of the matters but there are two which I feel I should make some comment on, or can make some comment on, now.

The first arises from the fact that the depositions in the Wayne Bevan case contradicted, to a certain extent, what the learned State Prosecutor had said the facts were. I often had the same experience when I was where he is now and it is rather demoralizing when it happens. Perhaps that is why some Judges only have the Record of Interview read out. I do not know. But, if it is, I feel (with the greatest of respect) that I would prefer to see the Prosecutor completely untrammelled in his capacity of “Minister of Justice.” We are not yet at the stage where we can always rely on the Record of Interview giving as much reliable information as the Prosecutor’s professionally guided researches. And I want his Statement of Facts to be reliable. Since the depositions in the other cases were fairly weak it may be that, since there is no uniform practice amongst the Judges - or so you have informed me - I will, until I am corrected in that regard, not have the depositions read at all because they do not seem to serve a useful purpose where the facts covering each of the elements are fully put to the accused for the purpose of discovering whether his case ought, in law, to go to trial. I am, however, doing nothing more, at this stage, than indicating a possibility. I am, of course, only too happy to hear anyone’s views on the matter. I mention it only because, as I have said, it is disconcerting if one has said one thing, as a result to a great deal of pains-taking work, only to have the Court Crier proclaim the opposite as the truth. And, of course, it is disconcerting for me to be satisfied that the accused is admitting all the elements only to find that the depositions are very short on what, I suppose, must be called “support”. As I have said, it is Counsel that I rely on, not the depositions which were created for a different purpose, and by non-lawyers.

There is a second reason why I do not wish to give special emphasis to the record of what accused said to the Police. There is a real need for more emphasis to be placed on other aspects of Police work. It is good for people to confess to the Police but the real need is for guilty people to make their admissions in Open Court. As Brett and Waller point out at page 24 of the 4th edition of their: “CRIMINAL LAW; Text and Cases” (1978, Melbourne):

“it is ... of great importance to remember that in practice the vast majority of those who are prosecuted in the courts (of England or Australia) plead guilty to the charges against them. Indeed, if only a small percentage of those who at present plead guilty decided to contest the charges, our courts would break down under the pressure. Paradoxically, our legal system assumes in theory that every man accused of a crime is entitled to a fair trial at which his guilt will be demonstrated, but it operates in practice on the basis that about 90 percent of those accused will not contest the accusation”.

In this country, unfortunately, that figure is in the very dangerous area of about 50 percent. In some areas it is even less and this is a national disaster.

To do what I can to assist in the raising of that figure to a healthy level I am prepared to grant a “discount” of somewhere about twenty-five percent on what the sentence would otherwise be if the accused pleads guilty in Open Court. I note that the editors of The Criminal Law Review, at page 173 of the 1978 volume, say that “the appropriate discount” can be as high as one third but I feel that that is too high.

Solicitor for the State: L. Gavara-Nanu, Public Prosecutor

Counsel: G. Salika.

Solicitor for the Accused: A. Amet, Public Solicitor.

Counsel: Kirriwon.

<49">N327.html#_ednref649" title="">[dcxlix]^{1978 PNGLR 128}

N327.html#_ednref650" title="">[dcl]^{Unreported judgment, 3rd November, 1980: S.C. 183.}

N327.html#_ednref651" title="">[dcli] ^{1971-1972. PNGLR 206.}

N327.html#_ednref652" title="">[dclii] ^{(1967) 86 W.N. (NSW) 272 at p. 277; (1967) 2 N.S.W.S.R. 329 at p. 332.}

N327.html#_ednref653" title="">[dcliii]^{Unreported observations IN CHAMBERS, issued as N. 324.}

N327.html#_ednref654" title="">[dcliv]^{Unreported judgment, Waigani, 20th January, 1981, issued as N. 320.}