State v Kagai [1987] PGNC 36; [1987] PNGLR 320; N625 (12 October 1987)

N625

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

FRANK KAGAI

Mount Hagen
Hinchliffe J

9 October 1987
12 October 1987

CRIMINAL LAW - Sentence - Suspended sentence - When appropriate - In interests of community - Where serious offence - Good character - Principles generally.

CRIMINAL LAW - Sentence - Robbery with violence - Surrender to police - Five months in custody - Effective leader of Ex-Criminal Self-Help Task Force - Sentence of six years suspended with three year good behaviour bond.

An accused pleaded guilty to a charge of robbery with violence. The offence was committed in September 1984 and following conversion to Christianity the accused surrendered to police in March 1987. In May 1987 he was released on bail. After he was released on bail the accused started to work with the Ex-Criminal Self-Help Task Force in Minj and Banz where he became a very effective leader going on to become a voluntary probation officer and participant in the prison fellowship scheme.

Held:

(1) In considering whether a suspended sentence might be appropriate the following considerations are relevant:

(a) Suspension of a sentence of imprisonment is not an exercise in leniency but an order made in the community interest and designed to prevent re-offending which a prison sentence standing alone seldom does.

(b) Persons charged with serious offences may be dealt with by way of suspended sentence by reason of good character and where the court is of the view that there will be no re-offending and/or that the particular individual will be positively damaged by incarceration.

R v Davey [1980] FCA 134; (1980) 2 A Crim R 254 at 260-263, adopted and applied.

(2) In all the circumstances of this case it was an appropriate one for a suspended term of imprisonment.

(3) The accused should be sentenced to six years in hard labour with that sentence suspended on him entering into a good behaviour bond for a period of three years.

Case cited

The following case is the only one cited in the judgment:

R v Davey [1980] FCA 134; (1980) 50 FLR 57; 2 A Crim R 254.

Sentence

The accused/defendant pleaded guilty to a charge of robbery with violence and the following reasons were delivered on sentence.

Counsel:

I Langford, for the State.
D Poka, for the accused.
Cur adv vult

12 October 1987

HINCHLIFFE J.: Frank Kagai pleaded "guilty" that on 17 September 1984 he stole from one Ron Mossman with actual violence K500 in cash, the property of the Minj Tribal Tops Hotel. At the time aforesaid he was armed with a dangerous weapon namely a shotgun and that he was in company with others.

The offence under s 386 of the Criminal Code (Ch No 262) carries a maximum penalty of life imprisonment.

The short facts are that on 17 September 1984 at about 9.30 pm guests were eating in the lunch bar of the Tribal Tops Hotel, Minj. The manager, Mr Ron Mossman was interviewing two staff members in his office. Suddenly Frank Kagai entered the lunch bar dressed as a policeman, wearing a stocking mask and carrying a shotgun. He was with three others at the time and they were armed with a shotgun, a club and an axe. The man with the club was in fact dressed as a woman. Whilst in the lunch bar one of the criminals prodded an off duty policeman in the stomach with a shotgun and another person in the bar had a shotgun pointed at him. The four men then proceeded to the manager’s office where they pointed the shotguns at the manager and the two staff members whom he had been interviewing. After a short time Frank Kagai demanded the safe keys from the manager and after receiving them he ordered one of the staff members to open the safe. After that person failed to open the safe, the manager was ordered to do it. The four men subsequently fled with K500 in cash.

This type of criminal act usually attracts a term of imprisonment between about five to eight years. In some other countries, including Australia, the term of imprisonment is somewhat higher, usually in the 12 to 15 years range. It would not surprise me at all if the National Court judges commence to take a similar course in the near future. This type of offence is prevalent in Papua New Guinea, particularly in the Highlands. The community is tired of it and it looks to our courts to do something to rectify the problem.

But this case is quite novel and because of that the defence lawyer has asked me not to incarcerate his client. I reserved my decision over the weekend to give it some serious thought.

Frank Kagai stated from the dock that several years ago he was a hard core criminal and had been "on the run". In September 1986 he was converted to Christianity and because of that he subsequently surrendered himself to the police in March 1987. He was then held in custody until May 1987 when I released him on bail at the National Court sittings in Mr Hagen. He went on to say that after he was released on bail he started work with the Ex-Criminal Self-Help Task Torce in Minj and Banz, fighting crime. An example of his work was that on 25 September 1987 he arranged for the surrender of 26 criminals. They surrendered with a number of shotguns and pistols. He admitted that in the past he had done considerable damage but now he wanted to pay back the State and its people, by fighting crime. On 5 October 1987, an aidpost in the Minj area was opened and that aidpost had been constructed by his task force. Another aidpost is near completion in the Banz area which is also being constructed by the said task force. Kagai went on to say that he is now a voluntary probation officer and that he also takes part in the prison fellowship scheme.

Mr Frank Hoermanseder, advisor to the Ex-Criminal Self-Help Task Force, gave evidence in favour of the prisoner. He said that the aim of the task force is to fight crime by using ex-criminals. In May 1987, he received a letter from the prisoner offering to set up a new branch of the task force in the Minj and Banz area. The witness said that another aim of the task force is to choose former leaders of crime who can be equally good leaders in the fight against crime. It seems that the prisoner fitted into that category. Mr Hoermanseder said that what the prisoner

"has done in four months is just too good. He won’t go back to his old ways. He is a leader in the community and his Tombil community has changed for the better. There have been no major crimes in the Minj and Banz area for the last four months".

I was impressed with both Mr Hoermanseder and the prisoner as witnesses. I felt that neither of them were exaggerating and that both were extremely genuine. There is no doubt that the Frank Kagai of October 1987 is now a different man to the Frank Kagai of September 1984. Because of what has been presented in court I am of the view that this is an appropriate case for a suspended term of imprisonment. I propose to refer to the case of R v Davey [1980] FCA 134; (1980) 2 A Crim R 254, as I agree with what was said by Muirhead J in relation to suspended sentences. That case was an appeal to the Federal Court of Australia from the Supreme Court of the Northern Territory. The presiding judges in the Federal Court were Bowen CJ with Muirhead and Evatt JJ. Muirhead J delivered the leading judgment in dismissing the Appeal.

He said, inter alia (at 258):

"The concept that imprisonment must be regarded as an effective deterrent is now enshrined in our law despite the fact that modern research throws some doubts upon its validity ..."

And (at 260-263):

"The prospects of rehabilitation, the likelihood of re-offending, the probable reactions of the prisoner to probation orders and the like are important issues. The judge at first instance has a peculiar advantage in deciding them, an advantage which in the past the law had recognised. ... One finds in the cases referred to, references to the ‘moral sense of the community,’ to ‘condign punishment’ and references which appear to draw a contrast between ‘rehabilitation’ of an offender and ‘deterrence’.... There has, of course, been much debate academic and judicial as to the purposes of punishment, the effectiveness or otherwise of deterrence, the necessity for punishment, the concept of retribution. One would glean from some sources that there are two conflicting responsibilities vested in a sentencing judge — one owed to the prisoner, to rehabilitate him, to treat him gently as it were — the other owed to society, to punish, to levy retribution, to deter.... The purpose of the criminal law is to bring wrongdoers to justice for the protection of the community. First and foremost, it is the protection of the community a sentencing judge must bear in mind (R v Cuthbert (1967) 86 WN (Pt 1) (NSW) 272, per Herron CJ, at 274). There are occasions when a judge determines he can only extend that protection by severe punishment; there are other situations when he will reach the view that probation, suspension of sentence or community work orders are appropriate, not because they will be less unpleasant for the prisoner, but because they may be productive of reformation which offers the greatest protection to society. I am afraid, and I speak for myself, that the concept of the penitent prisoner emerging from the penitentiary has rare validity. A sentencing judge has to bear in mind the realities of prisons, of what is learned there, of the associations there formed, of the effect on many people. Nor should he lose sight of the fact that the main problem of the police and the community is the recidivist. If in the proper exercise of his discretion he can devise a sentence which will minimise the risk that an individual will re-offend then to that extent society is protected.... Napier CJ in Webb v O’Sullivan [1952] SASR 65 at 66 ...

‘The courts should endeavour to make the punishment fit the crime, and the circumstances of the offender, as nearly as may be. Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy. We ought not to award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest.’

...

The Crown also contends that his Honour erred in suspending the operation of the sentence of imprisonment with the result that having entered into the recognisance the respondent was entitled immediately to be at large. The Crown’s argument at times seems to have equated release under suspended sentence of imprisonment to simple release under a good behaviour bond where punishment is deemed inappropriate. But before a court reaches the stage of suspending a sentence it must first determine that imprisonment for the offence in question is the appropriate penalty — that other forms of conditional release, fines and the like are not appropriate....

In my view it is erroneous to treat the suspension of a sentence of imprisonment as merely an exercise in leniency. Such an order is made in the community interest and is generally designed to prevent re-offending — which a prison sentence, standing alone, seldom does.... A person so released has an obvious incentive not to re-offend and should have no misconceptions as to what will occur if he does.... From time to time persons charged with most serious offences may be dealt with in this manner by reason of good character, the court’s view that there will be no re-offending, that treatment is required outside prison and, at times, by reason of the fact that the court believes that the particular individual will be positively damaged by immediate incarceration ....

In conclusion I respectfully agree with the remarks of Murphy J in Griffiths v The Queen (1977) 137 CLR 293 at 330:

‘Emphasis on and adherence more or less to a scale of penalties for various offences (the tariff system) exerts pressure on the primary judges to impose more severe sentences than they would sometimes wish and in practice inhibits desirable experimentation and exploration of alternative courses contemplated by the legislature.’ "

In the present case it would seem quite unproductive to send Frank Kagai to prison today in that any term of imprisonment would undo the good work. I have no doubt whatsoever that if the prisoner returns to prison he will come into contact with his old friends and before too long will revert to his old ways. That is what prisons do to people. Therefore on his release he will once again be a leader amongst criminals, a danger to the community.

As it stands now the community has a chance to benefit from the work of the prisoner and his ex-criminal associates. There is no law abiding citizen in this country who does not look forward to the day when he or she can:

1. Walk outdoors after dark without fear of attack.

2. Live in a home that does not need to have the windows barred and be surrounded by high security fencing.

3. Drive on the roads without fear of being held-up and attacked by gangs.

4. Women want to be able to move freely in public without fear of rape.

They are the things that we should all be striving for and I am of the view that in an effort to achieve these goals the prisoner and the public will benefit by the prisoners release on a suspended term of imprisonment. The prisoner knows only too well that any further breach of the law would mean immediate incarceration.

I was told that in September 1987 his Honour the Chief Justice released the prisoner on a two year suspended term of imprisonment on an arson charge which occurred in 1983. I think that it is fair to assume that his Honour took that course for the same reasons as I am today.

Frank Kagai, you have heard what I have said this morning and you are fully aware of the consequences of any breach. I am not expecting to see you in court again as an accused person and that is why I am taking this rather unusual course today.

You are convicted and sentenced to six years imprisonment in hard labour but you are to be released on the rising of the court on condition that you enter into your own recognisance of K500 to be of good behaviour for a period of three years.

I also take note that you have spent in the past about five months in custody in relation to this offence.

Sentenced accordingly

______________________

Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Public Solicitor.