State v Nyama [1991] PGNC 70; [1991] PNGLR 127; N988 (23 April 1991)

N988

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

NYAMA

Waigani
Hinchliffe J

2 April 1991
17 April 1991
23 April 1991

CRIMINAL LAW - Sentence - Particular cases - Robbery - Young first offender - Plea of guilty - Good character and family support - Rehabilitation desirable - Four years IHL - Term suspended on conditions - Home imprisonment - Payment of expenses of probation - Compensation to victim.

CRIMINAL LAW - Sentencing - Imprisonment - Suspended sentence - Terms and conditions of - Young first offender - Good character and family support - Home imprisonment - Payment of probation expenses - Compensation to victim.

A 16-year-old youth was charged with robbery of a motor vehicle while in the company of others. He pleaded guilty. The youth was a first offender of good character with a supportive family.

Held

That in the circumstances and taking into account the need for punishment to be rehabilitative, the youth should be convicted and sentenced to imprisonment for four years in hard labour to be suspended on entering into a period of probation for three years with a number of conditions including home imprisonment, community work service, payment of property damage, compensation to the victim and payment towards the cost of supervising the probation.

Cases Cited

Gimble v The State [1988-89] PNGLR 271.
Kuri Willie v The State [1987] PNGLR 298.
R v Davey [1980] FCA 134; (1980) 2 A Crim R 254.
R v Taggart (1923) 17 Cr App R 132.
The State v Frank Kagai [1987] PNGLR 320.

Plea

An accused pleaded guilty to a charge of robbery and the following reasons for sentence were delivered.

Counsel

C Sambua, for the State.
B Takin and D Koeget, for the defendant.
Cur adv vult

23 April 1991

HINCHLIFFE J: You have pleaded guilty that on 31 October 1990 you stole from Lemech Palaso with threats to use actual violence a blue Mazda 929 sedan registration number, ZGB 723, the property of the Independent State of Papua New Guinea. At the time you were in the company of other people.

The brief facts of this case are that at about 8 pm on 31 October, last year, you and five other young people held up the victim outside his residence at Gerehu. He was with his wife and children and had just returned from an outing. He was about to drive the motor vehicle onto his property when you and the others stopped him with threats of violence. It appears that a homemade firearm was being held by one of the group.

The victim handed over the keys and then you and your associates sped off. Soon the police were in pursuit and before too long the driver of the stolen motor vehicle lost control of it and crashed into a tree. Damage to the motor vehicle has been estimated at K2601.55.

After hearing from your lawyer earlier this month I made an order that a pre-sentence report be prepared. That report is now before me and I congratulate the probation officer, Mr Asagi. His report has made my task much easier in this difficult case.

Robbery is a serious offence which carries a maximum penalty of life imprisonment. In Gimble v The State [1988-89] PNGLR 271, the Supreme Court (Bredmeyer J, Los J and Hinchliffe J) suggested that five years imprisonment was appropriate in a contested case involving a robbery resulting in the theft of a motor vehicle. The said case was referring to people over the age of 18 years. You were either 16 or 17 years at the time so to a certain extent Gimble does not apply. Needless to say it is not uncommon to see people under the age of 18 sent to prison for robbery involving motor vehicles.

The pre-sentence report has indicated to me that your behaviour on 31 October last year was completely out of character. You come from a very strong, loving family. Your father is a senior public servant and there are no financial problems. You live in a high covenant three bedroom house which is very well maintained, clean and tidy. Your family is Christian and there is no alcohol consumed. You were born in Kainantu in 1974 but were brought to Port Moresby in 1975 and lived here until 1988 when you went to Angoram High School and completed Grade 8. In 1989 some classrooms were burnt so you and others left the school. Because you left you were unable to attend any of the National Capital District High Schools on your return to Port Moresby. You have been living with your family since then and have been unemployed. You have no prior convictions. There is no doubt that you have brought considerable shame upon your family as prior to the offence you were quite a well behaved young man, a non-drinker and non-smoker. You never caused any trouble and I gleaned from the said report that your family was more than surprised when they heard about this incident.

Arriving at an appropriate sentence is never easy as every case is different. Here it seems to me, after perusing the said report, that you will be dragged downwards if you are incarcerated. Clearly you are a person who is easily led and I say to myself, what place in the world can a young person be more easily led than in a prison. If you are sent to Bomana Corrective Institution for four or five years then I have no doubt whatsoever that you are going to leave the prison a hardened, well instructed, dangerous criminal. The public will have a real problem on its hands. In fact it will have a monster to contend with. Is that what punishment is all about? Is punishment meant to destroy a person who will then go on to destroy others in our community? I do not think so. I am of the view that punishment should have the end result of rehabilitating the offender and thus making it safe for the community when the offender re-enters its ranks. The court has a duty to consider the end result and to make decisions on sentencing that will go towards creating peace within the community. Too often we see lower courts in particular sending young people to prison for offences that demand little more than a fine. Those types of decisions are causing enormous damage not only to the offenders but also to the community. To a certain extent some sentencing decisions are adding to our law and order problem. The very people who should be doing something to curb the problem are in fact increasing it. Our prisons are being clogged up with petty offenders. Many are there because they have not paid court fines. There should not be a situation where people are sent to jail for non-payment of fines. I am of the view that sending fine defaulters to jail is almost medieval. It is a practice that has ceased in many countries. It is not only expensive for the taxpayer but it is destructive to the offender and dangerous for the community. It is a certain way to turn a good citizen into a criminal.

Something that concerns me greatly is your age. You are now 17 years old, but at the time of the offence you were probably 16 years. You are very young to be sent to jail. Young people who are sent to jail are often abused mentally, physically and sexually by older prisoners. They are easy targets and can do very little to stop such assaults. In this day and age when killer diseases such as AIDS are sweeping through communities a sentencing judge or magistrate must be even more careful than before when sentencing young people to jail. I am sure that an older criminal in prison would not be practising safe sex when he forces himself upon his young victim. Think as you like, but these types of assaults do happen in prisons. It is real, it is happening and it could quite easily happen to you.

In the case of Kuri Willie v The State [1987] PNGLR 298, I said the following:

"I agree with what was said in R v Taggart (1923) 17 Cr App R 132:

‘[A Judge or a Magistrate who sends a young man to prison for the first time takes on a grave responsibility]. It is not practical or desirable to lay down a general rule but in many cases it is [desirable] to take [a] risk to save a young man or woman from the consequences of prison.’ "

I then said,

"His Lordship recognised in that case in 1923 what terrible effect prisons have on young people. It seems to me that he was recognising that prisons do not change young offenders into law abiding citizens but in effect destroy any chance that they may have had of becoming law abiding citizens. I do not think that the statement that 'a shop lifter goes to prison and comes out a bank robber’ is exaggerated. No one in Papua New Guinea would suggest that our prisons do anything to rehabilitate prisoners or even generally prepare them to enter back into the community as law abiding people. What really is happening is that the community is relieved of a menace for a period only to then have to experience and suffer a monster when the former menace is released."

Sadly nothing has changed since 1987 and the courts face the dilemma, almost daily, of how to go about sentencing young offenders.

I am of the view that sentencing you to prison today would be destructive and, to my mind, almost negligent on my part. Needless to say I cannot and will not ignore the seriousness of the offence. Any person is entitled to go out driving with his family and not be subjected to harassment and assault by a gang of thugs who have nothing better to do than make life miserable for law abiding citizens. Members of gangs think that they have the right to invade people’s privacy, to rob, to rape and generally to behave like something that is less than human. Unfortunately you placed yourself in that category on that night and now I must sentence you in such a way that will be punishment for you but will not destroy you. It must be a sentence that will satisfy the community but will also make it safe for the community when you are a free person. And finally it will be a sentence that will benefit you and ensure that you will never participate in such anti-social behaviour again.

Therefore I have decided to release you on a suspended term of imprisonment on you entering into a period of probation with a number of conditions attached. The conditions will ensure that you undergo home imprisonment for a lengthy period and that you help pay for the expense of your probation. That, I do not think has ever been done in Papua New Guinea, but I am unable to see why the taxpayer should have to pay out for you breaking the law. To my mind, if you break the law then you should pay for it. I am also not against any suggestion that a prisoner should help pay for the expense of keeping him in jail. Naturally you will also be required to pay for your share of the damage to the motor vehicle. Also you must pay compensation to the victim.

The purpose of this sentence is to make it as close to sending you to jail as I possibly can without causing the damage that a jail causes. Indeed the end result should be one whereby you will enter the community again as a punished person, but a reformed one. However, it will be up to you to put in the effort of your life. Otherwise it will fail and you will end up out at Bomana never to be the same again.

In suspending a sentence I keep in mind the case of R v Davey [1980] FCA 134; (1980) 2 A Crim R 254. That was a decision of the Federal Court of Australia. I followed it in The State v Frank Kagai [1987] PNGLR 320.

In R v Davey, it was said (at 254; 262) that:

"1. A sentencing judge should consider first and foremost the protection of the community but judicial assessment of the prisoner, the prisoner’s family, his opportunities, demeanor and remorse and the precipitating factors causing the offence are also relevant.

2. ... the suspension of a sentence of imprisonment is not an exercise in leniency but an order made in the community interest designed to prevent re-offending which a prison sentence standing alone seldom does [at 262].

3. Persons charged with most serious offences may be dealt with by way of suspended sentence by reason of good character, the court’s view that there will be no re-offending ... and, at times, by reason of the fact that the court believes that the particular individual will be positively damaged by immediate incarceration."

I make the following order:

On the count of robbery you are convicted and sentenced to imprisonment for four years in hard labour to be suspended on your entering into a period of probation for three years.

CONDITIONS

1. To stay within the boundaries of your home as follows:

(a) 12 midday Sunday to 7 am Monday

(b) 5 pm Monday to 7 am Tuesday

(c) 5 pm Tuesday to 7 am Wednesday

(d) 5 pm Wednesday to 7 am Thursday

(e) 5 pm Thursday to 7 am Friday

(f) 5 pm Friday to 7 am Sunday

2. To attend and work at Habitat for Humanity, Monday to Friday from 7.30 am to 4.30 pm.

3. To attend the Jesus Center, Morata each Sunday from 9.30 am to 11 am.

4. Above conditions nos 1 to 3 are to commence on Wednesday, 24 April 1991 and to continue until 23 April 1993.

5. For the whole period of the probation (three years), to allow a probation officer onto your premises at anytime without any prior notice. That also applies to telephone calls.

6. To pay the sum of K434 to the Independent State of Papua New Guinea towards the repair of motor vehicle ZGB 732. Payment is to be made through the National Court on or before 1 December 1991.

7. To pay to the Independent State of Papua New Guinea the sum of K50 per month to go towards the cost of probation. First payment to be made on 1 May 1991 and then on the first working day of each month until 24 payments have been made. All payments are to be made through the National Court.

8. Any request for variation must be made to the National Court, preferably to the trial judge, eg, for employment, sport etc.

9. No alcohol is to be consumed by you for the next three years.

10. You pay to the victim Lemech Palaso the sum of K500 by way of compensation on or before 1 October 1991. Payment is to be made through the National Court.

I realise that your father will be paying for most of the monetary penalties you have incurred but in the event that you find employment then you would be expected to repay him. That would be your duty as it was you who caused all the trouble in the first place.

In effect this sentence means that for the next two years you will be spending five days a week working free of charge, at Habitat for Humanity (a charitable organisation). The rest of the time, except for church on Sunday morning, you will be at home. Your movements are severely restricted. That’s what happens when you break the law in a serious manner. Your probation runs for another year after the home imprisonment finishes. If you break any of the said conditions you will go to prison for four years.

Sentence accordingly

_______________

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