State v Dongoma [2000] PGNC 76; N2038 (13 December 2000)

N2038

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No 889 of 2000

THE STATE

-v-

JASON DONGOMA

LAE: KANDAKASI, J.
2000: December 5, 13

Criminal Law – Practice and Procedure – Indictment presented on lessor charge following plea bargaining – Use of depositions for relevant facts – Statement in allocutus inconsistent with facts per depositions – matter raised with counsels – Not necessary to change plea of guilty.

Criminal Law – Practice and procedure – accomplice in commission of offence pleaded guilty to serious offence and sentence – Need to avoid appearance or apprehension of – disparity of sentence even in a lesser charge.

Criminal Law – Particular offence – Unlawful use of motor vehicle – Factors for consideration – Commission of offence in serious circumstance with no good mitigating factors maximum penalty may be appropriate – Criminal Code Act (Ch. 262) ss. 383 & 19.

Cases Cited:
The State v. Sabarina Yakul [1988-89] PNGLR 129;
The State v. Jack Gola and Mopana Aure [1990] PNGLR 206;

The State v. Joe Ivoro and Gemora Yavura [1980] PNGLR 1;

Dinge Domane v. The State [1991] PNGLR 244;
Kuraba Yangesen v. The State [1978] PNGLR 465;
Lance Vetari v. The State [1978] ScotCS CSIH_3; (1979) SC 156;

The State v. George Maiyangu and Eric Alu (Unreported and Unnumbered a decision delivered in Lae on 8th December)

CR 1341 and 1342 of 2000)

Tau Jim Anis & Ors v. The State (2000) SC642

Counsel:
N. Miviri, for the State
M. Mwawesi, for the Defendant

13 December 2000

KANDAKASI, J: The Defendant was charge with one count of unlawful use of a motor vehicle, a Toyota Hilux registered number PAD 026 contrary to S.383 of the Criminal Code Act (Ch. 262)(hereinafter "the Code"). On the 5th December, 2000 the State presented the relevant indictment following a plea bargain from the more serious charge of armed robbery. The Defendant plead guilty to the charge, following which his allocutus was administer and the matter was adjourned to today for a possible decision on sentence after confirming the plea of guilty and convicting the Defendant of the charge upon reading the depositions.

The adjournment was also to enable the Probation Service to provide a pre-sentencing report if they could by today. That followed the defendant arguing for a non-custodial sentence.

Facts

There is authority for the use of depositions to extract the relevant facts for sentencing purposes. See The State v. Sabarina Yakal [1988-89] PNGLR 129. I will therefore, use the depositions to extract the facts in this case. The Defendant was the 6th member of a gang of 6 youths. The gang held up and stole a vehicle Toyota Hilux registration number PAD 026 belonging to the Watut Local Level Government at Wanyanda, Bulolo, Morobe Province. That happened around 9.00am on the 17th of February 2000, when the vehicle was being driven across a river by its driver with its occupants. The gang was armed with guns and bush knives which were used to threaten the driver of the vehicle and its occupants and force them out of the vehicle. The gang then took over the vehicle and drove off and subsequently had it capsized and damaged.

The robbery was planned and carried out. The plan was to get a vehicle and use it to rob a trade store. However, the second part of the plan was not executed due to the vehicle being damaged.

On the 25th and 26th of February 2000 the Defendant with two of his accomplices, Jack Dika and Roney Paul surrendered to police. This followed an earlier surrender by one of his other accomplices Gibson Aron on the 24th of February 2000. Gibson Aron pleaded guilty to a charge of armed robbery on the 16th November 2000 before my brother Justice Gavara-Nanu. He was convicted and sentenced to 2 years in hard labour. Of that, 9 months was deducted on account of time spent in custody, leaving 1 year 3 months to serve in hard labour.

Allocutus

In allocutus, the prisoner said he was trying to go home and his accomplices asked him to get on the vehicle and he did. This is not supported by anything in the depositions. In his record of interview he admitted to being involved in the robbery and using the vehicle. He then informed the Court that this was his first ever offence and he was sorry for being involved.

He said he is about 18 years old and is the first born out of 4 children in his family and looks after his younger siblings. He said he dropped out in Grade eight due to family problems. His mother is the only hard working parent, while his father is sick with cancer. Because of all these, he is the only one responsible for his family. That includes working on a chicken project and 2 very big coffee gardens with labourers. All of these will be adversely affected because of his imprisonment. He therefore, asked for a good behaviour bond or be placed under probation service. He put these through a letter dated 5th December 2000 addressed to the Court which was admitted into evidence with the consent of the State. He also tendered into evidence a letter from two people claiming to be village leaders dated 1st August 2000 addressed to the Probation Officer. That letter described the prisoner as a good obedient person who was forced or influenced into the commission of the offence.

The Defence Counsel did not make any application under s.563 of the Code. But before proceeding to hear address on sentence. I raised with both counsels whether the charge for which the Defendant guilty plea to was proper and should be allowed to stand and proceed to sentence on that basis. Both counsels informed the Court that, the charge was presented in the way it was following a plea bargain from the more serious offence of armed robbery contrary to s.386 of the Code.

It is now settled law that the Public Prosecutor is the only authority in the contrary to decide whether or not to present an indictment and in what manner against an offender. He is not subject to any supervision, control or direction, be it, from the Court or any other person. That power of authority includes the power to enter into plea bargains and present indictments in accordance with such bargains. A detail analysis of that power is set out in the case of The State v. Jack Gola and Mopana Aure [1990] PNGLR 206, which I need not cite in any detail save only to refer to it. From such authorities it is clear that all that the Court can do is to accept the plea so presented and deal with it in the normal way. That proceeds on the basis that the Public Prosecutor has carefully weighed out all the factors including the interest and concerns of the people his charged to protect and the mechanics of proving a charge against an accused person.

I therefore proceeded to deal with the indictment that was presented. I then considered that, in the particular circumstances of the case, it was inappropriate to follow the procedure set out in The State v. Joe Ivoro and Gemora Yavura [1980] PNGLR 1 and the cases that have followed it with the latest reported Supreme Court decision in Dinge Domane v. The State [1991] PNGLR 244. I also note and find comfort from the case of Kuraba Yangesen of Meremanda v. The State [1978] PNGLR 465 and Lance Vetari v. The State (1979) SC156; which provide authority for the proposition that if counsel representing a defendant (accused person) does not make an application under s.563, in cases where such an application should be made, the Court is under no duty to change the guilty plea to a not guilty plea. The Court must however, raise that with counsel and I have done that in the case before me. On the basis of both counsels response and having regard to cases like that of The State v. Jack Gola and Mopana Aure (Supra) I proceeded to hear address on sentence.

Address on Sentence

The prisoner’s lawyer, Mr. Mwawesi, adopted what his client said in his allocutus.

Counsel for the prisoner than urged the Court to consider the fact that, his client pleaded guilty to the charge. He is a first time offender with no prior conviction. He is 18 years old and educated up to Grade 8 and is single. He is the first born out of a family of 4 children. He is an ordinary villager now, looking after his parents and younger siblings. His father is sick with cancer and his mother is the main breadwinner. The family needs the support of the prisoner to survive. His continued imprisonment will seriously affect his family. He is not a threat to society. His co-accused pleaded guilty to a charge of armed robbery and received a sentence of 2 years in hard labour less the time spent in custody.

The State made no submissions and the matter was adjourned to today for possible sentence.

The Offence

The offence with which the prisoner is charged is prescribed by section 383 of the Code. It carries a penalty of imprisonment for a term not exceeding five years.

Counsels were not able to assist the Court with a case on point or of their experience in this type of cases so as to enable the Court to appreciate the kind of sentences that were being imposed or given.

My quick search of the Papua New Guinea Law Reports and published judgements do not show any case on point. Due to limited resources and time I am not able to find any case or text that could be of assistance. I am therefore left to device a sentence without any good guidelines.

In my view all the principles and factors generally governing sentencing such as prevalence of the offence, society’s response to that, whether the offender is a first time offender, whether it is a guilty plea and the particular circumstances in which the crime was committed are all relevant and they do apply.

Of course, the purposes of sentencing, such as deterrence, restitution or rehabilitation are also relevant factors for consideration. Taking such factors into account will be in line with the intent of s.19 of the Code.

A sentence lower than what is prescribed as the maximum may be given to an offender who pleads guilty, has no prior convictions and commits the offence in circumstances which are not serious. Examples of less serious circumstances would be cases in which the offender originally had the authority of the owner or driver of the vehicle to drive the vehicle within a specified period for a specific purpose and his use of the vehicle exceeds that period and purpose, or the defender comes across an abandoned vehicle, takes it and uses it for his own purpose and the like. More serious circumstances would be cases in which the owner or driver is forcefully deprived of his vehicle as in an armed robbery case, or the owner or the driver of a vehicle is by use of fraudulent means tricked into giving or lending his vehicle and is driven off and damaged.

Then certainly, the community’s reaction to the crime should have an influence on the kind of punishment to be given. If the community in whatever form, is calling for tough penalties because of the prevalence of the crime and its impact on society, the case may warrant an higher penalty, that is up to the maximum prescribed by law.

Present Case

In the present case, the offence was committed in the course of an armed robbery as part of a plan to commit another act of armed robbery of a trade store. Unfortunately, the plan could not be executed to its fullest because the vehicle stolen and unlawfully used got damaged. One of the prisoner’s accomplice pleaded guilty to an armed robbery charge. Although the charges are not the same, they are out of the same incident involving the same people. To avoid disparity of the sentence or the appearance of it the sentence for the prisoner in the present case must be on par with the one received by the prisoner’s accomplice. This will keep in line with the principle that justice must not only be done but justice must be seen to be done.

Imposing a sentence higher or below what was already given to the prisoner’s accomplice although on a differently charge, has the risk of it be overturned on appeal as is demonstrated by the case of Andrew Uramari & Ors v. The State [1996] PNGLR 287. Imposing a similar sentence to the one already imposed will reflect the fact that the prisoner has pleaded guilty to the charge, he is first time offender and has co-operated with police. It will also be the one which reflects his background as a villager and is the only one that may be supporting his family. All of these have to be viewed against the fact that the offence carries a penalty of imprisonment up to five years maximum. If the prisoner did not, plead guilty, had a prior conviction and his accomplice received a sentence higher than two years. I would have imposed the maximum sentence prescribed by the Act because I consider the circumstance in which the offence was committed were serious and one which calls for an higher penalty and armed robbery case on a plea of guilty with good factors in mitigation now attracts 8 years imprisonment.

In view of the accomplice’s sentence and the need to avoid a disparity of sentence, the Court decided that it was not necessary to consider any pre-sentencing report. The Court therefore, vacated its earlier request for a pre-sentencing report. This is because the sentence earlier imposed does not give much of a choice to the Court but to ensure that the sentence in the present case is one which is on par with the one already imposed, albeit for a charge of armed robbery arising out of the same facts and incident. This will be consistent with the approach taken in The State v. George Maiyangu and Eric Malu (CR 1341 and 1342 of 2000) a decision I delivered on 8th December 2000).

In passing I make a few observations. The prisoner is fortunate that he was not charged with the more serious offence of armed robbery. If he was so charged with such an offence he could have been looking at a minimum sentence of about 8 years in hard labour. See Tau Jim Anis & Others v. The State (2000) SC642. Next, he claims he is a Christian following the Lutheran faith. Yet what he did is not in keeping with the teachings of that Church, and the Papua New Guinea National Constitution which adopts all of the Christian principles of love, and respect for each other. If his expression of sorry or remorse is a genuine one, he will hence forth acknowledge where he went wrong and truly ask God to help change his life to become a better law abiding person and hence a true Christian. Likewise, if the community leaders are true and correct in their description of the prisoner, they must now take it upon themselves to ensure that the prisoner does not re-offend once released from prison. They should immediately seek out ways and means to keep their young people out of becoming law breakers. Bulolo where the prisoner comes from is well known for many things. The leaders should therefore, seek out ways and means to turn that status into a means of economic gain for the community, by say organising guided tours for tourists and go into other related business activities. The local member of Parliament could through its Rural Development Fund, fund such programmes or activities. If indeed the prisoner has two large coffee gardens then the village leaders should use their position and influence to assist the prisoner to better care for and make a living out of producing coffee and such other cash crops.

Leaders at the village or rural level have to now seriously raise questions as to what they can do for their area and more importantly their youth. Then start identifying the things they could do for their youth and seek government or other sources of funding to get such activities off the ground. The days of waiting for Waigani or Lae to hand out or impose on them programmes that may not necessarily be relevant has to be abandoned for the betterment of their own communities. If such initiatives are not taken than the situation will not improve and our national will not progress at all.

Any term of sentence is not the best answer there is to lawlessness or crime. The community, its leaders, and policy makers have to now seriously consider ways and means of ridding the society of offenders or if not minimise it to a level that is acceptable and not the kind of level we are at now.

Getting back to the matter at hand, I will impose a term of 2 years in hard labour, in keeping with the sentences, the prisoner’s accomplice Gibson Aron received. Of that, the period of 9 months 16 days spend in custody is deducted. The Court recommends that term be served at Erap where if possible, he should learn to better care for and produce cash crops and poultry products, so that, when he gets discharged he can go back to his cash crop and poultry business.
____________________________________________________________

Lawyer for the State: PUBLIC PROSECUTOR
Lawyer for the Accused: PUBLIC SOLICITOR