N3161

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1004 OF 2005

THE STATE

v

JACKSON ANIAS ANANIAS

Lae: Kirriwon J
2006: 5 & 11 September

SENTENCE – Particular Offence – Unlawful Use of Motor Vehicle – Plea of Guilty – Vehicle stolen in Armed Robbery on the Road – Prisoner not Involved in the Robbery of the Vehicle but Knew the Vehicle to be Stolen when accepted lift on it – Court has Wide Discretion – Prisoner is medically unfit and unwell – Sentenced to two years imprisonment – Part Suspended – Criminal Code, s.383 and s.19

Cases Cited:

The State v James Gurave Gube [2000] Unreported National Court – N2020
The State v Jimmy Banes Fre [2002] N2254 (24/07/02)
The State v Tom John Damu [2004] Unreported national Court – CR. 712 of 2004 (17/08/04)
The State v Dickson Talu [2005] Unreported National Court – CR. 1385 of 2004 (25/02/05)

Counsel:

N. Miviri, for the state
R. Gankach with Koi, for the Accused 

DECISION ON SENTENCE

11 September, 2006 

1. KIRRIWOM J: Jackson Anias Ananias of Albinam Village, Maprik, East Sepik Province pleaded guilty to unlawful use of motor vehicle. The charge against the Prisoner is that on 10 may 2005, he unlawfully used a motor vehicle, a Nissan Navara Double Cabin registration number BBL 471, property of John Gordon Griffith, thereby contravening s.383 of the Criminal Code.

2. The facts upon which the prisoner was arraigned and pleaded guilty to the charge was that one John Gordon Griffith was held up by some boys at Papuan Compound and his motor vehicle Nissan Navara Double Cabin Registration number BBL 471 was stolen from him. The prisoner was on the road when the boys drove up in the stolen vehicle and stopped for him to jump into the vehicle. He knew the vehicle was stolen and still he jumped on it when invited on board.

3. But no sooner had they driven away from the scene leaving the helpless owner stranded on the road, a police vehicle arrived and upon being told of what happened went after the vehicle and pursued them into Biwat Compound where they saw the stolen vehicle parked in front of a house with doors wide open and the thugs were busy removing stuff from it. The police fired a warning shot and the thieves fled in all directions. The prisoner ran away and hid inside a toilet and was caught and taken into custody where he was subsequently charged.

4. He therefore appeared from custody and pleaded guilty to this charge. He expressed remorse for his actions and apologised also to the owner of the vehicle. He said while in custody he became quite sick that he has been regularly visiting the hospital. He was set to go for an operation but developed high blood pressure so his operation had been delayed to 19 September 2006. 

5. He has spent one year and five months in custody. The maximum for this offence is five years imprisonment. He has spent one fifth of the maximum term in custody awaiting trial. Maximum is usually reserved for the worst case of this type. This is not a worst case for the following reasons. First, no physical harm was inflicted on the owner, the vehicle was recovered without any damage, he cooperated with the police upon apprehension and he pleaded guilty to the charge thereby saving the State time and money running the trial.

6. The offence is expressed in these terms in the Criminal Code under subsection (2):

"A person who unlawfully uses a motor vehicle or aircraft without the consent of the owner or of the person in lawful possession of the vehicle or aircraft is guilty of a crime.

Penalty: Imprisonment for a term not exceeding five years."

7. Subsection (1) defines "unlawful use" as unlawful possession without consent of the owner or person in possession of the vehicle or aircraft with intent to deprive the owner or person in possession either permanently or temporarily.

8. In The State v Tom John Damu [2004] Unreported National Court Judgment, CR 712 OF 2004 (17 August 2004) the prisoner pleaded guilty to armed robbery and unlawful use of motor vehicle. He was sentenced to seven (7) years for the robbery and three (3) years for unlawful use of motor vehicle. Sentences made concurrent.

9. In The State v Dickson Talu [2005] Unreported National Court Judgment, CR 1385 OF 2004 (25 February 2005) where the facts were almost similar to this case in that the prisoner was not involved in the robbery of the motor vehicle which was stolen on the road but jumped on after when invited by his friends and he knew the vehicle was a stolen one. In that case I sentenced the prisoner to two years imprisonment with part suspension. 

10. I was referred by counsel in that case to a decision by my brother Kandakasi J in The State v Jimmy Banes Fre [2002] N2254 (24 July 2002) where His Honour proposed some tariffs for different levels of culpability. I am not opposed to guideline sentencing authorities but we must not be overly regimented in the way we must perform our sentencing discretions as judges by following certain sentencing trends because case law requires us to. I made the following remarks in that case:

"This often carries a maximum penalty of five years imprisonment under s.383 of the Criminal Code. I have read the judgment of Kandakasi, J in The State v Jimmy Banes Fre [2002] N2254 ( 24 July 2002) in which he discussed several of his own decisions where he proposed different tariffs and attempted to categorise the offence to different levels of criminal culpability for purpose of sentencing.
 
 I am content to apply the law as it is and not being regulated by some rigid formula especially when the maximum penalty prescribed by law is pitiful five years and to fix four to five years imprisonment for the most serious category of unlawful use of motor vehicle is already prescribing mandatory maximum penalty in the legislation in violation of long entrenched principles of reserving the maximum penalty for the worst offence of its kind. I would rather see that exercise of discretion be left to the trial judge and not prescribed by case law which is tantamount to usurping the function of the legislature.

 In my view the law already adequately provides for the worst scenario in this kind of case. The offender is either charged with robbery or attempted robbery. It can be a section 7 situation. But if it does resolve to a plea to unlawful use of motor vehicle through plea bargaining or negotiation, the trial count must be left with the ultimate discretion in applying the law as it is statutorily defined without being constrained by guided sentences or formulas. 

 Sentences for unlawful use have varied between suspension and the three years imprisonment"

11. Mr. Koi has referred me to the same decision of Kandakasi, J as well as to His Honour’s earlier decision in The State v James Gurave Guba [2000] Unreported National Court Judgment N2020 where he attempted to set some guidelines in sentencing in cases of unlawful use of motor vehicle in connection with armed robbery or otherwise, in which he suggested a term between 4-5 years where the offence is committed under serious aggravating circumstances such as serious injuries to the owner, damage to the vehicle or other properties and the offence is committed in furtherance of a serious crime of armed robbery, 3-4 years where the offence is committed with one or few of those factors in the first category are present such as taking of the vehicle by force without injuring the owner, driver and the vehicle which is recovered with minimal or no damage and where only a single factor in the first category exists falls in the third category which attract sentences in the lower category between 1-3 years or lower. 

12. I reiterate my view that much would really depend on common sense given that the maximum provided by the statute is normal and is really an alternative offence to a more serious one of armed robbery. For such a nominal offence I would rather say that the penalty regime must remain exclusively within the discretionary realm of the sentencing authority and not regulated by any structured case law. This liberty on the sentencing provision reinforces the aged old principle that every case must be determined on its own facts and merits and it applies equally to sentences. 

13. In this case I accept that the prisoner played no major part in the robbery of the vehicle itself. There is no such evidence that he did. His own confessional statement implicates him in the offence after the robbery of the vehicle had been completed when he was picked up on the road. He knew the people in the vehicle and no doubt he knew the vehicle did not belong to them. 

14. As I indicated to the defence counsel that given the condition of the prisoner, I am concerned about the additional responsibility now created by the prisoner’s predicament of ill-health that the prison authority must address which imposes upon it extra burden and a risk to the institution. I would rather say that the prisoner is attended to and assisted by his own family members given the difficult situation he is in than the prison authority which must commit its time and resources looking after the rest of the inmates.

15. The prisoner is a 28-year-old married man with one child and was residing at Papuan Compound at the time of this trouble. Both his parents are still alive in the village in Maprik District. 

16. In my view an appropriate sentence in this case is two years imprisonment. I deduct one year and five months for pre-trial custody period. This now leaves him with seven months to serve. In the exercise of my discretion under s.19 of the Criminal Code, I suspend the remaining seven months on the condition that:

1.	he enters into his own recognizance to keep peace and be of good behaviour for two years from today’s date.

2.	he shall return immediately to Albinam Village, Maprik, East Sepik Province as soon as his medical condition is returned to normal after the scheduled surgery is done at Angau Memorial Hospital.

_________________________________________

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Accused