State v Mailen [2007] PGNC 233; N5036 (11 December 2007)

N5036

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 699 OF 2006 & 496 OF 2007

THE STATE

V

NATHAN MAILEN &
JUNIOR LEO MAILEN

Kimbe: Cannings J
2007: 15 November, 7, 11 December

CRIMINAL LAW – sentencing – two offenders – multiple offences: unlawful compensation demand; armed robbery; grievous bodily harm.

Two brothers were convicted of two offences each, relating to two incidents involving their neighbours. In the first incident, one brother made an unlawful compensation demand and he pleaded guilty to committing that offence. In the second incident, the other brother committed the offence of doing grievous bodily harm and both brothers committed an armed robbery. They were convicted of the three offences arising from the second incident after a trial at which they pleaded not guilty.

Held:

(1) When sentencing multiple offenders for multiple offences, the court should arrive at a notional sentence for each offender for each offence, before determining whether the sentences should be served cumulatively or concurrently, applying the totality principle and deciding whether to suspend any part of the sentences.

(2) The two offenders were each convicted of two offences, so the court was required to fix four notional sentences, which were fixed as follows: unlawful compensation demand: 3 years; armed robbery: 8 years; armed robbery: 8 years; grievous bodily harm: 5 years.

(3) The total potential sentence for each offender was 11 years and 13 years imprisonment respectively. None of the sentences should be served concurrently as the offences to which they related involved, in the case of one of the offenders, different incidents, and, in the case of the other offender, different victims.

(4) However, sentences of 11 years and 13 years would be excessive so under the totality principle were reduced to 8 years and 9 years respectively. The first offender had his pre-sentence period in custody deducted from the sentence but for the second offender, that period had already been deducted in a previous case and so could not be deducted in the present case.

(5) Three years of each total sentence was suspended on conditions including payment of compensation to the victims of the crimes.

Cases cited

The following cases are cited in the judgment:

Gimble v The State [1988-1989] PNGLR 271
Mase v The State [1991] PNGLR 88
Phillip Kassman v The State (2004) SC759
Public Prosecutor v Kerua [1985] PNGLR 85
The State v Bob Ananias CR 1413 + 1414/2003, 20.04.06
The State v Charlie Kevin, Worex John and Demas Dano CR Nos 1627-1629/2006, 21.03.06
The State v James Negol (2005) N2801
The State v Junior Leo Mailen CR No 965 of 2004, 11.12.07
The State v Lucas Soroken Sembengo, Bob Alois Wafu & Raphael Lawrence Mandal (2006) N2801
The State v Mogi Konda CR No 1316/2005, 19.04.05
The State v Nicodemus Badui CR 683/2007, 17.08.07
The State v Ria Bernard CR 374/2005, 20.05.05
The State v Rodney Gela and Clarence Logi CR 1300 + 1301/2005, 27.10.05
Tom Longman Yaul v The State (2005) SC803

SENTENCES

This was a judgment on sentence for two offenders convicted of two offences each.

Counsel

F Popeu & C Sambua, for the State
B Tanewan, for the offenders

11th December, 2007

1. CANNINGS J: This is a decision on the sentences for two brothers, Junior Leo Mailen and Nathan Mailen, who have each been convicted of two offences, which arise from two separate incidents at the Sarakolok oil palm settlement, near Kimbe. In the first incident, on 5 March 2004, Nathan made an unlawful compensation demand to a neighbour, Gelong Bakrek. It was about 6.00 pm and Nathan was drunk. He went to Gelong's block with Junior and their cousin, David Mabo. Nathan was shouting and swearing and demanding K200.00 compensation for Gelong's son allegedly trying to have a sexual relationship with his sister. He threatened violence against Gelong, a man aged in his 50s, and his wife and daughter. A fight erupted and Nathan punched Gelong and his daughter, without causing serious injuries. Gelong paid over the K200.00. Though it went to someone other than Nathan, I convicted him of an offence under Section 390A of the Criminal Code, after he pleaded guilty. It is not an element of the offence that the accused actually receive what was demanded. It is the demand for compensation plus the threats or use of violence that make a person guilty.

2. In the second incident, on 25 March 2004, three offences were committed, two by Junior and one by Nathan. They both staged an armed robbery and Junior did grievous bodily harm to a woman who tried to raise the alarm when she discovered the robbery was taking place. They were convicted after a trial at which they pleaded not guilty. They joined with their cousin in raiding a neighbouring oil palm block. It was about 7.00 pm and they were drunk. They were angry over the failure of the people on that block to settle payments of compensation that they had agreed to pay Junior and Nathan over a previous incident. They tried to gain forced entry to a family home and threatened violence to the people inside and in the process stole K200.00 cash from the lady of the house, Rau Kiniong. Another lady living close by Kellina Kero, heard the commotion and tried to go and get help but Junior swung his bushknife at her and cut her on the hand, causing a permanent injury. They have to be sentenced in this way:

Nathan

• one count of making an unlawful compensation demand arising from the first incident; and
• one count of armed robbery arising from the second incident.
  

Junior

• one count of armed robbery arising from the second incident; and
• one count of doing grievous bodily harm arising from the second incident.
  

ANTECEDENTS

3. Neither offender has any prior convictions.

ALLOCUTUS

4. I administered the allocutus, ie each offender was given the opportunity to say what matters the court should take into account when deciding on punishment.

Nathan: I say sorry for what I did to Gelong Bakrek. I say sorry for breaking the law. I say sorry to the ladies and gentlemen in the courtroom. This is my first time to be in trouble with the law. I ask for mercy and probation. As for the second offence of which I have been found guilty I disagree with what the victim said. It was not me who robbed her. I still say it is untrue.

Junior: the court has found me guilty but I did not commit these crimes. The victims who identified me were wrong. I would like the court to give me probation so that I can harvest some oil palm and pay these people compensation.

PRE-SENTENCE REPORTS

5. Nathan has a more favourable report than Junior.

6. Nathan Mailen: 21 years old, married with two children. His family comes from Ilipaim, Maprik, East Sepik Province, but he was raised at Sarakolok. Both parents are deceased. He is the second born in a family of three. He belongs to the AOG Church. He is educated to grade 8 and once had a job before leaving on his own accord. He is self-supporting financially, from the sale of oil palm. There is an ongoing dispute with his uncle as to the ownership and control of the oil palm block of his parents. The victims of his crimes have not received compensation. He is regarded as a quiet person in the local community but can become uncontrollable when under the influence of liquor. Local community leader Danny Mausen is prepared to try to rehabilitate him if he is given a non-custodial sentence. The report concludes that he is suitable for probation.

7. Junior Leo Mailen: 24 years old, married with two children. His family comes from Ilipaim, Maprik, East Sepik Province, but he was raised at Sarakolok. Both parents are deceased. He is the first born in a family of three. He belongs to the New Apostolic Church. He is educated to grade 6 and has never been wage employed. He is self-supporting financially, from the sale of oil palm. There is an ongoing dispute with his uncle as to the ownership and control of the oil palm block of his parents. The victims of his crimes have not received compensation and the offender has shown no interest in apologising or reconciling. It seems that he has a problem with alcohol and this has contributed to an overall attitude problem. Local community leader Danny Mausen is prepared to try to rehabilitate him if he is given a non-custodial sentence. The report does not, however, contain a strong recommendation for probation.

SUBMISSIONS BY DEFENCE COUNSEL

8. Mr Tanewan submitted that Nathan should receive notional sentences of three years (unlawful compensation demand) plus six years (armed robbery), to be served cumulatively but reduced under the totality principle and suspended due to his good pre-sentence report. As for Junior, his notional sentences should be six years (armed robbery) plus five years (grievous bodily harm), to be served cumulatively but reduced under the totality principle. The court should also take into account that Junior is being sentenced on the same day, in a separate case, for two other offences. As a matter of discretion the court should ensure that it does not impose crushing sentences on a young man. Though his pre-sentence report is not as favourable as Nathan's, Junior should be given the same treatment as his brother and his sentence should be suspended.

SUBMISSIONS BY THE STATE

9. Mr Sambua submitted that the sentences for armed robbery should reflect the very serious nature of the crime, as a family home was invaded at night. The starting point must be ten years. He agreed that the totality principle may warrant a reduction of the overall sentence for each offender and particularly Junior, who has another sentence to serve arising from the other case.

DECISION MAKING PROCESS

10. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty for each offence?
• step 2: what is a proper starting point for each offence?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence for each offender, for each offence?
• step 5: should the sentences be served concurrently or cumulatively?
• step 6: what is the effect of the totality principle?
• step 7: should the pre-sentence periods in custody be deducted?
• step 8: should all or part of each sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY FOR EACH OFFENCE?

11. Nathan: For making an unlawful compensation demand under Section 390A(a) and (b)(i) of the Criminal Code – the maximum sentence is seven years imprisonment. For armed robbery under Sections 386(1), (2)(a) and (2)(b) of the Criminal Code – the maximum sentence is life imprisonment.

12. Junior: For armed robbery under Sections 386(1), (2)(a) and (2)(b) of the Criminal Code – the maximum sentence is life imprisonment. For doing grievous bodily harm under Section 319 of the Criminal Code – the maximum sentence is seven years imprisonment.

13. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT FOR EACH OFFENCE?

14. Nathan: For the unlawful compensation demand the starting point should be at the middle of the range. Therefore I will use three and a half years as a starting point. For armed robbery of a family home, Supreme Court sentencing guidelines suggest a starting point of ten years imprisonment (Gimble v The State [1988-1989] PNGLR 271; Phillip Kassman v The State (2004) SC759).

15. Junior: For the armed robbery offence, the starting point is the same as for Nathan: ten years. For doing grievous bodily harm to another person I will use three and a half years as a starting point.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

16. Nathan: For the unlawful compensation demand the only available precedent is the other case involving Junior, The State v Junior Leo Mailen CR No 965 of 2004, 11.12.07, in which I imposed a sentence of three years for a similar offence: demanding compensation and issuing threats of personal violence. For armed robbery of a family home, sentences have ranged from four years to 12 years as shown in the following table.

SENTENCES FOR ARMED ROBBERY OF A FAMILY HOME

No	Case	Details	Sentence
1	The State v James Negol (2005) N2801	Guilty plea – home invasion, Section 15, Kimbe – young offender – gang robbery – firearms used – K5,300.00 stolen.	7 years
2	The State v Mogi Konda CR No 1316/2005, 19.04.05	Guilty plea – home invasion, Kapore, near Kimbe – in company with one other person – mature aged man – K22.00 stolen.	5 years
3	The State v Lucas Soroken Sembengo, Bob Alois Wafu & Raphael Lawrence Mandal (2006) N2801	Trial – home invasion, Barema – young offenders – gang robbery – firearms used – K460.00 stolen.	12 years, 12 years, 12 years
4	The State v Charlie Kevin, Worex John and Demas Dano CR Nos 1627-1629/2006, 21.03.06	Guilty plea – house robbery, Hamamas Trading compound, Mamota – gang of nine – guns and knives – K600.00 cash, firearm, camera stolen – different sentences due to different degrees of involvement and different ages.	6 years, 4 years, 4 years

17. For armed robbery, the precedents are the same as for Junior.

18. Junior: For doing grievous bodily harm to another person sentences have ranged from three to six years as shown in the following table.

SENTENCES FOR GRIEVOUS BODILY HARM, SECTION 319

No	Case	Details	Sentence
1	The State v Ria Bernard CR 374/2005, 20.05.05	Guilty plea – 29-year-old offender was under the influence of alcohol – cut his brother with a bushknife – then cut his father when he came to his brother's aid – life threatening injuries.	4 years each count; total 8 years, cumulative
2	The State v Rodney Gela and Clarence Logi CR 1300 + 1301/2005, 27.10.05	Guilty plea – victim and both co-offenders had been drinking – argument between one of the offenders and victim – degree of participation or type of weapons used – bushknife and a tree branch – victim stabbed in abdomen, suffers permanent injury.	6 years, 4 years
3	The State v Bob Ananias CR 1413 + 1414/2003, 20.04.06	Guilty plea – offender believed that two people were sorcerers and made his mother sick – he held the victims captive then assaulted them – he injured one of them badly, slashing him with a bushknife, injuring his leg and cutting off one finger – victim stabbed in abdomen, suffers permanent injury.	3 years
4	The State v Nicodemus Badui CR 683/2007, 17.08.07	Guilty plea – offender got drunk, went to someone else's house, armed with grassknife, angry with someone he suspected of having affair with his wife – had altercation with occupants of house during the course of which he wounded one of them, severing two of his fingers.	4 years

STEP 3: WHAT IS THE HEAD SENTENCE FOR EACH OFFENDER, FOR EACH OFFENCE?

19. I am sentencing two offenders for two offences each. I must therefore arrive at 2 x 2 = 4 notional sentences before determining whether the sentences should be served cumulatively or concurrently, applying the totality principle and deciding whether to suspend any part of the sentences.

Nathan

Unlawful compensation demand

20. Mitigating factors are:

• pleaded guilty;
• expressed remorse;
• first offender;
• did not use offensive weapon to make threats;
• de facto provocation (provided by the incident involving his sister).
  

21. Aggravating factors are:

• threats of violence;
• assaulted people;
• danger of people being seriously injured.
  

22. I fix the same head sentence as in Junior's other case: three years imprisonment.

Armed robbery

23. Mitigating factors are:

• no actual physical violence committed;
• relatively small amount of money stolen;
• no firearms used;
• first-time offender;
• youthful offender (aged 18 at the time).
  

24. Aggravating factors are:

• victims threatened and traumatised by the robbery;
• did not play minor role;
• real danger of people being injured;
• vulnerable victims (all the occupants of the home were females);
• no reconciliation or compensation evident;
• did not plead guilty;
• no remorse.
  

25. Having weighed those factors against the starting point of ten years and compared this with other armed robbery cases, a sentence below the starting point is warranted. I fix a head sentence of eight years imprisonment.

26. The total potential sentence for Nathan is:

3 years (unlawful compensation demand) + 8 years (robbery) = 11 years

Junior

Armed robbery

27. Junior had the same degree of involvement as Nathan and his personal circumstances are similar. Therefore he should get the same sentence: eight years.

Grievous bodily harm

28. Mitigating factors are:

• injury caused by a single blow;
• he acted alone;
• first-time offender.
  

29. Aggravating factors are:

• dangerous weapon used;
• vicious assault;
• no compensation or reconciliation;
• did not plead guilty;
• no remorse;
• victim has suffered a permanent injury.
  

30. Having weighed those factors against the starting point of three and a half years and compared this with other grievous bodily harm cases, a sentence above the starting point is warranted, particularly as this was a trial. I fix a head sentence of five years imprisonment. The total potential sentence is:

8 years (armed robbery) + 5 years (grievous bodily harm) = 13 years

STEP 6: SHOULD THE SENTENCES BE SERVED CONCURRENTLY OR CUMULATIVELY?

31. The general rule is that if two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent unless there are different victims (Public Prosecutor v Kerua [1985] PNGLR 85; Mase v The State [1991] PNGLR 88). Here, none of the sentences should be served concurrently as the offences to which they related involved, in the case of Nathan, different incidents, and, in the case of Junior, different victims. The sentences will be served cumulatively, subject to the totality principle.

STEP 7: WHAT IS THE EFFECT OF THE TOTALITY PRINCIPLE?

32. I now look at the total sentence that each offender is potentially facing to see if it is just and appropriate having regard to the totality of the criminal behaviour involved. The court needs to guard against imposing crushing sentences, those that are over the top or manifestly excessive.

33. Nathan: I consider that 11 years would be excessive. The offences were committed three years ago when he was only 18 years old. Despite the serious nature of the offences he has committed, he has a good reputation in the local community. I reduce the total sentence to eight years and apportion it as follows:

• unlawful compensation demand: 2 years;
• armed robbery: 6 years.
  

34. Junior: I consider that 13 years would be excessive. The offences were committed three years ago when he was only 21 years old. He does not have a good pre-sentence report but I take into account that today, I have sentenced him in another case for two offences stemming from the same sort of problems he and his family have been having with their neighbours at Sarakolok. I reduce the total sentence to nine years and apportion it as follows:

• armed robbery: 6 years;
• grievous bodily harm: 3 years.
  

STEP 8: SHOULD THE PRE-SENTENCE PERIODS IN CUSTODY BE DEDUCTED FROM THE TERMS OF IMPRISONMENT?

35. Nathan: Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment, the whole of the pre-sentence period in custody which is two years.

36. Junior: No. I have already given him a deduction in the other case in which I have sentenced him today. He cannot get two deductions for the same time spent in custody.

STEP 8: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

37. Nathan's favourable pre-sentence report clearly warrants suspending part of the sentence – but not the whole sentence as the community, especially the people of Sarakolok, must understand that people who commit these sorts of offences against their neighbours will be dealt with severely. With Junior, it has been more difficult for his defence counsel to make a case for suspension as the pre-sentence report is not favourable. However, with some time in prison to get his life in order, I think there is a good chance that he will reform. I will suspend three years of each sentence on the following conditions:

1. in the case of Nathan, must, before release from custody, pay K500.00 compensation to Galeng Bakrek plus K500.00 compensation to Rau Kiniong AND in the case of Junior, must, within six months after release from custody, pay K500.00 compensation to Rau Kiniong and K1,000.00 compensation to Kellina Kero;
   
2. must within five days after release from custody attend the Probation Office and submit to directions from the Senior Probation Officer;
   
3. must within one month after release from custody participate in a reconciliation ceremony supervised by local community leaders and witnessed by the Probation Officer;
   
4. must reside at a place notified to the Probation Office and nowhere else except with the written approval of the National Court;
   
5. must not leave WNB Province without the written approval of the National Court;
   
6. must perform at least six hours unpaid community work each week at a place notified to the Probation Office under the supervision of a reputable person;
   
7. must attend his local Church every weekend for service and worship and submit to counselling;
   
8. must report to the Probation Office at Kimbe on the first Monday of each month between 9.00 am and 3.00 pm;
   
9. must not consume alcohol or drugs;
   
10. must keep the peace and be of good behaviour;
    
11. must have a satisfactory probation report submitted to the National Court Registry at Kimbe every three months after the date of sentence;
    
12. if any of the offenders breach any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.
    

38. The last condition is very important. If any of these conditions is breached, any person may report the matter to the police or to any person nominated to supervise the offender or to the Probation Office, any of whom may bring the matter to the attention of the National Court. The Court may then issue a warrant for arrest of the offender and he can be brought before the Court to show cause why he should not be sent to jail to serve the rest of his sentence (Tom Longman Yaul v The State (2005) SC803).

SENTENCE

39. Nathan Mailen and Junior Leo Mailen, having each been convicted of two offences under the Criminal Code, are sentenced as follows:

Calculation	Nathan Mailen	Junior Leo Mailen
Length of sentence Imposed	8 years	9 years
Pre-sentence period deducted	2 years	Nil
Resultant length of sentence to be served	6 years	9 years
Amount of sentence suspended	3 years	3 years
Time to be served in custody	3 years, subject to compliance with conditions of suspended sentence	6 years, subject to compliance with conditions of suspended sentence

Sentenced accordingly.
______________________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the offenders