N4173

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 778 OF 2008

THE STATE

v

KOIVI IPAI (NO. 2)

Waigani: Kawi, J
2010: 11th And 12th March & 16th & 28th July

CRIMINAL LAW – Sentence- Offence of police officer wilfully permitting a prisoner to escape from lawful custody - prisoner a police officer and a law enforcer permitting a law breaker and a suspect for break and enter and stealing to escape from lawful custody- policeman breached the Police oath of duty to enforce, maintain and uphold the rule of Law - Offence classified as a non violent offence as no one was hurt nor properties damaged in the perpetration of this offence - no one benefitted from the commission of this crime - Escapee still at large - Offender a Police officer of more than thirty years - Sentencing range for non violent crimes considered - ten(10) months head sentence imposed but fully suspended with orders to do community work. 

Cases cited

Aloises Peter Iboro Kovei –v the State [2001] SC 676
The State –v- Martin Sahin Terea [2005] N2816
The State –v- Wellington Belawa [1988-89] PNGLR 496
State-v- Steven Molu Minji, Simon Koso Kerenga, Didi Gelwak Sakol, John Minji and James Kauboi [2009] N3794.
The State –v- Betty Kaime, unreported and unnumbered judgment of Makail J dated 13th November 2008.
Dorren Liprin –v- The State [2001] SC 673
The State –v- Jan Tundubo & 4 ors, unnumbered and unreported judgment of Makail J dated 10th December 2008.
The State –v- Morgan Bae, CR 990 of 2009 unnumbered judgment of Kawi J dated 25th March 2010
The State –v- Roger Meckpi (2010) CR 770 of 2010 Unnumbered and unreported judgment of Kawi J dated 16th April 2010.
Richard Liri- v The State (2007) SC 883
The Acting Public Prosecutor -v- Don Hale (1998) SC564

Cases Referred

Avia Aihi –v- the State (N0.3) [1982] PNGLR 96
Goli Golu –v- the State [1979] PNGLR 653

Counsel:

Mr T Ai and Mr A. Bray, for the State 
Mr. D. Dusal, for the Accused

DECISION ON SENTENCE

16th April, 2010

1. KAWI, J: The accused Koivi Ipai was indicted and he pleaded not guilty on arraignment to one count of wilfully permitting a prisoner to escape from custody which is contrary to section 140 of the Criminal Code. 

THE STATE ALLEGATIONS

2. The prisoner, a policeman is a cell guard manning the Boroko Police Station. 

3. The State alleges that the accused whilst on duty on the 28th December 2007 from 3:00pm to 11:00pm as a cell guard at the Boroko Police Station wilfully permitted a prisoner, who was facing serious criminal charges of break and enter and stealing, to escape from lawful custody. After a lengthy trial the accused was found guilty and accordingly convicted.

4. This is now my judgement on sentence and penalty.

ALLOCUTUS

5. In allocutus you pleaded leniency and asked me to exercise my discretion to impose a non custodial sentence upon you. You asked me to take into account these matters:

(a)	You are a family man with five (5) children. Three of these children are in High School while two are in Primary School. You indicated that as all your children are still in school, they depend entirely upon you for their daily upkeep and educational needs. You stressed that the school fees are all paid for by yourself.

(b)	You also asked the Court to consider the fact that you are the only breadwinner of your household. Your entire household needs are provided by you. Your wife is a housewife and depends upon you to provide much needed support for herself and the Children.

(c)	 You expressed remorse for your actions, by saying sorry to the court for what you did. You apologized and told the court that this was the first time out of the thirty plus years that you have served in the Police Force, that you have committed a criminal offence. 

PRE- SENTENCE REPORT AND THE MEANS ASSESSMENT REPORT

6. A Pre-Sentence Report and Means Assessment Report was carried out on you by the Probation Services of the Justice Department. It was tendered into court and relied upon by your counsel in his address on sentence. I will refer to important aspects of this report later on in my judgment. 

7. The Pre-Sentence Report covered your family background, your marital status, your educational background and your employment history. The Report also sought the views of your former Officer In Charge of the Boroko Police Station cells, Mr Mathew Timbil who spoke well of your past working record. He also mentioned that as the current Officer in charge of all Police Barracks in NCD he has been receiving numerous complaints especially from wives of policemen. The complaints are about policemen neglecting their wives and children. Whilst this is a common complaint from policemen's wives, he has never received any complaints from the wife of the accused. Mr Timbil made this point to show that you are a good strong family man, who puts the welfare of you family ahead of other social matters and obligations. Apart from Mr Timbil the new OIC in charge of Cells Chief Sergeant Sevigil Jerry was also interviewed. He mentioned that you never worked under him and so he can't say much about you. You also undertook not to come into conflict with the law again.

8. You were also asked about your attitude to the offence you committed. You basically maintained your innocence, but expressed remorse. Finally the Report contained a recommendation from the Probation Officer recommending that you are a very suitable candidate for probation. The Report then contains the reasons why it recommended that a non custodial sentence be imposed upon you. These reasons are:

(a)	 The offender is a first time offender with no past criminal record;
(b)	The offender is not a threat to the community;
(c)	The offender is the only bread winner in the family and the future of his five young children are likely to be jeopardized without their father's presence if ordered custodial sentence. The Report mentions that the Offender's wife is unemployed and the entire family depends entirely on the offender for their daily upkeep and house hold needs. This includes paying for all school fees for the children in school and their educational needs.

9. I have read through the Report and find that it sought views from both the Police Department as your present employer as well as members of your family. I am satisfied with the Report as being a fair and balanced report and I therefore accept it. 

THE LAW

10. By wilfully permitting a prisoner to escape from custody you have breached section 140 of the criminal code and I have accordingly convicted you of committing that crime. The crux of this crime is that you are a law enforcing officer virtually permitting a law breaker, the very rule of law that you are supposed to uphold, maintain and enforce, to escape from lawful custody.

11. Section 140 of the Criminal Code is stated in the following terms: -

140. PERMITTING ESCAPE.

A person who, being an officer of a prison or police officer, and being charged with the custody of a prisoner in lawful custody, wilfully permits him to escape from custody is guilty of a misdemeanor.

Penalty: Imprisonment for a term not exceeding three years.

12. This offence is one of those offences that is also punishable summarily under schedule 1A.

13. The seriousness of this offence is indicated by the term of sentence prescribed for this offence which in this case is a custodial term of three years. 

14. Do I impose the three years upon you? I am of the view that the prescribed maximum penalty of three years should only be reserved for the cases categorized as the worst type or worst category cases. 

Is This Case a Worst Type or Worst Category Case?

15. In deciding whether this is a worst type or worst category case, there is no set criteria to guide me to categorize whether your case here is of the worst type or a worst category case. Since there is no defined criteria, I propose to follow the criteria used by different National Court judges in dealing with and classifying cases of wilful damage to property. The first of these cases is the case of The State –v-Martin Sahin Terea [2005] N2816, There the accused was charged with wilfully damaging office equipment consisting of a computer, photo copier, printer cables and a printer. Cannings J categorized the case as a non violent case as no one was hurt in the melee or no other property was damaged apart from causing extensive damage to the office equipment. Makail J took a similar approach in the cases of The State –v- Betty Waime, unreported and unnumbered judgment of Makail J dated 13th November 2008 and The State –v-Jan Tundubo unnumbered and unreported judgment of Makail J dated 10th December 2008.

16. In both these cases the accused persons were charged with wilfully damaging property belonging to other persons. His Honour classified them as non violent cases in which no other persons were hurt or sustained injuries. I took the same approach in The State –v- Roger Meckpi, CR 770 of 2010 Unnumbered and unreported judgement of Kawi J dated 16th April 2010. Again this case involved an accused person damaging another person's vehicle. The damage costs for the repairs of the damaged vehicle were assessed at K10,924.34. During the perpetration of that crime no other persons were hurt or sustained injuries and no other properties were destroyed. 

17. The trend in all these cases that I have just referred to above, is that they were categorized as cases of a non violent nature and therefore not categorized as being of the worst type or the worst category cases.

18. Guided by those decisions, I find that in the present case, no one was hurt nor properties destroyed at the time of the commission of this offence. Neither was physical violence used to perpetrate this great escape of the prisoner. Using that criteria, I will therefore categorize this case as a non violent case. Neither can this case be said to be in the worst category or worst type case. 

19. In deciding the appropriate penalty for you I will have to start at three years as my convenient reference or starting point and then adjust down. When a court is sentencing a person found guilty of committing an offence, it takes into account several legal principles of law to guide it to arrive at an appropriate sentence for the offender. This is to ensure that the objectives of punishment are met including the rehabilitation of the prisoner, deterrence, restitution and retribution.

20. One of the well established principles of law in our jurisdiction is that the maximum penalty prescribed by the legislation itself is always reserved for the worst type of offences under scrutiny. I have already said that this is not a worst type or worst category case which means that I will not impose the maximum of three years jail sentence upon you.

21. Many cases in our jurisdiction have acknowledged and applied this principle of law. One such case is the Supreme Court decision in the case of Aloises Peter Iboro Kovei –v- the State [2001] SC 676. That was a case where the appellant appealed inter alia a life imprisonment sentence imposed by the National Court for the brutal killing of a young woman for her abduction and rape. Amet CJ, Gavara – Nanu and Kandakasi JJ made the following pertinent comments:

"It is a well accepted principle in our jurisdiction now, that the maximum penalty prescribed by the legislature should be reserved for the "worst type or "worst category" of the offence under consideration. This has been made abundantly clear in the context of wilful murder cases. For example, the Supreme Court in Avia Aihi –v- the State (N0.3) [1982] PNGLR 96 referred to its earlier decision in Goli Golu –v- the State [1979] PNGLR 653" where it was said: 

"In fact this court has said that the maximum sentence for any offence (including wilful murder) should be reserved for the most serious instance of a particular offence".

22. This principle of law has its genesis in the sentencing discretion vested in the Court by section 19 of the Criminal Code. Section 19 actually gives the Court the discretion to impose a lesser penalty upon an offender if the factual circumstances of a case do not establish a "worst case" category. How I exercise that discretion depends upon the factual circumstances of a case under scrutiny. More importantly the Court will look at the factual circumstances of how you perpetrated this crime, the mitigating factors operating in your favour and the aggravating factors operating against you. This then brings me now to consider the mitigating factors operating in your favor. 

MITIGATING FACTORS

23. The factors operating in your favor are the following:

(a)	 You are a first offender;

(b)	 You are married with five(5) children. All your five children five (5) are in school. Three are in High School and two are in Primary School. Your wife is not engaged in any form of formal employment. She is in fact a house wife.

(c ) You also asked the Court to consider the fact that you are the only breadwinner of the house. Your entire household needs are provided by you. Your wife is a housewife and depends upon you to provide much needed support for herself and the Children. Even your children's educational needs are provided by you. You are therefore the only bread winner in your household.

(d)	 You expressed remorse for your actions, by saying sorry to the court for what you did. You apologized and told the court that this was the first time out of your the thirty plus years in the Police Force that you have committed a criminal offence.

(e)	The court finds that you are not someone who can be classified as being a threat to the community.

(f)	 The court also finds that you did no harm to anyone else or the property of anyone, let alone Police property, when you wilfully permitted the prisoner to escape from the custody of the Boroko Police Station. In fact the court finds that no form of violence was used to perpetrate this escape. 

AGGRAVATING FACTORS

24. All your good mitigating factors are, aggravated by a number of factors. I find these to be as follows:

(a)	 The most serious of these factors is that you are a policeman. Like all the other policemen and women you took an oath to maintain, enforce and uphold the rule of law and to protect property and people of Papua New Guinea. You also undertook the oath by placing your hand on the Holy Bible to maintain and enforce the rule of law without fear or favour and without malice or ill will. By placing your hands on the Holy Bible you asked Almighty God to be your witness and to guide you as you go about discharging your duties as a law enforcer. By wilfully permitting a prisoner to escape from lawful custody, you not only committed a crime, but also breached the very oath you took as a Policeman to uphold, maintain and enforce the rule of law. The Oath that you took should not be taken as mere uttering of some strange comical words. Rather it should be taken as a solemn and sacred declaration to do something good and naming Almighty God not only to be your witness but to help and guide you along as you go about performing your duties. I therefore find that you breached your duty to the State to uphold, maintain and enforce the rule of law. 

(b)	 Secondly and equally a very strong aggravating is the fact that you are a law enforcing officer who took the oath not only to enforce the law but to uphold it and maintain the rule of law, and yet you permitted an alleged law breaker to escape from lawful custody. Here we are, a law enforcer officer permitting a law breaker to escape from facing the full consequences of his criminal actions.

(c)	 Thirdly you did not plead guilty and a lengthy trial was conducted to determine whether or not you committed the offence. You were eventually found guilty and convicted only after a long trial. By pleading not guilty you put the State to great length and expense to prove its case. I will therefore hold this factor against you. 

(d)	 Fourthly the prisoner that you permitted to escape has never been re-captured. He is still at large. The State will have to spend and waste a lot of money, time and resources and energy and manpower to investigate and recapture him.

25. The factors that I have outlined above are very strong aggravating factors that I will hold against you. 

26. It is for that reason that the State submits that when the aggravating and mitigating factors are balanced out, the aggravating factors tip the scale. For this reason it submits that I should impose a custodial sentence of one to two years upon you.

27. I generally agree that when I do a balancing act between factors operating in your favour and those operating against you, I find that those against you tip the scale. This is more so due to the fact that you are a law enforcing officer virtually helping an alleged law breaker to escape the consequences of his criminal actions from the very law that you swore to uphold, maintain and enforce. This becomes very relevant when I proceed on to consider what an appropriate sentence for you would be in this case. 

28. In considering appropriate sentence, I am mindful of the sentencing discretion vested upon the court by virtue of section 19 of the criminal Code. I have already determined that your case cannot be classed as belonging to the worst type or worst case category. In your case no-one was injured or no violence was used to perpetrate this crime. Neither is there evidence to suggest that anyone benefitted financially or otherwise from the commission of this crime. And in those circumstances, what is the head sentence that I should impose?

WHAT IS THE HEAD SENTENCE I SHOULD IMPOSE?

29. Judges often refer to a starting point when they are determining a sentence. By that they mean a reference point. Usually a good reference point is a sentence in a previous case, against which the case being dealt with can be measured and assessed. For instance, in misappropriation cases a convenient starting point for judges has always been the case of Wellington Belawa – v- The State. Depending on the circumstances of the case, judges then adjust the sentence upwards or down wards. The judge assess whether the case being dealt with is more, or less serious than the starting point case. If it is to what extent is it more serious or less serious? In the present case both counsels were very helpful in their respectful submissions which will help me to compute an appropriate sentence for you. Neither counsels nor myself have come across comparable verdicts on the basis of which I can use as a good reference point, or as a convenient starting point. 

30. In considering an appropriate sentence for you, I must remind myself that sentencing is not an exact science. It is a discretionary process, guided by factors which I have already mentioned. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be strongly mitigating, while others may be only mildly mitigating. The same goes for aggravating factors.
 
31. Be that as it may, I must start somewhere. I propose to start by taking as a suitable starting point, the maximum penalty fixed by legislation, which is three years since there are no decided cases on this point that I can use as a convenient reference point. 

32. In absence of decided cases, your counsel Mr Dusal submits that I should utilize section 19 of the Criminal Code to impose a suspended non- custodial sentence along with other conditions like placing you on a good behavior bond and ordering you to do community work. He further submits that if I impose a non custodial sentence, then I must also order you to do community work. In this regard he submits that I should order you to perform community work particularly cutting grass and cleaning around the Games village Barracks for four hours a week. 

 33. Mr Bray on the other hand submits that since the legislation prescribes a maximum of three years sentence imprisonment, I should consider imposing a custodial sentence between one (1) to two (2) years considering that the aggravating factors far outweigh the mitigating factors. Alternatively he submits that if I consider imposing a non custodial sentence, then I should place you on a good behavior bond together with other strict conditions such as ordering you to do community work. On this point he agrees with your counsel, Mr Dusal.

YOUR SENTENCE

34. This than brings me to consider the punishment in your case. As I said above, there are no decided cases on this point to give me an indication of the sentencing trend in this kind of cases. However in cases of a non violent nature, there are indeed sentencing trends that I think I can refer to and used as a convenient starting point. The case of Dorren Liprin –v- The State [2001] SC 673 (Amet CJ, Kapi DCJ, Los J) is a leading case which examines the conflicting interests to be balanced whenever a person is punished for a crime of non physical violence. A judge should, for the purposes of imposing an effective punishment that will rehabilitate an offender, explore all options before taking what might be regarded as the drastic step of imposing a prison sentence. 

35. I regard the present case as a non violent case as nobody was injured or no other property was damaged. The sentencing trend in non physically violent cases that I will take into account are the cases dealing with wilful damage to property. The first of these cases is the case of The State –v- Betty Kaime, unreported and unnumbered judgment of Makail J dated 13th November 2008. In that case the offender wilfully damaged a police vehicle by smashing the windscreen with a stone after she discovered her policeman husband transporting her girl friend in a police vehicle. She was provoked by this conduct and became very frustrated and angry. The court classified this case as a non violent case. The value of the damage was assessed at K1,200.00. Taking into account all factors in her favour Makail J imposed a head sentence of six months which was then fully suspended with orders for restitution and the performance of other strict conditions.

36. The second case I consider is the case of The State –v Jan Tundubo & 4 Ors, unnumbered and unreported judgment of Makail J dated 10th December 2008. In that case, the offenders armed themselves with axes and knives and went into a primary school and entered the office of the school principal. They destroyed the computer, the printer and printer cables, scanner and the photocopier. The costs of all these damaged school items stood at K16, 442.80. Again the court classed this case as a non violent case. Makail J imposed a head sentence of 1 year but then had it wholly suspended with strict conditions including restitution.

37. The third case is the case of the State-v- Steven Molu Minji, Simon Koso Kerenga, Didi Gelwak Sakol, John Minji and James Kauboi [2009] N3794. The accused were found guilty after a lengthy trial for destroying more than 2000 coffee trees owned by the Catholic Church in Mt. Hagen. The value of the destroyed coffee trees were assessed at K45, 658.80. Except for Didi Gelwak Sakol, Makail J sentenced the accused persons to one year in prison to be served with hard labor after he found that the mitigating factors were outweighed by the aggravating factors. No part of the sentence was suspended. 

38. The fourth case I consider is the State –v- Martin Sahin Terea [2005] N2816. The accused was a Public Servant employed by the Office of Tourism within the Bougainville Autonomous Administration. After being frustrated and angry over work conditions in the office and the alleged corruption involving his superior the accused got drunk and armed himself with a screw driver and caused extensive damage to the office equipment comprising, computer and a photo copier. While there was some dispute as to the actual value of the damage, Cannings J classified this as a non physically violent case and fixed the damage value at K2000.00. In the end he imposed a head sentence of 1 year imprisonment, but had it fully suspended and imposed very strict conditions including restitution and being placed under the supervision of the Provincial Welfare Officer to perform Community service for the duration of his suspended sentence. 

39. The final case I refer to here is the case of the State –v- Roger Meckpi, CR 778, unnumbered and unreported judgement of Kawi J dated 16th April 2010. That was a case in which the accused pleaded guilty to a charge of wilfully damaging a vehicle of another person. The cost of the repairs were assessed at K10, 924.34. I imposed a head sentence of ten (10) months after I classified the case as being of a non violent nature. I then had the custodial sentence of ten (10) months fully suspended and placed the prisoner on a two year good behavior bond as well as ordering him to do restitution and perform other community works.

40. The sentencing trend reflected by the cases which have been classified as non violent cases, some of which I have just referred to above, show three things:

(a)	That the custodial head sentences were all fully suspended.

(b)	In lieu of that community works were ordered to be performed together with other strict conditions imposed upon the offenders. There can be no suspension of sentence without imposing any conditions.

(c)	There must be a Pre Sentence Report prepared by the Probation Services, recommending the imposition of non custodial sentences.

41. I must therefore look at these kind of sentencing options first, before I take the drastic option of imposing a prison sentence. It is an important aspect in criminal law sentencing that, sentencing tariffs must be considered to determine sentences in future cases if subsequent sentences are to have any relevance to the interests of society to appropriately deal with offenders. 

42. In categorizing your case as a non violent case, I am giving you considerable benefit of doubt. I have taken into account the trend exemplified by cases such as Doreen Liprin, Betty Kaime, Jan Tundubo, Martin Sahin Terea and Roger Meckpi against sending offenders like you to jail for such non violent offences. I have also examined non violent crimes where the sentencing trend was to impose custodial sentences. This is exemplified by cases such as Steven Molu Minji. 

43. A prison sentence costs the State money and expenses and exposes the offender to what cannot be a conducive environment for rehabilitation. It does not involve the community very much in the sentencing process, compared with the direct community involvement that happens, when, for example an offender, is obliged to do community work as part of his or her punishment. I did this in case of The State –v- Morgan Bae, Cr 990 of 2009 unnumbered judgment of Kawi J dated 25th March 2010. I made this comment in suspending the two years head sentence in Morgan Bae's case: 

"More importantly sending you to prison is not the only way to rehabilitate a young offender like you. This court is of the view that the punishment it is about to impose can still achieve the purposes of retribution, restitution, deterrence and rehabilitation in a more effective way than imprisonment.

44. This was a case where the young offender had misappropriated a sum of K15, 624.14 for his own use. I imposed a head sentence of two years but then had it fully suspended with strict conditions of community work to be undertaken as well as restitution to be done by way of repaying the money stolen. I also made the following comments:

 You in fact may be a strain on the State's limited financial resources in terms of looking after you and feeding you while you are in prison. The State will incur further losses, which may double or triple the amount you stole. Apart from not seeing you in your house and your community, the members of your community and your family will not be able to see you serve your punishment. This court is of the view that it is time that your family and community see how you serve your punishment. This in its view will have a more deterrent effect upon you than serving a term of imprisonment in jail" 

45. Guided by the above decisions, the court considers that a non-custodial sentence is appropriate to be imposed upon you, with very strict conditions.

46. In the upshot and guided by these decisions, I impose a head sentence of ten (10) months imprisonment with hard labour upon you. You are to serve this at the Bomana Corrective Institution.

47. The next question for me to consider is whether or not I have the discretion to suspend this sentence wholly or in part? A feature you share with those other cases of a non violent nature, that I referred to above is that, no harm was done to any other person or other property during the commission of the crime and after the offence. Added to that is that while the escapee will be considered a threat to the community, the court finds that you are not a threat to the community. 

48. There are many judgments of both the Supreme and National Courts in which the courts have suspended either the whole or part of the sentence.
Thus the Supreme Court in the case of Richard Liri v. The State (2007) SC 883 made the following pertinent comments in relation to the suspension of sentence: -

"Further we find that, the learned trial Judge continued erroneously when he decided to suspend 3 years of the 8 years sentence he decided to impose against you. The learned trial Judge did not provide any reason for that decision. The law on suspension of either a part or the whole of any sentence is settled. Section 19(1)(d) of the Criminal Code confers that power, which can only be exercised on some proper basis. In Acting Public Prosecutor v. Don Hale, this Court elaborated on that, in this way:

"If a judge is to consider some leniency on sentence ... it is incumbent on him to obtain the relevant report such as a pre-sentence report, especially around the age of 17 to 19. ... Then for such a drastic suspension of sentence a further help to the court would be a community report from the community to which the offender belongs and whether the community, seeing that the incident happened within that community, has any views on an appropriate punishment or whether the community is prepared to assist with any community management of any bond period. The Courts are bound under the philosophy of the Constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment of criminals definitely has an effect on the ordinary people. So community involvement with the punishment of offenders should be considered especially if the court wishes to return an offender to the community instead of imposing imprisonment."

Subsequently, the Supreme Court endorsed these views in its judgment in Edmund Gima v. The State & Siune Arnold v. The State. That decision also emphasized the point that, there can be no suspension of sentence without imposing any condition. After all, a suspension of either the whole or part of any sentence is not an exercise of discretion in leniency but is a form of punishment. As such, conditions must be imposed to demonstrate that, it is an alternative to punishment within the prison system in appropriate cases.

In your case, there is no record of the learned trial Judge calling for and having before him a pre-sentence report supportive of his decision to suspend the 3 years. Likewise, there is no record of what factors His Honour took into account before arriving at his decision to suspend the three years. Further, if His Honour was entitled on some authority (which he has failed to disclose), to suspend, he did not impose any conditions for the suspension."

49. The Supreme Court in The Acting Public Prosecutor -v- Don Hale (1998) SC564 made these observations:

"The judge having set a sentence of imprisonment then proceeded to suspend the term. Whilst we agree that a judge has a discretion in sentencing convicted persons such a discretion must be exercised according to normal principles. We agree that there are many circumstances which should be applied in the consideration of an appropriate punishment for a particular offender and a judge should refer to these circumstances. There are first of all a number of circumstances of aggravations such as the amount of violence used in a robbery, and the amount of damage done and property taken and whether victims were further injured apart from the fear of the threats. Then there are matters that may be considered in mitigation of the punishment. Of course the first factor in mitigation is whether there have been any admissions of guilt however in this case before us to-day the appellant pleaded not guilty so the State and the Court was put to the time and expense of a trial with the calling of witnesses. So any mitigation for admissions and remorse have limited application.......

[F] or ......a..... suspension of sentence a further help to the court would be a community report from the community to which the offender belongs and whether the community, seeing that the incident happened within that community, has any views on an appropriate punishment or whether the community is prepared to assist with any community management of any bond period. The Courts are bound under the philosophy of the Constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment of criminals definitely has an effect on the ordinary people. So community involvement with the punishment of offenders should be considered especially if the court wishes to return an offender to the community instead of imposing imprisonment. And we note here the relevance of the Criminal Law (Compensation) Act 1991. A return to the community should mean an appropriate report of the attitude of the community and whether the community is prepared to take some responsibility for their own offending members and supervise any alternate punishment.

However in this case before us now the trial judge had no pre-sentence report nor any report from the community and sought no help from the community in the supervision of this suspended sentence. This is a clear error if he was to suspend a sentence for this kind of aggravated robbery."

50. Section 19 (1)(d) of the Criminal Code which your counsel Mr Dusal referred me to, confers the power upon a trial judge to either wholly suspend the sentence or suspend only part of the sentence. The Pre-Sentence Report recommend strongly that I should impose a non custodial sentence upon you. I have also taken into account views from the Police Department expressed in the Pre Sentence Report as well as indication from your wife all pleading for a non custodial sentence. Taking all these into account I suspend the whole ten (10) months imposed upon you. The cases on suspending sentences that I referred to above all share one common feature: when a part or whole of the sentences is either wholly or partly suspended the offenders are also ordered to do community work as well.

51. Having wholly suspended the ten months imprisonment sentence, I now impose the following very strict conditions upon you which you should fully comply with. If you default in complying with any of these conditions you are liable to being re-arrested and sentenced to Bomana Prison to serve your full term.

1.	Under section 19(1)(d) of the Criminal Code you are ordered to enter into a good behavior bond with sureties of K200.00 and to keep peace and be of good behavior for a period of two years commencing on the 20th April 2010 and expiring on the 20th April 2012.The K200.00 surety fee is to be paid at any cash office and the receipt is to be provided to the National Court Registrar and be placed on Court file. After the two years good behavior bond period expires, that money can be refunded to you upon production of the proper receipts. If you however default in complying with any of these other conditions, your K200.00 surety payment will be forfeited to the State.

2.	You are hereby ordered and placed in the custody of the Commissioner of Police to perform the following community work under the supervision of the Police Commissioner or his delegate who will also draw up the scope of your works and your works program:

3.	Undertake a general clean up of the all nine(9) Police Stations here in the National Capital District, including the Police Headquarters in Konedobu, for six (6) hours every week commencing on Monday 7th June 2010. This work period shall go on for the next ten months and will cease or expire on the 30th April 2011. The Police Commissioner or his delegate will spell out the details of the work program and the kind of work you are to undertake. The Work program they will prescribe shall include a program for cleaning both inside and outside the Police station and shall include cleaning the ablution blocks of the police stations as well. 

4.	The Police Commissioner or his delegate will ensure that you are not placed in any Police units dealing with guarding cell blocks of all Police Stations or guarding prisoners taken into custody. 

5.	The Police Commissioner or his delegate will ensure that no other disciplinary actions are taken against you arising from or associated with your perpetration of this crime and your conviction. 

6.	You are to maintain your current rank of Senior Constable, and the period of the community service ordered against you shall be counted as your continued service to the Police Force. 

7.	You will wear an appropriate prisoner's dress during the performance of your community service to identify you as a convicted prisoner of the State. The Police Commissioner or his delegate will liaise with the Correctional Service Commissioner to facilitate and provide this appropriate prisoner uniform for you to wear while performing the community service obligation.

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner