State v Missia [2010] PGNC 257; N4180 (8 September 2010)

N4180

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 996 OF 2010

STATE

V

WILLIE MISSIA

Lae: Manuhu, J.
2010: 11 August & 8 September

CRIMINAL LAW – Sentence – Armed Robbery – Prisoner in company of others armed with modified pistol and stones forced vehicle to stop, forced victims out, stole personal items and broke left windscreen – Guilty plea – Whether sentence should be suspended.

Cases cited:
Papua New Guinea Cases

Acting Public Prosecutor v Clement Maki & Tom Kasen (1981) SC 205,
Passingan v Beaten [1971-72] PNGLR 2006,
State v Able Airi (2000) N2007,
State v David Toraboda (2008) N3554,
The State v Prodie Akoi & Steven Akoi (2004) N2584,
The State v. Thomas Waim [1998] PNGLR 360.

Overseas Cases

Lahey v Sanderson [1959] TASStRp 10; [1959] Tas SR 17,
R v Kear (1978) 2 Crim LJ 40,

Counsel:

H. Simon, for the State.
M. Maburau, for the Prisoner.

8th September, 2010

1. MANUHU, J.: The prisoner pleaded guilty and was convicted for armed robbery in the last sitting and is before me again for sentencing. The State accepts the defence submission that a sentence of up to 8 years is appropriate. I agree. The only disagreement is in relation to whether the sentence should be suspended or not.

2. On 6th March 2010 at 7:00 pm, the prisoner and 3 others held up Kenneth Kawai, his wife and a relative in a moving vehicle as they turned into a street along Butibam Road. The prisoner was armed with a modified pistol while his 3 friends used stones in the commission of the crime. After forcing the vehicle to stop, the victims were forced out and 2 mobile phones as well as other personal items were stolen. The left windscreen of the vehicle was also damaged. The victims raised the alarm and the prisoner was immediately pursued and apprehended.

3. The prisoner has apologized for what he did. He pleads for leniency and asks for a non-custodial sentence as he is a first offender. He said he was influenced by others to commit the crime. I accept that the prisoner is genuinely remorseful for what he has done. He pleaded guilty and confessed during the police interview. On the other hand, a dangerous weapon was used. The prisoner and his friends were violent. They caused damage to the victim's vehicle and stole personal items.

4. The prisoner is 19 years old and a third born in a family of six. He did his Year 10 at Malahang Technical School in 2006 and went on to complete Years 11 and 12 at Kopen Secondary School in Enga Province. He would have gone to do a course in Catering at the National Poly-Technic Institute in Lae but he could not because of this case. The prisoner's parents are pastors with a decent income. The prisoner was living with them at the time of arrest.

5. In pressing for a non-custodial sentence counsel for the prisoner referred me to the cases of Acting Public Prosecutor v Clement Maki & Tom Kasen (1981) SC 205, Passingan v Beaten [1971-72] PNGLR 2006 and Lahey v Sanderson [1959] TASStRp 10; [1959] Tas SR 17. I accept and I always bear in mind that when a youthful offender is given a custodial sentence that would be served in an institution that does not have the capacity to carry out meaningful rehabilitative programs, he faces the real risk of exposure to "corrupting influences" and may "confirm him in criminal ways".

6. In the case of the State v David Toraboda (2008) N3554, Davani, J. imposed a suspended sentence of 7 years on High School students who robbed other students with the use of a gun and a knife. The suspension was based on the following considerations:

"15. Why should these prisoners get a suspended sentence?

"16. To answer that, I note that there are special circumstances in this case that warrant the suspension of sentence. They are;

1. I was impressed by the manner in which the prisoners requested a non-custodial sentence and am of the view, that if given a second chance, and with the right supervision, they will make the most of it;

2. The PSR speaks of all prisoners lives at the School, in the community and at home. One thing I noticed was the general lack of supervision by their parents. I elaborate further on this, below.

3. The consumption of home brew at the high school and how readily available it is to the high school students. I elaborate further on this, below.

"17. Milne Bay people generally are known to be very industrious, hardworking, very pleasant, respectful, and where family ties and discipline are very strong. It is indeed sad that a lot of its young people are now caught up in society's woes, the societal diseases that have ravaged centres like Lae and Port Moresby, more particularly, the consumption of home brew, drugs, laziness, lack of respect for others and the breakdown of the family unit.

"18. The prisoners are all in high school. I had specifically asked for reports from the school on their academic abilities and potential. The reports were very morbid and do not speak at all about the assistance it would give to its students if they are caught breaching school rules. The high school adopts a very punitive approach in their punishment rather than a corrective, rehabilitative approach. It may have its reasons for doing that. I do not know. But it should now focus more on a corrective approach towards its students who flaunt and breach school rules.

"19. In my view, the high school should give these young men a second chance, working in tandem with community justice personal and their families. I say this because whilst the prisoners are still in school, that the school must also be part of this process. The opportunity to complete ones schooling is very important to a young person because it is the stepping stone to a good life.

"20. The statements by the prisoners tell me that this offence was a spur of the moment decision, heavily influenced also by home brew. The High School must now work on or devise measures to stop the bringing into the school and consumption of home brew. It must work together with Alotau Town Authorities, the Police and Juvenile Justice Officers.

"21. A crime has been committed and the prisoners must pay the consequences for the crime. As they asked of this Court, this Court will give them a second chance where hopefully, with the help of other stakeholders, they will progress to be better citizens.

"22. Furthermore, their parents must now play a larger role in their lives. They should demonstrate this by the care and attention they give to their sons, rather than leaving it to the school."

7. In the case of State v Able Airi (2000) N2007, per Kandakasi, J., a suspended sentence of 6 years was imposed on a youthful offender who with the use of a home-made gun and a toy pistol and in the company of others stole a motor vehicle on the road.

8. Counsel for the prisoner further submits and I accept that "it is erroneous to treat suspension of a sentence of imprisonment as merely an exercise of leniency. Such an order is made in the community interest and is generally designed to prevent re-offending": R v Kear (1978) 2 Crim LJ 40 per Wells, J.

9. Amidst all of these remains the question as to why the sentence should be suspended. Ordinarily, the prisoner should be given a non-custodial sentence. A suspended sentence may be given where there are good reasons for the Court to do so. His Honour, Injia, J (as he then was) in The State v. Thomas Waim [1998] PNGLR 360 made it clear that:

"On the question of suspension of the whole or part of the minimum sentence, this power is conferred by section 19(1)(d). The power to suspend a sentence must be exercised on some proper basis: Public Prosecutor -v- Thomas Vola [1981] PNGLR 412. Relevant factors include first time young offenders, 18 years or below: Gimble -v- The State (1988-89) PNGLR 271 at 275; good character and good family background: The State -v- Frank Kagai [1987] PNGLR 320; State -v- Justin Nyama [1991] PNGLR at 127; or on medical grounds: Public Prosecutor -v- William Bruce Tardrew [1986] PNGLR 91."

10. In the case before Davani, J., her Honour considered that the offenders were High School students, the victims were also students, the school was in a position to assist the offenders, and the facts of the case. I note that in her reasoning, her Honour referred to Port Moresby and Lae as crime hot spots.

11. In the case before Kandakasi J, his Honour explained in The State v Prodie Akoi & Steven Akoi (2004) N2584 that he would suspend sentence as he did in State v Able Airi (supra) "where there is a well balanced pre-sentence report representative and reflective of the community's view on the kind of penalty an offender should receive and where the victims were receptive to restitution and a non-custodial sentence." It is for the same reason that I enquired during submissions as to what the victim's attitude is on sentence.

12. In this case, the prisoner is a first time offender who cooperated with the police and pleaded guilty. He said he was influenced by others, which may be so, but he was not 18 years or below: Gimble v The State (supra). He was 19 years old. He had completed Year 12. He is a Pastor's son. He was raised in a decent home. He was living with his parents then. He was educated and mature enough to make a judgment on whether to get drunk or not and whether to rob or not. I am not persuaded that he was influenced by others.

13. In the context of the case before Davani, J., the prisoner was not a student at the time he committed the offence. He was about to attend a course but he chose to commit a very serious crime. In the context of the case before Kandakasi, J., the prisoner's relatives were supportive. They supported him with the payment of compensation to the victim.

14. Unfortunately, in this case, the spirit to which compensation was paid is a matter of serious concern. Compensation was paid on the basis that the victim withdraws the charge. But when the charge was not withdrawn, the prisoner's father, who is a Pastor, has taken the victim to court to recover the compensation. The victim is suffering from stress and is fearful for his and his family's safety. He has been pressured to support the submission for a non-custodial sentence.

15. In the final analysis, this Court will make a decision without fear or favour. Counsel for the prisoner has made a strong and commendable submission on behalf of her client. The offence in question is serious and prevalent but given the prisoner's background and the mitigating factors it is open to the Court to exercise its discretion in favour of a whole or part suspended sentence. However, all of that is seriously undermined by the prisoner's father's negative behavior in respect of compensation payment. This sort of behavior from the prisoner's father casts serious doubts on any decision to release the prisoner to serve his term with his family and the community. Accordingly, I will refuse to exercise my discretion to suspend sentence.

16. In the circumstances, I impose a sentence of 7 years in hard labour without any suspension. I deduct 7 months for the period spent in custody. He has 6 years and 5 months to serve in hard labour.

__________________
Jim Wala Tamate, Acting Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Prisoner