State v Hulkande [2023] PGNC 481; N10617 (13 December 2023)

N10617

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1432 OF 2023

THE STATE

V

PAUL HULKANDE

Lae: Kangwia J.

2023: 12^th & 13^th December

CRIMINAL LAW – Kidnapping for ransom- guilty plea by first time offender - luring known juveniles with flour ball – demanding delivery of wife and children with K400 in exchange for juveniles – no threats of violence employed - no inhuman treatment meted out – juveniles rescued from detention – suspended sentence appropriate.

Cases Cited
State v Ningis (2013) N5332
State v Kapris (2011) N4305
Avia Aihi v State (No. 3) [1982] PNGLR 92
Goli Golu v State [1979] PNGLR 97

Counsel:
P. Matana, for the State
G. Peu & C. Ngibe, for the Defence

13^th December 2023

1. KANGWIA J: Paul Hulkande appears for sentencing after the Court convicted him on his guilty plea to two counts of kidnapping for ransom.

2. The facts to which he pleaded guilty state that his wife is the aunt of the two juveniles he kidnapped. The kidnapping started this way. The prisoner had a marital problem with his wife and the wife left with the children to live with her relatives. The prisoner went searching for his wife and children where the wife’s relatives lived but received no favourable response on their whereabouts. He lured the two juvenile brothers with flour balls and took them to Ramu Sugar.

3. He kept the victims there and sent word to the relatives to bring his wife and children with K400 cash in exchange for the two juveniles. The family members who were on their way to Ramu Sugar to free the victims noticed the prisoner at a marketplace on the side of the road. He was arrested and the juveniles were returned to them. By then the offender had kept the juveniles under his custody for 16 days.

4. The prisoner is 35 years old and married with 03 children aged between 2 and 6 years old. He is unemployed and has no prior convictions.

5. On his allocutus the prisoner, states; “I say sorry for what I did and for wasting the Courts time. I say sorry to the victim’s family who are my in-laws. This is my first time to be in Court. My wife and children are kept by in laws and I don’t know how they are living. I promise not to do this again and ask for leniency with a good behaviour bond”.

6. On his behalf Ms Peu after illuminating the law on sentencing submits that the present case warrants a sentence of 2 to 4 years imprisonment on each count and made concurrent because they arose out of a single transaction. The further submission is that the entire sentence be suspended with conditions. The prisoner pleaded guilty early as a first-time offender and expressed remorse. There were no threats of violence employed, weapons used, or injury caused. The cases of State v Ningis (2013) N5332 and State v Kapris (2011) N4305 are cited as possible guides.

7. On behalf of the State Ms Matana while conceding the law illuminated by Ms Peu seeks a custodial sentence of 5 to 10 years imprisonment for deterrent and punitive purposes. The offence is serious with a new trend of kidnapping emerging. It involved two unsuspecting juveniles unlawfully kept from their parents for 16 days and demanded K400 in exchange for the victims. Even though the offence was committed in simple forms it was a serious case of kidnapping. The Ningis case was also referred to as a possible guide in sentencing.

8. The law on sentencing have been exhaustively addressed in submissions of counsels. It therefore suffices to state the established practice in sentencing. The practice in sentencing is that the maximum prescribed penalty for an offence is usually reserved for the worst category of each offence.

(See Avia Aihi v State (No. 3) (1982) PNGLR 92); Goli Golu v State (1979) PNGLR 97).

9. Sentencing is also an exercise of discretion pursuant to s 19 of the Criminal Code.

10. The prisoner has been charged with kidnapping for ransom under s 354 (1) & (2) of the Criminal Code.

11. According to records I have access to, the maximum prescribed penalty for that offence is subject to subsection (2) imprisonment for a term not exceeding 14 years. It is unclear at this stage whether the penalty has been increased to life imprisonment as suggested by Ms Matana.

12. Subsection 2 provides that where the person kidnapped has been set at liberty without having suffered grievous bodily harm the offender is liable to imprisonment for a term not exceeding 10 years. The prisoner’s case falls into the latter category.

13. As to what an appropriate sentence should be for the prisoner in the present case, I am ably assisted by both counsels with my limited experience with similar offences by leading me to the cases of State v Kapris (2011) N4305 and State v Ningis (2011) N4305 as possible guides.

14. In the Kapris case the Court imposed a cumulative sentence in respect of 13 counts of kidnapping by allocating sentences between 6 and 9 years reaching a potential total of 96 years. Applying the totality principle, the sentence was reduced to 10 years from the 13 counts. In the Ningis case the court imposed concurrent sentences for 10 counts of kidnapping for ransom. After deductions for time in custody the prisoners were to serve a total of 8 years and 9 months.

15. The present case is more than a prisoner exchange deal that goes on in war torn countries of the world in the context of the prisoner demanding, “you give me my wife, kids and K400 and get back your two boys”.

16. The position of the defence in sentencing is that the sentences imposed should be made concurrent under the totality principle. The State argues to the contrary and submits for a custodial sentence.

17. It is accepted that the offender is a first-time offender who has pleaded guilty early and expressed remorse. The victims did not suffer any physical injury at the hands of the offender. Nor was injury intended.

18. Despite that, the victims were never released by the offender. They were rescued by relatives and authorities. The offender gets no credit for it. There is no evidence that the offender sought any assistance concerning his wife and children from relevant authorities who are at walking distance.

19. He chose to take the law into his own hand and held two known juveniles to ransom. This factor operates against him.

20. There is another serious aggravating factor. The offender has been involved in a new trend of criminal activity. The usual armed holdups involving threats of violence, resulting in injuries and even in death are being avoided for more subtle and less violent processes to reach the same target.

21. All this at the expense of innocent people’s liberties and freedoms. The two cited cases clearly attest to this type of criminal activity. In that vein any sentence imposed for this type of offence must reflect the deterrent and punitive effects.

22. However, the present case does not fall into the serious category or anything like the cases referred to by counsels. The two cases referred to fall into the most serious cases of kidnapping for ransom. Those cases involved threats of violence and ill treatment by armed thugs.

23. The incident of kidnapping in the present case did not involve strangers or armed thuggery. It started at the home of the victim juveniles. The offender’s wife is the aunt of the two juveniles. There is no evidence that threats of violence were applied. There is no evidence to suggest that harm was intended on the victims. There is no evidence that the juveniles faced starvation, torture, physical abuse or any other inhuman treatment meted out during the 16 days they were captives of the offender.

24. What is apparent is that the offender really wanted his wife and children back. He was unsuccessful when he went looking for them. He received no assistance from the juveniles’ relatives, who were the only people who would have assisted him to locate his wife and children.

25. He chose to twist the hands of his wife’s relatives to enhance his desired outcome and ended up committing a serious offence. At the same time, he was overborne by greed when he included K400 in his demand for the return of his wife and children. The result of all this, he denied the basic rights of the two juvenile brothers. His wayward acts demand serious reprimand.

26. For a serious reprimand to be effective the preferred option would be a non -custodial sentence given the less serious nature of the offence.

27. The sentence for the offender shall be 4 years imprisonment for each count. The sentences shall be served concurrently in view of the one transaction criteria leaving a total imprisonment term of 4 years to be served. From the 4 years, 9 months and 25 days being the period spent in custody awaiting sentence shall be deducted. The remaining 3 years and 3 months shall stay wholly suspended on the condition that the prisoner enters a recognizance without any surety to be of general good behaviour for a period of two years.
______________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Defence