State v Willie [2024] PGNC 276; N10944 (6 August 2024)

N10944

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR(FC) 324, 325 AND 326 OF 2023

STATE

V

LOUIS WILLIE, ISAAC LAI AND ANDREW MUIGLE

Waigani: Berrigan J
2024: 6^th August

CRIMINAL LAW– SENTENCE – GUILTY PLEA – UNLAWFUL DEPRIVATION OF LIBERTY – youthful offenders – 12 months of imprisonment – wholly suspended on conditions including compensation and community service.

Cases Cited:

The State v Joshua Samson (2007) N4994
The State v Anton Kumano (2017) N6673
Acting Public Prosecutor v Kasen (1981) SC205
Lawrence Simbe v The State [1994] PNGLR 38
Goli Golu v The State [1979] PNGLR 653
Saperus Yalikabut v The State (2006) SC890
Sanawi v The State (2010) SC1076
David Kaya and Philip Kuman v The State (2020) SC2026
The State v Tardrew [1986] PNGLR 91
The State v Frank Kagai [1987] PNGLR 320

References Cited:

Sections 19, 355(b) of the Criminal Code
Sections 3, 5 and 6, Criminal Law (Compensation) Act 1991

Counsel

Mr D. Sausoruo, for the State
Mr J. Kolowe, for the Offenders

DECISION ON SENTENCE

6^th August 2024

1. BERRIGAN J: The three offenders, Louis Willie, Isaac Lai and Andrew Muigle, pleaded guilty to one count of unlawful deprivation of liberty, contrary to s 355(b) of the Criminal Code, for which the maximum penalty is three years of imprisonment.
   

Brief Facts

2. Sometime shortly after 3 am on the morning of 11 January 2023, the three offenders were at their house at Gerehu Stage 1 in Port Moresby. The complainant, Clinton Ape, and his friends was outside attempting to graffiti the brick wall fence of their property when he was apprehended by the offenders. They took him into their yard where they held him for a period of between three to four hours during which time they stripped him, tied him up with rope from his feet to his neck and sprayed him with water to inflict pain. Eventually they released him and put him in a taxi and sent him to Port Moresby General Hospital.
   

Comparative Cases and Submissions

3. The State submits that a sentence of between one and two years is appropriate having regard to the fact that the offenders took the law into their own hands, assaulted the victim, and used a rope to hold him. It does not oppose suspension. It refers to the following cases:
   
   1. The State v Joshua Samson (2007) N4994, Cannings J: The offender pleaded guilty to one count of unlawful use of a motor vehicle, two counts of unlawful deprivation of liberty and one count of attempted armed robbery. A gang of which he was a member held up two people, stole their vehicle and detained them overnight before the next day using the vehicle in an attempt to stage an armed robbery of a service station. The police apprehended the offender during the course of the attempted robbery. He was sentenced to 2 years on each count of unlawful deprivation and an effective sentence of 6 years in total;
   2. The State v Anton Kumano (2017) N6673, Ipang J: The offender pleaded guilty to one count of assault occasioning grievous bodily harm and one count of deprivation of liberty. A group of men abducted a man they suspected of killing their brother by sorcery from his home in the early hours of the morning and took him away in a vehicle they had stolen to their village in Southern Highlands Province where they seriously assaulted him until he was rescued by police later that afternoon. The next day they returned and burnt to his village, down his house and destroyed his gardens. The victim committed suicide two days later. The offender was sentenced to 18 months on each count and ordered good behaviour for two years.
      
4. Defence counsel acknowledges that the offences were serious for the reasons given but he asks the Court to consider the youthfulness of the offenders having regard to Acting Public Prosecutor v Kasen (1981) SC205. Louis Willie was 19 years old at the time and withdrew from Grade 11 as a result of the offence. Isaac Lai was 21 at the time. Andrew Muigle is a primary school teacher. He submitted that a sentence of between 6 and 12 months was appropriate and asked the Court to wholly suspend it in each case. He also asked the Court to consider its discretion to impose restitution under the Criminal Compensation Act.
   

Consideration

5. Section 19 of the Criminal Code provides the Court with broad discretion on sentence. Whilst guidelines and comparative cases are relevant considerations, every sentence must be determined according to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38. This is a serious case but it is not of the worst kind warranting the maximum penalty: Goli Golu v The State [1979] PNGLR 653 applied.
   
6. In mitigation this is the offender’s first offence in each case.
   
7. It is also of great weight that the offenders cooperated with police and admitted the offence. They pleaded guilty at the first opportunity before the National Court. I take this into account as reflecting their remorse, which each of them expressed on allocutus. I also take their guilty plea into account on the basis that it has saved the State and its witnesses the cost and inconvenience of a trial.
   
8. Each of the offenders are of prior good standing.
   
9. Louis Willie is 20 years of age. He was 19 at the time of the offence. He is from Barangit Village, Kundiawa Gembogl, Chimbu Province.
   
10. Isaac Lai is 22 years of age. He was 21 at the time of the offence. He is from Bandime Village, Kundiawa Gembogl, Chimbu Province.
    
11. Andrew Muigle is 24 years of age. He was 23 at the time of the offence. He is from Mandime Village, Kundiawa Gembogl, Chimbu Province.
    
12. The offenders have been living with their uncle, Dr Siwi Steven Wawe, a doctor at Port Moresby General Hospital and the Deputy Director Curative, District Health Services, for the past eight, seven and five years’ respectively.
    
13. Louis Willie is the second born of four children. He is single. He was attending Grade 11 at Laloki Secondary School but withdrew following the offence. He is currently unemployed and depends on his parent and his uncle for financial support. The offender wants to complete his education and become a pilot. He is in good health.
    
14. Louis is supported by four referees, all of whom speak highly of him and have provided detailed reports. His uncle, Dr Wawe, says that Louis has always been a disciplined and well-mannered member of the family. He has carpentry skills which he uses during long weekends and holidays. He actively contributes to family activities, like farming and building maintenance. He withdrew from school after suffering post-traumatic stress following his apprehension and detention. Dr Wawe’s wife, Miriam Wawe, Managing Director, Rehoboth Lodge says that Louis has been helping his father, who is a carpenter, at the Lodge since he was a small boy. He is very skilled and always willing to assist. Edward Bare, Community Leader, 5 Mile, confirms Louis’ past good record. He expressed shock at the offending. He simply cannot understand what was going on in Louis’ mind at the time. He is usually a good and humble member of the community. Stanley Paip, a teacher at Philip Aravure Primary School, has known Louis since childhood and confirms that he has great potential if given the opportunity to complete school. Senior Pastor Ben Demas, AOG Tabernacle of Worship Church came to know Louis more recently during the construction of the Church Pastor’s House where Louis assisted his father with carpentry during the weekend and on school holidays. Louis is a regular member of his Church and to his knowledge does not drink, smoke, chew betelnut or engage in anti-social behaviour.
    
15. Isaac is also single. His mother died some time ago. His father and siblings live in the village. He has no formal education and has never been to school. He is currently unemployed. He relies on his uncle for financial support. He is in good health.
    
16. Isaac too is supported by a number of referees. Dr Sawe explains that Isaac’s uncle is the caretaker of his family’s farm at 14 Mile. He came to know Isaac in 2019 when he came and helped out at the farm. He saw that he was respectful, hardworking and showed initiative. As a result he took him in as part of his own family and has no intention of abandoning him now. Isaac has never before caused any problems with local police or in the community. Miriam Wawe confirms that she and her husband took pity on Isaac when they learnt he was alone in Port Moresby and he has since become part of the family, where he is subject to strict discipline. They have made it very clear to him that if he misbehaves or takes drugs or causes trouble in the community they will have no mercy and ask him to leave. She says that Isaac is a loyal and dedicated worker at Rehoboth Lodge. He works as security for the gate or helps on construction projects. Senior Pastor Demas says that since coming to know Isaac he has been very loyal to the Wawe family. He is not a committed Church goer but does not engage in unhealthy social behaviour. He is honest and reliable and has a positive attitude to physical work. Desmond Hamma, a teacher at Philip Aravure Primary School, confirms that Isaac works very hard as the guard and gardener at the Lodge.
    
17. Andrew is single. His parents are also in the village. He completed Grade 12 at Mt William Secondary School and obtained a Diploma in Primary Teaching from the PNG Education Institute. He is currently a teacher at Philip Aravure Primary School.
    
18. His elder brother, Damien Kagl, says that Andrew is very respected back in his family and community in Chimbu. Edward Bare said that Isaac is a committed Christian and member of the community. Dr Wawe has known Andrew since childhood in the village. He came to Port Moresby in 2019 when he received a government scholarship to undertake primary school teacher training and he graduated after completing his three-year diploma in 2021. Whilst he has been staying with his family, Andrew has been sober, respectful and hardworking. In his free time he contributes to the running of Dr Wawe’s family in terms of security, building construction and maintenance work. He is young intelligent man with leadership skills. He has never been in trouble with anyone outside of this offence. He believes he will be a great asset to the Education Department if allowed to continue. Miriam Wawe says that whilst Andrew was completing his diploma he worked part time as a security guard and with the construction at the Lodge. He is respectful and well-mannered. He helps whenever he can and is committed to any task assigned. He does not drink, some or chew. Senior Pastor Demas has observed Andrew to be a quiet, sober, and respectful young man. He faithfully attends Church and does not smoke, chew betelnut or take alcohol.
    
19. I accept that the offence has had and will continue to have a significant impact on each of the offenders themselves. They are all young. They have spent time in custody. Isaac’s family is dependent on him back in the village. Louis dropped out of school at a critical time when he had been doing well. Andrew’s teaching career is in jeopardy.
    
20. I have also taken into account the young age of the offenders. Whilst the general principles outlined by the Supreme Court in Kasen, supra are of some relevance, it concerned 16 year olds and none of the offenders in this case were juveniles at the time of the offence. Nor did the offence in that case involve violence. Nevertheless, I agree that: “Where the Courts are able, they have the responsibility to ensure that young people do not offend again. One way to do this is not to incarcerate them but to give them a chance to mend their ways and become responsible citizens.”
    
21. In aggravation, this was a very serious offence.
    
22. I note here that there is some dispute between the offenders and the victim as to the circumstances of the offending. I make it clear that I am sentencing on the basis of those matters which are not in dispute and have been established to the requisite standard: Saperus Yalikabut v The State (2006) SC890 applied.
    
23. I do accept, however, that the offenders may have been angered by what the victim was doing at their home. But their response was appalling. They took the law into their own hands. They degraded a young man by stripping him naked and then tied him up with a rope from head to toe. They sprayed him with water to inflict pain. They terrorised him for more than three hours during which time he must truly have feared for his life.
    
24. It should also not be forgotten that the victim himself was very young, at 20 years of age.
    
25. I have no doubt that he continues to suffer trauma to this day and will do so for some time to come. His father spoke to Probation Services and confirmed that the whole experience has been severely traumatising for the victim and his family. His son dropped out of school in 2023 but it seems that he has since returned. His father also incurred medical expenses and he wants the offenders to pay compensation.
    
26. I make it clear before imposing sentence that I have considered the principles governing parity. There are no great differences in the offender’s personal circumstances. They are all about the same age and live together. They all share the same level of culpability. It follows that the same sentence should be applied in each case: Sanawi v The State (2010) SC1076; David Kaya and Philip Kuman v The State (2020) SC2026
    
27. Having regard to the above, I sentence each of them to 12 months of imprisonment.
    
28. I exercise my discretion to deduct one month spent in custody.
    
29. The offenders’ family and referees all plead for their sentences to be suspended. I was not initially minded to do that given the nature and circumstances of this offence. I have, however, reconsidered having taken into account the detailed material provided in the probation report in each case.
    
30. Each of the offenders have shown strong prospects for rehabilitation. I do not consider that these prospects will best be served by returning them to custody at this stage. Each of the offenders impressed me as genuinely remorseful on allocutus. The statements by each of those in support also struck me as genuinely tailored to each of them. They clearly have a lot of support within their family, adopted family and broader community. It is clear that the offending is out of character.
    
31. It is also my view that their rehabilitation will best be served through making some form of compensation to the victim and the completion of community service under the supervision of Probation Services. This will enable Louis to resume school as soon as possible, Andrew to resume his career and Isaac to continue to make a living at the Lodge. They will not soon forget the time spent in custody or the seriousness of the offending. This is not an exercise in leniency but an order made in the community interest: The State v Tardrew [1986] PNGLR 91; The State v Frank Kagai [1987] PNGLR 320 applied.
    
32. I intend to order compensation be made in the sum of K1000 each. A means assessment report was not obtained. But each offender is on $800 bail. Those monies will be refunded to them and they will be available to be immediately paid towards the total owing in restitution. They will have 6 months to earn the balance of K200 each: ss 3, 5 and 6, Criminal Law (Compensation) Act, 1991 applied.
    
33. I make the following orders:
    

Orders

(1) Louis Willie, Isaac Lai and Andrew Muigle are each sentenced to 12 months of imprisonment without hard labour.
(2) One month spent in custody is deducted in each case.
(3) The balance of 11 months of imprisonment is wholly suspended in each case on condition that the offender:

1. Pay compensation in the sum of K1000 to the victim via the National Court Trust Account within 6 months of today’s date;
2. Perform 100 hours of appropriately designed community work under the supervision of the Probation Service within the next 6 months;

100. Enter into his own recognisance to keep the peace and be of good behaviour for the balance of their sentence.

(4) The offender’s bail monies and any other bail monies deposited are to be immediately refunded.
(5) These files and any related bail files are now closed.

Sentences accordingly.

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offenders