Acting Public Prosecutor v Lalaiva and Ume [1981] PGSC 3; SC201 (3 July 1981)

Unreported Supreme Court Decisions

SC201

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
S.C. APPEAL NO. 2 OF 1981
ACTING PUBLIC PROSECUTOR
APPELLANT
AGAINST ANDREW LALAIVA OF HONI
AND ANGELO UME OF KIVORI
RESPONDENTS

Waigani

Greville Smith Kapi Miles JJ
23 June 1981
3 July 1981

ROBBERY WITH VIOLENCE IN COMPANY - eighteen year old first offenders - sentence of one year I.H.L. manifestly insufficient and increased to one year nine months I.H.L. - prevalence of offences of violence taken into account - protection of community versus rehabilitation of offenders and danger of young offenders being further corrupted by long sentences - relevance of fact that respondents not personally aware of appeal until close to end of sentence - relevance of delay in setting down appeal for hearing.

Cases Referred To

R. v. Radich (1945) NZLR 86

R. v. Lancastle (1978) Crim. L.R. at 367

R. v. Gruffydd (1972) 56 C.A.R. 585

The Public Prosecutor v. Willy Moke Soki (1977) PNGLR 165

Between: Tenge Kai Ulo and A/Public Prosecutor; Between: Joe Kovea Malai and A/Public Prosecutor; Between: A/Public Prosecutor and Andrew Lalaiva and Angelo Ume Unreported Supreme Court Judgment SC199

Public Prosecutor v. Uname Aumane and 2 Others Unreported Supreme Court Judgment SC190

Order of the Court

Appeals allowed. Sentences appealed against set aside. In substitution each respondent sentenced to imprisonment with hard labour on each count for a period of 1 year nine months, sentences to be served concurrently.

GREVILLE SMITH J: This is an appeal by the Acting Public Prosecutor, on the ground of inadequacy, against sentences imposed in the National Court upon the respondents, as co-defendants, on two charges to which the respondents had pleaded guilty, one of robbery with violence in company, and the other simply of robbery in company.

The events of which the two offences consisted constituted one episode. These were that at a spot in the Hohola Markets in Port Moresby the two accused, both aged eighteen years, acting in concert with two other young men and with each other, accosted as the darkness of night was falling two further young men who were together and robbed them, taking from one K17.00 in cash and one fish, and from the other a Seiko bracelet watch of seventeen jewels and one piece of fish meat. One of their victims was only held whilst his pockets were rifled and his possessions taken from him but the other, in addition to being held and robbed, was also kicked.

The two accused had no prior relevant convictions. The maximum penalty prescribed for robbery of the kinds involved in each of the two charges is imprisonment with hard labour for life (S.398 C.C.). Each respondent had been at the time of sentencing in custody for three months, and each was sentenced, in effect, upon each relevant count, to imprisonment with hard labour for nine months to be served concurrently.

His Honour the learned sentencing judge gave careful and full reasons for the sentences he imposed and appears to have perhaps overlooked only one relevant factual matter, namely the kicking which he does not mention. His Honour took into account, ‘inter alia’, the youth of the offenders, that each was a first offender, and that no physical injuries were suffered by the victims. His Honour was cognizant of the terrifying effect of this sort of offence, upon all but the most stouthearted of victims, and observed that individual as well as general deterrent sentences were called for, sentences which were severe but not crushing.

With those observations of His Honour I respectfully agree. However, again with respect, I cannot escape the impression that the sentences passed upon the respondents were inadequate, and manifestly so. This was a bold robbery committed in a central public place. The offenders were not deterred by the fact that one of them was known to one of the victims. Offences of violence particularly by young men in company are all too prevalent in Port Moresby, so much so that few citizens would venture alone on foot outside at night. Those who travel in cars do so in apprehension of the thrown stone or other missile, or of being forced to stop in a dark or secluded place. It is this climate of violence that the courts must seek to dispel, and the only effective instrument is the heavy sentence. In my view an appropriate period in prison for each accused would be one year nine months.

In this case the learned sentencing judge appears to have fallen into error in several respects which I think would have occasioned the inadequacy, as I see it, of the sentences passed. His Honour remarked that “this was not a premeditated offence but a stupid spur of the moment act”. There is no evidence of this, and it is very unlikely. There must have been some prior understanding or discussion for the group to have acted in concert in the way it did. An example of an unpremeditated offence would be where a person in a crowd sees a wallet sticking out of another person’s hip pocket and, on sudden impulse, with no prior thought, surrenders to the temptation to take it. His Honour appeared to entertain a fear that if they were imprisoned for a longer period the accused might become more criminally inclined by association with other convicted persons. His Honour, in his observations on sentence, said that “there is high possibility” that the respondents would be far worse off as offenders after going through prison life than before, especially if they were to be jailed for a long term. With respect, in my view such an unsubstantiated and unsubstantiable fear should not, in offences of a serious nature at least, form a ground for reducing the duration of imprisonment otherwise called for. And to me it seems that a stern sentence is more likely to deter from future criminality, and to that extent make the person concerned a better person.

His Honour also remarked that “the modern thrust of sentencing is to aim at rehabilitation”. In my view this involves a misunderstanding of the authorities upon which, in my opinion, the true approach is, at least in offences of a serious nature, that the reformation of the offender is something to be aimed at only insofar as it is compatible with the main functions of the court of protecting the public. See, for example, R. v. RadichSC201.html#_edn82" title="">[lxxxii]¹.

There is one other matter to be dealt with. Mr. Wilson, Counsel for the respondents, has drawn attention to the fact that the accused has in each case served at the time of hearing of this appeal seven of the nine months imprisonment imposed and that, in addition, through certain oversights, the institution of this appeal was not brought to their attention until recently. This has resulted, Mr. Wilson says, and undoubtedly this would be the case, in these two young men now having been allowed to expect, for almost seven months, that in two further months they will have paid their penalty and be released. He submits that in these circumstances to disillusion them at this late stage would amount in effect to something approaching a cruelty, and that therefore even if the court comes to a conclusion that the sentence appealed against is substantially inadequate it should not in the circumstances extend it.

My view upon this submission is that once the appellate court has come to the conclusion that a sentence appealed against is substantially insufficient, particularly in the case of a serious offence, and it would not be contemplating increasing such a sentence if it had not arrived at such a conclusion, a submission such as the one presently under consideration should not succeed unless, perhaps, in most exceptional circumstances, which I do not see in this case.

Counsel for the appellant did not refer the court to any authority in support of his submission, nor did Counsel for the State, but several English authorities have come to my notice which deal with the analogous situation of the question whether persons who have been on bail pending appeal should be returned to custody. One such is R. v. LancastleSC201.html#_edn83" title="">[lxxxiii]². The following is the relevant excerpt from the report as to the remarks of the appellate court.

“The sentence had been proper when passed and nothing had occurred since to alter the position. It was to be regretted that L had been granted bail pending her appeal. It would have been preferable had she remained in custody and the hearing of the appeal been expedited. Granting bail often made people believe erroneously that they would not in the end be returned to prison. That was an unfortunate circumstance in this case but the court had to have regard to realities and could not be influenced by the fact that pending the hearing of the appeal L had been at liberty. Appeal dismissed.”

In the commentary to that report reference is made to the decision of the English Court of Appeal (Criminal Division) in GruffyddSC201.html#_edn84" title="">[lxxxiv]³ with the interpretation that the fact that an appellant against sentence has been on bail pending the determination of an appeal is not a relevant consideration for the court in deciding whether or not to uphold the sentence. I agree with such interpretation. Reference is also made to an English case McElhinney, not reported, decided in 1970, where the appellant had been on bail for eleven months pending appeal against a sentence of twelve months and yet the sentence was upheld.

I agree with the tenor of the reasoning apparent in these cases, and I think in principle it is applicable to this case. I am thus fortified in the view I have expressed that Mr. Wilson’s submission should not prevail.

I would add that I have had the benefit of reading the judgment in this matter of my brother Miles J. and I especially agree, with respect, with His Honour’s final observations, concerning the responsibilities of the State in matters of appeals against sentence.

I would allow the appeal, and substitute for the sentence passed a sentence of imprisonment with hard labour for one year and nine months.

KAPI J: In this matter I have had the advantage of reading the draft judgments of Mr. Justice Greville Smith and Mr. Justice Miles. I agree with Their Honours’ conclusions that the sentences imposed by the trial judge do not reflect the seriousness of these offences. I would impose a sentence of one year and nine months in all the circumstances.

Mr. Wilson, for the respondents, submitted that this court has the power to dismiss the appeal if it considers that there is a long delay in having the appeal set down for hearing. He further submitted that the respondents were not notified of the appeal until some 7 months later. By this time they expected to be discharged by September. It is submitted that it is unfair to impose the substituted sentence in the circumstances.

This court is a court of justice. It must do justice in accordance with the law. As far as the setting down of appeals is concerned, the Supreme Court in The Public Prosecutor v. Willy Moke SokiSC201.html#_edn85" title="">[lxxxv]⁴ at p. 167 said:

“Where appeal has been brought, it is obviously in the interest of a convicted person as it is in that of the State, that finality of decision be reached promptly. Justice demands it.”

On the same page the Supreme Court went on to say:

“The procedure of motion to the court that an unduly delayed appeal be struck out for want of prosecution might also be availed of. And we consider that in some cases it may become necessary for the Court to order that an appeal be brought on and struck out if necessary, for non-compliance with rules.”

In Willy Moke Soki’s case such an application was not made by the respondent but the Supreme Court dismissed the appeal because of the long delay. The Public Prosecutor did not contest the dismissal of appeal on the grounds of long delay.

In this case the respondents made an application to strike out this appeal for want of prosecution. The Supreme Court ruled with the majority of 2 to 1 not to strike out the appeal. See Tenge Kai Ulo v. Public Prosecutor; Joe Kovea Malai v. Public Prosecutor; Public Prosecutor v. Andrew Lalaiva and Angelo UmeSC201.html#_edn86" title="">[lxxxvi]⁵.

Where there is a long delay in setting down an appeal for hearing, the proper procedure is to make an application to the court to strike out the appeal. In principle, where an application to strike out the appeal has been made and such an application is unsuccessful, the question of delay may not be argued again at the time of the hearing of the appeal to simply dismiss the appeal without considering the merits of the appeal. To do so would be arguing the same issue twice. However, the court may have regard to the question of delay if after having considered the merits of the appeal it decides to increase the sentence. The consideration of delay becomes important when considering whether it should impose the substituted sentence. In this case the respondents have a few more months to serve yet. It is not as bad as having served their term or having a few more days to go yet. In Public Prosecutor v. Uname Aumane and 2 OthersSC201.html#_edn87" title="">[lxxxvii]⁶ appeal was argued a day after the respondents served their term and were sentenced to six years gaol terms.

The court has to weigh the seriousness of the offence with the unfairness caused to the respondent. In some cases the fairness to the respondent will outweigh the need to impose the substituted sentence. In others the seriousness of the offence may be such as to outweigh the unfairness to the respondents. In this case I consider that the seriousness of the offences and the circumstances of this case lead me to the view that the substituted sentence should be imposed.

In relation to the second matter of notifying the respondents, it is a matter of regret that this has occurred. This has only occurred because of the practice that has grown up over the years of serving documents on the Public Solicitor on behalf of respondents without instructions. I understand that proper arrangements have been agreed to by the Public Prosecutor and the Public Solicitor in this matter.

I do not consider that this is a good reason for not imposing the substituted sentence in the circumstances of this case.

MILES J: The two offenders were committed for trial on a charge of armed robbery. Before the National Court they pleaded guilty to two joint counts arising out of one and the same incident, the first being robbery with violence and in company, the second being robbery in company. The prosecution’s decision not to proceed with the charge of armed robbery precluded the sentencing judge from taking into account any suggestion that a dangerous weapon was used in furtherance of the offence. The prosecution now appeals against the adequacy of the sentence of nine months imprisonment with hard labour on each count to be served concurrently.

After some hesitation I have come to the conclusion that each sentence of nine months imprisonment with hard labour should be set aside and a sentence of one year and nine months imprisonment should be substituted. The sentence of nine months imprisonment does not reflect the seriousness with which the sentencing judge himself viewed the offences, if one has regard to the reasons given by His Honour for his decision. There can be no question that His Honour gave consideration to the various alternatives that lay before him: in particular he considered and rejected the alternatives of good behaviour bonds, suspended sentences of imprisonment and “short sharp sentences” designed particularly to deter the individual offenders. What concerned him particularly was the “high possibility” that each of these young men would be corrupted by a lengthy prison sentence, “however justified it may be”, an eventuality which was in the face of modern sentencing policy which he saw as aimed at rehabilitation. It appears that His Honour accordingly reduced the sentence that might otherwise have been imposed in order to give some effect to this aim of rehabilitation of the offender.

It cannot be wrong in principle to aim to impose a sentence which will avoid a “crushing” effect on a young offender but if a sentence is in effect to be reduced to about a half of what might normally be expected in the circumstances, there should be clear reason for it. There was very little information available to His Honour about these young men apart from the fact that they were eighteen years old, had no previous convictions and were unemployed. It was said that they had come to Port Moresby from the Woitape and Bereina areas respectively to look for employment. Andrew Lalaiva had not been to school but Angelo Ume had gone to school as far as Standard Six at Hohola, and had held a job in 1978 at Hohola. The picture of these young men is not very different from that of a large proportion of offenders who come before the courts. If a court sees the opportunity of imposing some sort of sentence commensurate with the gravity of the offence but which will include measures aimed at the rehabilitation of the young offender, then such measures might properly be adopted. For instance the partial suspension of a sentence upon conditions, or the placing of the offender upon probation (where the Probation Act 1980 is available) may be appropriate where there is some relevant factual material before the court. There was no such material in this case and it appears that His Honour thought the appropriate step would be to reduce the length of the sentence. That appears to me to be an error in principle, particularly as he had expressly rejected the course of imposing a “short sharp sentence” aimed at deterring the individual offender in particular.

There was some force in the submission of Mr. Wilson that the behaviour of the offenders may not have been as serious as it appeared on the surface and that there was no evidence of substantial premeditation is in effect that the case was more typical of a couple of school bullies impulsively relieving some colleagues of their lunch than it was of a gang of hardened criminals bent on a night of crime. In fact the victims and the two offenders were known to each other and this enabled arrests to be easily made a day or two after the event. However the factual material was scanty, the offenders did not give or call evidence to expand upon it and it is difficult to disagree with His Honour’s conclusion that the case was a serious example of robbery in company with a degree of violence which involved “a terrifying experience” for the victims.

Mr. Byrne for the State relied strongly on the prevalence of this sort of offence in the Port Moresby area and he referred to some previous cases in the National Court. If the incidence of cases brought to conclusion in the National Court is a proper yardstick, the crime of robbery is a rare one. There was, according to Mr. Bryne’s figures, one case in 1978, none in 1979 and one in 1980 apart from the present case under appeal. On the other hand I suppose it is fair to say that there are many cases for which arrests are never made. It seems to be widely accepted now that the incidence of rape is much higher than the number of cases brought to court would indicate and perhaps the same may be said about robbery. Nevertheless some caution is necessary if heavy sentences are called for because of the alleged prevalence of a particular offence. As it was recently put in an article by Mr. B. BruntonSC201.html#_edn88" title="">[lxxxviii]⁷:

“The statistical evidence relating to the incidence of urban crime is confusing. Certainly the popular perception is that there is ‘too much crime’, ‘too many burglaries’ and that the streets are insecure at night. Such beliefs merely reflect social concern over the incidence of lawlessness. They do not assist in quantifying the problem and putting it into perspective.”

If prevalence is to be relied upon in the present appeal it should be in terms of the prevalence of crimes of violence and not the prevalence of robbery.

It is unfortunate that any increase in sentence will take effect as these young men near the end of what they no doubt expected and were entitled to expect to be their punishment. According to the sentence they received they ware due to be released in September next. Apparently they did not learn of this appeal until a month or so ago. They were not in court for the hearing of the appeal. The extension of their terms of imprisonment as a result of this appeal is not only something that affects them personally, it also effects the due administration of justice. It is to be remembered that appeals by the State in criminal matters are to some degree contrary to the spirit of the rule against double jeopardy. Where the State wishes to exercise its right to appeal against sentence in criminal matters, those matters should be given priority in the office of the Public Prosecutor and generally speaking the shorter the sentence appealed against the greater the priority. It is also highly desirable that the respondent offender be served with notice of appeal as soon as possible.

I would set aside the sentences passed and in substitution impose a sentence of one year and nine months imprisonment with hard labour on each count to be served concurrently with each other.

Solicitor for the appellant: K. Roddenby, Acting Public Prosecutor

Counsel: J. Byrne

Solicitor for the respondents: A. Amet Public Solicitor

Counsel: K. Wilson

SC201.html#_ednref82" title="">[lxxxii]^{(1945) NZLR 86 at 87}

SC201.html#_ednref83" title="">[lxxxiii]^{(1978) Crim. L.R. at p. 367}

SC201.html#_ednref84" title="">[lxxxiv] ^{(1972) 56 C.A.R. 585 at 589}

SC201.html#_ednref85" title="">[lxxxv]^{(1977) P.N.G.L.R. 165}

SC201.html#_ednref86" title="">[lxxxvi]^{Unreported Supreme Court Judgment SC199 of 26 May 1981}

SC201.html#_ednref87" title="">[lxxxvii]^{Unreported Supreme Court Judgment SC190 of 19 December 1980}

SC201.html#_ednref88" title="">[lxxxviii] ^{(1980) 8 Melanesian Law Journal 143 at 151}