Public Prosecutor v Goina, Vele, Leva and Wari [1982] PGSC 4; SC230 (6 August 1982)

Unreported Supreme Court Decisions

SC230

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

S.C.A. 10 OF 1982
BETWEEN: THE PUBLIC PROSECUTOR
APPELLANT
AND: KWALIMU GOINA, JOHN VELE, NORMAN LEVA AND TOM WARI
RESPONDENTS

Waigani

Andrew Bredmeyer Kaputin JJ
27 July 1982
6 August 1982

CRIMINAL LAW - Sentence - Appeal by Public Prosecutor against inadequacy of sentence.

KIDNAPPING FOR RANSOM - Section 354 of the Criminal Code - prevalence of offences of violence - protection of community and need for deterrence the paramount consideration -

INDICATION AND WARNING By Supreme Court that sentences for crimes of violence especially those involving gangs will rise.

Order of the Court

Appeal allowed. Sentences appealed against set aside. In substitution the Respondents KWALIMU GOINA and JOHN VELE sentenced to imprisonment with hard labour for 18 months on each count to be served concurrently. The Respondents NORMAN LEVA and TOM WARI sentenced to imprisonment with hard labour for 12 months.

ANDREW BREDMEYER KAPUTIN JJ: This is an appeal by the Public Prosecutor, on the ground of inadequacy, against sentences imposed by the National Court upon the respondents, as co-defendants on conviction upon an indictment which contained three counts as follows:

“1st Count: KWALIMU GOINA, JOHN VELE, NORMAN LEVA and TOM WARI all of TAURUBA are charged that they on the 3rd day of August, 1981 in Papua New Guinea with intent to procure something to be done by one GUY MASCORD namely transportation of the said KWALIMU GOINA, JOHN VELE, NORMAN LEVA and TOM WARI in a motor vehicle to TAURUBA village by a demand containing threats of injury to be caused to the said GUY MASCORD by them if the demand was not complied with, detained the said GUY MASCORD.

2nd Count: AND ALSO THAT the said KWALIMU GOINA, JOHN VELE, NORMAN LEVA and TOM WARI all of Tauruba are charged that they on the 3rd day of August 1981 in Papua New Guinea unlawfully deprived one GUY MASCORD of his personal liberty by compelling him to drive them to Tauruba Village.

3rd Count: AND ALSO THAT the said KWALIMU GOINA, JOHN VELE, NORMA LEVA and TOM WARI all of Tauruba are charged that they on the 3rd day of August, 1981 in Papua New Guinea threatened to assault one GUY MASCORD with intent thereby to compel the said GUY MASCORD to drive the said KWALIMU GOINA, JOHN VELE, NORMAN LEVA and TOM WARI to Taruba Village.

The substance of the charges was that the Respondents on the night of the 3rd August 1981 stopped a truck being driven by Mr. Guy Mascord, a teacher at Kwikila High School. The vehicle was enroute from Riwali Village to Kwikila and the passengers included another teacher, five school students and a security officer from the school. The respondents demanded to be driven to Tauruba village in the opposite direction and they threatened to kill Mr. Mascord if their demands were not complied with. Mr. Mascord was physically assaulted and was threatened with being struck by sticks and stones. The respondents had been drinking and were affected by alcohol.

The learned trial judge found that the respondent JOHN VELE played the major part in the offence. He found that his part merited twelve months imprisonment with hard labour from which was deducted a period of seven months already spent in custody awaiting trial, so that the actual sentence was five months in hard labour. The respondent was ordered to serve one further week and the remaining four months and three weeks were suspended under s.19 of the Criminal Code upon condition that he entered into his own recognizance in the sum of K300 to keep the peace and be of good behaviour for a period of three years.

The respondent KWALIMU GOINA was found to have played the second most serious offence and the learned trial judge would have sentenced him to ten months imprisonment but the had already served five months so that the sentence was five months imprisonment with hard labour. This sentence was also suspended upon the same conditions as applied to the first respondent JOHN VELE.

The respondent TOM WARI was found to have committed the next most serious part. He was sentenced to two months imprisonment with hard labour (having served seven months awaiting trial) and the sentence was suspended upon condition that he entered into a recognizance in the sum of K200 to keep the peace and be of good behaviour for two years.

The respondent NORMAN LESA was found to have taken a lesser role. The trial judge found that the seven months period in custody awaiting trial was an adequate punishment and he was sentenced to the rising of the Court.

The offences for which the respondents were found guilty are contained in s.354 of the Criminal Code (Kidnapping for Ransom) which is contained in Part V - ‘Offenses against the person’ - Division 8’ ‘Offenses against liberty’.

Whilst the facts do not disclose that this is a kidnapping in the popular sense, in that the victim was deprived of his liberty until a ransom was paid, it was in our view a very serious crime in which innocent persons were threatened with death and were assaulted and forced to give into those demands containing threats of injury. It was an extremely bad case carried out by a gang on a public road and made worse by the fact that many children were placed in fear.

Whilst it is not shown that there was any error of principle or of law or fact by the learned trial judge it is our view that the sentences are so inordinately low when considered in relation to the offence and the circumstances of the case that they are manifestly inadequate. They do not in our view reflect the seriousness with which the trial judge himself viewed the offences.

This is the first case of this type which has come to our attention. In our view the offence is not dissimilar to that of robbery with violence in company and other offences involving violence against the person.

The deterrent aspect of punishment is of primary importance in cases of this kind. The sentence should demonstrate to others tempted to engage in such lawlessness involving violence that the punishment to be imposed will be calculated to protect society from the deliberate attack made upon it.

We are mindful of the increase in crimes of violence and the widespread public concern about such offences. Such conduct will be met by firmness on the part of the Courts and we give warning that sentences will increase substantially. This is particularly so where such crimes are committed by gangs.

In this case we take into account that the respondents have served over six months in custody and have now been released. It is unfortunate that an increase in sentence will now take effect after they believed they had completed their punishment. But we consider the seriousness of the offences must outweigh that consideration although we take it into account.

The respondents JOHN VELE and KWALIMU GOINA played the more active roles. We consider that they should be sentenced imprisonment with hard labour for two years. They have however served over six months already so that the sentence we impose is imprisonment with hard labour for 18 months.

The respondents NORMAN LEVA and TOM WARI played lesser roles but were nevertheless a part of the whole enterprise. We consider that an appropriate sentence is 18 months in hard labour but as they have served approximately six months, the sentence of the Court is imprisonment with hard labour for 12 months.

Solicitor for the Appellant: The Public Prosecutor

Counsel: L. Gavara-Nanu & L. Henao

Solicitor for the Respondents: The Public Solicitor

Counsel: N. Kirriwom