Acting Public Prosecutor v Mailai [1981] PNGLR 258 (31 July 1981)

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CRIMINAL LAW - Sentence - Youthful first offenders - Prevalent and serious offence - No special treatment unless exceptional circumstances.

CRIMINAL LAW - Appeal against sentence - Youthful first offenders - Break, enter and steal - Prevalent and serious offence - Deterrent necessary generally - No special treatment for youth unless exceptional circumstances.

CRIMINAL LAW - Appeal against sentence - Appeal against inadequacy - Delay in bringing appeal relevant consideration.

On appeal against inadequacy of a sentence “to the rising of the court”, imposed on a fifteen year old first offender, on a plea of guilty of breaking entering and stealing from a store in circumstances where it appeared the defendant played an active part as a member of a gang who planned and committed the offence:

(1) Where offences such as breaking, entering and stealing are serious, prevalent and invariably committed by young persons, youthful offenders should not receive special treatment unless there are exceptional circumstances calling for leniency;

Paulus Mandatititip v. The State [1978] P.N.G.L.R. 128 followed and explained;

(2) The gravity of the particular offence was such that it called for a custodial sentence of the order of twelve months imprisonment and above;

(3) Delay in lodging and hearing an appeal against sentence is a relevant factor in determining whether the sentence should be increased;

The Public Prosecutor v. Willy Moke Soki [1977] P.N.G.L.R. 165 at p. 167 adopted and applied;

(a) (Per Andrew and Pratt JJ.). Although the sentence was manifestly inadequate a delay of nine months in prosecuting the appeal against sentence was such that the sentence should not in fact be increased;

(b) (Per Bredmeyer J.). Although the sentence was manifestly inadequate, the delay involved should mean only a reduction in the sentence to be otherwise imposed.

This was an appeal pursuant to s. 23 of the Supreme Court Act, 1975 against sentence on the ground of inadequacy.

ANDREW J PRATT J: This is an appeal by the Acting Public Prosecutor, on the ground of inadequacy, against the sentence imposed by the National Court on the respondent for an offence of breaking, entering and stealing. The respondent had pleaded guilty to a charge that on or about 30th May, 1980, in Papua New Guinea, he broke and entered a store of W. R. Carpenter (P.N.G.) Ltd. and therein stole a quantity of hardware goods and radio cassettes, valued at K1,573.36, the property of the said W. R. Carpenter (P.N.G.) Ltd. On 27th October, 1980, the respondent was sentenced by the National Court, sitting at Waigani, to the rising of the court.

In our view this was a particularly bad case. The facts disclosed that the respondent was a member of a gang known as the “Mafia Gang” and that on the night in question the gang members assembled at the respondent’s house where they planned this offence. They stole a vehicle from underneath a house and when challenged by the owner they threatened him with knives and stones. They obtained house breaking implements and they then used the vehicle to drive to the store where they broke in, collected the goods and drove off. The vehicle was deliberately damaged. The respondent played an active role in all of these enterprises including the breaking and entering of the store rather than the less active role of the “watchman”.

The respondent was aged fifteen or sixteen. He had no previous convictions. In passing sentence the learned trial judge had regard to the respondent’s age and he proceeded under s. 36 of the Child Welfare Act 1961. But in our view the judgment on sentence discloses errors of fact and considerations which ought not to have affected the trial judge’s exercise of discretion in arriving at the sentence he did. The trial judge said:

“He (the respondent) is a victim of the education system this country has unwittingly adopted, having been pushed out of it at grade VI. His offence is the typical offence of persons in this category.”

In our opinion there is no evidence of this. The evidence was that the respondent had been to school and to the Hohola Vocational School from where he had lost interest and “dropped out”. It is clear to us that the trial judge proceeded on the basis of the accused being a “victim” of society. We find no basis for this nor do we believe that such gratuitous remarks which have no foundation in evidence should form the basis for the passing of a sentence which is clearly inadequate and in defiance of the directions of the Supreme Court which are binding upon the National Court.

“Although the offence he has committed is a prevalent offence, I decline to make the life of this young person a scapegoat for others. I treat him as a young person who has been led astray.”

The fact is that the respondent planned this offence and deliberately entered into it. There was no evidence whatsoever to say that he had been led astray.

It should be unnecessary to do so but we must again draw attention to the stream of cases in the Supreme Court and the National Court which have been frequently announced and published over a long period that the severity of punishment for the offence of breaking and entering will increase. For example Paulus Mandatititip v. The State[cdxlv]¹:

“In Papua New Guinea at this time, when breaking and entering offences are prevalent generally and when there is widespread public concern about such offences, the courts must remind themselves that under both the introduced law and customary law such offences are viewed seriously. Indeed the maximum penalty laid down in s. 410(a) of the Criminal Code is 14 years’ imprisonment with hard labour. In addition, ordinary people are entitled to be protected, as far as it is possible for the law to protect them, from such offences involving the stealing of property from their homes and business premises. Such conduct must, in my view, be met by some firmness on the part of the courts. In Bokun Umba v. The States (Unreported Judgment S.C. 92 of 2nd April, 1976) Prentice Deputy C.J. (as he then was) referred at p. 8 to the need for ‘sternness in the community’s judicial officers’. Of course the distinction needs to be drawn between crimes of breaking and entering which are premeditated ... and those which are spontaneous or committed out of necessity. The distinction should also be drawn between crimes of breaking and entering committed by gangs of men ... and those committed by individuals.”

In fairness we should say that the court in Paulus Mandatititip v. The State (supra) placed some reliance upon a statement said to have been made by Herron C.J. in Reg. v. Cuthbert[cdxlvi]² that a plea of youth is no longer a satisfactory answer to crime. That was a case involving an eighteen year old youth who with others had kicked another youth in the head causing his death. Herron C.J. after referring to those facts was minded to say, inter alia, that a plea of youth was no longer entirely a satisfactory answer to crime. It seems to us that the misquoting of that passage in Paulus Mandatititip[cdxlvii]³ has led to that case being cited as a general authority for the proposition that youth is no longer a mitigating factor to be taken into account on sentence. In our view that submission is quite ill founded and the court in Paulus Mandatititip (supra) decided no such thing. Youth has always been one of the most effective mitigating factors especially in the case of the first offender, and this principle is basic and elementary. But where an offence is more serious and it is prevalent and it is invariably committed by young persons, then they may not receive special treatment unless there are exceptional circumstances which call for leniency. This, in our view, was what was decided by Paulus Mandatititip (supra).

The present case was a gang offence which was planned and premeditated. The respondent played a leading role. It was not committed out of any necessity. In our view the sentence was manifestly inadequate and accordingly we allow the appeal.

In the circumstances the gravity of the offence was such that it clearly called for a custodial sentence of the order of twelve months and above. But a long period has elapsed in bringing on the appeal. It is now nine months since the respondent was allowed to go free. We do not go into the reasons for the delay but suffice to say it was through no fault of the respondent. We are in agreement with what was said in The Public Prosecutor v. Willy Moke Soki[cdxlviii]⁴ that:

“The aphorism ‘Justice delayed is justice denied’ is applicable equally in the criminal as in the civil fields of law. 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.”

Delay both in the lodging and hearing of the appeal must always be a relevant factor. See R. v. Liekefett; Ex parte Attorney-General[cdxlix]⁵. But for the delay which has occurred we would therefore have increased the sentence and we consider, especially in view of the respondent’s age, that it would not be just to send him to prison some nine months after his conviction.

BREDMEYER J: I have had the benefit of reading the reasons prepared by my brothers Andrew and Pratt JJ. and agree for the reasons there given that the sentence imposed by the trial judge was manifestly inadequate and that he erred in law in failing to follow the Supreme Court decision in Paulus Mandatititip v. The State[cdl]⁶ which was binding upon him. One of the roles of the Supreme Court in hearing sentencing appeals is to standardize sentences so far as is possible so that similar offenders who commit similar offences but appear before different judges will receive similar punishments. R. v. Woodman[cdli]⁷. Trial judges should therefore follow such decisions.

Taking into account the seriousness of this particular break and enter and the matters in favour of the accused—he pleaded guilty, his age, that he was not the leader, etc.—I think an appropriate punishment would have been twelve months in hard labour which together with the four months he had spent in custody awaiting trial would have been an effective sentence of sixteen months in hard labour.

I beg to differ with my brothers on what should now be done with the respondent. The trial judge gave his sentence on 27th October, 1980. The appeal was lodged shortly thereafter and nine months have elapsed before the appeal was argued. The appeal should have been argued at the end of November 1980; the delay by the prosecutor has thus been eight months. The prosecutor narrowly avoided having his appeal dismissed in May, 1981 through lack of prosecution[cdlii]⁸.

When the Public Prosecutor appeals against a non-custodial sentence, he must prosecute that appeal speedily. If he delays, the offender, although free, suffers the anguish and worry that if the appeal succeeds he will be sent to gaol. The longer the delay, the greater the anguish and worry which is itself a punishment. Where delay occurs the Supreme Court may think that that suffering, together with any pre-trial period spent in custody, is sufficient punishment and decline to impose a substitute sentence; or it may reduce the sentence which it would otherwise have imposed on account of the delay. These are the principles that emerge from the following cases.

R. v. Pia-Afu[cdliii]⁹ was decided by the Full Court of the pre-Independence Supreme Court, consisting of Frost S.P.J., Clarkson and Kelly JJ. In that case the offender who was a local court magistrate was given a good behaviour bond for stealing court fines. The appeal against sentence came on for hearing nine months later. In a joint judgment the court said this delay was one reason why they imposed a lesser sentence than they would have otherwise imposed. The sentence they gave was six months in hard labour.

The same point arose in R. v. Harley[cdliv]¹⁰ before the same Full Court and the case was decided on the same day. The court there also gave a joint judgment. In that case the offender had been given a bond for stealing and the interval between the giving of the bond and the hearing of the appeal was five months. The Full Court said that the delay in hearing the appeal was one of two factors why the court imposed a gaol term which was ‘considerably less’ than it would normally have imposed for the offences. (The other factor was the offender’s ill health.) The gaol term the court imposed was nine months.

In The Public Prosecutor v. Willy Moke Soki[cdlv]¹¹ the offender had been given a good behaviour bond for dangerous driving causing six deaths. The appeal against sentence was heard twelve months after the sentence and just after the bond had expired. In view of this delay and the expiration of the bond the appeal was dismissed. The State in that case conceded that the offender should not be sent to gaol.

In The Public Prosecutor v. Wiwi Gok[cdlvi]¹² the offender was convicted of break and enter under s. 408 of the Criminal Code, carrying a maximum sentence of three years, and was given a bond. The prosecutor’s appeal against sentence was heard seven months later. (Like the instant case, but unlike the others I cite, this period included the two month Christmas vacation.) The Supreme Court consisting of Frost C.J., Prentice Deputy C.J. and Williams J. in a joint judgment imposed a gaol term of six months, which they said was strictly related to the maximum of three years imposed by the section and made no mention of the delay factor as a reason for reducing the sentence that was appropriate.

In The Public Prosecutor v. Panikuiaka Nopi[cdlvii]¹³ the offender was sentenced to the rising of the court for the offence of wilful murder. The prosecutor’s appeal against the lenient sentence was heard three and a half months later. Prentice C.J. who dissented thought a sentence of two years in hard labour should be substituted and did not refer to the delay factor. Saldanha J. agreed that a sentence of two years should have been imposed but then said at p. 541.

“The difficulty about incarcerating her now is that after being in custody for three months pending trial she has been at large for three months and sending her to prison will probably do more harm than good. We have had cases where convicted appellants have been at large on bail pending appeal and, upon their appeals being dismissed, they have been committed to prison. But such persons have known from the start the sentence imposed on them and have merely put off the evil day by appealing. In cases where the Public Prosecutor appeals successfully against an inadequate sentence almost invariably the respondent is in prison serving sentence and an increase in the sentence entails the prisoner staying in prison a little longer than he was originally led to expect.

The circumstances of the instant case are vastly different, certainly exceptional, almost unique. The respondent has been led to believe that all is forgotten and forgiven. Her husband has taken her back. In the absence of evidence to the contrary it must be assumed that husband and wife are getting on reasonably well. The social services have agreed to help them. She could be well on the way to being rehabilitated and settling down to a reasonably happy life caring for her children. If she were to be imprisoned now who knows whether her husband would have her back on her release two years later? In my view the advantages both to the community and to the respondent in allowing her to be at large outweigh whatever merit there may be in imprisoning her and I would therefore dismiss the appeal.”

Andrew J. also dismissed the appeal but did not have to consider the delay factor as he did not think the trial judge’s sentence was inadequate.

I do not think Panikuiaka Nopi’s case (supra) is a very strong authority on the question of delay. Only Saldanha J. dealt with the point and I think his decision turns on the special facts of that case. The offender had attempted to kill herself and child to shame or hurt her husband who had ill-treated her. She failed to kill herself but succeeded in killing her child. After the trial judge’s order she was reconciled to her husband, thus perhaps avoiding the temptation to commit suicide again. As Saldanha J. said, the circumstances of the case were ‘exceptional, almost unique’. It is clearly not as strong an authority as that of the joint judgments of the court in the more normal factual cases of Pia-Afu[cdlviii]¹⁴ and Harley[cdlix]¹⁵.

In the present case, as I have said, the delay in arguing the appeal has been eight months. The mental anguish the respondent has suffered over those eight months not knowing if this Court will imprison him or not is not, in my view, as severe a punishment as having spent eight months in custody. If it was as severe he would deserve to go to gaol now for four months. I consider the respondent’s anguish and worry over those eight months entitles him only to a reduction in the sentence I would otherwise have imposed. Allowing a reduction because of the delay I would now impose a sentence of eight months’ imprisonment with hard labour.

[cdxlv][1978] P.N.G.L.R. 128 at p. 131.

[cdxlvi](1967) 86 W.N. (Pt. 1) (N.S.W.) 272 at p. 277.

[cdxlvii][1978] P.N.G.L.R. 128 at p. 130.

[cdxlviii][1977] P.N.G.L.R. 165 at p. 167.

[cdxlix] [1973] Qd. R. 355 at p. 366.

[cdl][1978] P.N.G.L.R. 128.

[cdli](1909) 2 Cr. App. R. 67.

[cdlii]Unreported judgment No. SC199 of 26th May, 1981.

[cdliii][1971-72] P.N.G.L.R. 393.

[cdliv][1971-72] P.N.G.L.R. 399.

[cdlv][1977] P.N.G.L.R. 165.

[cdlvi][1977] P.N.G.L.R. 161.

[cdlvii][1979] P.N.G.L.R. 536.

[cdlviii][1971-72] P.N.G.L.R. 393.

[cdlix][1971-72] P.N.G.L.R. 399.

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Papua New Guinea Law Reports

Acting Public Prosecutor v Mailai [1981] PNGLR 258 (31 July 1981)

Papua New Guinea Law Reports - 1981