Papua New Guinea Law Reports - 1987
[1987] PNGLR 298
N617
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
KURI WILLIE
V
THE STATE
Waigani
Hinchliffe J
10 August 1987
28 August 1987
CRIMINAL LAW - Sentence - Youthful first offenders - Imprisonment as last resort - Alternatives to be investigated - Pre-sentence reporting.
CRIMINAL LAW - Appeal against sentence - Break, enter and steal - Youthful first offender - Look-out for co-accused - No property taken by appellant - Sentence of three years varied - Suspended sentence with probation.
On appeal against severity of a sentence of three years imprisonment imposed on an 18 year old first offender on conviction for breaking, entering and stealing from a store property to the value of K6,642.93, in circumstances where it appeared that the appellant had, after consuming alcohol, acted as “look-out” whilst a number of others broke and entered the store and had only entered the store after the others had left at which stage he was disturbed:
Held:
(1)      In all the circumstances the sentence imposed was so manifestly excessive as to constitute a miscarriage of justice.
(2)      The appeal should be allowed and the sentence of three years varied by deferring sentence on the appellant entering into a good behaviour bond for a period of two years subject to conditions.
(3)      (Per Hinchliffe J) Where youthful first offenders are to be sentenced the court should treat imprisonment as a last resort and should investigate alternatives to imprisonment before sentencing.
R v Taggart (1923) 17 Cr App R 132, considered.
Cases Cited
The following case is the only one cited in the judgment:
R v Taggart (1923) 17 Cr App R 132.
Appeal
This was an appeal against sentence on the ground of severity.
Counsel:
S Koaru, for the appellant.
M Unagui, for the respondent.
Cur adv vult
28 August 1987
HINCHLIFFE J.: On 19 May 1987, at the District Court, Kuri Willie was convicted and sentenced to three years imprisonment with hard labour in that he, on 17 January 1987 did break and enter a Super Snap Shop at Taurama of one John Chan and in it stole 21 different types of radios and radio cassettes, 13 cameras, 40 cassettes and 59 different types of watches, which in total valued K6,642.93, the property of John Chan and Partners Pty Ltd.
Kuri Willie now appeals to this Court on the grounds that:
1.       The sentence was manifestly excessive.
2.       The learned magistrate did not properly exercise his discretion under s 19 of the Criminal Code (Ch No 262).
The brief facts are that on 17 January 1987, at Taurama, the appellant together with seven others broke and entered the Super Snap Shop and stole the said goods. The appellant acted as a “look-out” and when the others took what they wanted and were leaving the scene, they invited the appellant to enter the shop and take whatever he wanted. The appellant accepted that invitation and because he was subsequently disturbed by someone, it appears that he in fact got nothing for himself. Needless to say he was very much involved in the criminal activity.
The magistrate at the District Court was quite clearly unimpressed with the appellant in that he had been drinking and that he was with a group of people and also that the appellant committed the offence even though he came from a good home and he was well educated. His Worship also referred to the prevalence of this offence and the youthfulness of the appellant. With all respect to his Worship it seems that he was somewhat overwhelmed by the value of the stolen property when he said:
“The value of the goods which you admitted stealing is the highest in any case which I have tried in the last 18 months.”
Section 230(2) of the District Courts Act (Ch No 40) provides:
“An Appeal shall be allowed only if it appears to the National Court that there has been a substantial miscarriage of justice.”
On the face of it, it may well be suggested that a term of imprisonment is appropriate for such an offence and that three years is not excessive. In some cases I would agree, but of course all cases differ and that makes the sentencing process difficult and at times frustrating.
When the appellant first appeared before me several weeks ago and after I heard submissions from his lawyer I felt that inquiries should be made in regard to alternatives to imprisonment. Therefore I ordered that a pre-sentence report be prepared and submitted to the Court. I now have that report and I congratulate Mr Cobern for his thorough investigation and wise recommendation. The report has certainly assisted me in this difficult task. I think it is a shame that the magistrate did not see fit to order a pre-sentence report because if he had done so it may well be that the matter would not have gone past the District Court.
Where youthful first offenders are concerned I am firmly of the view that courts should treat imprisonment as a last resort. It may well be that in the end imprisonment is appropriate but all the alternatives should be investigated before taking that final step. I agree with what was said in R v Taggart (1923) 17 Cr App R 132 at 132:
“[A Judge or a Magistrate who sends a young man to prison for the first time takes on a grave responsibility.] It is not practical ... or desirable, to lay down a general rule, but there are many cases ... it is [desirable] to take [a] risk to save a young man or woman from the consequences of [prison].”
His Lordship recognised in that case in 1923 what a terrible effect prisons have on young people. It seems to me that he was recognising that prisons do not change young offenders into law abiding citizens but in effect destroy any chance that they may have had of becoming law abiding citizens. I do not think that the statement that “a shop lifter goes to prison and comes out a bank robber” is exagerated. No one in Papua New Guinea would suggest that our prisons do anything to rehabilitate prisoners or even generally prepare them to enter back into the community as law abiding people. What really is happening is that the community is relieved of a menace for a period only to then have to experience and suffer a monster when the former menace is released.
Therefore I am of the opinion that we must look to alternatives to prison before sentencing — in particular to young first offenders.
The Magistrate erred in not investigating those alternatives and he also erred in failing to place the proper weight on the antecedents of the appellant. He erred to the extent that I am satisfied that there has been a substantial miscarriage of justice.
The appellant is 18 years of age and comes from a very stable and loving home. The home situation is important to the sentencer because in this case I am now satisfied that if the appellant is not in prison I feel confident that he has a strong family unit to support him and to steer him back onto the right path.
Obviously alcohol had an enormous effect on the appellant. I accept that he had not experienced alcohol before and I am supported in this conclusion when I read about the appellant and his family in the pre-sentence report. I am of the view that the magistrate seriously erred when not placing enough weight on that point. My order today will ensure that the appellant does not drink liquor for some time. Like the majority of criminal offences that occur, liquor played a major role.
The co-accused were people he did not usually associate with and it seems that they were several years older than he was. He was easily led and his immaturity allowed him to do what he did.
After reading the pre-sentence report I have no doubt whatsoever in finding that the anti-social behaviour that the appellant participated in was totally out of character. Up until the incident the appellant was attending High School and proceeding well. His Head Master was astonished when he heard about the incident. Friends and relatives were also at a loss as to the appellant’s behaviour. His genuine desire to continue studies is indicated by the fact that he had arranged to continue his studies by correspondence whilst in prison.
At the end of the day I must ask myself: “Is the community or the appellant going to benefit by the appellant being sent to jail?” Clearly the answer is “No”. The community may well benefit by allowing the appellant to continue studying in a relaxed situation.
When one considers that a large majority of young first offenders who are not sent to prison never re-offend then I am of the opinion that, with this appellant, the magistrate should have considered more seriously “the grave responsibility ... and take a risk”.
I am satisfied that this young first offender should be given a chance and be released on probation.
I therefore propose to uphold the appeal and vary the sentence of the District Court as follows:
“Kurie Willie, I defer sentencing you to imprisonment and release you on probation for a period of two years.
CONDITIONS
(i)       You are to have contact with your probation officer today before you leave the Court.
(ii)      You are to report to a probation officer as when required by the probation officer to do so.
(iii)     You are to keep the peace and be of good behaviour.
(iv)     You are not to change your residential address unless you have given the probation officer reasonable notice of your intention to do so and the reasons for the proposed change.
(v)      If you change address and move to another declared area you shall within 48 hours of arrival report to a probation officer in that area and advise that officer of the nature and place of your employment (if any) and address in that area.
(vi)     You shall, for the purposes of the Probation Act, allow a probation officer to enter your home during reasonable hours.
(vii)    You are not to consume any alcohol for a period of at least 12 months ie not before 28 August 1988.
(viii)    You are to make yourself available to Pastor Lapa or his delegate at the Christian Revival Crusade, Morata, each Saturday for the next 12 months. You are to carry out community type work for at least three hours each Saturday with the Christian Revival Crusade. The particular work day can be changed to another week day only with the leave and approval of the probation officer. Appeal upheld.”
Appeal allowed
Orders accordingly
Lawyer for the respondent: Public Prosecutor.
Lawyer for the appellant: Public Solicitor.