PAPUA NEW GUINEA
[IN THE DISRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL (SUMMARY) JURISDICTION]

SUM 84 of 2021

BETWEEN

POLICE
(Informant)

AND

PAUL KENNEDY
(Defendant)

Vanimo: B. Fehi
         2021: 30th April

CRIMINAL SUMMARY: Possession of ammunitions without licensed for that purpose pursuant to Section 65A (a) Firearms Act – Plea of guilty to the charge – Mandatory Custodial term as penalty – Minimum of 6 months imprisonment term and Maximum of 12 months imprisonment term – Aggravation slightly outweighs Mitigation – Starting point of 6 months imprisonment term considered appropriate – 6 months imprisonment term confirmed and imposed to be served in full without deduction.

Cases cited:

•	Police v. Meut [2009] DC934;
•	State v. Kamban Mawi (2002) N2246; and
•	Police v. Saol [2011] DC2036.

Legislation:

•	Criminal Code Act; and
•	Firearms Act;

Representation:

Sgt. Musai for the Prosecution

Defendant/Offender in person

DECISION ON SENTENCE

30th April 2021

1.	FEHI. B DCM: Defendant stands charged before me for one count of having in his possession three 9 millimeters ammunitions and one 7.62 millimeter ammunition pursuant to Section 65A (a) of the Firearms Act. He pleaded guilty to the charge and Guilty Plea entered respectively. He is now before me for sentencing.

RECORD OF PROCEEDINGS

2.	Sgt. Musai for the prosecution presented the Police Information before me bearing Summary File Number: 84 of 2021. I arraigned the offender based on this Information and he admitted to the charge contained therein. Sgt. Musai read the brief facts accompanying the Information to the offender and having heard the relevant facts raised no objection to the contents. After perusing through the contents of the Police Summary of facts, I am satisfied that there appears to be sufficient evidence provided and that it is safe to confirm the provisional guilty plea of the offender whereupon I confirmed and enter on record the Plea of Guilty as Charged. Sgt. Musai showed the ammunitions to the offender and without any objection from him, he preceded on to tender the exhibits described as 3x 9 millimeters ammunition which I accepted into evidence and marked as Exhibit ‘A1’, ‘A2’ & ‘A3’and 1x 7.62 ammunition which I also accepted into evidence and marked it as Exhibit ‘B’.   

3.	Sgt. Musai confirmed in presenting the offender’s antecedent report that he has no prior conviction. Also he is 19 years of age, is single and unemployed. Further he does not attend any school and lives with his parents at Wutung Village, Vanimo Green District West Sepik Province.

4.	I accorded to the offender an opportunity to address court on penalty and on other matters he wished to disclose for my consideration. He told the court that he only had the ammunitions to make necklaces and not to do any illegal activities. Nothing further was mentioned by him on what he thought should be the appropriate penalty this court should impose on him and why.

5.	I now provide hereunder the decision on sentence for the offender Paul Kennedy.

POLICE SUMMARY OF FACTS 

6.	On Tuesday 27th April 2021 at about 7:00pm the offender was at Wutung Border Post, Vanimo Green District, West Sepik Province. Members of PNG Defence Force who were stationed at the border apprehended the offender upon reasonable suspicion when they saw him coming down from the road leading to the border processing facilities. In effecting a random search on the offender they discovered in his trousers pocket 3x 9 millimeters ammunition and one 7.62 ammunition. While being held in their custody, the offender escaped only to be surrendered by his family to the Police at Wutung on 28th April 2021. He was then brought down to Vanimo Town processed and presented before the court.

THE LAW AND SENTENCING APPROACH

7. 	The offender pleaded guilty to the following offence:

a)	Having in his possession ammunitions without licensed for that purpose, a charge pursuant to Section 65A (a) of the Firearms Act, Chapter 310 which states:

		65A. UNAUTHORIZED POSSESSION OF AMMUNITION.
[72]A person who is in possession of ammunition and who is not–
		(a) the holder of an ammunition licence; or
		(b) the holder of a gun-dealer’s licence; or
		(c) the holder of–
			(i) a firearm licence; or
			(ii) a high-powered firearm licence; or
			(iii) a pistol licence, 
	for a firearm, high-powered firearm or pistol, as the case may be, capable of discharging 	ammunition of the specific calibre or gauge of that which is in his possession,
	is guilty of an offence.
	Penalty: [73]Imprisonment for a term not less than six months and not exceeding 12 	months.
	
8.	The National Court in the exercise of its discretion under Section 19 of the Criminal Code Act has over the years suggested and used sentencing guidelines. The higher Courts through this method layout factors a sentencing judge should take into account when deciding on an appropriate sentence. It is a commonly accepted view that sentencing is not a matter of mathematics or precise science but logic and common sense and what is considered fair and reasonable in a given set of circumstances. Using the guidelines, the sentencing authority identify a penalty range, from this an appropriate sentence is reached. The District Court, however, is a creature of legislation and is confined to the precincts of the District Courts Act and other enabling legislation. In the exercise of my summary criminal jurisdiction, Firearms Act is the creator of my power and I must operate within its provisions.

9.	I agree ‘ad idem’ with the higher courts position on sentencing but will not strictly apply their guidelines, the reason being theirs is most relevant to the wider discretion they exercised to determine an appropriate sentence from a huge gap between the maximum and minimum prescribe penalties. In the District Court, the intention of the legislature can be clearly inferred from the penalty provisions of each respective offence. For instance, it is mandatory for the District Court to impose a jail term of no more than two (2) years, there is no discretion to extend beyond this range.

10.	Even with this limitation, I must as a matter of best practice, employ the higher courts approach applying it in a way compatible with practices widely applied before the District Courts. This in my view is important to maintain consistency in sentencing on par with my Sister and Brother Magistrates. I borrow from and apply the position taken by His Worship Kaumi M. (as he the than was) in the case of Police v. Meut [2009] DC934, to emphasis this point. Paragraphs 23 and 24 are of relevance:

•	Paragraph 23	:	“With the due respect, none of the published judgments up to 					now in our jurisdiction provide a guideline as to what are 					appropriate considerations to be taken on board in arriving at a 					sentence for this type of offence and there is need for 						guidelines for purposes of uniformity and consistency of 					sentence.”
•	Paragraph 24	:	“I am therefore inclined to go higher for guidance and 						analogy(emphasis mine) and in doing so adopt as a matter of 					practice, His Honor Kandakasi. J’s guidelines on sentencing in St 				v Michael Kamban Mani (5) that:-
				
				a. The maximum prescribed penalty should not be imposed but 				should be reserved for the worst type of offence under 						consideration.

				b. Guilty pleas and the offender being a first time offender and 				the existence of “such good” factors operate in the offender’s 					mitigation and sentence lower than the prescribed maximum 					may be imposed.

				c. The prevalence or otherwise of the offence which could be 					reflective of the ability of the previous sentence to either deter 					or not to deter would be offenders.

				d. The kind of sentences that one being imposed in similar but 					less serious offences should be considered to ensure that 					sentences in a higher or serious offense is not lower than these 				imposed for the less serious offences.”(emphasis mine)

11.	As such, it is appropriate to note in general the style and form of all penalty provisions under the respective legislations enforceable before the District Courts. I must say, this task is simplified through the clear limitations outlined by the respective wordings. Categorically speaking, two forms of available penalties are prescribed, one being non-custodial and the other custodial. In my opinion the following make up the respective forms:

•	Non- Custodial Penalties.

i)	Imposition of Court Fines;
ii)	Placing of offender on Good Behavior Bond;
iii)	Placing of offender on Probation with specific or general conditions; and 
iv)	Cautioning and Discharge of offenders.

•	Custodial Penalties

i)	Imposing of Mandatory Jail Terms of no more than 2 years; and 
ii)	Imposing of Discretionary Jail Terms (jail terms upon defaults or were the 	circumstances of a particular case warrants as oppose to non-custodial penalties) of no 	more than 2 years.

12.	Therefore, it is my humble view that in the process of sentencing I must firstly consider the purpose I intend to achieve by imposing such a penalty on the offender through handing down his sentence, for instance, Retribution, Deterrence, Restraint, or Rehabilitation. Secondly, I must apply to the offender’s case the position highlighted above per Kaumi M. and identify which components of the whole circumstances of the case fall in favor of either a non-custodial or custodial penalty form. Thirdly but not the least, I must consult prior decisions of my Colleagues Magistrate on their sentences of offenders whom were charged with same offences under similar circumstances, in order to be on par with the current trend. By applying this approach I hope to achieve consistency in sentencing you and avoid delivering one that is too remote and out of context with the majority’s intention.

ANTECEDENT        

13.	As alluded to, the offender is 19 years of age, single and lives with his parents at Wutung Village. He gave no information before me on his education status therefore I accept that he does not attend any school and he is a subsistence farmer. It is also a common fact, especially in Wutung Village for youths around offender’s age group to leave school early and engaged in associated informal income earning activities connected to the border trade and movement of people. The introduction of Covid19 has abruptly put a stop to these activities. This I take judicial notice of as part of the offender’s antecedent.   

ALLOCUTUS   

14.	Also alluded to earlier, the offender said in his oral statement that the ammunitions in his possession were for making necklaces and not for any other illegal purposes. He made no other statement on factors this court should take into consideration when deciding on an appropriate sentence to impose on him. He also showed no remorse through his self-serving speech and by his demeanor before me. 

DEFENCE SUBMISSION 

15.	No address on sentence by the offender.

PROSECUTION SUBMISSION  

16.	Sgt. Musai for the prosecution submitted that this is a serious offence because the offender committed the act close to our International Border with the Republic of Indonesia. There has been an increase in illegal activities along the border, particularly within the stretch of the border line that run along Wutung Village boundary and a jail term must be impose to be a deterrent to other would be offenders. He went on to state the reason given by the offender has no basis in law and that he should be sentenced to serve jail time at Correctional Services Jail establishment here in Vanimo. 

ISSUES

A.	What is the appropriate sentence for the offender?

B.	Which form of sentence is appropriate under the circumstances, custodial or non-custodial? 

17.	I will now proceed to deal with the respective issues, bearing in mind, the penalty provision of the relevant legislation and the sentencing approach, as discussed.

A.	WHAT IS THE APPROPRIATE SENTENCE FOR THE OFFENDER?

18.	At this juncture, I will lay out the respective factors in mitigation and aggravation for the offender. The following make up those in Mitigation:

•	Early guilty plea to the charge;
•	Offender has no prior records of conviction;
•	Young age of the offender;
•	Offender was surrendered to Police the next day after escaping on the date of the offence; and
•	Offender was not in the course of committing another offence at the time of his apprehension.

19.	The position on factors relating to concerns about your family’s possible hardship in the event of your incarceration is well settled in our jurisdiction. It is not a factor to be considered in your favor towards a lenient sentence. I must caution myself of the apparent dangers associated with accepting on face value information provided by the prosecution on your status as a first time offender. I agree with and apply the position taken by His Honor Kandakasi J (as he then was), in the case of State v. Kamban Mawi (2002) N2246. His Honor stated:

      “In situations like your cases, I have had little or no regards to a plea of being first 		time offenders. An example of that is my judgment in the State v. Kenny Irowen 	(Unreported judgement delivered on 24/05/02) N2239. There the prisoner, did not 	have any prior convictions but did have history of beating up his wife. I therefore had 	no or little regard to him being a first time offender (emphasis mine). I note other 	judges have done likewise, an example of which is my brother Justice Jalina’s judgment 	in the State v. Amos Kiap N2452.” 

20.	This position is not foreign to sentencing before the District Courts’, Kaumi M. (as he then was) applied this in refusing to accept the nil prior conviction status of the offender in the case of Police v. Karoiwe DC945 at paragraph 34 of his judgment. I accept the above and apply it to your case, despite both cases having to do with Domestic Violence; the general principles are applicable to your case, that is, your personal welfare and whatever plans that you may have given your age. Also the prevalence of and increase in illegal activities along the Wutung stretch of the international border line is enough to draw a reasonable inference that your possession of the ammunition was intended for illegal purposes. In my view, you have on previous occasions engaged in such illegal activities, it was only upon your apprehension that this court sees you before it. Should that be not the case, you would, seeing the facts as they are continue on with whatever illegal intended purpose you have with those ammunitions. In saying the above, I will not give weight to your status as a first time offender and also to your age and welfare.

21.	In the offender’s aggravation, the following factors fall within this category:
   
•	Offence committed along PNG’s International Border;
•	Prevalence of illegal activities along the border, in particular the smuggling and illegal trade of firearms and ammunitions;
•	Possession of not one but 4 ammunitions;
•	Escaped from lawful custody upon apprehension; and
•	No remorse shown by the offender.

22.	I must now weigh the above factors, to do this, it is necessary for me to make comparisons with similar factors present in prior dealt with cases before the District Courts and how my colleague Magistrates conduct this exercise in determining an appropriate sentence. I wish to achieve this through the introduction of sub-issue of which the following suits the present circumstances:

i.	What is the sentencing trend for offences of having in one’s possession ammunitions without licensed for that purpose?

•	Police v. Saol [2011] DC2036 (Kaumi M. (as he then was)).

The offender was apprehended by police whilst in the company of two others at Madang Botanical Garden. He was acting suspicious and attracted the attention of the police who were on patrol nearby. Upon conducting a search on the offender, they found concealed in his wool cap four 5.56mm bullets. He was then taken to the police station, arrested and charged.   

The offender was 20 years of age at the time of his sentencing. He was single and unemployed with no prior conviction. The court in considering the factors for and against him sentenced him to 6 months imprisonment of which he was required to serve the full term without any suspension. 

I agree and apply as relevant Kaumi M’s observations in reaching his final sentencing term for the offender in the above mentioned case. I was unable to locate other decisions apart from the above. As such I consider a starting point of 6 months imprisonment term to be appropriate and apply it to your case. You behaved irresponsibly and  

B.	WHICH FORM OF SENTENCE IS APPROPRIATE UNDER THE CIRCUMSTANCES, CUSTODIAL OR NON 	CUSTODIAL?       

23.	I must now decide on whether to impose a custodial sentence, that is, imprisonment term of six (6) months or Non-custodial through suspension and imposing court fines, Good Behavior Bond or Probation.

24.	The penalty provision of the offence with which you pleaded guilty to calls for a custodial sentence of not less than 6 months and not more than 12 months. This means I must consider an appropriate sentence for you between 6 months and 12 months, that is, the minimum being 6 months and the maximum of 12 months. The penalty provision bar me from considering any non-custodial penalty form and impose on you. 

25.	The question that arises which begs my deliberation is whether the 6 months starting point is appropriate or should I impose a term much higher but not more than 12 months. 	   

26.	As per the suggested considerations in Police v. Meut (Supra), the maximum prescribed penalty of 12 months should be not be imposed but should be reserved for the worst type of the offence under consideration. Your case in my view, is not a worst type of this offence, therefore I will not impose the maximum penalty. As for your early guilty plea and you being a first time offender, I will not give weight to these factors, my reasons are well stated in paragraph 19 and paragraph 20 earlier in this decision. In addition, I find also no good factors operating in your favor. The crime that you committed in my view is associated closely with other related offences, such as, possession of unlicensed firearms and other illegal smuggling activities. If that were to be your case, than it would be just to give weight to the prevalence factor, however; yours is not, so I accept from the evidence that you are an opportunist experimenting on such illegal activities. In other words, you are not part of an organized crime or smuggling syndicate. In saying that I have no other precedents of such criminal conduct, similar in nature to your case and committed at a village close to the international border, what I meant to say is that I have no other standpoint to base my assessment on. As such I will consider yours as the first concerning a Wutung Villager and find it appropriate to confirm the starting point of 6 months imprisonment term to be your sentence      

RULING ON SENTENCE

27.	In reaching this juncture, I note and apply to some extent the National Court approach to sentencing, one that is compatible with the general practice across the District Courts. I accept the status that District Courts are creatures of Legislation and our jurisdiction is confined to the precincts of respective legislations. In this matter I rely on the provisions of the Firearms Act. I accept generally that sentences can be imposed in two forms, that is, custodial and non-custodial sentences.

28.	I accept that you have no prior convictions; however, I gave your status no weight in reaching the final appropriate sentence. I note also, that you have shown no remorse through allocutus and your demeanor in court confirms that.

29.	I considered all the factors in your mitigation and aggravation, and found your aggravation slightly outweigh your mitigation. That is, you unlawfully had more than one ammunition in your possession, you escaped while in custody of PNGDF personnel and you committed the offence close to our international border.  

30.	I must say, there is not much case law reported on similar offences. I was limited through this but managed to identify one which in my humble view covers facts very similar in nature to your case accept it was not committed close to our international border. I consider appropriate for you a starting point of 6 months jail term and confirmed this without any deduction.

31.	The 6 months imprisonment term will remove you from the village away from the negative influence that contributing to your action at all material times of the offence. It is in your best interest, your family, Village and the country as a whole that you be sentenced so that whatever illegal activity you intended to experiment on and the desire to do such will be removed from you and replaced with a sense of responsibility. A detergent sentence in my opinion will achieve this.     

32.	Therefore, you are hereby convicted and sentenced to 6 months imprisonment term to be served in full without any deduction at Vanimo Correctional Services jail facilities. I hereby issue under my hand a Warrant of Commitment for your imprisonment.   

46.	This concludes this matter.