N2386

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]

CR 1255 OF 2002

THE STATE

V.

STANLEY MARAI URIYE
of ORAIA, RIGO, CENTRAL PROVINCE
(‘Prisoner’)

Waigani: Davani .J
2003: 20, 21 May

Practice and Procedure - sentencing – young offender – murder.

Practice and Procedure - sentencing – young offender – suspension of sentence – when appropriate – factors to be considered.

Cases cited:
Kuri Willie v the State [1987] PNGLR 298
State v Frank Kagai [1987] PNGLR 320
State v Laura No. 2 [1988-89] PNGLR 98

Other texts:
Juvenile Justice in South Australia by John Seymour, 1983 

Counsels: 
P. Kaluwin for the State
A. Raymond for the Prisoner

21 May 2003

DECISION
(on sentence)

DAVANI .J:	This matter proceeded as a plea where the Prisoner pleaded guilty to one count of Murder such charge laid pursuant to s. 300 (1) (b) of the Criminal Code Act (‘CCA’). The State also invoked s. 7 of the CCA.

Ss. 300 (1) (b) and 7 of the CCA read as follows;

"300	Murder

(1)	Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder –
(a)	if the offender intended to do grievous bodily harm to the person killed or to some other person; or
(b)	if death was caused by means of an act –
(i)	done in the prosecution of an unlawful purpose; and
(ii)	of such a nature as to be likely to endanger human life; 
….
Penalty: Subject to section 19, imprisonment for life."

"7.	Principal offenders

(1)	When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it –
(a)	every person who actually does the act or makes the omission that constitutes the offence; and
(b)	every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and
(c)	every person who aids another person in committing the offence; and
(d)	any person who counsels or procures any other person to commit the offence.
(2)	In Subsection (1)(d), the person may be charged with –
(a)	committing the offence; or
(b)	counselling or procuring its commission.
(3)	A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as conviction of committing the offence.
(4)	Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted of offence on his part, is –
(a)	guilty of an offence of the same kind; and
(b)	liable to the same punishment,
as if he had done the act or made the omission, and may be charged with himself doing the act or making the omission."

On allocatus, the Prisoner apologised to the court, the victim, the victim’s family, his family, the lawyers involved and to the Salvation Army.

The Prisoner is aged 13 years and was on remand at the Salvation Army Remand Centre when he appeared before this court. He has been in custody for 1 year, 6 months and 28 days.

The evidence is that on 21.10.01 the Prisoner was with 3 other boys waiting on the highway leading to Port Moresby at the Madobu area in Kupiano, Central Province. They were armed with assorted weapons, including sticks, knives and a home-made gun. When a Mitsubishi truck drove their way, travelling uphill, a counterpart of the Prisoner fired a shot at the truck. However, I have evidence that two shots were fired at the moving vehicle by unknown assailants. Two armed men then came out of the bushes with guns but the driver continued to drive until he was on top of the hill, whereupon he stopped. As a result of the gun shots, Leva Tarama died and one other received pellet wounds on his right thigh and bled profusely.

This evidence also is that, the Prisoner, frightened by the ordeal, then told certain villagers of his involvement in this crime whereupon he was arrested on 22.10.01, released for lack of evidence, then rearrested on 6.2.02.

Although the Prisoner did not pull the trigger of the gun, he is caught by s. 7 of the CCA because he was with the group when the shooting occurred, although some distance away as he stated in his confessional statement.

The aggravating features of the case are that the Prisoner was with a group of young men who shot at a moving vehicle on the highway. This group had assorted weapons in their possession, to cause harm.

The mitigating factors are that the Prisoner does not have any prior convictions, his guilty plea and his show of remorse and fear. I say fear because it was fear that drove the Prisoner to confessing or telling his relatives of his involvement in the shooting, immediately after the shooting.

Prisoner’s Counsel submitted that the Prisoner should be released on probation because of his young age. She cited to me several authorities including the cases of State v Laura No. 2 [1988-89] PNGLR 98 where suggested guidelines for the offence of Murder are set and where the court there held that the starting point for a guilty plea is 6 years. Prisoner’s Counsel also cited to me the case of Kuri Willie v the State [1987] PNGLR 298 where Hinchliffe .J in upholding an appeal on conviction from the District Court, held that where young offenders are involved, the court must look to alternatives to imprisonment. There, his Honour held that "…prisons do not change young offenders into law-abiding citizens but in effect destroy any chance they may have of becoming law abiding citizens." He used the phrase, "a shop lifter goes to prison and comes out a bank robber."

I too share the same sentiments. Academics and Criminologists have conducted numerous studies in this area and have reached similar conclusions. Countries and States have developed prisons and court systems catering especially for the young, those referred to as ‘children’ under their legislation. In Papua New Guinea, various legislation have prescribed age limits as to who is a child, e.g the Child Welfare Act Chapter 276, defines a child as aged 16 years and below; The Matrimonial Causes Rules Chapter 282, defines an infant as being under the age of 21; The Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 defines a child as being under the age of 18 and the Evidence (Amendment) Act 2002 defines a child as being under the age of 18 years.

Regardless, for purposes of sentencing, a child who is charged with an offence under the Criminal Code Act, is always dealt with under the Criminal Code Act.

In this case, the Prisoner aged 13 at the date of sentencing, is deemed to be a child. Therefore sentencing should fall within the parameters of sentencing of a youthful offender. The CCA does not specifically deal with sentencing of youthful offenders so, as in the case of Kuri Willie (supra), this court must exercise its discretion as it sees fit.

Other countries have legislation that deal specifically with youthful offenders, e.g in South Australia, it is the Children’s Protection and young Offenders Act or CPYOA. This Act embodies provisions that all persons and agencies dealing with children under the Act are required to observe and which provisions reflect the statement set out below, which is the philosophy underlying South Australia’s system for dealing with children in trouble and which is also a reflection in summary of the functions of the Act. It reads;

"In any proceedings under this Act, any court, panel or other body or person, in the exercise of its or his powers in relation to the child the subject of the proceedings, shall seek to secure for the child such care, correction, control or guidance as will best lead to the proper development of his personality and to his development into a responsible and useful member of the community, and, in so doing, shall consider the following factors;

a.	The need to preserve and strengthen the relationship between the child and his parents and other members of his family;
b.	The desirability of leaving the child within his own home;
c.	The desirability of allowing the education or employment of the child to continue without interruption;
d.	Where appropriate, the need to ensure that the child is aware that he must bear responsibility for any action of his against the law; and
e.	Where appropriate, the need to protect the community or any person, from the violent or other wrongful acts of the child." (see ‘Juvenile Justice in South Australia’ by John Seymour, 1983 pgs 2 and 3).

These are concerns also expressed by many of those here in Papua New Guinea who deal with children involved in crime. In the absence of legislation, courts must exercise discretion explicitly recognizing the desirability of combining a concern for the special needs of the young with a concern for the objectives traditionally pursued by the Criminal Justice System. Furthermore, in the absence of legislation, the courts must accommodate both the law enforcement officers’ interest in the control and prevention of crime and the welfare workers’ desire to respond in a humane and understanding manner to the child or children’s special needs.

The same sentiments were expressed by Kandakasi .J in The State v Abel Airi N2007 dated 28.11.00 a robbery case involving a 19 year old man, who pleaded guilty. The court there, on noting that was his first offence, his age, his genuine expression of remorse and more particularly, that he was a person with good character, then sentenced him to 6 years, suspended 2 years upon payment of compensation, failing which he would serve the 2 year term, then suspended the remaining term of 3 years, 8 months and 23 days, on conditions.

On the aspect of suspension of sentence, His Honour referred to several authorities, one of which was R v Davey [1980] 2 A Crim R 254 where Muirhead .J delivered a leading judgment in the Australian Federal Court which related to an appeal by the crown, against a sentence of 3 years for manslaughter, which was suspended on various conditions. Muirhead .J in dismissing the appeal, stated the viability of suspension rather than imprisonment for young offenders. I refer to parts of his judgment at pg 260 to 263 referred to by Kandakasi .J at pg 10 of his judgment which is of relevance here;

"… There has, of course, been much debate academic and judicial as to the purposes of punishment, the effectiveness or otherwise of deterence, the necessity for punishment, the concept of retribution. One would again glean from some sources that there are two conflicting responsibilities vested in a sentencing judge – one owed to the prisoner, to rehabilitate him, to treat him gently as it were – the other owed to society, to punish, to levy retribution, to deter… It is important that the law does not become confused in its objective. The purpose of the criminal law is to bring wrong doers to justice for the protection of the community.

"…First and foremost, it is the protection of the community a sentencing judge must bear in mind (R v Cuthbert (1967) 86 WN (Pt 1) NSW 272, per Herron CJ at 274). There are occasions when a judge determines he can only extend that protection by severe punishment; there are other situations when he will reach the view that probation, suspension of sentence or community work orders are appropriate, not because they will be less unpleasant for the prisoner but because they may be productive of reformation which offers the greatest protection to society.

…A sentencing judge has to bear in mind the realities of prisons, of what is learned there, of the associations there formed, of the effect on many people. Nor should he lose sight of the fact that the main problem of the police and the community is himself re-arrested to recidivist. If in the proper exercise of his discretion, he can devise a sentence which will minimise the risk that an individual will re-offend, then to that extent society is protected.

In R v Kear (1978) 2 Crim LJ 40, Wells J, a judge of considerable experience in criminal matters, dealt in detail with the principles of sentencing and his remarks were then obviously addressed to an anxious public. But he referred in so doing to the remarks of Napier CJ in Webb v O’Sullivan (1952) SASR 65 at 66 which he stated represented the true position in law;

‘The courts should endeavour to make the punishment fit the crime, and the circumstances of the offender, as nearly as may be. Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy. We ought not to award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest.’

His Honour then went further and said:

"… in my view it is erroneous to treat the suspension of a sentence of imprisonment as merely an exercise in leniency. Such an order is made in the community interest and is generally designed to prevent re-offending – which a prison sentence, standing alone, seldom does … A person so released has an obvious incentive not to re-offend and should have no misconceptions as to what will occur if he does… From time to time persons charged with the most serious offences may be dealt with in this manner by reason of good character, the court’s view that there will be no re-offending, that treatment is required outside prison and, at times, by reason of the fact that the court believes that the particular individual will be positively damaged by immediate incarceration…".

Again in Gimble v the State [1988 – 89] PNGLR 271, the Supreme Court held, that:

"…If however, the offender is very young or there are special circumstances, a suspended sentence may be considered."

In saying that, I note that Prosecution agrees with Defence counsel’s submission on the aspect of suspension, but submits a term of imprisonment is appropriate, notwithstanding. He submits also that suspension of sentence is at the discretion of the court.

Defence Counsel tendered to the court, what I perceive to be the equivalent of a Pre-Sentence report which are; letter from the Juveniles’ Court Officer, Salvation Army dated 19.5.03; letter from the H.O.D Electrical, Salvation Army dated 15.5.03; prisoner’s academic results from the Auto Electrical Department of the Koki Technical Training Institute for the year 2003; a letter from the Accused’s father to the court dated 7.5.03; the Accused’s submissions to the court and lastly a copy of the 1st page of Port Moresby General Hospital’s clinic book stating the Accused’s date of birth to be 2.6.89. In summary, these reports show the following;

1.	The Prisoner has been on remand since 6.1.02;
2.	He attends the Koki Technical Training Institute doing his 1st year in Auto Electrical;
3.	He is an active young man with potential, intelligent, reliable, hard working and learning to be creative;
4.	That he is a suitable candidate for rehabilitation and that his training at the Centre is directed towards him becoming a productive, intelligent and law-abiding citizen.

I also have before me academic results of tests the Prisoner undertook in his course where he scored well in both, practical and theory subjects, and which reports are indicative of the fact that he does have practical skills which can be developed and that he is academically sound.

The case of State v Frank Kagai [1987] PNGLR 320 is authority on when a suspended sentence is appropriate. Briefly, it held that a suspended sentence is considered:

a)	to prevent reoffending;
b)	that the person is of good character, that he will not reoffend and that incarceration will damage him.

The reports and case authorities cited herein suggest that the Prisoner is a suitable candidate for a suspended sentence. I find that it will serve the Prisoner and the community well, if the court were to mete a suspended sentence because he, whilst serving the suspended sentence, will be learning a trade, an opportunity he did not have before he was taken in by the Salvation Army. Fate can be cruel but in this case, fate although cruel in one instance, has now led a young misguided youth, to a constructive, practical, positive and productive future as the Supreme Court said in Gimble (supra). Age considerations may of course be more obvious to a judge if an offender is under the age of 16 years. Then, if sentence were to be drastically suspended, a further help to the court would be a report from the community to which the offender belongs and whether the community is prepared to assist with the management of any bond period. The courts are bound under the philosophy of the Constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment of criminals definitely has an effect on the ordinary people. So community involvement with the punishment of offenders should be considered especially if the court wishes to return an offender to the community instead of imposing imprisonment. I have the appropriate reports which speak of the attitude of the community and that the community is prepared to take some responsibility for the offenders actions and will supervise the suggested alternate punishment.

In terms of the term of years the Prisoner should serve, I refer to several cases decided by this court in murder cases especially Laura No. 2 (supra) where a term of 7 to 15 years was considered to be appropriate.

At this time, I also remind myself that the Prisoner was some distance away when the shot/s were fired and immediately gave himself up because he was firstly a novice to the violence he witnessed and secondly, because of fear. Considering the increase in tariffs in recent years, the prisoner’s guilty plea and that this is his first offence, and relying on discussions referred to above, it is this court’s sentencing that a term of 10 years is appropriate. Relying on the court’s sentencing discretion under s. 19 of the CCA, the term of 10 years is suspended on the following conditions;

1.	The Prisoner shall serve a term of 6 years at the Badili Remand Centre where he shall complete his schooling and embark on a trade;
2.	That the Salvation Army shall present a quarterly report to the court and the matter made returnable before me if I am in Port Moresby or another judge to confirm progress, the first report due on 21st August 2003. The matter should be returnable then;
3.	The Prisoner shall be on good behaviour during that period;
4.	At the completion of the 6 years, the matter shall come before the court for a final ruling and conditions as to the remainder of the suspended term, being the 4 years.

In relation to order No. 4, and if it is not available, the court should request a final report from the Salvation Army to assist it in its deliberations. The report must be compiled at least 2 weeks before the matter is returnable, at the completion of the 6 years.

For purposes of clarification, the court shall call the matter at every quarter for a progress report, notwithstanding the existence of a written copy of the said report. All parties will be advised in good time.
___________________________________________________________________
Lawyer for the State		:	Public Prosecutor
Lawyer for the Prisoner	:	Public Solicitor