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State v Sogi [2008] PGNC 331; N3437 (22 August 2008)

N3437

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 248 0F 2003

THE STATE

V

PATRICK SOGI

Kimbe: Cannings J
2008: 25 July,
21, 22 August

SENTENCE

CRIMINAL LAW – sentence – unlawful use of a motor vehicle – Criminal Code, Section 383(2) – sentence on plea of guilty – offender commandeered motor vehicle, used it overnight and returned it – sentence of 2 years.

The offender joined with a number of others to stop a vehicle being driven along a public road. The offender and his companions forced the driver to drive them around looking for beer, then took control of the vehicle and used it overnight before returning it the next day.

Held:

(1) The maximum penalty for an offence under Section 383(2) is five years imprisonment and a useful starting point for sentencing is the middle of the range: two and a half years imprisonment.

(2) A sentence of two years imprisonment was imposed. The pre-sentence period in custody was deducted and 18 months of the sentence was suspended.

Cases cited

The following case is cited in the judgment:

Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06

Abbreviations

The following abbreviations appear in the judgment:

CR – Criminal
J – Justice
K – kina
No – number
SCRA – Supreme Court Criminal Appeal
v – versus

SENTENCE

This was a judgment on sentence for unlawfully using a motor vehicle.

Counsel

F Popeu, for the State
T Gene, for the offender

22 August, 2008

1. CANNINGS J: The offender, Patrick Sogi, lives at Mai village, next to the Kimbe-Hoskins Highway, in West New Britain. On 12 September 2001 he got drunk and did a stupid thing which has landed him in court. He was arrested and granted bail but then failed to answer his bail. An arrest warrant was issued in 2003 and for some reason it took five years before it was executed. But that is another story. For now, he has to be dealt with for what he did in 2001.

2. It was 7.00 pm. Patrick and a group of friends had been drinking. They went on to the highway and held hands, forming a human chain across it. A vehicle, a small bus, came along and the driver was forced to stop. Patrick and his friends boarded the bus and forced the driver to take them to a store so they could buy beer. But there was no beer available so they forced the driver to take them to nearby Buluma. He did as he was told except when they got to Buluma he went to the police station, not the beer shop. While he was inside the station reporting what Patrick and his group were up to, they got the keys and drove off. Patrick returned the vehicle the next day. He has pleaded guilty to unlawful use of a motor vehicle, and has been convicted of that offence under Section 383(2) of the Criminal Code.

ANTECEDENTS

3. The offender has a prior conviction for possession of a dangerous weapon, for which he was given a six months suspended sentence in 1990.

ALLOCUTUS

4. He was given the opportunity to say what matters the court should take into account when deciding on punishment. He stated:

I apologise for what I did to the driver of the vehicle. He asked me to compensate him with K200.00. I did that and we have reconciled. I am married with two sons. I have two blocks of land to look after. My parents are deceased. One of my big brothers is paralysed and I have to look after him. I play rugby and I am chairman of the primary school. I ask for mercy and for probation.

OTHER MATTERS OF FACT

5. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06).

6. I accept that he paid compensation to the driver and that they have reconciled.

PRE-SENTENCE REPORT

7. This shows that Patrick Sogi has strong family support. He is well regarded in the community but has a problem with alcohol. He appears to have a marital problem at the moment, and his excessive drinking may have contributed to this. The offender was brought up as a Catholic but has converted to the Seventh Day Adventist religion. When he was previously on probation he complied with the terms of the probation order. The report concludes that he is again suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

8. Mr Gene highlighted the guilty plea and the relatively minor nature of the incident. No one was hurt and there was no real criminal intent to steal the bus. He submitted that a sentence of one to two years would be appropriate, all of which should be suspended.

SUBMISSIONS BY THE STATE

9. Mr Popeu submitted that the offence cannot be regarded as minor. People should be allowed to drive along public roads without fear of being held up. The court must consider the ordeal that the driver was put through. A sentence of three years is warranted, Mr Popeu submitted.

DECISION MAKING PROCESS

10. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

11. Under Section 383(2) it is five years imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

12. As the range of available sentences is small, it is appropriate to use as a starting point the middle of the range: two and a half years imprisonment.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

13. I have not dealt with any previous case in which an offender has been sentenced for a standalone unlawful use of a motor vehicle offence. Usually offenders are sentenced for this sort of offence when being dealt with for other offences such as armed robbery. So I will deal with this as a one-off case.

STEP 4: WHAT IS THE HEAD SENTENCE?

14. Mitigating factors are:

• no physical harm was done to the driver;
• the period of the unlawful use of the bus was fairly short;
• the offender actually returned the bus himself;
• the offender has compensated and reconciled with the driver;
• he pleaded guilty;
• he expressed remorse;
• he has a good reputation in the local community.
  

15. Aggravating factors are:

• the driver was put through a frightening experience;
• the offender created a dangerous situation in which people may have been seriously injured or killed.
  

16. After weighing all these factors I impose a head sentence of two years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

17. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which I estimate is one month, one week.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

18. In view of the favourable pre-sentence report, I will suspend a large part of the sentence. But it is not an appropriate case for immediate suspension. The offender broke his bail a long time ago, a bench warrant was issued and he had to be re-arrested. Some further time in custody is required for the offender to reflect on what he has done.

19. I will suspend 18 months of the sentence, on the following conditions:

(a) must reside at Mai village and nowhere else except with the written approval of the National Court;

(b) must not leave the Province in which he resides without the written approval of the National Court;

(c) must perform at least six hours unpaid community work each week at Mai Catholic Church under the supervision of the Parish Priest;

(d) must meaningfully submit to and engage in alcohol and marital counselling to be administered by the Parish Priest or some other reputable person approved by the Probation Office;

(e) must attend his local Church every weekend for service and worship;

(f) must report to the Probation Office on the first Monday of each month between 9.00 am and 3.00 pm;

(g) must not consume alcohol or drugs;

(h) must keep the peace and be of good behaviour;

(i) must have a satisfactory probation report submitted to the National Court Registry every three months after the date of sentence;

(j) if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

SENTENCE

20. Patrick Sogi, having been convicted of one count of unlawful use of a motor vehicle, contrary to Section 383(2) of the Criminal Code, is sentenced as follows:

Sentenced accordingly.

___________________________

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the offender