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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR No. 778 OF 2008
THE STATE
V
BOMA BANGO
Bialla: Kawi, J
2010: 15th & 21st July
CRIMINAL LAW – Sentence – offence of concealing deeds – plea of guilty – factors in mitigation outweigh factors in aggravation – good pre-sentence report recommending suspended sentence – imposition of suspended sentence with conditions - s 375 Criminal Code Act
Cases cited
Aloises Peter Iboro Kovei v the State [2001] SC 676
The State v Albina Sinowi [2001] N2175
Dorren Liprin v The State [2001] SC 673
The State v Morgan Bae, Cr 990 of 2009 unnumbered judgment of Kawi J dated 25th March 2010
Richard Liri v The State (2007) SC 883
The Acting Public Prosecutor v Don Hale (1998) SC564
Cases Referred
Avia Aihi v the State (N0.3) [1982] PNGLR 96
Goli Golu v the State [1979] PNGLR 653
Counsel
Mr. F Popeu, for the State
Ms J M Ainui, for the Accused
RULING
21 July, 2010
1. KAWI, J: Boma Bango of Kabaya Oil Palm Settlement Block, Bialla West New Britain Province pleaded guilty to one count of Concealing Deeds etc. thereby contravening section 375 of the Criminal Code. After you pleaded guilty I convicted you of that offence, but allowed you bail after conviction pursuant to section 10 of the Bail Act after it became apparent to me that you are suffering from asthma. I reserved my judgement on sentencing and this is now my decision on your sentence.
FACTS
2. The brief facts to which the prisoner pleaded guilty are that one Henry Tony is the legitimate owner of the property described as Portion 1961, Section 7, Kabaya situated in Bialla. Sometime in 2005, Henry Tony left for Lae and entrusted the block to the accused as caretaker to look after it on his behalf for the period of his absence. Soon after he left the accused, the accused went and forcefully removed the caretaker from the property. The accused then went to the National Development Bank here in Bialla and took out the Title Deed to the property which was still in the name of Henry Tony. He then forged the documents to his own name and sent them down to Port Moresby with the intention to have title changed to his own name. When the owner of the Block Henry Tony returned from Lae, he found the accused living on his block. When he checked for the title documents at the National Development Bank, he found that the title Deeds were missing as well. Police who were alerted of this situation, went and enquired with the accused who failed to surrender the Title even to the Police. The State alleges that the accused concealed those documents namely the Title Deeds to the Block and that he did this with the intention to defraud, being that he took those documents to change Title to his name without consent of the owner Henry Tony.
THE ISSUE
3. The sole issue for determination by the court is what is the kind of sentence that the court will impose?
ALLOCUTUS
4. In allocutus you pleaded leniency and asked for a non custodial sentence. You asked me to take into account the following matters:
(a) You have a large family with a wife and five children. Through your own efforts you have developed the block under dispute and your family and you depend on whatever income you generate from selling oil palm from this block.
(b) You apologized to the court and to Mr Tony Henry.
(c) After you apologized, you asked the court to show mercy and some leniency in imposing sentencing upon you.
(d) You are currently suffering from asthma and you begged the court to seriously consider this health condition in exercising its sentencing discretion.
PRE- SENTENCE REPORT AND THE MEANS ASSESSMENT REPORT
5. Your Pre- Sentence Report was prepared by Mrs Elizabeth Passingan, of Probation Service of the Department of Justice. This Report was also tendered into Court. Your lawyer also adopted some of the contents of the Report in her submission on your behalf. The Report outlines your personal background, your commission of the offence and your attitude to it. The Report also contains inputs from leaders of the community, as well as your family members who all say that despite your commission of the offence they all rallied behind and are supportive of you. Independent views were also sought from community leaders of Kabaya settlement block including views from the Kabaya Village Court Magistrate Mr Mathew Palpali and the Kabaya village Councilor Mr Alois Kuba. Also interviewed was Pastor Maro Tyson who is the chairperson of the Kabaya Lutheran Congregation of which you are a member. Mr Tyson stated that you were once an active member of your church but owing to your asthmatic condition you are no longer active in church work. All three independent leaders spoke highly of your good character and that you are a community oriented person. They also spoke highly of your reputation of being a hard worker in your community. Pastor Maro Tyson even offered to assist by counseling you and volunteered to supervise you if you are ordered to do community work. The victim of your actions, Mr Tony Henry was also interviewed by the Probation Officer. He said that since he put you in his block as the caretaker, he has never benefitted financially from oil palm sales from his block. Admittedly he did not claim any compensation from you for all the sales that you did over the last fifteen (15) years.
6. Ultimately, the Pre Sentence Report contains a recommendation to impose a non custodial sentence. In order for a Pre Sentence Report to be truly reflective of the community’s position, there must be inputs from people having no personal interests in the sentence a prisoner should receive as well as inputs from family members and relatives who do in fact have such interest and the victim who suffers from the actions of the offender. A Report without such inputs is therefore unreliable in my view and can be rejected by the court for these reasons. See for instance the State v Ferdinand Naka Penge [2002] N2244.
7. The Court does find that this particular Pre- Sentence Report did seek other independent views from certain important community leaders which included your church Pastor, the Village Court Magistrate and the Village Councilor, the victim himself as well as your family relatives. Accordingly I have no reason to reject this Report and I do accept for use by the Court. The Court does find that it is a well balanced Report and the Court commends the author of the Report.
8. Both Counsel did not outline any sentencing tariffs in this kind of cases in their respective submissions. I am therefore stuck with the three years maximum penalty prescribed by the legislation itself. Both counsel however submitted that the most appropriate sentencing range would be in the vicinity of eighteen (18) months to two (2) years as the head sentence. Then if the court is minded to suspend the head sentence, strict conditions must be imposed. The State Prosecutor Mr Popeu submitted that such conditions must include:
9. It is an important aspect of criminal law sentencing that sentencing tariffs must be considered to determine sentences in future cases if subsequent sentences, are to have any relevance to the interests of society to appropriately deal with offenders. In the State v Gibson Haulai, Kandakasi J making references to past sentencing tariffs said:
“ Usually if past sentences fail to deter other would be offenders, evidence by prevalence in the kind of offence under consideration, the sentence in the subsequent case, may have to be increased to counter that, unless the other purpose of sentencing are considered appropriate.”
THE LAW
10. By your actions in concealing and fraudulently changing the Title Deeds to the property identified as Portion 1961, Kabaya, you have contravened section 375 of the Criminal Code and I have accordingly convicted you of committing that crime.
11. Section 375 of the Criminal Code is stated in the following terms:
444. CONCEALING DEEDS, ETC......
(1) A person who, with intent to defraud, conceals the whole or part of a document that is evidence of title to any land is guilty of a crime.
Penalty: Imprisonment for a term not exceeding three years.
12. Do I impose the three years upon you? This court is of the view that the prescribed maximum penalty of three years should only be reserved for the case categorized as the worst type or worst category cases. In deciding the appropriate penalty for you I will have to start at two years and then come down. When a court is sentencing a person found guilty or who pleaded guilty to the commission of an offence, it takes into account several legal principles of law to guide it to arrive at an appropriate sentence for the offender. This is done bearing in mind the objectives of punishment which are:
13. When a judge is exercising his sentencing powers he is ultimately imposing a kind of sentence that he considers just and fair to the circumstances of a particular case which will achieve one or more of the objectives outlined above.
14. One of the well established principles of law in our jurisdiction is that the maximum penalty prescribed by the legislation itself is always reserved for the worst type of offences under scrutiny. Many cases in our jurisdiction have acknowledged and applied this principle of law.
15. One such case is the Supreme Court decision in the case of Aloises Peter Iboro Kovei v the State [2001] SC 676. That was a case where the appellant appealed inter alia a life imprisonment sentence imposed by the National Court for the brutal killing of a young woman for her abduction and rape. Amet CJ, Gavara – Nanu and Kandakasi JJ made the following pertinent comments:
“It is a well accepted principle in our jurisdiction now, that the maximum penalty prescribed by the legislature should be reserved for the “worst type or “worst category” of the offence under consideration. This has been made abundantly clear in the context of wilful murder cases. For example, the Supreme Court in Avia Aihi –v- the State (N0.3) [1982] PNGLR 96 referred to its earlier decision in Goli Golu –v- the State [1979] PNGLR 653 where it was said:
“In fact this court has said that the maximum sentence for any offence (including wilful murder) should be reserved for the most serious instance of a particular offence”.
16. This principle of law has its genesis in the sentencing discretion vested in the Court by section 19 of the Criminal Code. Section 19 actually gives the Court the discretion to impose a lesser penalty upon an offender if the factual circumstances of a case do not establish a particular case as being a case falling in the “worst case” category.
17. How I exercise that discretion depends upon the factual circumstances of a case under scrutiny. More importantly the Court will look at the factual circumstances of how you perpetrated this crime, the mitigating factors operating in your favour and the aggravating factors operating against you.
MITIGATING FACTORS
18. The factors operating in your favor are the following:
(a) You are a first offender;
(b) You are married with a wife and five children many of whom are married and have their own children. You yourself are advanced in your years.
(c) You pleaded guilty and made admissions to this charge in your Record of Interview. When you did that you saved the court a lot of time, money and expenses which would have been incurred if a trial were to be conducted.
(d) Your lawyer says that you were very co-operative with Police, although the court finds that if you were that co-operative with Police you could have easily returned the Title Deeds to this property to the Police in their investigation.
(e) After you pleaded guilty, you apologized to Mr Tony Henry as well as to the Court. When you apologized to this court you begged the court’s mercy and leniency in the kind of punishment it intends to impose upon you.
(f) You do not have any prior convictions against you.
(g) I noted that you are suffering from asthma although you did not provide any medical evidence to verify your condition. You did look frail and sickly while you were standing in the witness box.
AGGRAVATING FACTORS
19. Following on from these observations, I find that your case is aggravated by a number of factors. These include:
(a) The offence that you committed is very serious. From your file I noted that overwhelming evidence show that you had a malicious and fraudulent intention to do what you did.
(b) The seriousness of your actions is ably demonstrated by your persistent refusal in not surrendering the Title Deeds to Henry Tony or even to the Police investigating this case.
(c) In the Pre Sentence Report you are recorded as telling the Probation Officer that “you have no plans to leave the block. I assume that this is the block 1961 that you are currently occupying albeit illegally. I find this statement to be a blatant defiance of the current criminal charges against you and any orders that this court may impose upon you. By this statement you are now making it very clear that you will defy any order that this court makes.
(d) Your actions amounted to unjustly depriving a legitimate legal owner of the quite possession and enjoyment of his property. You unjustly deprived him from earning money and income from the sale of oil palm fruits from his block. This unjust act of deprivation on your part is continuing with your blatant refusal to surrender title.
20. When I do a balancing act between factors operating in your favour and those operating against you, I find that those in your favour tip the scale. This becomes very relevant when I proceed on to consider what an appropriate sentence would be for you. In considering appropriate sentence, I am mindful of the sentencing discretion vested upon the court by virtue of section 19 of the Criminal Code. But before I consider an appropriate head sentence, I must first determine whether your actions can be classed as belonging to the worst type or worst case category. Your actions did not hurt someone physically. It however resulted in you depriving a legitimate legal owner of the fruits of his property. You deprived him of money that he could have earned from this block. I find that only a single individual was deprived and hurt by your stupid criminal actions. The community of Kabaya oil palm settlement block was not hurt or injured in any material way at all. In such situations I do not find that you are a threat to your community in any way at all. Consequently, I will not categorize your case as belonging to the worst type cases nor can I classify your case as belonging to the worst category cases either.
WHAT IS THE HEAD SENTENCE I SHOULD IMPOSE?
21. Judges often refer to a starting point when they are determining a sentence. By that they mean a reference point. Usually a good reference point is a sentence in a previous case, against which the case being dealt with can be assessed. For instance, in misappropriation cases a convenient starting point for judges has always been the case of Wellington Belawa v the State. Depending on the circumstances of the case, judges then adjust the sentence upwards or down wards. The judge assesses whether the case being dealt with is more, or less serious than the starting point case. If it is, to what extent is it more serious or less serious? In the present case your counsel Ms Ainui failed to cite me any cases which I can use as a convenient starting point. Neither did she outline any sentencing tariffs applicable to cases such as this. Due to your counsel’s failure, I will do the best I can to fix a convenient starting point on my own.
22. In considering an appropriate sentence for you, I must remind myself that sentencing is not an exact science. It is a discretionary process, guided by factors which I have already mentioned. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be strongly mitigating, while others may be only mildly mitigating. The same goes for aggravating factors.
23. Therefore I will take as a suitable starting point, the maximum penalty fixed by legislation, which is three years. Then I will refer to a number of sentences imposed by the National Court in similar cases.
YOUR SENTENCE
24. The sentencing trend reflected by cases such as Albina Sinowi which I have just referred to show that the custodial head sentences were all fully suspended. I must therefore look at such sentencing options first, before I take the drastic option of imposing a prison sentence. It is an important aspect in criminal law sentencing that, sentencing tariffs must be considered to determine sentences in future cases if subsequent sentences are to have any relevance to the interests of society to appropriately deal with offenders. However owing largely to your counsel’s failure, no sentencing tariffs in this kind of cases could be determined from decided cases
25. The case of Dorren Liprin v The State [2001] SC 673 (Amet CJ, Kapi DCJ, Los J is a leading case which examines the conflicting interests to be balanced whenever a person is punished for a crime of non physical violence. A judge should, for the purposes of imposing an effective punishment that will rehabilitate an offender, explore all options before taking what might be regarded as the drastic step of imposing a prison sentence. I regard the present case as a non violent case as after all no one suffered any physical injuries from your actions. Neither was there violence in the community of Kabaya as a result of your actions. Neither were properties damaged or destroyed that can be attributed to your actions. When I say this I am giving you considerable benefit of doubt. Given that I have categorized your case as not the worst category case I have taken into account the sentencing trend exemplified by cases such as Doreen Liprin against sending offenders to jail for such offences. A prison sentence costs the State money and expenses and exposes the offender to what cannot be a conducive environment for rehabilitation. This may be true for an offender like you. It does not involve the community very much in the sentencing process, compared with the direct community involvement that happens, when, for example an offender, is obliged to do community work as part of his or her punishment. I did this in the case of The State v Morgan Bae Cr 990 of 2009 unnumbered judgment of Kawi J dated 25th March 2010. I made this comment in suspending the two years head sentence in Morgan Bae’s case:
“More importantly sending you to prison is not the only way to rehabilitate a young offender like you. This court is of the view that the punishment it is about to impose can still achieve the purposes of retribution, restitution, deterrence and rehabilitation in a more effective way than imprisonment.
26. Morgan Bae was a case where the young offender had misappropriated a sum of K15, 624.14 for his own use. I imposed a head sentence of two years but then had it fully suspended with strict conditions of community work to be undertaken as well as restitution to be done by way of repaying the money stolen. I also made the following comments:
You in fact may be a strain on the State’s limited financial resources in terms of looking after you and feeding you while you are in prison. The State will incur further losses, which may double or triple the amount you stole. Apart from not seeing you in your house and your community, the members of your community and your family will not be able to see you serve your punishment. This court is of the view that it is time that your family and community see how you serve your punishment. This in its view will have a more deterrent effect upon you than serving a term of imprisonment in jail”
27. Guided by the above decisions, the court considers that a non-custodial sentence is appropriate to be imposed upon you, with conditions.
28. In the circumstances I impose a head sentence of eighteen (18) months imprisonment with hard labour upon you. You are to serve this at the Lakiemata Corrective Institution outside Kimbe.
29. Do I have the discretion to suspend this sentence wholly or in part?
There are many judgments of both the Supreme and National Courts in which the courts have suspended either the whole or part of the
sentence. Again neither your counsel Ms Ainui nor the State Prosecutor Mr Popeu cited me any case authorities dealing with suspension
of sentences.
30. Thus the Supreme Court in the case of Richard Liri v. The State (2007) SC 883 made the following pertinent comments in relation to the suspension of sentence:
"Further we find that, the learned trial Judge continued erroneously when he decided to suspend 3 years of the 8 years sentence he decided to impose against you. The learned trial Judge did not provide any reason for that decision. The law on suspension of either a part or the whole of any sentence is settled. Section 19(1)(d) of the Criminal Code confers that power, which can only be exercised on some proper basis. In Acting Public Prosecutor v. Don Hale, this Court elaborated on that, in this way:
"If a judge is to consider some leniency on sentence ... it is incumbent on him to obtain the relevant report such as a pre-sentence report, especially around the age of 17 to 19. ... Then for such a drastic suspension of sentence a further help to the court would be a community report from the community to which the offender belongs and whether the community, seeing that the incident happened within that community, has any views on an appropriate punishment or whether the community is prepared to assist with any community 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."
Subsequently, the Supreme Court endorsed these views in its judgment in Edmund Gima v. The State & Siune Arnold v. The State. That decision also emphasized the point that, there can be no suspension of sentence without imposing any condition. After all, a suspension of either the whole or part of any sentence is not an exercise of discretion in leniency but is a form of punishment. As such, conditions must be imposed to demonstrate that, it is an alternative to punishment within the prison system in appropriate cases.
In your case, there is no record of the learned trial Judge calling for and having before him a pre-sentence report supportive of his decision to suspend the 3 years. Likewise, there is no record of what factors His Honour took into account before arriving at his decision to suspend the three years. Further, if His Honour was entitled on some authority (which he has failed to disclose), to suspend, he did not impose any conditions for the suspension."
31. The Supreme Court in The Acting Public Prosecutor v Don Hale (1998) SC564 made these observations:
"The judge having set a sentence of imprisonment then proceeded to suspend the term. Whilst we agree that a judge has a discretion in sentencing convicted persons such a discretion must be exercised according to normal principles. We agree that there are many circumstances which should be applied in the consideration of an appropriate punishment for a particular offender and a judge should refer to these circumstances. There are first of all a number of circumstances of aggravations such as the amount of violence used in a robbery, and the amount of damage done and property taken and whether victims were further injured apart from the fear of the threats. Then there are matters that may be considered in mitigation of the punishment. Of course the first factor in mitigation is whether there have been any admissions of guilt however in this case before us to-day the appellant pleaded not guilty so the State and the Court was put to the time and expense of a trial with the calling of witnesses. So any mitigation for admissions and remorse have limited application.......
[F] or ......a..... suspension of sentence a further help to the court would be a community report from the community to which the offender belongs and whether the community, seeing that the incident happened within that community, has any views on an appropriate punishment or whether the community is prepared to assist with any community 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. And we note here the relevance of the Criminal Law (Compensation) Act 1991. A return to the community should mean an appropriate report of the attitude of the community and whether the community is prepared to take some responsibility for their own offending members and supervise any alternate punishment.
However in this case before us now the trial judge had no pre-sentence report nor any report from the community and sought no help from the community in the supervision of this suspended sentence. This is a clear error if he was to suspend a sentence for this kind of aggravated robbery."
32. Section 19 (1)(d) of the Criminal Code confers the power upon a trial judge to either wholly suspend the sentence or suspend only part of the sentence. The Pre Sentence Report prepared by the Probation services on your behalf recommended a full suspension of sentence. The Report also identified and listed community work that you can do as a condition of your sentence. Binding myself on the authority of the decisions and taking into account the factors operating in your favour, I now fully suspend the whole eighteen (18) months imposed upon you. The above decisions also say that when a sentence is either fully or partly suspended, I must also impose strict conditions which you must comply with in lieu of serving a jail sentence. This I now do in the following terms:
(1) You are ordered to undertake the following community work:
- (a) Every Mondays and Friday you are to clean the Bialla Health Center for two hours at any time between 9:00 am and 3:00 pm. You will report to the Health Extension Officer in Charge of the health center who will roster your cleaning duties and provide the necessary working and cleaning equipment.
- (b) You will undertake these duties for nine (9) months commencing on the 1st of November and ending on the 31st of August 2011.
- (c) For avoidance of any doubt, it is your responsibility to find and pay for your own transport to travel to Bialla from Kabaya. The Health Center is under no obligation whatsoever to provide transport to you nor pay you for the cleaning services you render.
(2) Within seven (7) days of making these orders you are to surrender all Title Deeds and Documents to the legal owner Mr Tony Henry by the 3rd of November 2010.
(3) You must vacate the block Portion 1961 and return quite possession of this block to Mr Henry Tony by the 30th January 2011. If you do not vacate Portion 1961 or give vacant possession back to Tony Henry for his quite enjoyment of his lawful property, then Bialla Police are hereby authorized to enter property 1961 and have you evicted from the said property. In vacating this property you are to remove all your personal belongings and dismantle any building that you erected on your own on this property. You are not to dismantle or touch any buildings or structures that stood on this property before your illegal occupation.
____________________________________________________
Public Prosecutor: Lawyers for the State
Paraka Lawyers: Lawyers for the Prisoner
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