N4079

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 778 OF 2008

THE STATE

V

ROGER MECKPI

Waigani: Kawi, J
2010: 11th and 12th March & 16th April

CRIMINAL LAW – Sentence- wilful damage to property- extensive damage caused to the private vehicle of another person - substantial monetary loss totaling K10, 924.34- Wilful and malicious damage to private property- No form of apology offered to the victim- No form of restitution shown by the prisoner- No payment of some form of compensation – First time offender – Plea of guilty- No injuries caused to other persons- No other damage caused to other properties- Pre-Sentence Report and Means Assessment Report recommend for imposition of non - custodial sentence –Prescribed maximum sentence of two years to be reserved for the worst type case - Case not categorized as the worst type case or worst category case-Head sentence of ten (10) months imprisonment in hard labour imposed- Head sentence of 10 months to be fully suspended with strict conditions imposed- Criminal Code section 19 and 444(1).

Cases cited in Judgment

Aloises Peter Iboro Kovei –v the State. [2001] SC676
Pukari-Flabu –v- Hambakon Sma [1965-1966] PNGLR 348
State –v- Kopol Hiol, unnumbered and unreported judgment dated 12th May 2008
The State –v- Martin Sahin Terea [2005] N2816
State-v- Steven Molu Minji; State v Sakol (No 2) [2009] PGNC 177; N3794 (20 November 2009)
The State –v- Betty Kaime, unreported and unnumbered judgment of Makail J dated 13th November 2008.
Dorren Liprin –v- The State [2001] SC673
The State –v- Jan Tundubo & 4 Ors, unnumbered and unreported judgment of Makail J dated 10th December 2008
The State –v- Morgan Bae Cr 990 of 2009, unnumbered judgment of Kawi J dated 25th March 2010
Richard Liri- v The State (2007) SC883
The Acting Public Prosecutor -v- Don Hale (1998) SC564

Cases Referred to in Judgment

Avia Aihi –v- the State (N0.3) [1982] PNGLR 92
Goli Golu –v- the State [1979] PNGLR 653

Counsel:

Ms. M. Zurenuoc and Ms B. Gore, for the State 
Mr. M. Yawip, for the Accused

RULING

16th April, 2010

1. KAWI, J: Roger Meckpi was indicted and he pleaded guilty to one count of wilfully and unlawfully damaging the glasses of a Toyota Camry, green in color and bearing the registration number BBD 975. The vehicle is owned by one Robert Tukondo, who is employed as an Internal Auditor with the National Judicial Staff Services (NJSS) and based in the Gordons office of the NJSS. 

2. Upon arraignment the accused said “Yes. But, I had a reason to do what I did. I was very angry and frustrated over the delay in the progressing of my case in the Supreme Court.”

3. It would appear that the accused was raising the defence of provocation. Sensing this I asked defence counsel Mr. Yawip, if this were consistent with his instructions. He indicated to the Court that it was not and so I granted a short adjournment for the lawyer to confer and seek proper instructions from his client. When the Court resumed counsel indicated that the matters which the accused tried to raise were matters which were proper matters to be pleaded in mitigation. 

4. Upon being satisfied I completed the arraignment and when the accused was asked as to whether he understood the charge and what he said to the charges he said “Yes, it is true.” I then entered a provisional plea of guilty, subject however to me reading the court depositions and being satisfied of the provisional plea of guilty. After reading the court depositions, I was quite satisfied that the accused had committed the offence of wilfully and unlawfully damaging the property of another person and so I confirmed and entered a proper guilty plea. I then proceeded to convict the accused of the offence under section 444(1) of the Criminal Code.

THE STATE ALLEGATIONS

5. The State alleges that on the 28th September 2008, the accused, Roger Meckpi went to the Gordons office of the NJSS. At the car park, the accused grabbed an iron bar and smashed all the glasses of a vehicle parked there, described as green Toyota Camry, registration no. BBD 975. The vehicle belonged to one Mr. Robert Tukondo, who is an Internal Auditor with the NJSS. The reason for the accused damaging this vehicle is that the accused was frustrated over his prolonged court case, which was then pending in the Supreme Court in a case between himself and other parties. The State therefore alleges that the actions of the accused amounted to wilfully and unlawfully damaging property belonging to another person, which is contrary to s.444(1) of the Criminal Code. 

ALLOCUTUS

6. In allocutus you pleaded leniency and asked for a non custodial sentence. You asked me to take into account two important matters which you said should assist me to impose a non custodial sentence upon you. The matters you asked me to take into account are:

(a)	You are a family man with thirteen (13) children, four of whom are working and have their own families to worry about. You indicated that nine (9) of the children are still in school and you are solely responsible for their upkeep and educational needs.

(b)	You are a small businessman and your business has now suffered greatly because of the prolonged and inordinate delay in finalizing your Court case which was then pending in the Supreme Court. You advised the Court that the court case involved your businesses, which suffered greatly and there was a big drop in the profit margin of your business which was eventually closed down. It was this delay in finalizing your case that made you so frustrated and angry which led you to unlawfully damage Robert Tukondo’s vehicle. 

7. The Word Wilfully as used in section 444(1) of the Criminal Code means intentionally or deliberately or maliciously or recklessly. This was made clear by the Pre Independence Supreme Court in the case of Pukari-Flabu –v- Hambakon Sma[1965-1966]PNGLR 348.

8. In this case I find that your action in breaking the glasses of the Toyota Camry was not accidental or negligent. Rather I find your actions to be deliberate and malicious. I say this because you armed yourself with an offensive weapon namely an iron bar and then executed your intention by going to the car park whereupon you destroyed another person’s vehicle. Your actions are malicious because you were frustrated and angry over the delay in processing your payments as well as finalizing your court case pending in the Supreme Court. Instead of allowing the case to go through the normal process, you decided to help yourself and you did this by engaging yourself in an unlawful and criminal conduct. You were of the view that by damaging someone else’s property you would force the Supreme Court to process your court case quickly. In fact these were criminal views that you entertained in your mind.

9. Such actions will not be tolerated nor condoned by this Court and so it must be punished with impunity, and the punishment that I will impose upon you must not only reflect the Courts general non-acceptance of this kind of behavior, but it must also deter you from engaging in a similar conduct in future. Furthermore the punishment that I will impose upon you should rehabilitate your attitude and your conduct so that you do not take the law into your own hands in future.

PRE- SENTENCE REPORT AND THE MEANS ASSESSMENT REPORT

10. A Pre-Sentence Report and Means Assessment Report was carried out on you by the Probation Services of the Justice Department. It was tendered into court and relied upon by your counsel in his address on sentence. I will refer to important aspects of this report later on in my judgment. 

11. The Pre-Sentence Report covered your family background, your marital status, your educational background, your employment history, your current financial standing and your character references from some of your Tega Community members namely the Pastor of your local Lutheran Church, Pastor Michael Babiang of Tega village and the Tega village Court Magistrate Mr. Kaulga Nanga. The Report also stated that you intend to reconcile with the owner of the vehicle whom you identified as one Nelson Tengi and nobody else. Never at all did you mention reconciling with Robert Tukondo nor offering any form of apology to him. I therefore find that you have no intention to reconcile with the person whose vehicle you damaged, one Robert Tukondo. Nelson Tengi may be the owner of that vehicle, but at the time you damaged it, it was under the care, usage and custody of Robert Tukondo. Therefore in your reconciliation plans, you deliberately omitted Robert Tukondo who was the unfortunate victim of your criminal actions. Finally, your immediate family members expressed their willingness to help you to make restitution by proposing to make periodic re-payments of K 300.00 per month for 3 years towards the value of the damage 

12. The Means Assessment report states that the continued delay in finalizing your case, has resulted in your business virtually breaking down. You are basically unemployed with no regular income, although the Report indicates that you have valuable assets like a plot of coffee trees, and a big plot of free hold lease land located between the town of Mt. Hagen and the Kagamuga airport. 

13. There are two big permanent houses valued at K 100,000.00 each. The means report also indicates that you are willing to pay for the actual value of the damage you caused and your family members have pledged to support and assist you in making the repayments. Further it states that your business account has ceased some years ago and you are now operating only a small family savings account at BSP Mt. Hagen.

14. Finally, the Means Assessment Report also says that of your thirteen (13) children, four (4) are married and have their own families to worry about while nine (9) are still in school and depend upon you for their daily upkeep.

15. The report recommends that you are a suitable candidate for probation and that you can repay the actual value of the damage by making monthly re-payments of K 300.00 over a period of three years. It further recommends that a non-custodial sentence be imposed upon you. 

16. Moreover the Report states that the complainant himself Robert Tukondo does not seek or asks for a custodial sentence to be imposed upon you, but that the value of the damage you caused be repaid. In this regard the damage value you caused is K10, 924.34.

17. I have read through the Report and find that it is well written with views from both the offender and the victim. It also sought views from independent community leaders such as the Tega Village Court Magistrate Mr Kaulga Nenga and the local Lutheran Church Pastor, Pastor Michael Babiang. I find that these two leaders have the capacity and the standing to speak for the whole Tega community. I am therefore satisfied with the Report as being a well balanced report and therefore accept it. 

THE LAW

18. By unlawfully damaging the vehicle of an innocent person you have breached section 444(1) of the Criminal Code and I have accordingly convicted you of committing that crime.

19. Section 444(1) of the Criminal Code is stated in the following terms: -

444. MALICIOUS INJURIES IN GENERAL: PUNISHMENT IN SPECIAL CASES.

(1) A person who wilfully and unlawfully destroys or damages any property is guilty of an offence that, unless otherwise stated, is guilty of a misdemeanor.

Penalty: If no other punishment is provided for by this section – imprisonment for a term not exceeding two years.

20. There are nine other subsections in section 444(1) which prescribe other aggravating circumstances. For instance if an offence under section 444(1) is committed at night time, the maximum penalty is three years; If the property damaged was a document kept in a public office, the maximum period is seven (7) years. If the property damaged was a dwelling house and the injury to the property was caused by an explosion and a person’s life was endangered, the maximum penalty is life imprisonment. I quoted this subsections to show that the crime of willfully damaging another person’s property is treated as a very serious crime as indicated by the stringent range of penalties prescribed in the various subsections of section 444. 

21. The present case is not one in which the prescribed penalties prevailed, so the maximum penalty is that prescribed in section 444(1) – two Years. Do I impose the two years upon you? I am of the view that the prescribed maximum penalty of two 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 of committing 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 to ensure that the objectives of punishing are met including the rehabilitation of the prisoner, deterrence, restitution and retribution.

22. 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. 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”.

23. 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 “worst case” category. 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

24. The factors operating in your favor are the following:

(a)	 You are a first offender;

(b)	 You are married with three (3) wives. 

(c)	 From these three wives, you have thirteen (13) Children. Of the 13 children four (4) are married and have their own family to worry about while the nine (9) children are still dependent upon you for their daily upkeep. While the Report says that these children are dependent upon you for their daily upkeep, I do not think that that is entirely true. I find that the nine children are more dependent upon their mothers than upon you. I say this because you have been physically away from the children for a much longer period than normal. You have been away from them for over two years now. Perhaps you may have abandoned your wives and children and legally you may be in a constructive desertion situation now, but that is not the issue for me to decide here. Whilst I accept that you have nine children still in school, these children are not entirely dependent upon you for their daily survival.

(d)	 You pleaded guilty to the charge thereby saving the court a lot of time and expenses which would have been incurred if a trial were to be conducted. Although you pleaded guilty, you still tried to maintain your innocence upon being arraigned. 

(e)	 The court also finds that you did no harm to anyone else apart from criminally causing extensive damages to the vehicle of another person.

(f)	 It was really your frustrations and anger and the bitterness arising from the delay in finalizing your case in the Supreme Court. I do accept that the prolonged delay in finalizing your case is really the source of your frustrations and anger. I also accept that the prolonged delay in finalizing your case was the major factor contributing towards the collapse of your small business. 

AGGRAVATING FACTORS

25. Following on from these observations, I find that your case is aggravated by a number of factors. These include:

(a)	You caused very, very extensive damage to the vehicle of another person. You did this by arming yourself with an offensive missile, namely an iron rod to effect your criminal intentions.

(b)	Secondly the seriousness of the damage you caused is signified by the monetary value of the damaged which has now been assessed at K10,924.34. This is a very substantial amount of money indicating very extensive damage caused. 

(c)	Thirdly although your counsel and the Pre Sentence Report say that you expressed remorse, I am not prepared to accept that you are remorseful. I say this because of two convincing factors:

(i)	During allocutus I strained my ears to hear you say a very simple word “Sorry”. Never was this simple word ever uttered from your lips to show how remorseful you are and that you are sorry for what you did. It appears that the word “sorry” has never been part of your daily vocabulary. The first indication that an offender is remorseful is that he/she will utter the word sorry during allocutus. Instead of saying sorry, you were ranting and raving on and on about the delays in processing your case and some corrupt dealings which you said you allegedly uncovered. I do not believe in all that you were ranting about particularly the alleged corrupt dealings.

26. I adopt what my brother Makail J said about the word sorry in the case of the State –v- Kopol Hiol, unnumbered and unreported judgment dated 12th May 2008. His Honor said:

“Last but not the least is that I observed and noted that you showed no signs of remorse nor did you apologize to the victim for the wrong you have done. It may have been an oversight on your part or it may, have been a deliberate omission. For me it is a serious matter which I will take into account and hold against you. It seems to me that you are adamant that what you did was justified. You are not prepared to accept that what you did was wrong. I am holding this factor against you notwithstanding your early guilty plea, because to my mind, your early guilty is only “lip Service” to the Court and to the victim so to speak”. 

27. I adopt and apply these comments here as being equally applicable and relevant to the circumstances of the case before me. Added to your lack of remorseness is the fact that in the Pre Sentence Report you said that you would make restitution only to some strange persons you identified as a Nelson Tengi. Who is this strange human being who never rated a mention in the Court case and the Police Investigation Reports and suddenly he is being given some prominence and priority by you, over the victim Mr Robert Tukondo? The Pre Sentence Report does not say that you will make restitution to the victim Robert Tukondo. Nor does it contain a formal apology from you to Robert Tukondo. Instead it says you will make restitution to some strange human being who you identified as Nelson Tengi. Evidence shows that it was Robert Tukundo who suffered and bore the brunt of your criminal actions and not some third party strangers whom I will not accept as being victimized by your criminal actions. In the Pre Sentence Report you never said sorry to Robert Tukundo nor did you offer to make restitution to him. Your actions bespeaks of a very arrogant man who still thinks that what you did is justified. On top of all these arrogant actions displayed by you, I find that you never paid some kind of compensation to the victim as a true mark of Melanesian remorseness and reconciliation. Even to this day some, one and half years after your stupid criminal actions your conduct suggests that you are still smarting over what you did. You could have shown some genuine remorseness not only by paying some kind of compensation in accordance with Melanesian custom of genuine peace and reconciliation but also making some form of monetary payments towards the value of the damage you caused to the vehicle. If you have done these simple things then I would have accepted your remorseness. In a true show of arrogance and big headedness you never attempted any of these genuine acts of showing remorse and reconciliation. Instead you are waiting for the court to tell you what to do. I will therefore treat your plea for leniency and non custodial sentence as “lip service talk” of a desperate arrogant man who is never genuine in what he says. I will hold all of these factors against you in computing what an appropriate sentence would be for you.

28. Another factor which I will hold against you is that your stupid criminal actions have deprived an innocent man and his family of the use and quite enjoyment of their vehicle. Your criminal actions have rendered his vehicle to be immobile and off the road and be in an unroadworthy condition for some time. Such wilful and wanton destruction of another person’s property will never be tolerated nor condoned by this court. Depriving an innocent man and his family of the quite possession and enjoyment of their property is a malicious and evil act. 

29. When I do a balancing act between factors operating in your favour and those operating against you, I find that those against you tip the scale. This becomes very relevant when I proceed on to consider what an appropriate sentence would be. 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. In your case whilst the damage value was very substantial no other person was injured. Neither were other properties damaged by your hands. Accordingly I do not categorize your case as belonging to the worst type cases.

WHAT IS THE HEAD SENTENCE I SHOULD IMPOSE?

30. 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 assess 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 both counsels were very helpful in their respectful submissions and cited me some decisions in similar cases which will help me to compute an appropriate sentence for you. 

31. 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.

32. I will take as a suitable starting point, the maximum penalty fixed by legislation, which is two years. Then I will refer to a number of sentences imposed by the National Court in similar cases. The first case on point is the case of The State –v- Betty Kaime, unreported and unnumbered judgment of Makail J dated 13th November 2008. In that case the offender wilfully damaged a police vehicle by smashing the windscreen with a stone after she discovered her policeman husband transporting her girl friend in a police vehicle. She was provoked by this conduct and became very frustrated and angry. The value of the damage was assessed at K1,200.00. Taking into account all factors in her favour Makail J imposed a head sentence of six months which was then fully suspended with orders for restitution and other strict conditions.

33. The second case I consider is the case of The State –v Jan Tundubo & 4 Ors, unnumbered and unreported judgment of Makail J dated 10th December 2008. In that case, the offenders armed themselves with axes and knives and went into a primary school and entered the office of the school principal. They destroyed the computer, the printer and printer cables, scanner and the photocopier. The costs of all these damaged school items stood at K16, 442.80. Makail J imposed a head sentence of 1 year but then had it wholly suspended with strict conditions including restitution.

34. The third case is the case of the State-v- Steven Molu Minji, Simon Koso Kerenga, Didi Gelwak Sakol, John Minji and James Kauboi [2009] N3794. The accused were found guilty after a lengthy trial for destroying more than 2000 coffee trees owned by the Catholic Church in Mt. Hagen. The value of the destroyed coffee trees were assessed at K45, 658.80. Except for Didi Gelwak Sakol, Makail J sentenced the accused persons to one year in prison to be served with hard labor after he found that the mitigating factors were outweighed by the aggravating factors. No part of the sentence was suspended. 

35. The last case I consider is the State –v- Martin Sahin Terea [2005] N2816. The accused was a Public Servant employed by the Office of Tourism within the Bougainville Autonomous Administration. After being frustrated and angry over work conditions in the office and the alleged corruption involving his superior the accused got drunk and armed himself with a screw driver and caused extensive damage to the office equipment comprising, computer and a photo copier. While there was some dispute as to the actual value of the damage, Cannings J fixed the damage value at K2000.00. In the end he imposed a head sentence of 1 year imprisonment, but had it fully suspended and imposed very strict conditions including restitution and being placed under the supervision of the Provincial Welfare Officer to perform Community service for the duration of his suspended sentence.

YOUR SENTENCE

36. This than brings me to consider the punishment in your case. Going by the monetary values of the damaged properties, I consider that your case is far more serious than Martin Sahin Terea, and Betty Kaime. It is however less serious when I compare it to Steven Molu Minji and others. I find your case to be on par with Jan Tundubo’s case although in Jan Tundobo case the value of the damage was assessed at K16,442.80 and were given a suspended sentence of one year. Let me also compare the weapons used to cause the damage and destruction. Martin Sahin Terea used a screw driver to damage the office equipment, while Betty Kaime used a stone to damage the windscreen of the Police vehicle. Steven Molu Minji and the others used axes and knives to cut down and uproot the coffee trees. Similarly Jan Tundubo and the others also used axes and knives to damage the school office equipment. In your case the offending weapon you used was an iron rod. I point this out to show that a feature in all these cases including yours is that very offensive and dangerous weapons and missiles were used to cause the damage. And this is a factor of aggravation that I take into account. Although these are very dangerous and offensive weapons capable of causing grievous bodily harm to the owners of the property themselves, no other persons sustained injuries at the hands of the aggressors in those other cases. Similarly I find that the weapon that you used to damage the vehicle, the iron rod was not used to cause physical bodily harm to anyone else. Also no other properties were damaged. The sentencing trend in the cases which I have just referred to show that the custodial head sentences were all fully suspended. I must therefore look at other 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. 

37. 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 nobody was injured or no other property was damaged. In categorizing your case in that way, I am giving you considerable benefit of doubt. Given that I have categorized your case as a ‘non violent’ case I have taken into account the trend exemplified by cases such as Doreen Liprin against sending offenders to jail for such non violent offences. A prison sentence costs the State money and expenses and exposes the offender to what cannot be a conducive environment for rehabilitation. 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 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.

38. This 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” 

39. Guided by the above decisions, the court considers that a non-custodial sentence is appropriate to be imposed upon you, with very strict conditions. I impose a head sentence of ten (10) months imprisonment with hard labour upon you. You are to serve this at the Bomana Corrective Institution.

40. Do I have the discretion to suspend this sentence wholly or in part? A feature you share with other cases, that I referred to above is that, no harm was done to any other person or other property during the commission of this offence and after the offence. Cannings, J said in Martin Sahin Terea’s case, that these kinds of cases are considered “non-violent.” Thus the sentencing trend in such case suggests that non custodial sentences were considered appropriate. 

41. 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.

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."

42. 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."

43. 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 and the Means Assessment Report both recommend strongly that I should impose a non custodial sentence upon you. I have also taken into account community views expressed in the Pre Sentence Report as well as indication from your family members to help you make restitution. Taking all these into account I suspend the whole ten (10) months imposed upon you.

44. Having wholly suspended the ten months imprisonment sentence, I now impose the following very strict conditions upon you which you should fully comply with. If you default in complying with any of these conditions you are liable to being re-arrested and sentenced to Bomana Prison to serve your full term.

1.	Under section 19(1)(d) of the Criminal Code you are ordered to enter into a good behavior bond with sureties of K200.00 and to keep peace and be of good behavior for a period of two years commencing on the 20th April 2010 and expiring on the 20th April 2012.The K200.00 surety fee is to be paid at any cash office and the receipt is to be provided to the National Court Registrar and be placed on Court file. After the two years good behavior bond period expires, that money can be refunded to you upon production of the proper receipts. If you however default in complying with any of these other conditions, your K200.00 surety payment will be forfeited to the State.

2.	You are hereby ordered to perform the following community work under the supervision of the Probation Services of the Justice Department. The Probation Service will also draw up the scope of your works and your works program:

(a)	Undertake a general clean up of the Malaoro Market every Wednesday evening after the market closes for six (6) hours commencing on Wednesday 5th May 2010. This work period expires on the 5th February 2011.

(b)	Undertake a general street clean up from Malaoro Market along the Gavamani Road only up the hill but not going downhill towards Kilakila. Then you are to turn and go back past the Market, then up the Taurama Road to the Murray Barracks and PNG Motors round about, then all the way back up the Taurama Road and then turn left into and follow the Bava Street drive and Boroko Drive past Bavaroko Primary School and past the Caritas Girl Technical High School Gate all the way up to the Port Moresby East International High School and Boroko East Market round about. You are to clean and remove rubbish on both sides of the street, but not the Boroko East Market or the shopping Centre. You are to do this every Friday for six hours for ten (10) commencing Friday 7th May and expiring on the 7th of February 2011. 

3.	Since you have failed to pay any form of compensation to Mr Robert Tukundo, You are hereby ordered to pay compensatory damages to Robert Tukundo in the sum of K500.00. This compensation payment should be paid before Friday the 30th of April 2010.

4.	You are hereby ordered to go and publicly apologize to Robert Tukondo in the presence of your Counsel and the Counsel from the Public Prosecutors Office. Your counsel shall then file an affidavit explaining how you apologized to the said Robert Tukondo. This should be done before Friday the 30th April 2010. 

5.	You will make restitution to the said Robert Tukondo by paying the value of the damage you caused together with interest on the principal amount. For avoidance of doubt the amount of damage is K10, 924.34. Interests on this amount will be computed at a rate of 8% from 8th September 2008 to the date of decision which gives a total of 560 days. Interests computed on 560 days give us a total of K1338.40. This interests amount of K1,338.40 is added onto the principal amount of K10, 924.34 . This gives us a a running total of K12,262.83. You are ordered to make a total restitution payment of K12, 262.83.

6.	 This restitution amount of K12,262.83 must be paid within 5 months of this Order entering into force which is deemed to occur on the 20th September 2010. For avoidance of doubt, the five (5) months commences on the Monday 19th of April 2010 and expires on the 19th September 2010. 

7.	After the expiry of five month period, you will report to your counsel and your counsel will file another affidavit giving full details of your compliance with the condition of your restitution. 

8.	If you do not pay within the 5 months then you are liable to default punishment of 10 months imprisonment in hard labor.

9.	Your cash bail of K200.00 is hereby ordered to be converted to become your surety amount of K200.00 imposed as per Order 1 of this ruling.

10.	The Probation Service of the Justice Department shall furnish a monthly Report to the Registrar of the National Court at the end of every calendar month and a copy to my office.

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Public Prosecutor: Lawyer for the State 
Public Solicitor: Lawyer for the Prisoner