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State v Feda [2018] PGNC 209; N7321 (18 April 2018)

N7321

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1225 of 2016

THE STATE

V

HENRY FEDA

Lae: Kaumi AJ
2018: 20^th & 27^th March
11^th & 18^th April

CRIMINAL LAW – Criminal Code Act 1974, Part VI-Offences Relating to Property and Contracts-Subdivision D-Stealing With Violence: Extortion by Threats-Section 386 (1) (2) (a) (b) (Offence of Robbery) and Section 7 (1) (c) and 8 (c)-Sentence-Sentencing Guidelines-Plea of Guilt-Robbery of a motel in the morning-Gang of robbers-Use of Firearms-Proper Starting Point–Sentences Imposed for Equivalent Offences-Head Sentence-Identification of Relevant Considerations-Mitigating and Aggravating Factors-Pre-Trial Period in Custody

CRIMINAL LAW- Sentence-Guilty Plea-Expression of Remorse–First Offender-Prevalent Offence

CRIMINAL LAW-Principle of Parity of Sentence, like should be Treated alike-Disparity in Sentence must be Justified by Proportionate Recognition and Clearly Explained to Co-Offenders

CRIMINAL LAW- Should all or Part of the Sentence be Suspended –Imperative that there must be a basis substantiated by evidence for any recommendation of suspension of a custodial term in a Pre-Sentence Report

CRIMINAL LAW- Usual purposes of criminal sentencing such as Deterrence, Restitution or Rehabilitation are also relevant factors for consideration-Not worst type of offence-Portion of sentence suspended-Criminal Code Ch.262, section 19 (1) (d) (6).

CRIMINAL LAW- It is incumbent on criminal sentencing courts to exercise the people's power vested in them by the Constitution to impose sentences that are in touch with the aspirations and attitudes of the people of PNG.

The offender pleaded guilty to one count of armed and aggravated robbery. The matter was for sentence.

Held:

[1] The principle of parity of sentence is a principle of law that states that a sentence should be ‘similar to sentences imposed on similar offenders for similar offences committed as in similar circumstances’: Andrew Uramani & 4 Others v The State [1996] PNGLR 287

[2] Its purpose entails the sentencing judge avoiding the imposition of sentences that are not only disproportionate and disparate among co-accused where essentially the same facts and circumstances indicate equivalent or like sentences: Secretary for Law v Witrasep Binengim [1975] PNGLR 172

[3] Where there are differences in terms of culpability or criminality, antecedents and character of co-offenders, a disparity in sentence is justified through the proportionate recognition of these differences and that such disparities are clearly explained to the co-offenders so as to avoid giving rise to a justifiable sense of dissatisfaction or a sense of injustice: Andrew Uramani & 4 Others v The State [1996] PNGLR 287

[4] The application of the parity principle is flexible given the peculiar circumstances of offenders: The State v Pandau Hahuahoru (No.2) [2002] PGSC 136; N2186 (21 February 2002) The State v Bira [2009] PGNC 274; N3633.

Cases Cited:
Papua New Guinea Cases

Winugini Urugitaru v The Queen [1974] PNGLR 283
Secretary for Law v Witrasep Binengim [1975] PNGLR 172
Golu v The State [1979] PNGLR 653
Gimble v The State [1988-89] PNGLR 271
Andrew Uramani & Ors v The State [1996] PNGLR 287
The Acting Public Prosecutor v Don Hale (27/08/98) SC 564
Tau Jim Anis and Others v The State [2000] SC 564
Setep v The State [2001] PGSC 14; SC 666 (18 May 2001)

The State v Pandau Hahuahoru (No.2) [2002] PGSC 136; N2186
The State v Joseph Nimagi and 2 Others [2002] N2312

The State v Boat Yokun and Eight Others [2002] N2337

The State v Hagau [2006] PGNC 105; CR 1522 of 2005
The State v Max Charles N2187
Saperus Yalibakut v The State SCRA No. 52 of 2005, 27/04/2006

The State v John Carl Endekra and Others (2007) N3185 PGNC 82

Sawani v The State [2010] PGSC 31; SC 1076

State v Edward Giragu Koima [2010] N4115

Kukubu v The State [2015] PGSC 19; SC 1426

The State v Menos Dumas Don; CR 485 of 2015

The State v Misek Thomas CR 578 of 2016

Overseas cases cited

R v Ball (1951) 35 Cr. App. R. 164

Reg. v Richards (1955) 39 Cr. App. R. 191

Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606.
Mario Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295.

Legislation Cited:

Constitution of Papua New Guinea

Criminal Code 1974

Criminal Justice (Sentencing) Act 1986

Counsel:

Ms. Aihi, for the State
Mr. Tsipet, for the offender

SENTENCE

1. KAUMI AJ: INTRODUCTION: This is a decision on sentence for a man who on the 20^th March 2018 was found guilty of one count of armed robbery with actual violence contrary to Section 386 (1) (2)(a)(b) and State invoked Section 7 (1)(c) and Section 8 (c) of the Criminal Code Act Chapter 262.
   

ISSUE

2. The relevant issue is what the appropriate sentence is in this case.
   

AGREED BRIEF FACTS

3. The agreed brief facts giving rise to the charge are as follows:
   
4. That on the afternoon of the 21^st of July 2016, the accused and seven other persons were at Huon Gulf Motel premises (“the motel”) in Lae.
   
5. The accused and others went into the motel reception area under the pretext of being guests and clients to the motel. They were armed with dangerous weapons namely guns and stole from the employees of the motel, cigarettes and cash money in the sum of Seventeen Thousand, Five Hundred and Thirteen Kina (K17,513.00) the property of Huon Gulf Motel.
   
6. The actions of the accused and others contravened Section 386 (1) (2) (a) (b) of the Criminal Code Act. State further invokes Section 7 (1) (c) and 8 (c) of the Criminal Code Act.
   

ANTECEDENT

7. The Antecedent Report provided to the Court by the State states that he has no prior convictions.
   

ALLOCATUS

8. When I administered allocatus to the offender i.e. allowing him the opportunity to say what matters he would like the court to take into account when contemplating what kind of punishment to give him, the following is a paraphrased summary of his response:
   

“I say sorry to God Almighty for what I’ve done, sorry to break the law of our beloved country PNG, my apology to you, State and Public Solicitor lawyers for time taken to attended to this case; in my apology to the staff and management of Huon Gulf Hotel for the crime I committed. For the past few months I’ve been in custody, due to overcrowding and many breakouts that happened, I didn’t attempt to escape. Currently there is an outbreak of TB diseases, and a shortage of medical supplies for remandees and prisoners affected which has resulted in a few deaths.

There is also a limited supply of food to cater for prisoners and remandees and that leads to some problems facing Buimo CI.

I am a family man, and my wife is unemployed. I have a 3 years old daughter in Lae to be taken care of, the more I am in here the more my family’s future will be jeopardized. My co-accused are Menos Dumas Don and Misek Thomas.

This is my first time in Court, I have no priors, based on the said grounds, I am asking for this Honourable Court’s mercy to suspended my sentence and be given probation. And I assure the Court to follow and abide by all rules, regulations and conditions that is given to me.

With high respect to this Honourable Court I kindly and humbly seek leniency. Thank you.”

OTHER MATTERS OF FACT

9. The prisoner pleaded guilty and so I will give him the benefit of the doubt on mitigating matters raised in the committal depositions, the allocatus in submission that are not contested by the prosecution: Saperus Yalibakut v. The State (2008) SC890. In his allocatus the prisoner stated that since he has been in custody there have been many breakouts and an outbreak of TB but he has not escaped and I accept this.
   

SUBMISSION BY DEFENCE COUNSEL

10. Mr. Tsipet urged the Court to take into consideration that the offender was a first-time offender who pleaded guilty to the charge saving the Court time and expense if a trial were to be conducted, that he co-operated well with police and made early admissions, that even though guns were used in the robbery, they were never fired causing injury to the victims and lastly that he was not in a position of trust to the victims.
    
11. He submitted for considering the principles of parity and fairness for a similar penalty as imposed on the co-offenders namely, Menos Duma Don, and Misek Thomas who were sentenced by Murray and Mogish JJ respectively to 6 years.
    

SUBMISSION BY THE STATE

12. Ms. Aihi highlighted the aggravating factors:
    
    1. Offence pre-planned and well organized.
    2. Dangerous weapons involved namely firearms
    3. The prisoner was in company of others;
    4. Substantial amount of money stolen of which none was recovered.
    5. Prisoner benefitted from the crime.
    6. Breach of trust as the prisoner pretended to be a guest of the motel.
    7. Crime is prevalent in society.
       
13. She urged the Court that in consideration of case law she cited together with the aggravating and mitigating factors, the circumstances of this case and for personal and public deterrence, to consider a 16 to 20 years in hard labour less the time spent in custody.
    

THE PRINCIPLE OF PARITY OF SENTENCE

14. In this case two co-offenders of the prisoner have been sentenced by different judges necessitating the application of the principle of parity of sentence.
    
15. The principle of parity of sentence is a principle of law that states that a sentence should be similar to sentences imposed on similar offenders for similar offences as in similar circumstances.
    
16. In this jurisdiction the principle of parity of sentencing is well established.
    
17. In the pre-independence case of Winugini Urugitaru v The Queen [1974] PNGLR 283 the Supreme Court stated the principle as follows:
    

“It is, of course, justified in differentiating in the treatment of persons for the same crime if, in considering the public interest, it has regard to the differences in the characters and antecedents of the convicted men, and discriminates between them because of these differences. R v Ball (1951) 35 Cr. App. R. 164, at p.164. per Hilbery J. The court may also have regard to factors connected with the actual commission of the crime. But the fact that one of several prisoners indicted has received too short a sentence is not a ground to lead a court necessarily to interfere with a longer sentence passed on the others. What generally has to be shown is that the applicant on appeal has received too long a sentence. Reg. v Richards (1955) 39 Cr. App. R. 191, at p. 192 per Lord Goddard. But as it also appears from that case if there is a very considerable disparity between the sentences, an appellate court may take it into account (ibid).”

18. In the same case the Supreme Court also said that, if one of the several co-accused jointly indicted has received a shorter sentence is not a ground to lead a Court necessarily to interfere with the longer sentence passed on a co-accused or a number of them. On the same page of the above judgment at footnote number (2) the Court in the above case held that:
    

“The fact that one of several co-accused jointly indicted has received too short a sentence is not a ground to lead a court necessarily to interfere with a longer sentence passed on another or others. What has to be shown is that the applicant on appeal has received too long a sentence or that there is very considerable disparity between the sentences such that a justifiable feeling of dissatisfaction and sense of injustice will occur”.

19. The Supreme Court in Golu v The State [1979] PNGLR 653 in rejecting an argument for a reduction of the appellant’s sentence on the parity principle per Justice Raine DCJ (as he then was) noted there could be situations where there might well be a feeling of dissatisfaction but that could not automatically mean that the sentence be reduced. He explained: “The most usual situation that arises in disparity cases is as described by me in Secretary for Law v. Witrasep Binengim [1975] PNGLR 172, at p. 175, where I said:
    

“The situation often arises where Mr. Justice A. deals with one of a group of co-offenders one month, and Mr. Justice B. deals with the remainder subsequently. The second judge might feel that the first judge was lenient, but the principle is, so I believe, that the second judge, albeit rather unwillingly, ought to award much the same sentence as awarded earlier”.

20. The Supreme Court in Andrew Uramani & Ors v The State [1996] PNGLR 287 at footnote number (1) held that where the conduct and part played by the co-accused in the same crime is different from the others he is entitled to a different sentence; and in footnote number (2) that sentences must be adjusted to reflect co-accuseds’ involvement and to dispel any grievances.
    
21. The Supreme Court in Setep v The State [2001] PGSC 14; SC 666 expounded on the parity principle in this manner:
    

“The only question left to be answered is, whether the imposition of life imprisonment was too long or that the disparity between the sentence the appellant received and that of his co-accused are considerable that he could be left with a feeling of dissatisfaction and a sense of injustice? That question must be answered in our view, by reference to what part the appellant played in the commission of the offence, the appellant’s character and or antecedents and the effect of that on the victim”.

22. The Supreme Court in Sawani v The State [2010] PGSC 31; SC1076 per Kirriwom, Manuhu & Sawong, JJ provided an excellent exposition on the principle of parity and did so by referring to a number of cases which have applied the principles of parity of sentence which I reproduce in this manner:
    

[A] In The State v Boat Yokun and eight Others [2002] N2337 Injia J (as he then was) while observing the principle of parity of sentence of offenders involved in a single criminal enterprise together decided that the sentences he felt necessary to impose on each one of the nine prisoners must be different because of the exceptional circumstances of the case and the offenders involved. We note His Honour’s comments:

“As to the issue of parity of sentence, I have decided to impose different sentences based on their plea, youth, and more importantly, the nature and extent of their participation in the killing. I list them in the order of seriousness:

I now impose the following sentence. I sentence Mine Basanu to 10 years imprisonment IHL; Totonu Kakanana and Karao Kakanana to 9 years; Tawan Yasaling and Bagon Yakum to 8 years; Boat Yakum, Arabau Kakanana and Bayuwe Eli to 7 years and John Yowa to 6 years. I deduct the period of 2 years 3 months for pre-trial custody in respect of each prisoner’s sentence.”

[B] There are justifiable grounds or reasons for disparity in sentences as long as this is clearly explained by the sentencing authority as did the trial judge in the above case. It is the failure to explain the disparity often smacks of injustice and unfairness when two people or groups of people charged with the same offence and appearing at the same time or at different times but are punished differently from each other that give rise to justifiable grievance that this Court must rectify upon being satisfied that there was a clear error.

[C] The law on the issue of parity of sentence was quite elaborately discussed in a National Court case of The State v Joseph Nimagi and 2 Others [2002] N2312 (Kandakasi.J) where after reviewing case law authorities on the subject in both local and overseas case precedents the following extract is noted in his judgment:

“...There is no dispute that these three acted in concert. The difficulty that faces me now is whether I impose the same sentence on all of them or must I punish each of them individually according to the level of their criminal culpability and their respective circumstances...

The law on sentencing two or more persons charged and convicted together for the same offence is largely determined according to the level of their criminal culpability or the degree of their participation and their individual circumstances. This is referred to as the parity principle... A grave could result. Take for example an extreme case scenario involving say, a group of six people who are found guilty of committing a crime one of whom is aged about 16 years and a first offender and another is aged 60 years and also a first offender. The only part in the crime was that they engaged in simply, say, to divert attention of the passers-by away from the four active perpetrators who were physically involved in the unlawful act. No doubt they are guilty under s. 7 of the Code. But given their role and their ages compared with the four key perpetrators who are aged between 20-30, will it be justified for the court to impose the same length of sentence on all six of them?

“In the case of The State v Tony Pandau Hahuahoru (supra) I referred to the above discussed the parity principle and the following remarks made by the trial judge are worthy of noting, as they seem to correctly reflect the law. After referring to a number of Papua New Guinea cases like Winugini Urugitaru v The Queen [1974] PNGLR 283; Goli Golu v The State [1979] PNGLR 653 and Andrew Uramani & Ors v The State [1996] PNGLR 287 Kandakasi, J concludes:

“A consideration of all these authorities shows that, a court can impose a sentence that is in disparity with a sentence received by an offender’s co-accused. That can only happen if there are good reasons such as prior conviction, conviction after a trial, and playing more active and leading role in the commission of an offence. Such factors need not exist in the one case at the same time. There could be just one factor or there could be a combination of them.”

Kirriwom. J in Sawani v The State (supra) noted that the view His Honour expressed represents the current legal position not only in this jurisdiction but universally and referred to Mario Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295. Dawson and Gaudron, JJ said at 301 – 302:

“The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like be alike but that, if there are relevant differences, due allowance must be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, corrections of the error will result in there being a due proportion between the sentences and there will then be equal justice. However the parity principle, as identified and expounded in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606., recognizes that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to ‘a justifiable sense of grievance’...

Discrepancy or disparity is not simply a question of imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their degree of criminality...”

It is my respectful view therefore that the sentences for each of the prisoners in this case must reflect strictly the degree of criminality of each one of them, and more particularly so, for the reason that from the time that the prisoners were inside the premises to the time that the deceased was shot and killed, there appears to have been a change in the criminal design of their unlawful purpose which ultimately was the cause of the struggle between David Bawai and Tom Girua and the deceased. If the prisoners had confined themselves to the robbery only, they would not have been this dreadful eventuality.”

23. Going by the aforementioned case authorities my understanding of the principles of parity in sentencing applicable in this jurisdiction are:
    

[i] The principle of parity of sentence is a principle of law that states that a sentence should be ‘similar to sentences imposed on similar offenders for similar offences committed as in similar circumstances’.

[ii] Its purpose entails the sentencing judge avoiding the imposition of sentences that are not only disproportionate and disparate among co-accused where essentially the same facts and circumstances indicate equivalent or like sentences.

[iii] Where there are differences in terms of culpability or criminality, antecedents and character of co-offenders, a disparity in sentence is justified through the proportionate recognition of these differences and that such disparities are clearly explained to the co-offenders so as to avoid giving rise to a justifiable sense of dissatisfaction or a sense of injustice.

[iv] The application of the parity principle is flexible given the peculiar circumstances of offenders.

24. The reasons underpinning the parity principle are that:
    

[i] Though it is not written law it is a principle of law founded on the constitutional guarantee of fairness, even-handed justice and equal treatment under the law.

[ii] It is a principle entrenched in the sentencing regime in this country to ensure the confidence of citizens and non-citizens in those that administer the wheels of justice and that such confidence is not eroded due to the converse occurring without a reasonable justification.

[iii] Its application is an act of judicial discretion involving a judge sentencing in accordance with precedent and considering the uniqueness of the offender and offence on one hand and being sensitive to the needs of the local community more specifically the victim’s cry for justice on the other.

DECISION MAKING PROCESS

25. Cannings. J in State v. Edward Giragu Koima [2010] N4115 at paragraph 7 applied a process where a co-offender had already been sentenced by another judge which is of encapsulating effect which I respectfully adopt and reproduce:
    

“As a co-offender has already been sentenced by another Judge, I will need to apply the principle of parity in sentencing, by adopting the following decision making process:

• Step 1: what is the maximum penalty?
• Step 2: what is the proper starting point?
• Step 3: what sentences have been imposed for equivalent offences?
• Step 4: what is the notional head sentence?
• Step 5: what is the result of applying the parity principle?
• Step 6: should the pre-sentence period in custody be deducted?
• Step 7: should all or part of the sentence be suspended?”
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

26. Section 386 (1) (2) (a) (b) of the Criminal Code states:
    

“(1) A person who commits robbery is guilty of a crime.

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding 14 years.

(2) If a person charged with an offence against Subsection (1)-

(a) is armed with a dangerous or offensive weapon or instrument; or

(b) is in company of one or more other persons; or

(c) at, immediately before immediately after, the time of the robbery, wounds or uses any other personal violence to any person,

he is liable, subject to Section 19, to death.”

27. The death penalty subject to section 19 of the Criminal Code Act allows for the discretion of the Court in sentencing the prisoner.
    

STEP 2: WHAT IS THE STARTING POINT?

28. In The State v John Carl Endekra and others (2007) N3185 PGNC 82 Cannings. J after considering what the Supreme Court in the cases of Gimble (supra), Hale (supra) and Anis (supra) had said with respect to sentencing tariffs applicable in Armed Robbery cases, stated that the appropriate starting points in like cases nowadays should be:
    
    1. Robbery of a house- ten years
    2. Robbery of a bank- nine years
3. Robbery of a store, hotel, club, vehicle on the road etc.- eight years
   4. Robbery of a person on the street- six years
      
29. The Courts have stated that the sentencing principles of Gimble were good for the type of robberies but starting points are out of date given the prevalence of robberies.
    
30. The proper starting point in this case is eight years.
    

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

31. I will now consider the sentencing trends in recent history.
    

Table 1. NATIONAL COURT SENTENCES FOR FORGERY and UTTERING, 1980-2017

32. The above cases all demonstrate that the Supreme and National Court view the offence of Armed Robbery seriously.
    

STEP 4: WHAT IS THE NOTIONAL HEAD SENTENCE?

33. In order to arrive at a notional or a hypothetical head sentence for the offence the offender has pleaded guilty to, I have to consider the particular circumstances in which he has committed the offence and the result of which will come the factors in his aggravation as well as those in his mitigation. And in this process of consideration the sentences imposed on the offender’s co-accused are temporarily put aside. The aggravating and mitigating factors are as follows:
    
    1. Aggravating factors.
       
       • The offence was pre-planned and well organized.
       • Dangerous weapons namely firearms used.
       • Offender in company of others.
       • Substantial amounts of money stolen, nothing recovered.
       • Offender benefitted from the crime.
       • Breach of trust as the prisoner pretended to be a guest of the motel; and
       • Crime is prevalent in society.
         
    2. Mitigating factors.
       
       • Prisoner is a first time offender.
       • Prisoner pleaded guilty to the charge saving the court time and expense if trial were to be conducted
       • Plea also saved the witnesses the inconvenience of going to court to testify.
       • He cooperated with police and made early admissions;
       • Even though guns used in the robbery, they were never fired and no one hurt.
       • The offence was committed in broad daylight at 8am.
         
34. I note in this matter that the aggravating factors outweigh the mitigating ones. The prevalence of this type of offence increases at an unabated rate in this country today despite the best of efforts to deter or minimize it.
    
35. On the same token I note the prisoner in his expression of remorse was genuine and his co-operation with police at the early stages of investigation and the extenuating circumstance that the guns were not fired or anyone injured and these are substantial mitigating factors.
    
36. The notional head sentence is therefore six (6) years.
    

STEP 5: WHAT IS THE RESULT OF APPLYING THE PARITY PRINCIPLE?

37. The principle of parity of sentence is a principle of law that states that a sentence should be ‘similar to sentences imposed on similar offenders for similar offences committed as in similar circumstances’.
    
38. The application of the parity of sentence is flexible given the peculiar circumstances of offenders.
    
39. Where there are differences in terms of culpability or criminality, antecedents and character of co-offenders, a disparity in sentence is justified through the proportionate recognition of these differences and that such disparities are clearly explained to the co-offenders so as to avoid giving rise to a justifiable sense of dissatisfaction or a sense of injustice.
    
40. In this case I have set a notional sentence of six (6) years. Now I compare that with the sentences imposed on the offender’s co-offenders. Two of his co-offenders Menos Duma Don and Misek Thomas both pleaded guilty before different judges and were both sentenced to 6 years each. I have not had the benefit of being fully appraised of these co-offenders’ antecedents by counsel except that Misek’s pre-trial period of 8 months was deducted and the remaining balance of 5 years and 4 months was wholly suspended on medical grounds. However that is not to say that I have been handicapped by this paucity of information as I have been assisted by the offender’s answers in his Record of Interview and by the witnesses’ statements in this matter. I note that this offender and his two co-offenders and others played different roles in the matter. The offender and the others involved were either planners, driver, watchmen or the actual robbers. And that his co-offenders (Menos and Misek) planned the robbery. The offender followed instructions and rented a room at the motel the night before the offence took place and was with Misek and another person armed with the firearms carrying out the actual robbery. Further that despite the different roles played by each of them it was all for a common cause and that was to successfully rob the Huon Gulf Motel. I consider Menos and Misek as the masterminds of this offence. I note that the PSR suggests that the offender suffers from bouts of heart burn but I have not seen any evidence of this by way of a medical report so I give little weight to this. Other than the matters I have alluded to I do not detect much difference in their respective circumstances and as such the six years sentence I have arrived at is in line with the principle of parity and fairness and should not give rise to any justifiable sense of dissatisfaction or a sense of injustice on part of the offender or his co-offenders.
    
41. Therefore I confirm the sentence as six years imprisonment.
    

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED?

42. Section 3 (2) of the Criminal Justice (Sentences) Act 1986 provides that:
    

There may be deducted from the length or any term of imprisonment imposed of any court any period before the sentence was imposed during which the offender was in custody in connection with the offence for which the sentence was imposed.

43. This provision allows the court discretion to decide whether or not to deduct the period an offender has spent in custody in remand awaiting trial. It is not an automatic right of the offender to have this period deducted.
    
44. The offender spent one year and eight months in custody and it is proper that this period is deducted.
    

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

45. The PSR recommends a non-custodial term in the form of probation. And it cites the reasons for its recommendation as being, the prisoner’s lack of prior conviction and remorsefulness and his contrition.
    
46. It also cites the welfare of his family as well and the offender also mentioned this in his allocatus when pleading for a non-custodial term. It is well stated by the Supreme and National Courts of this country for over 30 years that before a person embarks on a crime, he should consider the well-being and interest of the family first instead of their own selfish inclinations, consequence of which will seriously affect them. And this prisoner is no different and I do not accept this reason.
    
47. I consider that to wholly suspend the sentence would not assist the offender in his personal rehabilitation and deterrence and further more general deterrence to like-minded people in the community. The converse would be a disservice to society.
    
48. However there are a few factors which persuade me to consider this case as an appropriate one for consideration of suspending part of the sentence; firstly, his genuine expression of remorse; secondly, the fact that he did not escape despite numerous breakouts from the Buimo goal, thirdly his plea of guilty; his lack of prior convictions and lastly, that the guns used were never fired and no one injured.
    
49. The offender has received a favourable pre-sentence report which recommends non-custodial term and is based on views obtained from the Community as well as the victim, offender and his family however on the same token I note the prevalence of this type of offence, the fact that it continues to increase at an unabated rate despite the best of efforts to curb it and the level of sophistication involved and so for the aforementioned reasons above and the circumstances of this case, there should only be a partial term of suspension conditionally.
    
50. The circumstances of this case are serious but do not fall into the worst category of cases.
    
51. The personal circumstances of the offender was that he was 35 years of age and married with one child at the time of commission of the offence and persons in this age group (35 to 40s) are reasonably expected to live by example and show those younger than themselves the right way to live their lives. In this instance the offender appears to have been led astray by those younger than himself for reasons best known to himself. Nevertheless this gives weight to thrust of the PSR that the offender was a law abiding citizen, came from a good family and had an amendable character. I have read and considered the PSR and its contents and find that it substantiates its recommendation for a non-custodial sentence, having said this I cannot understand how the offender at his age and personal background got involved in the commission of the offence in the first place. It is also for these reasons that I consider that the offender should be deterred but allowed an opportunity to rehabilitate.
    
52. For these reasons I consider only partial suspension.
    
53. The offence is prevalent and there needs to be deterrent sentence to deter likely-minded persons in the community.
    
54. Therefore the sentence I impose is one which will serve the purposes of sentencing of Deterrence and Rehabilitation.
    
55. I suspend 3 years 4 months of the sentence subject to the following condition:
    
    1. Upon his release the offender will keep the peace and be of good behaviour for a period of the suspended portion of his sentence (3 years, 4 months)
       
    2. The offender will reside with his brother at Pagini Village, Boundry Road, Lae, Morobe Province.
       
    100. You will not leave Morobe Province without written permission from the National Court.
         
    4. You will report to the senior Community Corrections Officer (Probation Officer) at Lae at the end of every month.
       
    5. You will not associate yourself with criminals.
       
    6. You will refrain from committing such offences in future.
       
    7. You will perform 500 hours of unpaid community work in your community to be supervised by the Community Corrections Officer.
       
    8. You will report to the Community Corrections Officer (Probation Officer) in Lae at the end of every month.
       
    9. You will have a favourable probationary report filed at the Lae National Court Registry by the CBC Officer in Lae after every six (6) months
       
    10. If you break any of the above conditions you will be arrested and brought before the National Court to explain why you should not be imprisoned for the suspended balance of your sentence.
        

SENTENCE

56. The orders of the Court are as follows:
    

Sentence accordingly.
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender