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Mandatititip v The State [1978] PNGLR 128 (3 May 1978)

Papua New Guinea Law Reports - 1978

[1978] PNGLR 128 - Paulus Mandatititip v The State 

[1978] PNGLR 128

SC129

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

PAULUS MANDATITITIP AND ANOR.

V

THE STATE

Waigani

Prentice CJ Pritchard J Wilson J

2-3 May 1978

CRIMINAL LAW - Appeal against sentence - Appeal by convicted person - Principles applicable - Need to show sentence manifestly excessive.

CRIMINAL LAW - Appeal against sentence - Youthful first offenders - Relevant considerations - Breaking, entering and stealing - Deterrent necessary generally - Severity necessary despite youthfulness - No exceptional circumstances.

On appeal against severity of sentences of 16 months’ imprisonment (effective 19 months) and 20 months’ imprisonment (effective 23 months) imposed on two young men aged about 19 and 22 years with no previous convictions, on convictions for breaking, entering and stealing from a trade store in circumstances where it appeared there was pre-planning, co-operation of a number of people, an almost complete stripping of the stock of the store, and that the offence occurred in a district which had been notoriously lawless over a considerable period beforehand;

Held

(1)      An appeal against sentence by a convicted person should not be allowed unless it can be shown that the sentence imposed by the trial judge is manifestly excessive.

Reg. v. Pia-Afu [1971-72] P. & N.G.L.R. 393; Wanosa and Ors. v. The Queen [1971-72] P. & N.G.L.R. 90 and Reg. v. McGrath [1971-72] P. & N.G.L.R. 247 affirmed.

(2)      The prevalence of the offence of breaking and entering in Papua New Guinea is such that deterrent sentences are required, and youthful offenders should not receive special treatment unless there are exceptional circumstances which call for leniency.

Reg. v. Cuthbert (1967) 86 W.N. (Pt. 1) (N.S.W.) 272 at p. 277 referred to.

(3)      (Per Wilson J) In the absence of circumstances of substantial gravity surrounding a crime committed by a young first offender who stands to be punished and in the absence also of a sufficient reason for sentencing him to a term of imprisonment, a retributive or primarily deterrent sentence is not desirable.

(4)      In view of the prevalence of the particular offence, the particular circumstances and the absence of any exceptional circumstances relative to the appellants, the appeals should be dismissed and the sentences confirmed.

Appeals

These were appeals against severity of sentences imposed on two young offenders on convictions on charges of breaking, entering and stealing.

Counsel

W. Kaputin, for the appellants.

K. B. Egan, for the respondents.

Cur. adv. vult.

3 May 1978

PRENTICE CJ PRITCHARD J: Leave is sought to appeal against sentence on behalf of the two appellants. We would be prepared to grant such leave.

The two appellants are young men. Paulus who was sentenced to 16 months’ imprisonment (effective 19 months), looked to the trial judge to be 16 or 17. The police estimated his age at 19.

Poro, who was sentenced to 20 months’ imprisonment (effective 23 months), his Honour as well as the police, took to be 22 years old. Their crime was that of breaking, entering and stealing from a trade store in September 1977 in the Wapenamanda area, for which the maximum statutory penalty is 14 years’ imprisonment with hard labour.

His Honour’s adjudication is attacked as being excessive having regard to the appellants’ ages and lack of prior convictions, the comparatively small value of the goods stolen, the surrounding circumstances, sentences in other cases, and the lack of evidence of prevalence of this offence in the particular area — the Enga Province.

It should be unnecessary to do so, but apparently one must again draw attention to the stream of cases in the pre-Independence Supreme Court (Reg. v. Pia-Afu[ccxxxiv]¹, Wanosa and Ors. v. The Queen[ccxxxv]² and Reg. v. McGrath[ccxxxvi]³ being among the earlier ones), whereby an interpretation of the then appeal statute was then worked out. Thereunder it was laid down that whereas on appeal on sentence by the prosecution, the question of adequacy of sentence was completely open, in an appeal by a convicted person an appeal court should allow the appeal only where the sentence was seen to be manifestly excessive. These cases have been followed since Independence in the interpretation of the statute now covering appeals, namely the Supreme Court Act.

We should say at once that the sentences in this case do not immediately strike us as being excessive. As his Honour stated, this was a bad case involving pre-planning, co-operation of a number of people and a determined effort. The break was made into a store which had been broken into on previous occasions. It resulted in the almost complete stripping of the stock of the store, which is in a district which had been notoriously lawless over a considerable period beforehand. There was no indication on the part of the appellants that they were remorseful. The trial judge, a most experienced member of the National Court, considered the case called for a deterrent sentence; we are not prepared to disagree with him. The crime of breaking and entering for which such severe penalties are prescribed by Parliament, was then, and seems to be still, on the increase throughout the country. As is well known, such offences are completely anathema in village society without interposition of the introduced law. We agree with the remarks of Herron CJ in relation to another society (Reg. v. Cuthbert[ccxxxvii]⁴) when he said “a plea of youth is no longer a satisfactory answer to crime” as being applicable today in Papua New Guinea. There appears to us to be no exceptional circumstances which call for leniency. As had been frequently announced and published over a long period, the policies of the courts (as indeed seemed to be demanded by public opinion as far as the courts can gauge it) were to increase sharply, and as might continue to be necessary, the severity of punishment for such offences.

Few alternatives are available to Papua New Guinea courts in dealing with youths and younger men other than to impose sentences of imprisonment. Such is the situation of the country geographically, socially and as to the rural engagement of most of the people, that such punishment may continue to be called for despite the desired introduction of alternatives suited to an urban settled environment. But in any case in Papua New Guinea, as in other countries, deterrence where a particular crime becomes prevalent is thought to be of importance at least equivalent to that of rehabilitation.

It has been pointed out on numerous occasions that citation of other individual cases is of little assistance on appeal, each case being decided on its own merits. Some attention was focused, in the attempt to spotlight the reason for the alleged error of the judge, on his preliminary mention of information given to him six years before the trial in relation to the area by a very experienced District Commissioner. It appears to us that his Honour was merely referring by way of preface to this matter, as indicating how long the problem of breaking and entering and general lawlessness had been plaguing that district, in his approach to whether an effective deterrent sentence was called for. His Honour was careful to set out, as he need not have done, the specific matters which he particularly took into account on sentence in the prisoners’ favour. To our mind he covered that field adequately. He did not go on to make specific reference to the undoubted circumstances of aggravation which existed; but it does not seem to us that he made any unwarranted addition in that regard. We can see no basis on which the sentences can be complained of and would dismiss the appeal and confirm the sentences.

WILSON J: I have had the benefit of reading the draft joint judgment of the Chief Justice and Pritchard J I agree with the orders they propose, and I respectfully concur in their Honours’ reasons and conclusions. But as this appeal raises some questions involving the principles of sentencing, I desire to add some observations of my own.

There are offences where the notion of deterrence must take priority and where sentences of imprisonment may properly be imposed, even on young first offenders, to mark the disapproval by the law of the conduct in question and in the hope that other people will be deterred from like behaviour. Breaking and entering offences legitimately fall into this category.

In Papua New Guinea at this time, when breaking and entering offences are prevalent generally and when there is widespread public concern about such offences, the courts must remind themselves that under both the introduced law and customary law such offences are viewed seriously. Indeed the maximum penalty laid down in s. 410(a) of the Criminal Code is 14 years’ imprisonment with hard labour. In addition, ordinary people are entitled to be protected, as far as it is possible for the law to protect them, from such offences involving the stealing of property from their homes and business premises. Such conduct must, in my view, be met by some firmness on the part of the courts. In Bokun Umba v. The State[ccxxxviii]⁵ Prentice Deputy CJ (as he then was) referred at p. 8 to the need for “sternness in the community’s judicial officers.” Of course the distinction needs to be drawn between crimes of breaking and entering which are premeditated (as here) and those which are spontaneous or committed out of necessity. The distinction should also be drawn between crimes of breaking and entering committed by gangs of men (as here) and those committed by individuals.

Breaking and entering offences, when committed in Papua New Guinea at this time, may be said to be of such seriousness and they may be said to stir up such community indignation and resentment that, when they are duly proved, they generally call for the imposition of prison sentences. To an extent heavy penalties have been proscribed for such offences because of a concern and desire on the part of the legislature to prevent (or at least discourage) the citizens of this country, many of whom are quite unsophisticated from adopting traditional methods of retribution, such as payback. The courts will be failing in their duty if they ignore such historical facts or fail to be sensitive to responsible public opinion. If courts, in dealing with certain crimes such as breaking and entering of the type considered in this appeal, permit deterrence to play an insufficient part in formulating proper penalties, there would be a real and grave danger that the victims of such crimes or those fearful of such crimes being committed on their properties would take the law into their own hands if the opportunity to do so presented itself or if the necessity for doing so arose. Perhaps this is the sort of thing Prentice Deputy CJ (as he then was) had in mind when in Bokun Umba v. The State[ccxxxix]⁶ he said, at p. 8:

“I am coming to the conclusion that the sentences handed down by the National Court, even on youthful criminals, must increase significantly further, if they are to avoid being regarded by the public, and perhaps by the offenders, as derisory ... and if they are to deter ... crime.”

Although in recent years in many countries there has been a humane and healthy shift of emphasis in the sentencing process towards rehabilitation and reformation, courts (perhaps more so in this country, where ideas of reprisal and payback have not yet been eliminated, than in others) must, I apprehend, be aware of the country’s historical and social conditions and bear in mind the ease with which ordinary peaceful citizens may on the spur of the moment execute private revenge on the persons who, they believe, have wronged them. As Prentice J (as he then was) said in R. v. Peter Ivoro[ccxl]⁷:

“One must attempt to construe and apply the section in the setting of the circumstances of this country, the dispositions and natures of its peoples, the type and prevalence of crimes therein, the specific pacification and the law and order situation into which it was designed to fit, and possibly, that it was passed by a largely indigenous House of Assembly”.

Although “the section” referred to in the passage just quoted was a different one to the present, and although the passage just quoted is to be found in what was a dissenting judgment in that controversial case, those sentiments, in my opinion, may be applied most aptly to the sentencing process.

I desire to add one more observation regarding the matter of sentencing youthful offenders. In the absence of circumstances of substantial gravity surrounding a crime committed by a young first offender who stands to be punished and who has no other offences to be taken into consideration and in the absence also of a sufficient reason for sentencing him to a term of imprisonment, I am disposed to think that a retributive or primarily deterrent sentence is scarcely indicated. However, in this case I am of the opinion that circumstances of substantial gravity do exist.

Leave to appeal granted.

Appeals dismissed. Sentences confirmed.

Solicitor for the appellants: M. Kapi, Public Solicitor.

Solicitor for the respondent: K. B. Egan, Public Prosecutor.