Ngudomp, Public Prosecutor v [1982] PNGLR 357 (29 October 1982)

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CRIMINAL LAW - Sentence - Appeal against - Crime of violence - Co-accused not proceeded against - Not factor in mitigation.

On appeal against sentence the fact that co-accused (being principal offenders) have not been brought to trial and may not be brought to trial is not a relevant matter going to mitigation.

Accordingly, that a sentence of two years I.H.L. imposed on the appellant for the offence of robbery in company with other persons, (none of whom had been brought to trial, although two had been arrested and subsequently discharged because the principal State witness had left the country), was in the circumstances inadequate and a sentence of three years six months I.H.L. should be substituted.

Public Prosecutor v. Kwalimu Goina & Others (Unreported Supreme Court judgment No. SC230 dated 27th July, 1982).

This was an appeal against sentence by the Public Prosecutor on the ground of inadequacy.

KIDU CJ: This is an appeal by the Public Prosecutor against a sentence of two years in hard labour for the crime of robbery in company with other persons. The maximum penalty for the crime is imprisonment for life (s. 386(2) of the Criminal Code).

I set out hereunder the charge in the indictment because it emphasizes the gravity of the crime to which the respondent pleaded guilty:

“That he, on the 8th of April, 1981 in Papua New Guinea stole from Michael Mitchellmore, with actual violence, two cheques and K2,072 in cash the property of Toi Tubi Pty. Ltd., and at the time aforesaid, he was in company with other persons.”

The learned trial judge’s comments on sentence contain most of the relevant facts and issues and I reproduce the whole of his Honour’s comments.

“You have pleaded guilty to a charge that on the 8th of April, 1981, in Papua New Guinea you stole from one Michael Mitchellmore, with actual violence, two cheques and K2,072 in cash the property of Toi Tubi Pty. Ltd., and that at the time you were in company with other persons. You were an age from about 21 from Banz area. This is one of the worst cases of its kind imaginable, you were with others who broke into this man’s house and threatened him with a pistol—they then forced him to drive, at pistol point, to the Shell Depot where you forced him to open the safe.

I have not found your case an easy one. On the one hand you were with them, masked and you were standing near the victim’s car, with sticks and stones when they went into his house.

You say you went along initially to see what was happening. It does appear that you were from a different place than these three and you do not appear to have been part of a plan—and it was obviously a well planned exercise.

But having been there armed with sticks and stones in the first place at the house, you went in the car when the man was threatened with the pistol. At the Shell Company, when the money was taken, you say you were not directly involved and wandered away where the safe was being opened. You have actually given encouragement to the others and aided them by going along with these counterparts. I treat you separately from the other three. They have not been before the court and their conduct is deserving of the highest punishment. I propose to treat you as I have said, separately, and you did not receive any of the proceeds. To some extent you may have joined in this enterprise out of curiosity and got out of hand. Although your role was a small one compared to the others, I cannot overlook the fact that this was a terrible case.

In all of these circumstances, I sentence you to imprisonment with hard labour for 2 years.”

The learned trial judge appreciated the gravity of the offence. His Honour quite properly considered the respondent’s antecedents, the fact that he pleaded guilty to the charge and the role he played on the commission of the crime. However, I consider that his Honour placed too much emphasis on the role the respondent played in the commission of the offence and was influenced too much by what he considered to be the minimum role the respondent played.

[The Chief Justice then considered the evidence before the trial judge in more detail and continued.]

Crimes of violence are occurring frequently in this country. Only recently this Court expressed great concern in the case of The Public Prosecutor v. Kwalimu Goina, John Vele, Norman Leva and Tom Wari (Unreported Supreme Court judgment No. SC230 dated 27th July, 1982). At pp. 3-4 of that judgment, the court said as follows:

“Whilst it is not shown that there was any error of principle or of law of fact by the learned trial judge, it is our view that the sentences are so inordinately low when considered in relation to the offence and the circumstances of the case that they are manifestly inadequate. They do not, in our view, reflect the seriousness with which the trial judge himself viewed the offence.

This is the first case of this type which has come to our attention. In our view the offence is not similar to that of robbery with violence in company and other offences involving violence against the person.

The deterrent aspect of punishment is of primary importance in cases of this kind. Sentence should demonstrate to others tempted to engage in such lawlessness involving violence that the punishment to be imposed will be calculated to protect society from the deliberate attack made on it.

We are mindful of the increase of crimes of violence and the widespread public concern about such offence. Such conduct will be met by firmness on the part of courts and we give a warning that sentences would increase substantially. This is particularly so when such crimes are committed by gangs.”

Taking into account the whole of the circumstances of the case and the respondent’s part in the offence, I am still left with the opinion that the sentence of two years in hard labour is obviously inadequate.

Counsel for the respondent, Mr. Amet, submitted that the sentence should not be disturbed because of what has transpired since the respondent’s incarceration. Two of the main perpetrators of the offence were arrested and information laid against them in the District Court. And then in June 1982 and July 1982, they were discharged. Police withdrew the information. It seems that the reason for the withdrawal of the information was the fact that Mr. Mitchellmore, the main witness for the prosecution, had left Papua New Guinea and was now living overseas. The fourth man has never been caught by the authorities.

Counsel submitted that it would be unfair to his client to increase his sentence when principal offenders have been discharged and probably will never be proceeded against. He cited the case of State v. Alphonse Joseph Sema [1977] P.N.G.L.R. 289. It is a case dealt with by the former Chief Justice, Sir William Prentice. That case involved a magistrate and his clerk of court. Both had been charged with offences involving misuse of funds from the court house at Madang. For some reason the magistrate, the principal in that case, was dealt with summarily in the District Court and was found guilty and fined a sum of K50.00. The clerk of court, Alphonse Sema, was proceeded against by way of indictment and came before the National Court. I quote what the learned trial judge said in that case at pp. 291-292:

“I am not aware of the detailed submissions put in the magistrate’s stealing case here at Madang; and I would not wish to nor would it be appropriate for me to comment on its outcome. But I find I am unable to escape keen concern at the prospect of the court clerk going to gaol for an offence which he contends his senior officer the magistrate was implicated in and condoned, if that magistrate having pleaded guilty to thefts of court moneys was not himself ordered to be imprisoned. Such a result would offend my sense of propriety and justice. ... More particularly, as only a week ago I considered it my duty to sentence a police prosecutor at Samarai to three months’ gaol for stealing K40.00 in bail moneys, under somewhat similar circumstances.

In the upshot, I consider this accused, Alphonse Sema, should go to gaol, and that his offence calls for a sentence of six months I.H.L.; but it would cause grave disquiet in the community and to me in the circumstances, I believe, if he were to serve a custodial sentence when the magistrate did not.

Entertaining as I do a clear feeling of the inadequacy of what I propose to do, as punishment in the circumstances, I yet feel constrained to order as follows:

Impose (1) Fine of K100 payable in four months from today’s date, in default 100 days imprisonment; In addition: (2) Sentence of six months I.H.L. Order: he be imprisoned for a period of sentence expiring today (i.e. two days) and execution of remaining portion be suspended upon his entering into a recognizance in the amount of K50.00 to be of good behaviour and keep the peace for two years from today’s date and to come up if called upon in that period to receive judgment in respect of the balance.”

The present situation is different from Sema’s case. In Sema’s case the magistrate had already been dealt with and fined K50.00. In the present case the co-accused have not been dealt with by any court. In fact it is still possible for them to be dealt with later. The informations were withdrawn because Mr. Mitchelmore, the main State witness, now lives overseas (in Australia). However Mr. Gavara-Nanu, the Public Prosecutor, has undertaken to look into the matter.

The possibility that they may never be proceeded against does not alter the fact that the part the respondent played in the commission of the offence cannot be treated lightly. Robbery in company is one of the most serious of criminal offences in the Criminal Code. In fact it is so serious that the legislature has seen it fit to give it a maximum penalty of imprisonment for life. I consider the sentence, because of its inadequacy, must be set aside.

I would therefore set aside the sentence of two years imposed by the National Court and substitute in its stead the sentence of three years six months in hard labour.

PRATT J: I agree with the reasons and observations of the two other members of this bench. Like McDermott J., I too am becoming greatly concerned with the increasing failure by the police to carry out proper investigations and exercise any real degree of professionalism. Save for two Provinces, the lack of interest and concern by members of the Criminal Investigation Division in their work has reached alarming proportions and must reflect in a general loss of confidence by members of the public.

I would set aside the sentence of two years imposed by the learned trial judge and, taking into account the period of four and a half months already served in custody awaiting trial, would substitute a sentence of three years six months in hard labour.

MCDERMOTT J: The Public Prosecutor appeals against the inadequacy of a sentence of two years I.H.L. (2 years 4½ months effective) given the accused for his part in an armed robbery.

“This is one of the worst cases of its kind imaginable. You were with others who broke into this man’s house and threatened him with a pistol—they then forced him to drive, at pistol point, to the Shell Depot where you forced him to open the safe.”

Two cheques and K2,072 cash were stolen and the victim was left disoriented and abandoned a long way from the scene. He was not physically harmed.

The learned trial judge appears to have experienced difficulty in deciding just what part the accused played in the enterprise. He said:

“... and you do not appear to have been part of the plan—and it was obviously a well planned exercise.”

Yet, he used a face mask, was with three others, stood armed with sticks and stones at the time the victim was taken from his house at gunpoint, heard them talk “strongly” to the victim, stood by outside the Shell Depot when the safe was opened and accompanied the others, with the victim, in the getaway. As submitted on appeal, the accused did not dissociate himself at any stage from the armed robbery. At the very end, he did save the victim’s car keys and leave them in his vehicle. He did not receive any of the proceeds.

Considering the accused’s role in the best possible light, his cooperation and plea, it is still submitted that the sentence is so low as not to reflect the seriousness of the offence and a number of similar offences and punishments, were cited in support. R. v. Radich [1954] N.Z.L.R. 86, at p. 87 was referred to particularly the following:

“If a court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences. On the other hand, justice and humanity both require that the previous character and conduct ... of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine the appropriate amount of punishment.”

The Public Solicitor argues that because no action has been taken against the co-accused, it is not in the interests of justice to increase the sentence imposed. The court received as fresh evidence an affidavit with a copy of the Mt. Hagen District Court papers dealing with the two co-accused (the third was never apprehended). The accused told the police investigator on 22nd May, 1981, who the others were in this robbery. Paul Yekum first appeared in court on 24th February, 1982, and the information against him was withdrawn on 11th June, 1982. Michael Kusimb was similarly before the court on 29th April, 1982, and likewise the information was withdrawn on 7th July, 1982. The reason—the complainant victim could not give evidence as he had returned to Australia. It is astonishing that with the aid of the Australian police he could not even be found to swear an affidavit. The prosecutor was unable to tell this Court what steps, if any, were ever taken to locate this witness.

One sympathizes with the trial judge in endeavouring to deal with an accused knowing as all the judges do that co-offenders if not quickly apprehended rarely ever come before the court to answer.

The increasing inability of the police to investigate or even to arrest suspects is a matter of grave concern. It imposes an unnecessary burden on those charged with the administration of justice. There is much talk of “the law and order problem”, unfortunately, there is no talk of the inability of the police to discharge their duty.

I am satisfied this case would not “cause the grave disquiet in the community” as the situation in The State v. Alphonse Joseph Sema (supra) where an accused was dealt with by a magistrate whilst Sema appeared before a judge whose powers on sentence were effectively curtailed by what the magistrate ordered for the similar offence by the other accused.

However much one would like to accept the Public Solicitor’s submission, it cannot be done. This Court has a duty to, “give paramount consideration to the dispensation of justice”, Constitution s. 158(2). It is a duty to the State as well as to accused persons. Exceptions cannot be made by reason of police incompetence.

The prisoner took part in a crime which involved some element of planning and observation. He knew there was a gun, and of the threats to the victim. Whilst it is not clear that his part was essential to the plan, his presence led to its successful completion. He should be sentenced as an active participant. Whilst his Honour considered:

“Your role was a small one compared to the others—I cannot overlook the fact that this was a terrible case.”

This in a nutshell appears to be the error. The punishment does not fit the crime. I consider the principals may well have received sentences within a 5-7 year range. Considering the mitigating factors in favour of this man, a sentence in the range of 3-5 years would have been more appropriate.

I would allow the appeal and in lieu of the sentence of the trial judge impose a sentence of 3 years 6 months I.H.L.

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Papua New Guinea Law Reports

Ngudomp, Public Prosecutor v [1982] PNGLR 357 (29 October 1982)

Papua New Guinea Law Reports - 1982