Acting Public Prosecutor v Joe Kovea Mailai

• Jurisdiction: Papua New Guinea
• Judge: Bredmeyer J:
• Judgment Date: 31 July 1981
• Citation: [1981] PNGLR 258
• Court: Supreme Court
• Year: 1981
• Judgement Number: SC203

Supreme Court: Andrew J, Pratt J, Bredmeyer J

Judgment Delivered: 31 July 1981

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

ACTING PUBLIC PROSECUTOR

V

JOE KOVEA MAILAI

Waigani

Andrew J Pratt J Bredmeyer J

31 July 1981

CRIMINAL LAW — Sentence — Youthful first offenders — Prevalent and serious offence — No special treatment unless exceptional circumstances.

CRIMINAL LAW — Appeal against sentence — Youthful first offenders — Break, enter and steal — Prevalent and serious offence — Deterrent necessary generally — No special treatment for youth unless exceptional circumstances.

CRIMINAL LAW — Appeal against sentence — Appeal against inadequacy — Delay in bringing appeal relevant consideration.

On appeal against inadequacy of a sentence "to the rising of the court", imposed on a fifteen year old first offender, on a plea of guilty of breaking entering and stealing from a store in circumstances where it appeared the defendant played an active part as a member of a gang who planned and committed the offence:

Held:

(1) Where offences such as breaking, entering and stealing are serious, prevalent and invariably committed by young persons, youthful offenders should not receive special treatment unless there are exceptional circumstances calling for leniency;

Paulus Mandatititip v. The State [1978] P.N.G.L.R. 128 followed and explained;

(2) The gravity of the particular offence was such that it called for a custodial sentence of the order of twelve months imprisonment and above;

(3) Delay in lodging and hearing an appeal against sentence is a relevant factor in determining whether the sentence should be increased;

The Public Prosecutor v. Willy Moke Soki [1977] P.N.G.L.R. 165 at p. 167 adopted and applied;

(4)

(a) (Per Andrew and Pratt JJ.). Although the sentence was manifestly inadequate a delay of nine months in prosecuting the appeal against sentence was such that the sentence should not in fact be increased;

(b) (Per Bredmeyer J.). Although the sentence was manifestly inadequate, the delay involved should mean only a reduction in the sentence to be otherwise imposed.

Appeal.

This was an appeal pursuant to s. 23 of the Supreme Court Act, 1975 against sentence on the ground of inadequacy.

Counsel:

K. R. Roddenby, for the appellant.

K. A. Wilson, and N. R. P. Kirriwom, for the respondent.

Cur. adv. vult.

31 July 1981

ANDREW J PRATT J: This is an appeal by the Acting Public Prosecutor, on the ground of inadequacy, against the sentence imposed by the National Court on the respondent for an offence of breaking, entering and stealing. The respondent had pleaded guilty to a charge that on or about 30th May, 1980, in Papua New Guinea, he broke and entered a store of W. R. Carpenter (P.N.G.) Ltd. and therein stole a quantity of hardware goods and radio cassettes, valued at K1,573.36, the property of the said W. R. Carpenter (P.N.G.) Ltd. On 27th October, 1980, the respondent was sentenced by the National Court, sitting at Waigani, to the rising of the court.

In our view this was a particularly bad case. The facts disclosed that the respondent was a member of a gang known as the "Mafia Gang" and that on the night in question the gang members assembled at the respondent's house where they planned this offence. They stole a vehicle from underneath a house and when challenged by the owner they threatened him with knives and stones. They obtained house breaking implements and they then used the vehicle to drive to the store where they broke in, collected the goods and drove off. The vehicle was deliberately damaged. The respondent played an active role in all of these enterprises including the breaking and entering of the store rather than the less active role of the "watchman".

The respondent was aged fifteen or sixteen. He had no previous convictions. In passing sentence the learned trial judge had regard to the respondent's age and he proceeded under s. 36 of the Child Welfare Act 1961. But in our view the judgment on sentence discloses errors of fact and considerations which ought not to have affected the trial judge's exercise of discretion in arriving at the sentence he did. The trial judge said:

"He (the respondent) is a victim of the education system this country has unwittingly adopted, having been pushed out of it at grade VI. His offence is the typical offence of persons in this category."

In our opinion there is no evidence of this. The evidence was that the respondent had been to school and to the Hohola Vocational School from where he had lost interest and "dropped out". It is clear to us that the trial judge proceeded on the basis of the accused being a "victim" of society. We find no basis for this nor do we believe that such gratuitous remarks which have no foundation in evidence should form the basis for the passing of a sentence which is clearly inadequate and in defiance of the directions of the Supreme Court which are binding upon the National Court.

In our view also there are other errors of fact. The trial judge found that:

"Although the offence he has committed is a prevalent offence, I decline to make the life of this young person a scapegoat for others. I treat him as a young person who has been led astray."

The fact is that the respondent planned this offence and deliberately entered into it. There was no evidence whatsoever to say that he had been led astray.

It should be unnecessary to do so but we must again draw attention to the stream of cases in the Supreme Court and the National Court which have been frequently announced and published over a long period that the severity of punishment for the offence of breaking and entering will increase. For example Paulus Mandatititip v. The State [1978] P.N.G.L.R. 128 at p. 131.1:

"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 States...