Acting Public Prosecutor v Andrew Lalaiva of Honi and Angelo Ume of Kivori

• Jurisdiction: Papua New Guinea
• Judge: Miles J:
• Judgment Date: 03 July 1981
• Court: Supreme Court
• Citation: (1981) SC201
• Year: 1981
• Judgement Number: SC201

Full Title: Acting Public Prosecutor v Andrew Lalaiva of Honi and Angelo Ume of Kivori

Supreme Court: Greville–Smith J, Kapi J, Miles J

Judgment Delivered: 3 July 1981

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

S.C. APPEAL NO. 2 OF 1981

ACTING PUBLIC PROSECUTOR

APPELLANT

AGAINST ANDREW LALAIVA OF HONI

AND ANGELO UME OF KIVORI

RESPONDENTS

Waigani

Greville Smith Kapi Miles JJ

23 June 1981

3 July 1981

ROBBERY WITH VIOLENCE IN COMPANY — eighteen year old first offenders — sentence of one year I.H.L. manifestly insufficient and increased to one year nine months I.H.L. — prevalence of offences of violence taken into account — protection of community versus rehabilitation of offenders and danger of young offenders being further corrupted by long sentences — relevance of fact that respondents not personally aware of appeal until close to end of sentence — relevance of delay in setting down appeal for hearing.

Cases Referred To

R. v. Radich (1945) NZLR 86

R. v. Lancastle (1978) Crim. L.R. at 367

R. v. Gruffydd (1972) 56 C.A.R. 585

The Public Prosecutor v. Willy Moke Soki (1977) PNGLR 165

Between: Tenge Kai Ulo and A/Public Prosecutor; Between: Joe Kovea Malai and A/Public Prosecutor; Between: A/Public Prosecutor and Andrew Lalaiva and Angelo Ume Unreported Supreme Court Judgment SC199

Public Prosecutor v. Uname Aumane and 2 Others Unreported Supreme Court Judgment SC190

Order of the Court

Appeals allowed. Sentences appealed against set aside. In substitution each respondent sentenced to imprisonment with hard labour on each count for a period of 1 year nine months, sentences to be served concurrently.

GREVILLE SMITH J: This is an appeal by the Acting Public Prosecutor, on the ground of inadequacy, against sentences imposed in the National Court upon the respondents, as co-defendants, on two charges to which the respondents had pleaded guilty, one of robbery with violence in company, and the other simply of robbery in company.

The events of which the two offences consisted constituted one episode. These were that at a spot in the Hohola Markets in Port Moresby the two accused, both aged eighteen years, acting in concert with two other young men and with each other, accosted as the darkness of night was falling two further young men who were together and robbed them, taking from one K17.00 in cash and one fish, and from the other a Seiko bracelet watch of seventeen jewels and one piece of fish meat. One of their victims was only held whilst his pockets were rifled and his possessions taken from him but the other, in addition to being held and robbed, was also kicked.

The two accused had no prior relevant convictions. The maximum penalty prescribed for robbery of the kinds involved in each of the two charges is imprisonment with hard labour for life (S.398 C.C.). Each respondent had been at the time of sentencing in custody for three months, and each was sentenced, in effect, upon each relevant count, to imprisonment with hard labour for nine months to be served concurrently.

His Honour the learned sentencing judge gave careful and full reasons for the sentences he imposed and appears to have perhaps overlooked only one relevant factual matter, namely the kicking which he does not mention. His Honour took into account, 'inter alia', the youth of the offenders, that each was a first offender, and that no physical injuries were suffered by the victims. His Honour was cognizant of the terrifying effect of this sort of offence, upon all but the most stouthearted of victims, and observed that individual as well as general deterrent sentences were called for, sentences which were severe but not crushing.

With those observations of His Honour I respectfully agree. However, again with respect, I cannot escape the impression that the sentences passed upon the respondents were inadequate, and manifestly so. This was a bold robbery committed in a central public place. The offenders were not deterred by the fact that one of them was known to one of the victims. Offences of violence particularly by young men in company are all too prevalent in Port Moresby, so much so that few citizens would venture alone on foot outside at night. Those who travel in cars do so in apprehension of the thrown stone or other missile, or of being forced to stop in a dark or secluded place. It is this climate of violence that the courts must seek to dispel, and the only effective instrument is the heavy sentence. In my view an appropriate period in prison for each accused would be one year nine months.

In this case the learned sentencing judge appears to have fallen into error in several respects which I think would have occasioned the inadequacy, as I see it, of the sentences passed. His Honour remarked that "this was not a premeditated offence but a stupid spur of the moment act". There is no evidence of this, and it is very unlikely. There must have been some prior understanding or discussion for the group to have acted in concert in the way it did. An example of an unpremeditated offence would be where a person in a crowd sees a wallet sticking out of another person's hip pocket and, on sudden impulse, with no prior thought, surrenders to the temptation to take it. His Honour appeared to entertain a fear that if they were imprisoned for a longer period the accused might become more criminally inclined by association with other convicted persons. His Honour, in his observations on sentence, said that "there is high possibility" that the respondents would be far worse off as offenders after going through rison life than before, especially if they were to be jailed for a long term. With respect, in my view such an unsubstantiated and unsubstantiable fear should not, in offences of a serious nature at least, form a ground for reducing the duration of imprisonment otherwise called for. And to me it seems that a stern sentence is more likely to deter from future criminality, and to that extent make the person concerned a better person.

His Honour also remarked that "the modern thrust of sentencing is to aim at rehabilitation". In my view this involves a misunderstanding of the authorities upon which, in my opinion, the true approach is, at least in offences of a serious nature, that the reformation of the offender is something to be aimed at only insofar as it is compatible with the main functions of the court of protecting the public. See, for example, R. v. Radich (1945) NZLR 86 at 871.

There is one other matter to be dealt with. Mr. Wilson, Counsel for the respondents, has drawn attention to the fact that the accused has in each case served at the time of hearing of this appeal seven of the nine months imprisonment imposed and that, in addition, through certain oversights, the institution of this appeal was not brought to their attention until recently. This has resulted, Mr. Wilson says, and undoubtedly this would be the case, in these two young men now having been allowed to expect, for almost seven months, that in two further months they will have paid their penalty and be released. He submits that in these circumstances to disillusion them at this late stage would amount in effect to something approaching a cruelty, and that therefore even if...