The State v Frank Kagai [1987] PNGLR 320

• Jurisdiction: Papua New Guinea
• Judge: Hinchliffe J
• Judgment Date: 12 October 1987
• Citation: [1987] PNGLR 320
• Court: National Court
• Year: 1987
• Judgement Number: N625

Full Title: The State v Frank Kagai [1987] PNGLR 320

National Court: Hinchliffe J

Judgment Delivered: 12 October 1987

1 Sentence—Robbery with actual violence whether suspended sentence appropriate

CRIMINAL LAW—Sentence—Suspended sentence—When appropriate—In interests of community—Where serious offence—Good character—Principles generally.

CRIMINAL LAW—Sentence—Robbery with violence—Surrender to police—Five months in custody—Effective leader of Ex–Criminal Self–Help Task Force—Sentence of six years suspended with three year good behaviour bond.

An accused pleaded guilty to a charge of robbery with violence. The offence was committed in September 1984 and following conversion to Christianity the accused surrendered to police in March 1987. In May 1987 he was released on bail. After he was released on bail the accused started to work with the Ex–Criminal Self–Help Task Force in Minj and Banz where he became a very effective leader going on to become a voluntary probation officer and participant in the prison fellowship scheme.

Held:

(1) In considering whether a suspended sentence might be appropriate the following considerations are relevant:

(a) Suspension of a sentence of imprisonment is not an exercise in leniency but an order made in the community interest and designed to prevent re–offending which a prison sentence standing alone seldom does.

(b) Persons charged with serious offences may be dealt with by way of suspended sentence by reason of good character and where the court is of the view that there will be no re–offending and/or that the particular individual will be positively damaged by incarceration.

R v Davey (1980) 2 A Crim R 254 at 260–263, adopted and applied.

(2) In all the circumstances of this case it was an appropriate one for a suspended term of imprisonment.

(3) The accused should be sentenced to six years in hard labour with that sentence suspended on him entering into a good behaviour bond for a period of three years.

Case cited

The following case is the only one cited in the judgment:

R v Davey (1980) 50 FLR 57; 2 A Crim R 254.

Sentence

The accused/defendant pleaded guilty to a charge of robbery with violence and the following reasons were delivered on sentence.

___________________________

Hinchliffe J: Frank Kagai pleaded "guilty" that on 17 September 1984 he stole from one Ron Mossman with actual violence K500 in cash, the property of the Minj Tribal Tops Hotel. At the time aforesaid he was armed with a dangerous weapon namely a shotgun and that he was in company with others.

The offence under s386 of the Criminal Code (Ch262) carries a maximum penalty of life imprisonment.

The short facts are that on 17 September 1984 at about 9.30 pm guests were eating in the lunch bar of the Tribal Tops Hotel, Minj. The manager, Mr Ron Mossman was interviewing two staff members in his office. Suddenly Frank Kagai entered the lunch bar dressed as a policeman, wearing a stocking mask and carrying a shotgun. He was with three others at the time and they were armed with a shotgun, a club and an axe. The man with the club was in fact dressed as a woman. Whilst in the lunch bar one of the criminals prodded an off duty policeman in the stomach with a shotgun and another person in the bar had a shotgun pointed at him. The four men then proceeded to the manager's office where they pointed the shotguns at the manager and the two staff members whom he had been interviewing. After a short time Frank Kagai demanded the safe keys from the manager and after receiving them he ordered one of the staff members to open the safe. After that person failed to open the safe, the manager was ordered to do it. The four men subsequently fled with K500 in cash.

This type of criminal act usually attracts a term of imprisonment between about five to eight years. In some other countries, including Australia, the term of imprisonment is somewhat higher, usually in the 12 to 15 years range. It would not surprise me at all if the National Court judges commence to take a similar course in the near future. This type of offence is prevalent in Papua New Guinea, particularly in the Highlands. The community is tired of it and it looks to our courts to do something to rectify the problem.

But this case is quite novel and because of that the defence lawyer has asked me not to incarcerate his client. I reserved my decision over the weekend to give it some serious thought.

Frank Kagai stated from the dock that several years ago he was a hard core criminal and had been "on the run". In September 1986 he was converted to Christianity and because of...