The State v Iori Veraga (2005) N2921

• Jurisdiction: Papua New Guinea
• Judge: Sakora J
• Judgment Date: 17 June 2005
• Citation: (2005) N2921
• Docket Number: CR 389 of 2004
• Court: National Court
• Year: 2005
• Judgement Number: N2921

Full Title: CR 389 of 2004; The State v Iori Veraga (2005) N2921

National Court: Sakora J

Judgment Delivered: 17 June 2005

N2921

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 389 of 2004

THE STATE

v

IORI VERAGA

WAIGANI : SAKORA J

2005 : 14, 15, 16, 17, 21, 22 & 24 March

1, 5, 6, 28 April, 2, 14, 16 & 17 June

CRIMINAL LAW – Purposes of – Sentencing – Role in and purposes of – Offences of conspiracy and misappropriation – Separate offences – Mitigation – Factors of – Aggravation – Factors of – Role of counsel in sentencing – Maximum sentences – custodial sentence – Cumulative and concurrent sentences – Constitution, ss 37 (4) (a) & (10); Criminal Code Act, ss 19, 383A (1) & (2), 407 (i), 593, 596, 600 & 601.

CRIMINAL LAW – Sentencing – Sentence discount – Degree of culpability – Remorse – Cooperation with the authorities – Guilty plea – First offender – Previous good character – Prevalance or otherwise – Interests of victims.

CASES CITED:

Taiba Maima v Sma [1971] PNGLR 49.

R v McGrath [1971] PNGLR 247.

Goli Golu v The State [1979] PNGLR 653.

Kondan Kale v The State (1983) SC 250.

Wellington Belawa v The State [1988-89] PNGLR 496.

Churchill v Walton [1967] 2 AC 224

The Queen v Barber (1976) 14 SASR 388.

Bensegger v R [1979] WAR 65.

R v Tait and Bartley (1979) 24 ALR 473.

Neal (1982) 42 ALR 609.

R v Case and Wells (1985-86) 20 A Crim R 191.

R v Jamieson (1988) 50 SASR 130.

R v Cartwright (1989) 17 NSWLR 243.

R v Gallagher (1991) 23 NSWLR 220.

TEXTS CITED:

Criminal Law and Practice in Papua New Guinea, by Chalmers Weisbrot Injia Andrew & Nicol, LBC (2001)

Halsbury’s Laws of England, 3rd ed; Vol X.

The Criminal Injustice System, Vol. 2, by Zdenkowski Ronalds & Richards (1987)

The Australian Criminal Justice System, D Chappell & Paul R Wilson, Butterworths (1977)

Australian Criminal Justice by Findlay Odgers & Yeo, OUP (1994).

Criminal Procedure in Papua New Guinea, by John A Griffin, LBC (1977).

A. Kupmain for the State.

L. Henao for the Accused.

SENTENCE

17 June 2005

Sakora J:

Introduction

For the information and edification of the uninitiated members of the general public, so that, hopefully, there is some appreciation of how and why this court arrives at what it considers to be an appropriate sentence for this particular offence, and this particular prisoner, a little time at this preliminary stage devoted to, firstly, the purpose of criminal law, and, secondly, the sentencing role of the courts, will, I would respectfully suggest, not go amiss.

Put simply, “a crime is an unlawful act or default which is an offence against the public, and renders the person guilty of the act or default liable to legal punishment”: Halsbury’s Laws of England, 3rd ed; Vol. X, p. 271. Inherent in this definition is the notion that it is an offence against the State. It is public law as opposed to private law, and, as such, is enforced at the instance of the State through its formal institutions such as the Royal Papua New Guinea Constabulary (RPNGC) and the Office of the Public Prosecutor, and, of course, the formal courts. Thus, the State, on behalf of its citizens, the law-abiding members of our communities, confronts the offender and “brings him to justice”.

The apprehension, prosecution and punishment of an offender is, therefore, a public affair rather than a private personal matter, though most criminal offences have human victims. And this is another instance of the exercise of State power, specifically sanctioned by the Constitution, the Police Act and the Criminal Code Act (CCA) together with other enabling legislation such as the Search Act, Arrest Act and the Bail Act. The laws, principles and the accompanying processes and procedures have, in the main, been adopted from England and Australia, and some of these adapted over time.

In relation to the enforcement of the criminal laws of the country, principles of justice that we inherited have evolved over centuries in order to ensure that State power in this respect is exercised fairly, free from error or caprice. First and foremost of these principles is the presumption of innocence [s 37 (4) (a) Constitution] obliging the State to bear the burden of proving, beyond reasonable doubt, the guilt of an accused person. Another fundamental principle is the right of an accused (or counsel for the accused) to cross-examine the witnesses for the State. And the third principle concerns the right of the accused to remain silent. Such a principle serves as a partial safeguard against coercion or intimidation [s 37 (10) Constitution - protection against self-incrimination]. Section 37 Constitution is directly concerned with Protection of the Law.

These basic principles for the determination of guilt or innocence in the courts by no means conflict with sensitive or dignified treatment of the victim(s) or witnesses. There exist, therefore, no fundamental incompatibility between the rights of the victims and those of the accused (who may end up as a prisoner of the State).

Criminal Law: Purpose

The purposes of criminal law are several. And these can be summarized as, firstly, to impose deserved punishment in retribution of the crime committed, the notion not just of vengeance, but of just desserts. Colloquially put: Do the crime, do the time. This purpose explains why there are varying punishments that are prescribed for crimes, depending on the seriousness or heinousness of the crime. The second purpose is prevention, by threatening punishment on conviction. The third is to provide for punishment of those who have not been deterred and who commit crimes, so as to frighten them especially so that they will not engage in further criminal conduct. This is intended also to reinforce the threat of punishment at large.

The last purpose has to do with education of the community continually in the proper standards of conduct which have to be observed if a decent life is to be possible for all of us.

And these purposes are intended to be achieved in the end through the sentencing process of our courts. That is precisely where we are in this case now.

Sentencing: The Role and Purpose of

The task of sentencing, though coming at the end of the trial process in the criminal justice system, is no less important than the other earlier stages of the process. This stage is the sanctioning stage, the ultimate enforcement stage, the vindication of the law stage. The Court’s function at this stage is no less onerous and crucial. It is as serious as the earlier stages that are put into operation by the police embarking upon their initial investigations. Sentencing has been described as the sharp edge of the criminal justice system, that moment when courts determine what degree of punishment or rehabilitation constitutes justice in a particular case, and how consistent that justice will be. This is the stage or process where a combination of factors such as: the entire and special circumstances of this case; the law relevant to the offences in question here; the public interest; and interests of individuals (or groups of) concerned (the victim(s), if any, and the offender or perpetrator) are all to be considered, weighed up and contrasted against each other. All of these factors or circumstances need to be taken due account of, where relevant and pertinent, in the proper exercise of the sentencing discretion.

Needless to say, sentencing is not an exact science. It cannot be because this is a function performed by fallible humans such as myself, trying as much as possible to weigh up against each other, factors and considerations seemingly opposing but no less important to the interests of the public at large and the prisoner respectively. The Court has to strike, hopefully, some balance here. Therefore, the proper exercise of the sentencing discretion involves, as well as taking into account factors relevant and pertinent to the foregoing interests, the court needs to acknowledge the universally accepted principles and purposes of sentencing or punishing offenders, and be guided by these.

There is, therefore, a range of sentencing options available in order to assist a sentencing court such as this to endeavour to balance protection of the community with an appropriate punishment for and rehabilitation of offenders. Purposes for which a sentence may be imposed can be summarized as follows:

· To punish the offender to an extent or in a way that is just in all the circumstances, the retributive purpose, justified by the fact that he has done wrong and deserves to be punished for it; or

· Because punishment will ensure that he and others do not commit like offences in the future (individual and general deterrence); or

· Because he will learn from his punishment the folly of his way (reformation); or

· Simply to keep him out of harm’s way, in confinement, out of circulation, as it were (for the protection of the public).

It will be noted that these purposes or sanctions correspond to the purposes of the criminal law mentioned above. And, in the exercise of the sentencing discretion, any combination of the foregoing measures may be opted for in appropriate circumstances. The foregoing purposes or principles of sentencing have to, then, be applied to the particular facts of a case in the light of what the law (CCA) prescribes as the proper sanction or...