The State v James Gurave Guba (2000) N2020

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 19 December 2000
• Citation: (2000) N2020
• Court: National Court
• Year: 2000
• Judgement Number: N2020

Full Title: The State v James Gurave Guba (2000) N2020

National Court: Kandakasi J

Judgment Delivered: 19 December 2000

N2020

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 340 and 341 of 2000

THE STATE

-V-

JAMES GURAVE GUBA

LAE: KANDAKASI, J.

2000: DECEMBER 11, 19

CRIMINAL LAW — Practice and procedure — Plea bargain — Role of the Court — Guilty plea — Depositions disclosing possible defence — Defendant deciding to forego defence

CRIMINLA LAW — Particular offence — Unlawful use of motor vehicle — Guidelines for sentencing — Two separate offences committed at different times against separate victims — Cumulative sentence appropriate — Criminal Code Act (Ch. 262) ss. 383, 386 and 19.

LAWYERS — Duty of lawyers to properly prepare and present arguments or submissions with relevant cases or statutory authorities — Failing in that duty may attract serious consequences against them — Lawyers Professional Conduct Rules s. 15.

Cases cited

The State v. Jason Dongoia (Unreported and Unnumbered judgement delivered on 13th December 200) CR 889 of 200

The State v. Jack Golu and Mopana Aure [1990] PNGLR 206

The State v. Joe Ivoro and Gemaro Yavura [1980] PNGLR 1

Gabriel Lakau v. The State [1981] PNGLR 350

Dinge Damane v. The State [1991] PNGLR 244

Martin Ferry v. The State (Unreported and unnumbered judgement of the Supreme Court delivered on the 22nd of November 2000 at Wewak) SCR 64 of 2000

The State v. Danny Sanu & Ors [1993] PNGLR 396

The State v. Aruve Waiba (Unreported and unnumbered judgement of the Supreme Court delivered on the 4th of April 1996) SCR 1 of 1994

The State v. Thomas Waim N1750

The State v. Inema Yawok N 1766

The State v. Jimmy Robin (Unreported and unnumbered judgement of Injia J., delivered on20th March 200) CR 1130 of 1999

The State v. Sabrina Yakal [1988-89] PNGLR 129

Allan Peter Utieng v. The State (Unreported and unnumbered judgement of the Supreme Court delivered in Wewak on the 23 of November 2000) SCR 15 of 2000

Acting Public Prosecutor v. Haha [1981] PNGLR 205

Public Prosecutor v. Kerua & Ors [1985] PNGLR 85

The State v. John Pesa [1994] PNGLR 317

Tau Jim Anis & Others v. The State SC642

Counsel

N. Miviri for the State

L. Siminji for the Defendants

19 December, 2000

KANDAKASI, J: Two separate indictments were presented by the State against the Defendant on the 11th of December 2000. The indictments charged the Defendant with one count each of unlawful use of a motor vehicle under s. 383 of the Criminal Code Act (Ch.262)(hereinafter "the Code"). That followed a plea bargain between the parties from the more serious offence of armed robbery under s. 386 of the Code. The Defendant pleaded guilty to both counts.

Upon reading the depositions in relation to one of the charges I was satisfied that there was sufficient evidence to support the guilty plea. I therefore, confirmed the guilty plea in relation to that charge and convicted the Defendant of the charge. As for the other one however, I noted that the possible defence of compulsion was available. Hence, I raised that with the Defendant's Counsel as to what his client's instructions were on that. Counsel informed the court on his client's instructions that, his client was foregoing the possible defence and will only seek to raise it in mitigation before sentence. Counsel also informed that, that position was taken in view of the plea bargain from the possible high of armed robbery under s. 386 of the Code to the lesser one under s. 383 of the Code. On that basis, I proceeded to confirm the guilty plea and convicted the defendant on the second charge as well.

Preliminary issues

The case presents two separate but closely related preliminary issues. The first issue raises the question of what is the role of the Court when an indictment is presented pursuant to a plea bargain reached between the prosecution and the defence. The second issue concerns the correct procedure to follow after an accused person has pleaded guilty to the charge presented against him after a plea bargain to a lesser charge but a reading of the depositions raises a possible defence which he decides to forego. I have covered both these aspects in the case of The State v. Jason Dongoia CR 889 of 200 (Unreported and unnumbered judgement delivered on 13th December 200), although not fully in respect of the second issue.

The case referred to and applied in that case namely, The State v. Jack Golu and Mopana Aure [1990] PNGLR 206, provides authority for the proposition that, once the prosecution and the defence have reached an agreement or a plea bargain and an indictment is presented in accordance with such an agreement, the only role of the court in such a setting is to accept the presentation of the indictment. This emanates from the fact that, under our constitutional framework, the Public Prosecutor is the only one that has the power to decide whether or not to prosecute an offender and in what manner or for what offence. That power is not subject to any direction, control or supervision of any other authority, not even the courts. It also proceeds on the basis that the Public Prosecutor is in a better position to consider the interest of the people and the mechanics of proving a charge against an accused person and then proffers the charge he considers sustainable.

In relation to the second issue, the preponderance of the case authorities on point such as the case of, The State v. Joe Ivoro and Gemaro Yavura [1980] PNGLR 1; Gabriel Lakau v. The State [1981] PNGLR 350; Dinge Damane v. The State [1991] PNGLR 244 and Martin Ferry v. The State (Unreported and unnumbered judgement of the Supreme Court delivered on the 22nd of November 2000 at Wewak) SCRA 64 of 2000, make it clear that, a court is duty bound to point out to the defence anything in the depositions or in the allocatus that runs contrary to or inconsistent to a guilty plea. If such inconsistencies do in fact disclose a legal defence, the court or the judge must then change the plea of guilty to one of not guilty and allow the matter to go to trial in the normal way, if the prosecution is proceeding with the charge. In such a case, the trial judge must then disqualify himself and let a different judge run the trial. If however, the prosecutor decides to proceed with a lesser and alternative charge, which is available and is supported by the depositions then, the accused must be re-arraigned on the new charge and must be dealt with in the normal way.

What is not clearly expressed one way or the other is, what should be the procedure if the defence decides to forego any defence that may appear to exist or is disclosed in the depositions or in the statement in his allocatus. For clarity on that aspect, in my view, it ought to be stated in clear terms that, just as the court is duty bound to accept an indictment presented following a plea bargain for a lesser charge, when a more serious one is disclosed in the depositions, the court should also be duty bound to accept the defendant's decision to forego any defence he may have and supported by the depositions. Besides, a defendant may take such a position because of the obvious benefits a plea bargain may bring to him in addition to the benefits a guilty plea may bring to him. He may also see difficulties succeeding on the defence that may be disclosed in the depositions or in his statement in allocatus and decide not to raise it.

Two additional and also closely related issues arise. First, whether the court is to have regard or is entitled to know about the plea bargain between the parties and secondly, whether the court should subsequently use the depositions for sentencing purposes. In relation to the first issue, in my view, just as the court is obliged to raise with defence counsel, the existence of any defence disclosed in the depositions or alluded to in the defendant's statement in allocatus, it should be entitled to raise with the prosecution why a lesser charge is presented when there is a more serious offence disclosed by the depositions. When the court exercises that power, the prosecution should then simply inform the court of the indictment being presented pursuant to a plea bargain, without going into any details of it. When that happens, then in line with the case of The State v. Jack Golu and Mopana Aure (supra), the court should accept the indictment that is presented in accordance with a plea bargain and proceed in the normal way and only have regard to that for the purposes of determining the appropriate sentence to be imposed in the context of the charge actually presented and to which the Defendant has pleaded to and has been convicted of.

With regard to the second issue, the question has already been answered in...