The State v Jason Dongoma (Dongoia] (2000) N2038

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 13 December 2000
• Court: National Court
• Citation: (2000) N2038
• Year: 2000
• Judgement Number: N2038

Full Title: The State v Jason Dongoma (2000) N2038

National Court: Kandakasi J

Judgment Delivered: 13 December 2000

N2038

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No 889 of 2000

THE STATE

-v-

JASON DONGOMA

LAE : KANDAKASI, J.

2000: December 5, 13

Criminal Law — Practice and Procedure — Indictment presented on lessor charge following plea bargaining — Use of depositions for relevant facts — Statement in allocutus inconsistent with facts per depositions — matter raised with counsels — Not necessary to change plea of guilty.

Criminal Law — Practice and procedure — accomplice in commission of offence pleaded guilty to serious offence and sentence — Need to avoid appearance or apprehension of — disparity of sentence even in a lesser charge.

Criminal Law — Particular offence — Unlawful use of motor vehicle — Factors for consideration — Commission of offence in serious circumstance with no good mitigating factors maximum penalty may be appropriate — Criminal Code Act (Ch. 262) ss. 383 & 19.

Cases Cited:

The State v. Sabarina Yakul [1988-89] PNGLR 129;

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

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

Dinge Domane v. The State [1991] PNGLR 244;

Kuraba Yangesen v. The State [1978] PNGLR 465

Lance Vetari v. The State (1979) SC 156;

The State v. George Maiyangu and Eric Alu (Unreported and

Unnumbered a decision delivered in Lae on 8th December)

CR 1341 and 1342 of 2000)

Tau Jim Anis & Ors v. The State (2000) SC 642

Counsel

N. Miviri, for the State

M. Mwawesi, for the Defendant

13 December 2000

KANDAKASI, J : The Defendant was charge with one count of unlawful use of a motor vehicle, a Toyota Hilux registered number PAD 026 contrary to S.383 of the Criminal Code Act (Ch. 262)(hereinafter "the Code"). On the 5th December, 2000 the State presented the relevant indictment following a plea bargain from the more serious charge of armed robbery. The Defendant plead guilty to the charge, following which his allocutus was administer and the matter was adjourned to today for a possible decision on sentence after confirming the plea of guilty and convicting the Defendant of the charge upon reading the depositions.

The adjournment was also to enable the Probation Service to provide a pre-sentencing report if they could by today. That followed the defendant arguing for a non-custodial sentence.

Facts

There is authority for the use of depositions to extract the relevant facts for sentencing purposes. See The State v. Sabarina Yakal [1988-89] PNGLR 129. I will therefore, use the depositions to extract the facts in this case. The Defendant was the 6th member of a gang of 6 youths. The gang held up and stole a vehicle Toyota Hilux registration number PAD 026 belonging to the Watut Local Level Government at Wanyanda, Bulolo, Morobe Province. That happened around 9.00am on the 17th of February 2000, when the vehicle was being driven across a river by its driver with its occupants. The gang was armed with guns and bush knives which were used to threaten the driver of the vehicle and its occupants and force them out of the vehicle. The gang then took over the vehicle and drove off and subsequently had it capsized and damaged.

The robbery was planned and carried out. The plan was to get a vehicle and use it to rob a trade store. However, the second part of the plan was not executed due to the vehicle being damaged.

On the 25th and 26th of February 2000 the Defendant with two of his accomplices, Jack Dika and Roney Paul surrendered to police. This followed an earlier surrender by one of his other accomplices Gibson Aron on the 24th of February 2000. Gibson Aron pleaded guilty to a charge of armed robbery on the 16th November 2000 before my brother Justice Gavara-Nanu. He was convicted and sentenced to 2 years in hard labour. Of that, 9 months was deducted on account of time spent in custody, leaving 1 year 3 months to serve in hard labour.

Allocutus

In allocutus, the prisoner said he was trying to go home and his accomplices asked him to get on the vehicle and he did. This is not supported by anything in the depositions. In his record of interview he admitted to being involved in the robbery and using the vehicle. He then informed the Court that this was his first ever offence and he was sorry for being involved.

He said he is about 18 years old and is the first born out of 4 children in his family and looks after his younger siblings. He said he dropped out in Grade eight due to family problems. His mother is the only hard working parent, while his father is sick with cancer. Because of all these, he is the only one responsible for his family. That includes working on a chicken project and 2 very big coffee gardens with labourers. All of these will be adversely affected because of his imprisonment. He therefore, asked for a good behaviour bond or be placed under probation service. He put these through a letter dated 5th December 2000 addressed to the Court which was admitted into evidence with the consent of the State. He also tendered into evidence a letter from two people claiming to be village leaders dated 1st August 2000 addressed to the Probation Officer. That letter described the prisoner as a good obedient person who was forced or influenced into the commission of the offence.

The Defence Counsel did not make any application under s.563 of the Code. But before proceeding to hear address on sentence. I raised with both counsels whether the charge for which the Defendant guilty plea to was proper and should be allowed to stand and proceed to sentence on that basis. Both counsels informed the Court that, the charge was presented in the way it was following a plea bargain from the more serious offence of armed robbery contrary to s.386 of the Code.

It is now settled law that the Public Prosecutor is the only authority in the contrary to decide whether or not to present an indictment and in what manner against an offender. He is not subject to any supervision, control or direction, be it, from the Court or any other person. That power of authority includes the power to enter into plea bargains and present indictments in accordance...