The State v A Juvenile, "TAA" (2006) N3017

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 23 March 2006
• Citation: (2006) N3017
• Docket Number: CR Nos 1585 of 2005 and 156 of 2006
• Court: National Court
• Year: 2006
• Judgement Number: N3017

Full Title: CR Nos 1585 of 2005 and 156 of 2006; The State v A Juvenile, "TAA" (2006) N3017

National Court: Cannings J

Judgment Delivered: 23 March 2006

N3017

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 1585 OF 2005 AND 156 OF 2006

THE STATE

V

A JUVENILE, “TAA”

KIMBE : CANNINGS J

13 FEBRUARY, 23 MARCH 2006

SENTENCE

Criminal law – sentences – indictable offence – Criminal Code, Subdivision VI.1.D (stealing with violence: extortion by threats) – Section 386 (the offence of robbery) – robbery of a store – armed gang – nobody physically injured – guilty plea – head sentence of 3 years imprisonment.

Criminal law – sentencing – indictable offence – Criminal Code, Division III.6 (escapes: rescues: obstructing officers of courts) – Section 139 (escape by offender) – sentence on plea of guilty – escape from correctional institution – offender surrendered soon after escape – identification of relevant considerations – application of relevant considerations – sentence of 5 years – offender must serve minimum sentence of one year – balance of four years suspended on conditions.

A juvenile pleaded guilty to two charges: (a) armed gang robbery of a storekeeper who had just left his store and was on his way to the bank with the store’s takings; and (b) escape from custody while in remand in connection with the armed robbery charge. The two charges were tried together.

Held:

The offender was sentenced to four years imprisonment on the armed robbery charge and five years on the escape charge, a total of nine years. The sentences were expressed to be served cumulatively but when the totality principle was applied the total sentence was reduced to five years, with a minimum of two years to be served after which the prisoner will be eligible for early release.

Cases cited

The following cases are cited in the judgment:

Edmund Gima and Siune Arnold v The State (2003) SC730

Gimble v The State [1988-89] PNGLR 271

Phillip Kassman v The State (2004) SC759

Public Prosecutor v Don Hale (1998) SC564

SCR No 1 of 1994; The State v Aruve Waiba 04.04.96, unreported

Tau Jim Anis v The State (2000) SC642

The State v Aaron Lahu (2005) N2798

The State v Jacky Vutnamur and Kaki Kialo (No 3) (2005) N2919

The State v Mark Kanupio and Others (2005) N2800

Abbreviations

The following abbreviations appear in the judgment:

CS – Correctional Service

J – Justice

K – Kina

N – National Court judgment

No – number

PNG – Papua New Guinea

PNGLR – Papua New Guinea Law Reports

SC – Supreme Court judgment

SCR – Supreme Court Review

WNB – West New Britain

PLEA

The accused pleaded guilty to armed robbery and escape from lawful custody and the reasons for sentence are given below.

Counsel

F Popeu for the State

O Oiveka for the accused

CANNINGS J:

INTRODUCTION

This is a decision on the sentences for a male juvenile who pleaded guilty to armed robbery and escape from lawful custody.

STATUS AS A JUVENILE

Jurisdiction of National Court

The accused is aged 17. He is therefore a “juvenile”, being aged not less than seven years and less than 18 years, as defined by Section 2 of the Juvenile Courts Act 1991. That Act provides for appointment of Juvenile Court Magistrates for particular areas and for establishment of Juvenile Courts and prescribes special procedures for dealing with criminal charges against juveniles.

This matter was dealt with by the National Court rather than a Juvenile Court as one of the charges (armed robbery) carries a maximum penalty of life imprisonment and Section 15 of the Juvenile Courts Act provides that in such situations the matter should be tried in the National Court, which is a court of unlimited jurisdiction (see Constitution, Sections 163(2), 155(3)(a), 155(4), 166(1)). In any event there is no Juvenile Court in West New Britain.

Special procedures

In exercising jurisdiction I applied special rules and procedures under the Juvenile Courts Act, in particular the following:

· in proceedings and actions under the Act the interests of a juvenile shall be the paramount consideration (Section 4);

· a court exercising jurisdiction under Section 17(1) shall so far as is practicable, sit and conduct proceedings in accordance with the Act (Section 17(2));

· the proceedings are to be conducted in camera (Section 23);

· the court is not bound by the strict rules of evidence (Section 25);

· special procedures apply when taking a plea (Section 27);

· publication of the proceedings is restricted (Section 28).

Restriction of publication of proceedings

I expressly authorise the publication of this judgment as a report of these proceedings, pursuant to Section 28(1)(a). I do that as it is important that there be a record of these proceedings and that people understand the special status given by the law to juveniles and how their cases are dealt with. However, consistent with Section 28(2), I cannot and do not authorise the publication of the juvenile’s name or the name of the school, if any, that he is attending or the name of his village or any other particulars which are likely to lead to identification of those matters. That is why the accused is referred to as ‘a juvenile, TAA’.

BACKGROUND

Incidents

The armed robbery incident took place on the morning of 19 July 2004 in Kimbe. The escape occurred at Lakiemata Gaol near Kimbe on 14 August 2005.

Indictments

On 13 February 2006 the accused was brought before the National Court and faced two indictments.

The indictment regarding the armed robbery charge was presented under Sections 386(1), (2)(a) and (2)(b) of the Criminal Code. It stated:

TAA of … WNB Province stands charged that he on the 19th day of July 2004 at Kimbe … stole from one Richard Aung with threats of actual violence K47,970.00 in cash the property of Shoppers Choice, Kimbe.

And at the same time [he] was armed with one factory-made pistol and one homemade gun, being dangerous and offensive weapons and was in company with five other persons.

The indictment regarding the escape charge was presented under Section 139 of the Criminal Code. It stated:

TAA of …WNB Province, stands charged that he on the 14th day of August 2005 at Lakiemata … whilst being a offender in lawful custody of the Correctional Service Commander escaped from such custody.

FACTS

Allegations

The following allegations were put to the accused for the purpose of obtaining his pleas.

Armed robbery

The accused was a member of a gang of six men who held up a storekeeper at the back of the Shoppers Choice store in Kisore, Kimbe. The gang was armed with a factory-made pistol and a home-made gun. When the manager of the store, Richard Aung, came out of the store to do the banking, the accused and his companions approached him, pointed the pistol at the manager and his off-sider, ordered them out of the vehicle, then got into the vehicle and drove away. The accused and his companions drove towards Section 10 bush camp and went into the mountains with the money.

Escape

In August 2005 the accused was being held in remand (‘wait-court’) at Lakiemata Gaol awaiting trial on the armed robbery charge. On Sunday 14 August 2005 a number of Correctional Service personnel were on escort duty, taking a number of detainees to the sittings of the National Court at Bialla. The accused knew that the gaol did not have enough manpower, so he and eight other detainees cut the security wire fencing and dashed into the nearby bush. The accused and two others were caught in the process of escaping and one of them was shot dead.

CONVICTIONS

The accused stated that the allegations were true. I entered provisional pleas of guilty and then, after reading the District Court depositions, confirmed the pleas and convicted the accused of both charges. He is now referred to as the offender.

ANTECEDENTS

The offender has no prior convictions.

ALLOCUTUS

I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows.

On the armed robbery he stated:

I did not know about the original plan – they forced me to go with them – to look out for police vehicle – I was not armed. When they got into the vehicle we drove away – they gave me K2,000.00 – I bought clothes and food.

I am very sorry for what I have done and apologise to the court. I ask God to forgive me. I ask for probation.

On the escape he stated:

It was my first time to be in Lakiemata. I was treated like a slave. I was put in the main compound even though I was a juvenile. I had to wash other boys’ blankets and plates. Other people took my biscuits. My parents had no money to visit me. I was worried. I was upset with the treatment other detainees were giving me. On the day of the escape I had my lunch and saw that the wire was cut. I did not see who cut it. I took the opportunity of escaping. Then I heard gunshots and realised that one of the other detainees had been shot. So I put my hands up and surrendered myself. Then they cut my leg and I fell down. I was put in the detention cell with Linden Alphonse and Noutim Mausen. My leg was paining and I could not sleep and I felt sick in the stomach. I apologise to the CS for what I have done and also to the court. I ask for mercy.

OTHER MATTERS OF FACT

Though the prisoner has pleaded guilty there are some issues of fact raised in the depositions and in the allocutus, which, if resolved in his favour, may be relevant to the sentence.

In two...