The State v Nathan Mailen & Junior Leo Mailen (2007) N5036

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 11 December 2007
• Court: National Court
• Citation: (2007) N5036
• Docket Number: CR NOS 699 OF 2006 & 496 OF 2007
• Year: 2007
• Judgement Number: N5036

Full Title: CR NOS 699 OF 2006 & 496 OF 2007; The State v Nathan Mailen & Junior Leo Mailen (2007) N5036

National Court: Cannings J

Judgment Delivered: 11 December 2007

N5036

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 699 OF 2006 & 496 OF 2007

THE STATE

V

NATHAN MAILEN &

JUNIOR LEO MAILEN

Kimbe: Cannings J

2007: 15 November, 7, 11 December

CRIMINAL LAW – sentencing – two offenders – multiple offences: unlawful compensation demand; armed robbery; grievous bodily harm.

Two brothers were convicted of two offences each, relating to two incidents involving their neighbours. In the first incident, one brother made an unlawful compensation demand and he pleaded guilty to committing that offence. In the second incident, the other brother committed the offence of doing grievous bodily harm and both brothers committed an armed robbery. They were convicted of the three offences arising from the second incident after a trial at which they pleaded not guilty.

Held:

(1) When sentencing multiple offenders for multiple offences, the court should arrive at a notional sentence for each offender for each offence, before determining whether the sentences should be served cumulatively or concurrently, applying the totality principle and deciding whether to suspend any part of the sentences.

(2) The two offenders were each convicted of two offences, so the court was required to fix four notional sentences, which were fixed as follows: unlawful compensation demand: 3 years; armed robbery: 8 years; armed robbery: 8 years; grievous bodily harm: 5 years.

(3) The total potential sentence for each offender was 11 years and 13 years imprisonment respectively. None of the sentences should be served concurrently as the offences to which they related involved, in the case of one of the offenders, different incidents, and, in the case of the other offender, different victims.

(4) However, sentences of 11 years and 13 years would be excessive so under the totality principle were reduced to 8 years and 9 years respectively. The first offender had his pre-sentence period in custody deducted from the sentence but for the second offender, that period had already been deducted in a previous case and so could not be deducted in the present case.

(5) Three years of each total sentence was suspended on conditions including payment of compensation to the victims of the crimes.

Cases cited

The following cases are cited in the judgment:

Gimble v The State [1988-1989] PNGLR 271

Mase v The State [1991] PNGLR 88

Phillip Kassman v The State (2004) SC759

Public Prosecutor v Kerua [1985] PNGLR 85

The State v Bob Ananias CR 1413 + 1414/2003, 20.04.06

The State v Charlie Kevin, Worex John and Demas Dano CR Nos 1627-1629/2006, 21.03.06

The State v James Negol (2005) N2801

The State v Junior Leo Mailen CR No 965 of 2004, 11.12.07

The State v Lucas Soroken Sembengo, Bob Alois Wafu & Raphael Lawrence Mandal (2006) N2801

The State v Mogi Konda CR No 1316/2005, 19.04.05

The State v Nicodemus Badui CR 683/2007, 17.08.07

The State v Ria Bernard CR 374/2005, 20.05.05

The State v Rodney Gela and Clarence Logi CR 1300 + 1301/2005, 27.10.05

Tom Longman Yaul v The State (2005) SC803

SENTENCES

This was a judgment on sentence for two offenders convicted of two offences each.

Counsel

F Popeu & C Sambua, for the State

B Tanewan, for the offenders

11th December, 2007

1. CANNINGS J: This is a decision on the sentences for two brothers, Junior Leo Mailen and Nathan Mailen, who have each been convicted of two offences, which arise from two separate incidents at the Sarakolok oil palm settlement, near Kimbe. In the first incident, on 5 March 2004, Nathan made an unlawful compensation demand to a neighbour, Gelong Bakrek. It was about 6.00 pm and Nathan was drunk. He went to Gelong’s block with Junior and their cousin, David Mabo. Nathan was shouting and swearing and demanding K200.00 compensation for Gelong’s son allegedly trying to have a sexual relationship with his sister. He threatened violence against Gelong, a man aged in his 50s, and his wife and daughter. A fight erupted and Nathan punched Gelong and his daughter, without causing serious injuries. Gelong paid over the K200.00. Though it went to someone other than Nathan, I convicted him of an offence under Section 390A of the Criminal Code, after he pleaded guilty. It is not an element of the offence that the accused actually receive what was demanded. It is the demand for compensation plus the threats or use of violence that make a person guilty.

2. In the second incident, on 25 March 2004, three offences were committed, two by Junior and one by Nathan. They both staged an armed robbery and Junior did grievous bodily harm to a woman who tried to raise the alarm when she discovered the robbery was taking place. They were convicted after a trial at which they pleaded not guilty. They joined with their cousin in raiding a neighbouring oil palm block. It was about 7.00 pm and they were drunk. They were angry over the failure of the people on that block to settle payments of compensation that they had agreed to pay Junior and Nathan over a previous incident. They tried to gain forced entry to a family home and threatened violence to the people inside and in the process stole K200.00 cash from the lady of the house, Rau Kiniong. Another lady living close by Kellina Kero, heard the commotion and tried to go and get help but Junior swung his bushknife at her and cut her on the hand, causing a permanent injury. They have to be sentenced in this way:

Nathan

· one count of making an unlawful compensation demand arising from the first incident; and

· one count of armed robbery arising from the second incident.

Junior

· one count of armed robbery arising from the second incident; and

· one count of doing grievous bodily harm arising from the second incident.

ANTECEDENTS

3. Neither offender has any prior convictions.

ALLOCUTUS

4. I administered the allocutus, ie each offender was given the opportunity to say what matters the court should take into account when deciding on punishment.

Nathan: I say sorry for what I did to Gelong Bakrek. I say sorry for breaking the law. I say sorry to the ladies and gentlemen in the courtroom. This is my first time to be in trouble with the law. I ask for mercy and probation. As for the second offence of which I have been found guilty I disagree with what the victim said. It was not me who robbed her. I still say it is untrue.

Junior: the court has found me guilty but I did not commit these crimes. The victims who identified me were wrong. I would like the court to give me probation so that I can harvest some oil palm and pay these people compensation.

PRE-SENTENCE REPORTS

5. Nathan has a more favourable report than Junior.

6. Nathan Mailen: 21 years old, married with two children. His family comes from Ilipaim, Maprik, East Sepik Province, but he was raised at Sarakolok. Both parents are deceased. He is the second born in a family of three. He belongs to the AOG Church. He is educated to grade 8 and once had a job before leaving on his own accord. He is self-supporting financially, from the sale of oil palm. There is an ongoing dispute with his uncle as to the ownership and control of the oil palm block of his parents. The victims of his crimes have not received compensation. He is regarded as a quiet person in the local community but can become uncontrollable when under the influence of liquor. Local community leader Danny Mausen is prepared to try to rehabilitate him if he is given a non-custodial sentence. The report concludes that he is suitable for probation.

7. Junior Leo Mailen: 24 years old, married with two children. His family comes from Ilipaim, Maprik, East Sepik Province, but he was raised at Sarakolok. Both parents are deceased. He is the first born in a family of three. He belongs to the New Apostolic Church. He is educated to grade 6 and has never been wage employed. He is self-supporting financially, from the sale of oil palm. There is an ongoing dispute with his uncle as to the ownership and control of the oil palm block of his parents. The victims of his crimes have not received compensation and the offender has shown no interest in apologising or reconciling. It seems that he has a problem with alcohol and this has contributed to an overall attitude problem. Local community leader Danny Mausen is prepared to try to rehabilitate him if he is given a non-custodial sentence. The report does not, however, contain a strong recommendation for probation.

SUBMISSIONS BY DEFENCE COUNSEL

8. Mr Tanewan submitted that Nathan should receive notional sentences of three years (unlawful compensation demand) plus six years (armed robbery), to be served cumulatively but reduced under the totality principle and suspended due to his good pre-sentence report. As for Junior, his notional sentences should be six years (armed robbery) plus five years (grievous bodily harm), to be served cumulatively but reduced under the...