The State v Stanley Marai Uriye of Oraia, Rigo, Central Province (2003) N2386

• Jurisdiction: Papua New Guinea
• Judge: Davani J
• Judgment Date: 21 May 2003
• Court: National Court
• Citation: (2003) N2386
• Year: 2003
• Judgement Number: N2386

Full Title: The State v Stanley Marai Uriye of Oraia, Rigo, Central Province (2003) N2386

National Court: Davani J

Judgment Delivered: 21 May 2003

1 Practice and Procedure—sentencing—young offender—murder.

2 Practice and Procedure—sentencing—young offender—suspension of sentence—when appropriate—factors to be considered.

3 Kuri Willie v The State [1987] PNGLR 298, The State v Frank Kagai [1987] PNGLR 320, The State v Eddy Kava Laura (No 2) [1988–89] PNGLR 98, The State v Abel Airi (2000) N2007, R v Davey [1980] 2 A Crim R 254 and Gimble v The State [1988–89] PNGLR 271 referred to

___________________________

N2386

IN THE NATIONAL COURT ] OF JUSTICE AT WAIGANI ]

PAPUA NEW GUINEA ]

CR 1255 OF 2002

THE STATE

V.

STANLEY MARAI URIYE of ORAIA, RIGO, CENTRAL PROVINCE

(‘Prisoner’)

Waigani: Davani .J

2003: 20, 21 May

Practice and Procedure - sentencing – young offender – murder.

Practice and Procedure - sentencing – young offender – suspension of sentence – when appropriate – factors to be considered.

Cases cited:

Kuri Willie v the State [1987] PNGLR 298

State v Frank Kagai [1987] PNGLR 320

State v Laura No. 2 [1988 – 89] PNGLR 98

Other texts:

Juvenile Justice in South Australia by John Seymour, 1983

Counsels:

P. Kaluwin for the State

A. Raymond for the Prisoner

DECISION

(on sentence)

21 May 2003

DAVANI .J: This matter proceeded as a plea where the Prisoner pleaded guilty to one count of Murder such charge laid pursuant to s. 300 (1) (b) of the Criminal Code Act (‘CCA’). The State also invoked s. 7 of the CCA.

Ss. 300 (1) (b) and 7 of the CCA read as follows;

“300 Murder

(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder –

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person; or

(b) if death was caused by means of an act –

(i) done in the prosecution of an unlawful purpose; and

(ii) of such a nature as to be likely to endanger human life;

….

Penalty: Subject to section 19, imprisonment for life.”

“7. Principal offenders

(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it –

(a) every person who actually does the act or makes the omission that constitutes the offence; and

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and

(c) every person who aids another person in committing the offence; and

(d) any person who counsels or procures any other person to commit the offence.

(1) In Subsection (1)(d), the person may be charged with –

(a) committing the offence; or

(b) counselling or procuring its commission.

(3) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as conviction of committing the offence.

(4) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted of offence on his part, is –

(a) guilty of an offence of the same kind; and

(b) liable to the same punishment,

as if he had done the act or made the omission, and may be charged with himself doing the act or making the omission.”

On allocatus, the Prisoner apologised to the court, the victim, the victim’s family, his family, the lawyers involved and to the Salvation Army.

The Prisoner is aged 13 years and was on remand at the Salvation Army Remand Centre when he appeared before this court. He has been in custody for 1 year, 6 months and 28 days.

The evidence is that on 21.10.01 the Prisoner was with 3 other boys waiting on the highway leading to Port Moresby at the Madobu area in Kupiano, Central Province. They were armed with assorted weapons, including sticks, knives and a home-made gun. When a mitsubishi truck drove their way, travelling uphill, a counterpart of the Prisoner fired a shot at the truck. However, I have evidence that two shots were fired at the moving vehicle by unknown assailants. Two armed men then came out of the bushes with guns but the driver continued to drive until he was on top of the hill, whereupon he stopped. As a result of the gun shots, Leva Tarama died and one other received pellet wounds on his right thigh and bled profusely.

This evidence also is that, the Prisoner, frightened by the ordeal, then told certain villagers of his involvement in this crime whereupon he was arrested on 22.10.01, released for lack of evidence, then rearrested on 6.2.02.

Although the Prisoner did not pull the trigger of the gun, he is caught by s. 7 of the CCA because he was with the group when the shooting occurred, although some distance away as he stated in his confessional statement.

The aggravating features of the case are that the Prisoner was with a group of young men who shot at a moving vehicle on the highway. This group had assorted weapons in their possession, to cause harm.

The mitigating factors are that the Prisoner does not have any prior convictions, his guilty plea and his show of remorse and fear. I say fear because it was fear that drove the Prisoner to confessing or telling his relatives of his involvement in the shooting, immediately after the shooting.

Prisoner’s Counsel submitted that the Prisoner should be released on probation because of his young age. She cited to me several authorities including the cases of State v Laura No. 2 [1988 – 89] PNGLR 98 where suggested guidelines for the offence of Murder are set and where the court there held that the starting point for a guilty plea is 6 years. Prisoner’s Counsel also cited to me the case of Kuri Willie v the State [1987] PNGLR 298 where Hinchliffe .J in upholding an appeal on conviction from the District Court, held that where young offenders are involved, the court must look to alternatives to imprisonment. There, his Honour held that “…prisons do not change young offenders into law-abiding citizens but in effect destroy any chance they may have of becoming law abiding citizens.” He used the phrase, “a shop lifter goes to prison and comes out a bank robber.”

I too share the same sentiments. Academics and Criminologists have conducted numerous studies in this area and have reached similar conclusions. Countries and States have developed prisons and court systems catering especially for the young, those referred to as ‘children’ under their legislation. In Papua New Guinea, various legislation have prescribed age limits as to who is a child, e.g the Child Welfare Act Chapter 276, defines a child as aged 16 years and below; The Matrimonial Causes Rules Chapter 282, defines an infant as being under the age of 21; The Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 defines a child as being under the age of 18 and the Evidence (Amendment) Act 2002 defines a child as being under the age of 18 years.

Regardless, for purposes of sentencing, a child who is charged with an offence under the Criminal Code Act, is always dealt with under the Criminal Code Act.

In this case, the Prisoner aged 13 at the date of sentencing, is deemed to be a child. Therefore sentencing should fall within the parameters of sentencing of a youthful offender. The CCA does not specifically deal with sentencing of youthful offenders so, as in the case of Kuri Willie (supra), this court must exercise its discretion as it sees fit.

Other countries have legislation that deal specifically with youthful offenders, e.g in South Australia, it is the Children’s Protection and young Offenders Act or CPYOA. This Act embodies provisions that all persons and agencies dealing with children under the Act are required to observe and which provisions reflect the statement set out below, which is the philosophy underlying South Australia’s system for dealing with children in trouble and which is also a reflection in summary of the functions of the Act. It reads;

“In any proceedings under this Act, any court, panel or other body or person, in the exercise of its or his powers in relation to the child the subject of the proceedings, shall seek to secure for the child such care, correction, control or guidance as will best lead to the proper development of...