Acting Public Prosecutor v Clement Maki and Tom Kasen

• Jurisdiction: Papua New Guinea
• Date: 09 August 1981
• Court: Supreme Court
• Year: 1981

Supreme Court: Greville–Smith J, Andrew J, Miles J

Judgment Delivered: 7 or 9 August 1981

1 Criminal law—State appeal against sentence—sentence of 12 months with 9 months suspended—breaking, entering and stealing—youthful offenders—observations on sentence

2 CRIMINAL LAW—State appeal against sentence—s23 Supreme Court Act—sentence of 12 months with 9 months suspended for breaking entering and stealing—youthful offenders—observations on sentence—Paulus Mandatititip v The State [1978] PNGLR 128 explained—observations on need for uniformity of sentences and the judicial discretion—observations on suspended sentences—S19 Criminal Code—power to suspend sentence discussed—offence of breaking, entering and stealing discussed—delay in bringing appeal—effect on sentence.

Paulus Mandatititip v The State [1978] PNGLR 128, Bakiri Pena v The State (1980) SC183, R v Daugamani–Adamanika [1965–66] PNGLR 80, R v Robson & East (1970) Crim LR 354, Alwyn Gruffydd and 2 Ors (1972) 56 Cr App R 585, R v Radich [1954] NZLR 86, Paia Lifi v Phillip Dege (1981) N291(M), R v Price (1978] Qd R 68, Acting Public Prosecutor v Andrew Lalaiva and Angelo Ume (1981) SC201, R v Cuthbert [1967] 2 NSWR 329, Acting Public Prosecutor v Konis Haha [1981] PNGLR 205, Passingan v Beaton [1971–72] PNGLR 206, Lahey v Sanderson [1959] Tas SR 17, R v Shueard 4 SASR 36, Griffiths v R 51 ALJR 749, Veen v R 53 ALJR 305, R v O'Keefe [1969] 2 QB 29, Monomb Yamba v Maits Geru [1975] PNGLR 322 and Wilkeson, Stephens, Michalov v Grant [1967–68] PNGLR 112 referred to

Order of the Court

Appeal dismissed—sentence appealed against confirmed.

___________________________

Greville–Smith J:

This is an appeal by the Acting Public Prosecutor, on the ground of inadequacy, against sentences imposed in the National Court upon the respondents, as co–defendants, for breaking and entering in the night time the dwelling house of another and committing a crime therein. The crime consisted of stealing property to the value of approximately K1,300. All the property stolen was, in the event, recovered, the defendants being apprehended on the night of the offence. The breaking was effected by the ripping of an insect wire screen.

The sentence imposed on each defendant was imprisonment with hard labour for twelve months, suspended after three months upon the defendant entering into a bond in the sum of K100 to be of good behaviour for a period of three years. Each defendant had, at the time of sentencing, been in custody awaiting trial for four months, so that the effective actual prison term in each case (in the non–event of any later activation of the suspended part) was seven months.

Neither defendant was a first offender. Each had nine months earlier concluded a term of about three months imprisonment with hard labour imposed by the District Court, in the case of the defendant Clement Maki on a charge of stealing and on a charge of receiving, and in the case of Tom Kasen on a charge of breaking and entering. To my mind it is not relevant that the District Court did not have jurisdiction to deal with the receiving charge or the breaking and entering charge. Counsel for the appellants did not attempt to assert in proceedings before his Honour the sentencing judge, or in these proceedings, that such offences had not been committed, and in my view for the practical purposes of this appeal there are prior "convictions". Simply, the appellants both had been in this sort of trouble before, and served terms of imprisonment in consequence.

The learned trial judge's notes on the submissions of counsel made on sentence were as follows (sic):

"John Byrne:

The State

The offence is extremely prevalent. It is on the increase. Here in July of 26 cases done 12 were B & E & S (50%). Note from Antecedent Report that neither 1st offence. Maki convicted for (24/11/79) and fined K80.00 in default 2 months for stealing. 6 weeks later on 18/1/80 convicted and fined K80.00 in default 2 months IHL for receiving stolen property.

Kasen not 1st offence.

On 18/11/79 convicted and sentenced to 3 months IHL for B & E & S. May be said that each accused considered amount took or received for B & E very small. Maki admitted to taking 1 white shirt, a laplap and 5 cartons milk. Kasen admitted taking a towel and laplap. Amount taken irrelevant to sentence. Both young men. Remind ct. re S/C in Paulus Mandatititip v The State [1978] PNGLR 128. Young people only receive special treatment if circumstances warrants it. Quotes Wilson J.—spontaneity not here not material need to commit offence. Premeditation & ones committed at spur of moment & group crime here. None of these elements present here. On evidence this was planned offence. Accused observed car not present & this was factor which induce B & E

Bakiri Pena S/C last Monday (Smith J, Kapi J and Pratt J) rejected appeal against sentence and re–affirmed Paulus Mandatititip v The State [1978] PNGLR 128. Position in 1980 re B and E is no different to 1977.

Deterrent aspect important—no "gentil" sentences Accused has no right as such to ask it re mitigating sentence

(Thomas p. 180) Submit on evidence & A/AR there are few mitigating factors.

Wilson (Maki)

In Nope's case Andrew J reports principle that sentence not science. Prevalence offence—can't dispute it. No evidence of increase. They are not first offenders. Sentence discretion of Ct.

(a) Tariff principle

(b) Ct has resp to weigh up factors 16 years of age—did grade 6 (1974) Both parents alive—lives with them—2 sisters.

Dropped out—loose end since then. Some work at home. Influence of Catholic Mission. Come from Kiundi (urban drifters area). Has 2 prior offences. In relation to fine, he spent 4 weeks before fine paid. He has been in custody since 19/7/80 (nearly 4 months). Re breaking no reasonable explanation—young irresponsible & engaged in criminal activities. Submit Ct. has difficult decision—has been in trouble in lower Ct—spent 4 months—with men in trouble. He's had his chance & must be sent to jail, or societies interest served if he is sent to jail at 16 years and confirmed pattern he has set out in risk here special circumstance. Too old for Boy's Town. Submit reasonable approach would be that he split time & then released on long recognizance. Give him a final opportunity. He is 16 years old. Submit there must always be leniency. Goods have been recovered (instructions).

Ms Cox (Kasen)

Similar to the Maki. Took a towel & a shirt. A/R re Kasen. He is 16 years. Similar trouble before (in Dist Ct). He has been influenced by people—was "greased" by others. Submit not leader or mindless follower. A directionist without ambition. Limited education—Grade 1. Away from village far from Wewak. Taken out of village environment and his role in village not available in town. Now part of urban unemployment. Father Bomer says he's good person—liable to be influenced by strong personality. Traditional forms of control absent in town. He is eldest male child. If sent to boys town, might have help. Too old now for Boy's Town.

Boy's Town.

If jailed repercussions—custodial sentence be destructive—should be dealt with in non–custodial way—3 years good behaviour would be appropriate.

Mandatititip case (Paulus Mandatititip v The State [1978] PNGLR 128)—submit deterrent sentence in Western countries here not work. Defendant feels an outsider—in his traditional society. If jailed, alienation will . . .

Factors

(1) Age (16)

(2) Tried to obtain work no success

(3) Limited opportunity outside labour force

(4) No social security

(5) Has been influenced and led into trouble

(6) Pleaded guilty

(7) In custody for 4 months

(8) Constructive application of law should be applied."

It appears from the depositions, which were before his Honour the learned sentencing judge, that the two defendants together with four or more other youths, had been to the "Garamut" Theatre in Wewak, were returning home, saw that the motor car of the occupant of the dwelling house was not in the yard, inferred, rightly, from this that he was absent from the house, decided to break in, and did so. It also appeared that at the committal proceedings the two defendants, who were unrepresented, displayed a certain amount of hardihood. Each elected to make a statement on oath in which he sought to counter certain admissions to the police...