The State v Sul Kora (2001) N2092

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 28 May 2001
• Citation: (2001) N2092
• Court: National Court
• Year: 2001
• Judgement Number: N2092

Full Title: The State v Sul Kora (2001) N2092

National Court: Kandakasi J

Judgment Delivered: 28 May 2001

N2092

PAPUA NEW GUINEA

[In the National Court of Justice]

CR No. 1482 of 2000

THE STATE

V

SUL KORA

GOROKA: KANDAKASI, J

2001: 14th & 21st

Criminal Law — Sentence — Robbery in a public toilet — Items stolen not of substantial value — Plea of Guilty — No prior convictions — Six years part suspended and community work order sentence.

Practice and Procedure — Need to call for Pre-Sentencing Report — Consideration of Pre-Sentencing Report — Recommendations in Pre-Sentencing Report not binding on the Court.

Cases cited:

Gimble v The State [1988 — 89] PNGLR 271

Public Prosecutor v Don Hale (Unreported Supreme Court decision) SC 564

Tau Jim Anis & 2 Ors v the State (Unreported Supreme Court decision) SC 642

State v Kennedy Arus (Unreported & Unnumbered judgment delivered in Goroka on 16th March 2001) CR No. 18 of 2001.

State v Gore Yogal (Unreported & Unnumbered judgment delivered in Goroka on 16th March 2001 ) CR No. 1462 of 2000

Counsel:

Mr K. Umpake for the State

Mr M. Apie'e for the Accused

28th May 2001

DECISION ON SENTENCE

KANDAKASI, J.: On the 14th March 2001, the State presented an indictment against you, charging you with one count of armed robbery under s. 386 of the Criminal Code (Chp. 262) (the Code). You pleaded guilty to the charge and I entered a provisional plea of guilty. The depositions were then admitted into evidence with the consent of your lawyer. After reading the depositions, I was satisfied that there was sufficient material to support the guilty plea. I therefore, confirmed your guilty plea and convicted you of the charge.

In your allocatus, you confirmed your guilty plea but went on to say that, although you had a knife, you did not use it at the time of committing the offence. You also said you were a bit drunk at that time. Further, you said you only punched the victim before stealing from him a packet of cigarette, Cambridge 20s brand. Upon hearing that, I asked your lawyer to seek your instructions and then let the court know whether you were maintaining your guilty plea or changing it. I then adjourned the proceedings to 1:30pm the same day to enable your lawyer to get your instructions.

At the resumption of the hearing, your lawyer informed the court that, you were maintaining your guilty plea. He also informed the court that, although you did drink some beer and were under the influence of alcohol, you knew what you were doing and as such you were not raising any defence under the Code. Further, your lawyer informed the Court that, although you had a knife with you at the time of the offence, you did not use it. Therefore, he argued that your conduct did not amount to armed robbery but robbery with violence within the meaning of s. 386 (1)(2)(c) of the Code. In any case, your lawyer asked the Court to re-administer your allocatus and I did. Through that process, you maintained your earlier position and I considered it safe to proceed to confirm your guilty plea and convicted you of robbery under s. 386(1)(2)(c) of the Code.

Relevant Facts

The brief facts are that, on the 18th September 2000 at Goroka, a Mathias Moses (the victim) went to the public toilet to urinate. After he had urinated and was pulling up his zipper, you pushed open the door and punched the victim and stole from him a packet of Cambridge 20s brand cigarette. You then escaped. Immediately after that, the victim reported the incident to Goroka Police who eventually arrested and charged you. There is no evidence of any injuries sustained by the victim. There is therefore, no evidence to tell whether the victim sustained any permanent injury.

Address on Sentence

Mr Apie'e, your lawyer, argued for a non-custodial sentence and in the alternative, a term of imprisonment between 1 to two years. In your mitigation he pointed out that, you pleaded guilty to the charge and that you have no prior convictions. He also pointed out that, although you had a pocket knife, you did not use it to commit the offence. Further, he submitted that, the offence was not committed in association with other persons. It was a simple or less serious robbery and as such, the court should be very lenient on you when deciding what punishment to give you.

For your background, your lawyer submitted and I note that, you are a villager. You come from Karamal village, in the Simbu Province. Your father is deceased whilst your mother is alive and she is living in the village. You are married with one wife who is pregnant with your first child and she is also living in the village. You have no formal education and employment. You have a coffee garden and have some pigs representing your form of wealth. At the time of the offence you were visiting your uncle a Korona Kurna and you were in Goroka for only 24 hours before committing the offence.

Pre-sentencing Report

In view of your lawyer's submissions, I called for a pre-sentencing report for my consideration before sentencing you. This Court received that report on the 21st of March 2001. I then asked both your lawyer and that of the State to make further submissions, if they wished to in the light of the pre-sentencing report and they did very briefly, although not in any substantial manner.

The report is based purely on an interview the author had with you. There has been no input from the police, the victim or any other member of the community except your uncle, Korona Kurna. There is no indication of what role the community is prepared to play if you are given a non-custodial sentence and yet it recommends that you be placed under probation for 36 months. It does not say how such a sentence will be supervised. The report is therefore, not a well balanced report and one that is reflective of the community's view as to what kind of punishment you should receive.

In The State v. Joe Butema Arua (unreported judgement I delivered in Lae on the 28th of March 2001) N2076, where there was also no input from the police, the deceased's relatives and other members of the community, I said these at page 10:

"The report has inputs mainly from your relatives and a community leader. For reasons only known to the author of the report, no one from the deceased side has been interview for the purposes of the report. There is also no input from the police on the kind of sentence they consider is appropriate for you. In my view inputs from the deceased relatives as well as the police, especially the police investigating and arresting and or charging officer necessary if a pre-sentencing report is to be considered fair and well balanced and serve the interest of justice. I view this important because it is the relatives of a deceased person or the victims of an offence are the persons who really feel and suffer the lost of a life and or the sufferings that criminal acts bring upon them. They are the ones that demand justice. Thus, unless the courts are able to take into account the kind of punishments these persons wish to see an offender receive, any punishment imposed may not necessarily be justice to them. This may lead to an apprehension of justice not being done and an offender let off lightly.

As for in puts from the police-investigating officer, I consider that appropriate and important because they alone will be in a better position to tell the court what kind of a person a prisoner is. That...