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State v Asu [1980] PGNC 12; N236 (6 June 1980)

Unreported National Court Decisions

N236

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
MINAMBKALI ASU, LAKAP ERAPAE AND JEM KOIPIU

Wabag

Narokobi AJ
6 June 1980

NAROKOBI AJ: The three accused were iedicted jointly that they were in a dwelling house at night with intent to steal the property of Catholic Mission at Yampu. The Mission Station is engaged in aiding the poor and sick especiallse suffering from leprosy. osy. The accused were noticed in the building in the early hours of the 12th day of July 1979. The accused pleaded guilty and defence counsel made no application to have a plea of not guilty entered.

Upon my reading of the District Court depositions which included statements of records of interview, I was satisfied evidence supports a verdict of guilty and I so find.

I am now left only with the question of what sentence would be appropriate for me to impose upon each of the prisoners. The usual antecedent reports have been presented. Defence counsel, Mr. Kim Wilson and with him Mr. Yer made the usual submissions on behalf of each of the prisoners. None of the prisoners made any statements following the administration of the allocutus.

I deal with each of the prisoners separately. Lakap Erapae is about 18 years of age. In 1977 he was convicted of an offence and sentenced to 6 months imprisonment with hard labour. I say it was an offence because there is a difference of opinion as to what it was. On the antecedent report, it is said that he was convicted of stealing, but no details were offered. I am informed by the defence counsel, Mr. Wilson that the stealing involved a pig. The State having produced no evidence to the contrary, I find that, that conviction involved a pig. The State produced no certificate of conviction. That offence having occurred in 1977, places the prisoner at 15 when he committed that crime. Defence suggests he might even have been 14. I accept 15. Defence submitted, in fact that prior offence occurred when the prisoner was a child and it should not be taken into account as a matter of aggravation, at all. He further submitted that in some jurisdictions offences committed by children or youths are never taken into account in offences committed when the youths have become adults.

My view is that offences committed by youths should be taken into account, if for no other reasons than to assess the trend of the youth’s character, in determining appropriate penalty. However such offences should not be taken into account with a view to crush the youth. In other words, I will consider the prior convictions of children with a view to assist the youth, not to crush him.

Following the apprehension of the prisoner in relation to this offence, he and the other two prisoners escaped. They have been sentenced to six months imprisonment with hard labour, early this year. The prisoners were charged under section 414 of the Schedule to the Criminal Code Act. The maximum penalty under that section is 3 years imprisonment with hard labour. If the offender has a prior conviction relating to property, the maximum penalty is increased to 7 years. The State case is that this prisoner should come within the second paragraph.

I agree that a prior offence relating to a pig would be caught by the second paragraph. However, I have taken the view that a pig killing offence of a young person should be received with a view to determining a penalty that is aimed at rehabilitating rather than to crush the offender. But there must be an element of deterrence.

I give no weight to the prior escape offence in relation to the second paragraph of s.414, but obviously I must give it some weight as a prior conviction. It is a factor of aggravation with regard to this prisoner, but only within the context of a three year maximum of s.414.

I take into account the fact that he has escaped. But for the escape, I would have given him a long term good behaviour bond. Prisoners’ escape can be taken in different ways. It can be regarded as symptomatic of a criminal character. Equally, it can be regarded as indicating that repeated incarceration in the circumstances of some prisoners, may not be likely to assist the offender. In this case, I give the benefit of the doubt to the prisoner. In my view, based on defence counsel’s instructions, the prisoner found Wabag Corrective Institution “a really bad place”. However, I think this speaks of something. To those who say Wabag prison is a tourist resort, this suggests the contrary, namely that imprisonment at Wabag is having a deterrent effect on the prisoners, if not on the population at large.

In the case of Minambkali Asu, he is between 18 and 20. He has never been to school and but for this offence and the subsequent escape thereof, he has lived a decent village youth’s life. In the context of the first paragraph of section 144, the escape is irrelevant. It is an aggravating factor of course in determining sentence within the first paragraph of s.144. But it is balanced against his youthfulness and other factors. But for the escape, I would have been prepared to give him a long good behaviour bond.

All three prisoners committed the offence in July of 1979 and were taken into custody for only a few weeks and then escaped. They were recaptured in December and imprisoned with hard labour for 6 months, which they have served. They brought that time onto themselves. However, counsel agreed that the time that can be given to their credit in custody awaiting this trial is 2 months.

All three prisoners appear to be very ashamed of their trouble and have certainly inflicted shame on their parents. Shame is an important component of punishment in Melanesian societies and I take it into account in their favour.

Lakap Erapae appears to have made no admissions to the police. Mr. Pollak of the State Prosecution asked me to consider this as a matter of aggravation, if not against all three, then certainly against him, Lakap Erapae. I think Lakap Erapae did no more than stand on his own rights. He has no prior convictions, except that involving escape awaiting this trial.

What is important to me is that he has come before me in this court and admitted. He is man enough to say - “I did it, I am prepared to tell you and accept my due for it”, as if it were.

I deal with the prisoners as young men who must accept their responsibilities. No property was in fact stolen. The prisoners made no gain out of their evil deeds. One of them back an iron rod to effect entry. They have pleaded guilty to the offence. No damage was done to the building.

Nevertheless, this offence is within the category of break, enter and steal which is becoming a national menace. However, that is not the charge I am to administer punishment to, upon conviction. The accused are charged and convicted under section 144 and I punish strictly within that section.

In my view a custodial sentence as a deterrent is called for. I would have considered different punishments to each of them. However, it is clear that the three young men acted together to commit this offence and acted together to escape. I can see them serve longer sentences in the future, if they act together again in the commission of a crime.

In my view, their own sense of justice and that of the State would be achieved if I impose on them, a uniform punishment of 3 months imprisonment with hard labour. Order so made, on each of them.

Solicitor for the State: Public Prosecutor, C. Maino-Aoae

Counsel: J. Pollak

Solicitor for the Defence: A/Public Solicitor, D.J. McDermott

Counsel: K. Wilson, A. Yer