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Doa v Paiku [1991] PGNC 19; N989 (6 August 1991)

Unreported National Court Decisions

N989

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APP 32 OF 1991
LO DOA
V
JIMMY PIAKU (THE STATE OF PNG)

Mount Hagen

Woods J
6 August 1991

APPEAL - District Court - Possession of stolen property - possession of firearm - sentences - imprisonment - excessive - cumulative sentences - State of Law and Order in country a factor to be considered - Appeal Dismissed.

Counsel:

D. Poka for the Appellant

J. Kesan for the Respondent.

6 August 1991

WOODS J: This is an appeom sentencetences imposed following pleas of guilty to 2 counts before the District Court in Mt Hagen. The Appellant was charged on one count of possession of stolen property and a second counbeing in possession of a .2 a .22 Rifle without being a holder of a firearms licence. The Appellant pleaded guilty on both charges and he was sentenced to 5 months in hard labour for the offence of possession of stolen property and three months in hard labour for possession of the unlicenced firearm. The Magistrate ordered that these sentences be served cumulatively.

The grounds of appeal are firstly that the Magistrate failed to consider the mitigating factors when sentencing the Appellant, Secondly that in the light of the circumstances the imposition of cumulative sentences was improper, and thirdly that the sentences for both offences were excessive.

The law is quite clear and there is ample precedent that when a Court is considering the sentence to impose on offenders the Court must consider carefully a number of factors namely the circumstances and conduct of the offender, the circumstances of the offence and the state of society and the community at the time. In this case before me the Magistrate has to consider that the Appellant had pleaded guilty so that in itself is a mitigating factor however he also considered the circumstances of the offences and he clearly noted that such offences namely possession of stolen property and unlicenced firearms are becoming very common offences and by reference to the Curfew is clearly indicating that the prevelance of this offences has led to the curfew. There is no doubt that it is actually the prevalance of these particular type of offences namely possession of stolen property which follows from commission of serious crimes affecting the wider community and also the possession of firearms which has led to the current state of law and order in Papua New Guinea and the fact that now law abiding citizens have to lock themselves in at night as prisoners rather than criminals being locked up. Persons like the Appellant by actively aiding in the committing of serious crimes by harbouring criminals and taking advantage of stolen property and also by assisting with the proliforation of firearms which themselves assist in crime and death have led to the current law and order problems. Whilst these offences may not themselves be so serious in more peaceful times, at present they must become much more serious and the Courts cannot ignore the fact that because of these very offences that we have such restrictions imposed on our own rights. So I am satisfied that the Magistrate has clearly considered all these things and has not erred in any way. He has considered the mitigating factor of a plea of guilty and has not imposed the maximum punishment. He has imposed slightly less for each offence however he has quite clearly noted that the overriding consideration at present is not necessarily the circumstances and conduct of the offender but the prevalance of the offences and the state of society at the time. If Courts ignore the state of society at the time in imposing punishment we are not doing our duty to the community at large.

I can therefore find no error in the Magistrate imposing terms of imprisonment for each offence and for imposing the particular terms that he did impose. On the question of whether the sentences should be cumulative there is a discretion in a court to not impose cumulative sentences for separate offences on the basis of the totality of punishment or on the basis of offences committed at the same time or inter related. In this case whilst the two offences were discovered at the same time namely through police operations during the curfew they are not necessarily related offences. There is nothing to suggest that the possession of the firearm is related to the possession of stolen goods. So therefore whilst there was a discretion in the Court to make the sentences concurrent the Magistrate has clearly again considered the prevalance of the these offence and the state of the society at this time. So I find no error here and I can only emphasise myself here that the current state of law and the community in PNG there can be no reason for anyone to have a firearm. Firearms are not traditional weapons for hunting there are no wild animals in the jungles of PNG for which one needs firearms to protect oneself the only dangers in PNG at present are the people in possession of firearms so the very nature of offence is the problem within this country. So I can find no error in any Magistrate imposing a heavy penalty namely a penalty of imprisonment for the possession of firearms. The Appeal is therefore dismissed.

Lawyer for the Appellant: Kopunye Lawyers

Lawyer for the Respondent: Public Prosecutor