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State v Guba [2000] PGNC 78; N2020 (19 December 2000)

N2020

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 340 and 341 of 2000

THE STATE

-V-

JAMES GURAVE GUBA

LAE: KANDAKASI, J.
2000: DECEMBER 11, 19

CRIMINAL LAW - Practice and procedure - Plea bargain - Role of the Court – Guilty plea - Depositions disclosing possible defence - Defendant deciding to forego defence

CRIMINAL LAW - Particular offence - Unlawful use of motor vehicle - Guidelines for sentencing - Two separate offences committed at different times against separate victims - Cumulative sentence appropriate - Criminal Code Act (Ch. 262) ss. 383, 386 and 19.

LAWYERS - Duty of lawyers to properly prepare and present arguments or submissions with relevant cases or statutory authorities - Failing in that duty may attract serious consequences against them - Lawyers Professional Conduct Rules s. 15.

Cases cited:

The State v. Jason Dongoia (Unreported and Unnumbered judgement delivered on 13th December 200) CR 889 of 200
The State v. Jack Golu and Mopana Aure [1990] PNGLR 206
The State v. Joe Ivoro and Gemaro Yavura [1980] PNGLR 1
Gabriel Lakau v. The State [1981] PNGLR 350
Dinge Damane v. The State [1991] PNGLR 244
Martin Ferry v. The State (Unreported and unnumbered judgement of the Supreme Court delivered on the 22nd of November 2000 at Wewak) SCR 64 of 2000
The State v. Danny Sanu & Ors [1993] PNGLR 396
The State v. Aruve Waiba (Unreported and unnumbered judgement of the Supreme Court delivered on the 4th of April 1996) SCR 1 of 1994
The State v. Thomas Waim N1750
The State v. Inema Yawok N1766
The State v. Jimmy Robin (Unreported and unnumbered judgement of Injia J., delivered on20th March 200) CR 1130 of 1999
The State v. Sabrina Yakal [1988-89] PNGLR 129
Allan Peter Utieng v. The State (Unreported and unnumbered judgement of the Supreme Court delivered in Wewak on the 23 of November 2000) SCR 15 of 2000

Acting Public Prosecutor v. Haha [1981] PNGLR 205

Public Prosecutor v. Kerua & Ors [1985] PNGLR 85
The State v. John Pesa [1994] PNGLR 317
Tau Jim Anis & Others v. The State SC642

Counsel:

N. Miviri for the State
L. Siminji for the Defendants

19 December, 2000

KANDAKASI, J: Two separate indictments were presented by the State against the Defendant on the 11th of December 2000. The indictments charged the Defendant with one count each of unlawful use of a motor vehicle under s. 383 of the Criminal Code Act (Ch.262)(hereinafter "the Code"). That followed a plea bargain between the parties from the more serious offence of armed robbery under s. 386 of the Code. The Defendant pleaded guilty to both counts.

Upon reading the depositions in relation to one of the charges I was satisfied that there was sufficient evidence to support the guilty plea. I therefore, confirmed the guilty plea in relation to that charge and convicted the Defendant of the charge. As for the other one however, I noted that the possible defence of compulsion was available. Hence, I raised that with the Defendant’s Counsel as to what his client’s instructions were on that. Counsel informed the court on his client’s instructions that, his client was foregoing the possible defence and will only seek to raise it in mitigation before sentence. Counsel also informed that, that position was taken in view of the plea bargain from the possible high of armed robbery under s. 386 of the Code to the lesser one under s. 383 of the Code. On that basis, I proceeded to confirm the guilty plea and convicted the defendant on the second charge as well.

Preliminary issues

The case presents two separate but closely related preliminary issues. The first issue raises the question of what is the role of the Court when an indictment is presented pursuant to a plea bargain reached between the prosecution and the defence. The second issue concerns the correct procedure to follow after an accused person has pleaded guilty to the charge presented against him after a plea bargain to a lesser charge but a reading of the depositions raises a possible defence which he decides to forego. I have covered both these aspects in the case of The State v. Jason Dongoia CR 889 of 200 (Unreported and unnumbered judgement delivered on 13th December 200), although not fully in respect of the second issue.

The case referred to and applied in that case namely, The State v. Jack Golu and Mopana Aure [1990] PNGLR 206, provides authority for the proposition that, once the prosecution and the defence have reached an agreement or a plea bargain and an indictment is presented in accordance with such an agreement, the only role of the court in such a setting is to accept the presentation of the indictment. This emanates from the fact that, under our constitutional framework, the Public Prosecutor is the only one that has the power to decide whether or not to prosecute an offender and in what manner or for what offence. That power is not subject to any direction, control or supervision of any other authority, not even the courts. It also proceeds on the basis that the Public Prosecutor is in a better position to consider the interest of the people and the mechanics of proving a charge against an accused person and then proffers the charge he considers sustainable.

In relation to the second issue, the preponderance of the case authorities on point such as the case of, The State v. Joe Ivoro and Gemaro Yavura [1980] PNGLR 1; Gabriel Lakau v. The State [1981] PNGLR 350; Dinge Damane v. The State [1991] PNGLR 244 and Martin Ferry v. The State (Unreported and unnumbered judgement of the Supreme Court delivered on the 22nd of November 2000 at Wewak) SCRA 64 of 2000, make it clear that, a court is duty bound to point out to the defence anything in the depositions or in the allocatus that runs contrary to or inconsistent to a guilty plea. If such inconsistencies do in fact disclose a legal defence, the court or the judge must then change the plea of guilty to one of not guilty and allow the matter to go to trial in the normal way, if the prosecution is proceeding with the charge. In such a case, the trial judge must then disqualify himself and let a different judge run the trial. If however, the prosecutor decides to proceed with a lesser and alternative charge, which is available and is supported by the depositions then, the accused must be re-arraigned on the new charge and must be dealt with in the normal way.

What is not clearly expressed one way or the other is, what should be the procedure if the defence decides to forego any defence that may appear to exist or is disclosed in the depositions or in the statement in his allocatus. For clarity on that aspect, in my view, it ought to be stated in clear terms that, just as the court is duty bound to accept an indictment presented following a plea bargain for a lesser charge, when a more serious one is disclosed in the depositions, the court should also be duty bound to accept the defendant’s decision to forego any defence he may have and supported by the depositions. Besides, a defendant may take such a position because of the obvious benefits a plea bargain may bring to him in addition to the benefits a guilty plea may bring to him. He may also see difficulties succeeding on the defence that may be disclosed in the depositions or in his statement in allocatus and decide not to raise it.

Two additional and also closely related issues arise. First, whether the court is to have regard or is entitled to know about the plea bargain between the parties and secondly, whether the court should subsequently use the depositions for sentencing purposes. In relation to the first issue, in my view, just as the court is obliged to raise with defence counsel, the existence of any defence disclosed in the depositions or alluded to in the defendant’s statement in allocatus, it should be entitled to raise with the prosecution why a lesser charge is presented when there is a more serious offence disclosed by the depositions. When the court exercises that power, the prosecution should then simply inform the court of the indictment being presented pursuant to a plea bargain, without going into any details of it. When that happens, then in line with the case of The State v. Jack Golu and Mopana Aure (supra), the court should accept the indictment that is presented in accordance with a plea bargain and proceed in the normal way and only have regard to that for the purposes of determining the appropriate sentence to be imposed in the context of the charge actually presented and to which the Defendant has pleaded to and has been convicted of.

With regard to the second issue, the question has already been answered in the case of The State v. Sabarina Yakal [1988-89] PNGLR 129. In practice the courts invariably read the depositions and use them following a guilty plea to determine appropriate sentences. Thus, there should be no restriction as to the use of the depositions to determine the appropriate sentence simply because there has been a plea bargain. This is because an indictment is presented and an accused person pleads on the basis of facts presented which are in turn based on facts set out in the depositions and only after reading the depositions can a court decided whether or not to confirm a guilty plea and record a conviction before proceeding to sentence the offender. On this basis, I will use the depositions to arrive at the sentence in this case.

The Facts

On the 7th of February 1997, the prisoner held up a female, Lucy Mapikon ("the victim") at knifepoint and stole from her a motor vehicle. That was at the car park at the Melanesian Hotel, here in Lae. The vehicle was a Mazda B2500, 4x4, double cabin registered number LAI – 132. At that time, the Defendant was in the company of two others, armed with a knife, which was used to commit the offence.

Once the Defendant was able to force the victim out of her vehicle, he got into the driver’s seat and drove off in it at high speed. That was however, not without a fight from the victim, which attracted police who were patrolling the area. The police thus gave chase and eventually caught up with the Defendant close to the Malahan Industrial Centre. That was after the police and other lawful users of the road were put to risk by the way and manner in which the Defendant drove away the vehicle he had stolen at knifepoint.

The Defendant’s two accomplices escaped and he was arrested and subsequently charged with armed robbery under s.386 of the Code. The police also recovered the vehicle without any damage. The Defendant was committal to stand trial before the National Court for that offence on the 23rd of April 1997. On the 21st of May 1997, Passingan AJ (as he then was) granted bail on terms, pending his trial. Whilst on bail, he committed the second offence on the 4th of September 1998.

The second offence was also committed in Lae but at West Taraka. On the 4th of September 1998, the victims of that offence a husband and wife were on their way to pick up some churchgoers. Before getting to their destination, they stopped at the Kamkumung market to buy some betel nuts. While the husband was waiting in the vehicle they were driving, a Mitsubishi L200, registered number LAI – 848, owned by the Huon Electrical Pty Ltd, the wife went to the market to buy the betel nuts. The Defendant then approached the driver of the vehicle and asked whether he could give him a lift to the University of Technology gate and the driver agreed to do that. He then got on the vehicle with two others. Soon thereafter, the wife of the driver returned to the vehicle and they drove off.

On the way at West Taraka, the Defendant and his accomplices asked the victims to stop the vehicle. As soon as the vehicle stopped, they held up the victims and stole from them K60.00 and some other personal property and drove away in the vehicle. Following good police work, the Defendant was caught with the vehicle in Goroka the next day, the 5th of September 1998. The Defendant was subsequently charged with and committed to stand trial for armed robbery.

Then it seems while awaiting trial on both counts, the Defendant escaped from lawful custody. His Honour Injia J issued a bench warrant for his arrest on the 2nd of August 2000. The defendant is now before this court and is appearing from custody. It seems he is yet to be dealt with for the escape from lawful custody.

For the purposes of the second offence, the Defendant used the name Michael Kamane. That name appears in the depositions and on the court record. I therefore, raised that with counsel and it was confirmed that the name should correctly read James Gurave Guba. That is in line with an amendment of the name sought by the prosecution and granted by the committal court on the 10th of June 1999. Consequently, there is no dispute before me that the Defendant is one and the same person either as James Gurave Guba or Michael Kamane.

Allocatus

In his allocatus the Defendant said he was sorry for what he had done in relation to both charges and admitted to the charges to make it easy for everyone concerned. He acknowledged that, what he did was wrong both before this court and God. Then he asked the court to consider his background. His father passed away when he was 7 years old. His mother is surviving but she is very old. He is the only male child in his family and his siblings all of whom are females and have married out and are living with their own families. Thus, his aging mother and his own family of a wife and a small child need his support in order to survive. Therefore, any custodial sentence will not be helpful. Accordingly, he has asked for a non-custodial sentence. In the alternative, he asked for any custodial sentence to be concurrent.

Address on Sentence

Mr. Siminji for the Defendant, asked the court to note and take into account the matters put forward by the Defendant himself before sentencing his client. In addition to that, he says his client is about 24 years old and comes from Olipoka village in Goroka, Eastern Highlands Province. Further, he submitted that, his client has no prior convictions and has pleaded guilty to both charges and he is truly sorry for what he has done. He acknowledges that, the offences he committed is very serious but is asking for leniency from the court by way of imposing a non-custodial sentence.

Mr. Siminji did not point to an authority to support his argument for a non-custodial sentence. He also did not ask the court to request and consider a pre-sentencing report to assist the court if it were to impose a non-custodial sentence. Counsel was not able to assist the court with any authority suggesting that the kind of sentence argued for can be imposed without offending the principles and or purposes of sentencing. He also failed to advance or elaborate with appropriate authorities his client’s plea for a concurrent sentence. I consider counsel’s failure to be more serious and a sign of no preparation.

Counsels need not be reminded of their duties, both as officers of the court and counsel representing their client’s interests. Given the lack of preparedness as demonstrate in this case, let me venture into reminding lawyers that the interests of their clients are in their hands. Unless they are able to properly prepare and present arguments with proper legal authorities in support, they can not and should not expect the court to bend backwards and perform their roles. It is not simply good enough for a lawyer to turn up in court and make submissions or present arguments without proper preparation with all the relevant cases and statutory authorities on point. It is of much annoyance to the court to constantly hear lawyers say, "sorry your Honour, I am not able to assist" where there are cases or statutory provisions on point. Indeed, s. 15(5) of the Professional Conduct Rules provided that:

A lawyer shall ensure that the court is informed of any relevant decision on a point of law or any legislative provision of which he is aware and which he considers to be relevant, whether it be for or against his contention.

I would like to add to that, the well-known principle that ignorance of the law is no excuse so often applied even to non-lawyers. That requires in my view, a lawyer to make it his business and or duty to keep abreast of developments in the law and be always prepared to assist the court.

In future, what is observed here should not be repeated. Lawyers need to properly prepare before coming to court, so all of us can help in the proper administration of justice. May I warn that, I will not tolerate such failures in the future and that lawyers need to take careful note of this. I will not hesitate to take appropriate steps against lawyers who are not prepared or are not able to protect their client’s interests fully and competently and are of no assistance to the court as its officers.

The offence and sentencing trend

The offence of unlawful use of a motor vehicle is prescribed by s. 383 of the Code. It carries a maximum penalty of up to five years imprisonment. The section does not say the penalty provision is subject to s. 19 of the Code. That does not prevent this court from exercising its discretion under s. 19 of the Code.

The Supreme Court in The State v. Danny Sanu & Ors [1993] PNGLR 396 held that, even the prescription of a minimum penalty by s. 398 of the Code does not remove the court’s discretionary power under s. 19 of the Code. This was affirmed by the Supreme Court in The State v. Aruve Waiba (Unreported and unnumbered judgement of the Supreme Court delivered on the 4th of April 1996) SCR 1 of 1994. The National court has thus passed sentences in full utilisation of its powers under s. 19 of the Code. The latest use of that power, again in the context of s. 398 are cases like that of, The State v. Thomas Waim N1750; The State v. Inema Yawok N1766 and The State v. Jimmy Robin (Unreported and unnumbered judgement of Injia J., delivered on 20th March 200) CR 1130 of 1999.

Clearly therefore, simply because s. 383 of the Code does not use the words "subject to s. 19" in the penalty provision it does not follow that s. 19 of the Code does not apply. Instead it does apply to all cases even for s. 383 offences. As I said in the The State v. Jason Dongoia (Unreported and Unnumbered judgement delivered on 13th December 200) CR 889 of 2000, there appears to be no case on point to assist the court in determining appropriate sentences for s. 383 offences. In that case I said this:

I my view, the principle and factors generally governing sentencing such as prevalence of the offence, society’s response to that, whether the offender is a first time offender, whether it is a guilty plea and the particular circumstances in which the crime was committed are all relevant and do apply.

Of course, the purpose of sentencing such as deterrence, restitution or rehabilitation are also relevant factors for consideration. Taking such factors into account will be in line with the intent of s. 19 of the Code.

A sentence lower than what is prescribed as the maximum may be given to an offender who pleads guilty, has no prior convictions, and commits the offence in circumstances which are not serious. Examples of less serious circumstances would be cases in which the offender originally had the authority of the owner or the driver of the vehicle to drive the vehicle within a specified period for a specific purpose and his use of the vehicle exceeds the period and purpose, or the defendant comes across an abandoned vehicle, takes it and uses it for his own purpose and the like. More serious circumstances would be cases in which the owner or the driver is forcefully deprived of his vehicle as in an armed robbery case, or the owner or the driver of the vehicle is by fraudulent means tricked into lending his vehicle and is driven off and damaged.

Then certainly the community’s reaction to the crime should have an influence on the kind of punishment to be given. If the community in whatever form is calling for tougher penalties because of the prevalence of the crime and its impact on society, the case may warrant an higher penalty, that is up to the maximum prescribe by law.

The apparent lack of reported or published cases on point does not mean that, the Courts have or are not dealing with this type of cases. Instead, the courts are dealing with them every year but are not being reported or published. It is also because, the offence is usually subsumed into more serious charges or cases like armed robberies, where they are committed every single day right around the country. I also believe that, cases under s. 383 have not gotten much of the courts attention has do more serious cases like, murder, armed robbery or rape, to a level that as called for published judgements, due mainly to the lack of time and the ever increase in cases.

I believe a trend is now developing were there are more plea bargains resulting in more serious charges being dropped for guilty pleas for lesser offences, as in the case before me. It is therefore, necessary to device some guidelines as I have endeavoured to do in The State v. Jason Dongoia (supra) case. What I said in there however, needs to be elaborate to allow for some clarity. I will endeavour to do that in this case.

As is undoubtedly the case with nearly all of the cases under the Code, s. 383 in my view has its own categories. There are four broad categories in my view and these are:

(a) The offence is committed under serious aggravating circumstances such as serious injuries to the owner of the vehicle, the vehicle itself or other properties and is being committed in the course of or in the furtherance of a serious crime such as armed robbery;

(b) The offence is committed under circumstances in which not all of the factors under (a) exist but only some of them exist. An example of that would be say the vehicle is being taken by force but without injuring the owner or its lawful driver, driven off and is recovered with minor damages to the vehicle or any other property;

(c) The offence is being committed in situations where say a single factor under (a) exist. An example of that would be a case in which say, the owner or legal driver leaves the vehicle unlocked and the offender gains entry and drives off and damages the vehicle;

(d) The offence does not fall under (a) (b) or (c) but is still an offence under s. 383. An example of that would be a case in which say an owner/employer authorizes his employee to use a vehicle for a specified purpose within a specified period but he simply exceeds the authorized purpose and time for the employee’s own purpose or interest without advancing his employers interest in any way.

In my view, an offence which falls under category (a) should attract sentences between 4 and 5 years. Then those falling under category (b) should attract sentences between 3 and 4 years while those under (c) and (d) should respectively attract sentence between 1 to 3 years and a number of months to 1 year. Of course, from what is suggested, the actual sentences in any one given case can be substantially or fractionally reduced depending on the particular facts of the case and mitigating factors such as a guilty plea, young first offender, no prior convictions and an expression of genuine remorse.

The present case

In the present case, the Defendant committed two separate acts of unlawful use of a motor vehicle on two separate occasions. The dates were different, there were two separate lots of victims and two different vehicles were involved. Both of the offences were committed in Lae and were committed in the course of or in the furtherance of two separate instances of armed robbery but for the indictment present following a plea-bargaining. The first offence was committed on the 7th of February 1997. The second was committed on the 4th of September 1998, whilst out on bail for the first offence. Then after he was caught and kept in lawful custody, he escaped. He is yet to be dealt with for that. In a way, the Defendant was acting above the law and was saying though not expressed in those terms that, nothing can be done to stop him.

Both of the offences were committed whilst in the company of two others. They both involved treats of violence. There is nothing to show or suggest that the vehicles were to be returned to their respective owners and or legal drivers at the time. Instead, there was an intention in my view, to deprive the respective owners of those vehicles permanently of their vehicles. Fortunately for the respective owners, the vehicles were recovered through excellent police work.

In relation to the first offence of the 7th of February 1997, there was a high police speed chase set in motion and paced by the Defendant. That put the lives of policemen and other legitimate road users at risk. The vehicle and the properties in the way were also put at risk. In respect of the second offence of the 4th of September 1998, there was a de facto element of trust placed in the Defendant by his victims when they agreed to give him a lift with his two accomplices. That trust was betrayed when the Defendant held up the victims stole their vehicle, K60.00 cash and other personal properties and fled with them. This type of offence or action is preventing motor vehicle owners and drivers from assisting people who genuinely need to travel from place to place and is consequently eroding our peoples custom or good habits of helping one an other. The society can not sit back and allow this to happen. It should be put to an end.

In my view, both of the offences fall under category (a) because of the particular aggravating factors I have just outlined. They are on the facts actual cases of armed robbery but on the indictment following the plea bargain, they are cases of unlawful use of motor vehicles. The maximum prescribed sentence of five years is thus called for. However, I will not impose the maximum sentences because of the guilty plea, no prior convictions and both vehicles being recovered without any damage and no physical injury or harm being occasioned to any of the victims. I consider a sentence of 3 years each in hard labour appropriate.

As for the Defendant’s background, I am of the view that he should have considered his background before he set out to commit the offences. Therefore, that factor should not feature prominently in sentencing and in favour of the Defendant who is not necessarily a first time young offender or very advanced in his age. The Supreme Court sitting in Wewak on the 23rd delivered a decision in Allan Peter Utieng v. The State (Unreported and unnumbered judgement delivered at Wewak on the 23rd of November 2000) SCR 15 of 2000, commented in those terms.

Cumulative or concurrent

The final issue for determination in this case is whether, the sentence of 3 years each should be cumulative or should they be made concurrent. The Defendant asked for concurrent sentence for both offences in the event that the court decides to impose a custodial sentence. His counsel did not make any submissions on that aspect in any meaningful.

The cases on point amongst others are Acting Publice Prosecutor v. Haha [1981] PNGLR 205 and Public Prosecutor v. Kerua & Ors [1985] PNGLR 85. From these cases, it is apparent that three principles are involved when it comes to determining the issue presented. These are set out in Keru’s case at page 90 in the following terms:

"The National Court has a discretion whether a sentence should be concurrent or cumulative but that discretion should be exercised in accordance with well-known principles. The latest local case on those principles is Acting Public Prosecutor v Konis Haha [1981] PNGLR 205. We follow that case and the useful statement of the English law found in Thomas, Principles of Sentencing (2nd ed), at 53-61). The first principle is what Thomas calls "the one-transaction rule": where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent. The Supreme Court in Tremellan v The Queen [1973] PNGLR 116 made the same point in different words (at 117): 'Although it is neither desirable nor possible to lay down any all-embracing rule as to when sentences for two or more convictions should be made concurrent, sentences should generally speaking be made concurrent where a congeries of offences are committed in the prosecution of a single purpose or the offences arise out of the same or closely related facts.'

The facts of Tremellan's case illustrate this rule. The counts were paired for stealing and for fraudulent and false accounting, and the Supreme Court on appeal imposed concurrent sentences. Other examples are a series of sexual assaults or frauds on the same victim. There can be exceptions to this rule and the Court of Appeal in England has upheld sentences which appear to offend this rule because the court considered that the totality of the sentence was correct. It is more a rule of thumb or a guiding principle than a strict rule and it is subject to the totality principle which we mention in a moment.

The second rule is that where the offences are so different in character, or in relation to different victims, cumulative sentences are normally applicable. Examples given by Thomas are burglary and violence to the householder, assault plus escaping from custody, and sexual assaults on different victims. Wari Mugining v The Queen [1975] PNGLR 352 affords a local example. Cumulative sentences were upheld for grievous bodily harm and assault with intent to commit rape. Konis Haha's case (supra) supplies another local example; cumulative sentences for robbery with violence and rape were imposed. This rule, like the first one, is flexible; it is a rule for guidance only and like the first rule is also subject to the totality rule.

The third rule, the totality rule or principle, is that when the sentencer has arrived at appropriate sentences and decided whether they should be concurrent or cumulative he must then look at the total sentence and see if it is just and appropriate. If it is not, he must vary one or more of the sentences to get a just total. The court must look at the total sentence and see if it is just and appropriate for the totality of the criminal behaviour."

These principles have been adopted and applied in many subsequent cases. An example of that is The State v. John Pesa [1994] PNGLR 317 at pages 320 to 322.

In the present case, the offences are totally unrelated. They were committed at two different places at two different times. The first offence was committed on the 7th of February 1999, at the Melanesian Hotel’s car park here in Lae, involving a female victim. The second offence was committed at West Taraka also here in Lae o the 4th of September 1998, involving a husband and wife victim. This therefore, qualifies this case for the sentence to be made cumulative having regard to the principles enunciated and applied by the cases cited above.

What is left for this court to do, is to decided whether the totality of the sentence to be served is appropriate. In other words I have to decide whether, the total sentence of 6 years is crushing on the Defendant. If the Defendant were given the maximum of five years each, he would have been looking at a total of 10 years. Further, if he was charged with the more serious offence of armed robbery under s. 386 of the Code and he pleaded guilty, he would have been looking at a minimum of 16 years going by the Tau Jim Anis & Ors v. The State (Unreported but number judgement of the Supreme court delivered on the 25th of May 2000) SC642 guidelines.

Given the serious circumstances in which the offences were committed and the communities call for tougher penalties against offenders in such circumstances, I consider giving a sentence to be served cumulatively, not so crushing against the Defendant who is over 24 years old. The Defendant will therefore, serve the total term of 6 years in hard labour. Of that 2 years 23 are deducted for the period spend in custody awaiting his trial on both offences.

Finally, the prisoner asked to be transferred to Barawagi in the Simbu Province where he originally comes from to serve the balance of his term of 3 years 11 months and 7 days. The State is not opposing that application. Therefore, the court recommends that the prisoner serve his term at Barawagi in the Simbu Province.
__________________________________________

Lawyer for the State: Public Prosecutor
Lawyer for the Defendants: Public Solicitor