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State v Ere [2002] PGNC 79; N2254 (24 July 2002)

N2254

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1748 of 2001

THE STATE

-V-

JIMMY BANES ERE

WAIGANI: KANDAKASI, J.
2002: 9th, 19th and 24th July

DECISION ON SENTENCE

CRIMINAL LAW - Sentence - Unlawful use of motor vehicle – Vehicle stolen during armed robbery but recovered in good condition – Guilty plea – No prior convictions - Criminal Code ss. 383, 386 and 19.

Cases cited:
The State v. Sabarina Yakal [1988-89] PNGLR 129.
Dori Inaria v. The State (unreported judgement delivered 10/07/02) SC688.
The State v. James Gurave Guba (unreported judgement delivered 19/12/99) N2020.
The State v. Jason Dongoia (unreported judgement delivered on 13/12/00) N2038.
The Supreme Court in The State v. Danny Sanu & Ors [1983] PNGLR 396.

Counsel

Mr. Kaluwin and Mr. Tabie for the State
Mr. G. Korei and Ms. S. Maliaki for the Prisoner

24th July 2002

KANDAKASI J: On the 9th of this month you pleaded guilt to one charge of unlawful use of a motor vehicle on the 8th of September 2001, at Gabutu, here in the National Capital District. After having satisfied myself that the facts disclosed in the depositions supported your guilty plea, I accepted your guilty plea and convicted you on the charge. I then proceeded to hear submissions from both your lawyers and that of the State’s. Your case was then adjourned for a pre-sentencing report.

The pre-sentencing report was furnished to this Court on the 19th of July 2002, with copies to yourself through your lawyer and the State through its lawyers. On the same day, I heard further submissions based on the pre-sentencing report. A decision on your sentence was then reserved to a date when the Court is ready. This is now the decision of the Court.

For the purposes of determining an appropriate sentence for you, I must have regard to the particular facts of your case. These can be ascertained from the facts as they were put to you at the time of putting the charge to you and those that appear in the District Court depositions, which were admitted into evidence without any objection from you. This was in conformity with a large number of authorities supporting the use of the depositions to extract the relevant facts. One of the authorities on point is The State v. Sabarina Yakal [1988-89] PNGLR 129. A recent example is the Supreme Court judgement in Dori Inaria v. The State (unreported judgement delivered 10/07/02) SC688. All of these authorities confirm the existing practice of the courts invariably reading the depositions and using them following a guilty plea to determine appropriate sentences. In the case of The State v. James Gurave Guba (unreported judgement delivered 19/12/99) N2020, I expressed the view that:

"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."

The relevant facts in your case are these. On Saturday, the 8th of September 2001, a Stanley Joyce was held up by 4 armed criminals at Gabutu near Don Bosco College and Patrick Transport at about 6:05 p.m. He lost a number of his personal belongings and at a motor vehicle he was driving at the time, a Toyota Camary, registration number BAY 454. A witness saw you driving into a party place at Konedobu along the Karius Road that vehicle. At that time, you had three others with you in the vehicle. Those three people were identified as Kaita Mennedy, Augo Evara and Chris Utu Gigimo. This was between 9:00 – 10:00 p.m. The vehicle was abandoned there before the police caught up with it. Prior to that, between 8:00 – 9:00 p.m., you were seen by another witness driving past in the same vehicle near the Kaugere Police Barracks. In your record of interview, you chose to remain silent, except to say that you were at your house at about the time of the offence. You have now freely admitted to the charge of unlawful use of the motor vehicle that was stolen in the robbery and abandoned at Konedobu.

There is no explanation from you as to how you got into the vehicle. The law permits this Court to draw such inferences as are reasonably dictate to by the available evidence in the absence of any evidence to the contrary. I therefore turn to the available evidence for assistance on the lack of explanation.

The evidence against you points to you driving the vehicle shortly after the robbery had taken place. You were seen with three others. In these circumstances, it is reasonable to infer that, you drove the vehicle after taking it by force from its driver during the robbery and I so find. There is no other competing inference. Indeed the pre-sentencing report states that you deny being the mastermind behind the robbery but one of your friends was.

I now proceed to consider your sentence. Your lawyers argue for a sentence between a few months to 3 years all suspended. The State on the other hand argues for a part custodial and part suspended sentence. The State otherwise agrees with your lawyers that an appropriate sentence for you is in the range of a few months to 3 years. Reference is made to my judgement in the case of The State v. James Gurave Guba (supra) where I tried to provide some guidelines for sentencing in unlawful use of motor vehicle cases.

I spoke of four broad categories in this way at page 7 of the judgement:

"(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."

Before coming to the above, I referred to my earlier judgement in The State v. Jason Dongoia (unreported judgement delivered on 13/12/00) N2038, at page 6 of that judgement where I said:

"In 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 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. It is subject to the provisions of s. 19 of the Code: see The Supreme Court in The State v. Danny Sanu & Ors [1983] PNGLR 396.

In the James Gurave Guba (supra) I imposed a sentence of 3 years after finding that the case fell into the first category. The main reason for arriving at that sentence despite the prevalence of the offence of armed robbery and unlawful use of motor vehicle were, that there was a guilty plea, the prisoner had no prior convictions. I also noted that the vehicle was recovered with no damage and that no one was injured in any way.

In your case I find that you used the vehicle unlawfully after forcefully removing it from its lawful driver and or its owner during an armed hold up and robbery. Fortunately, neither the vehicle nor any body else sustained any injury or damage. The vehicle was recovered the same day in good condition. I agree that, your case may fall into category (c) or (d). However, I note that this offence was committed in the course of or out of another offence. Both these offences are serious and are being committed almost every day. In the city of Port Moresby there are more than just one robbery and unlawful use of a motor vehicle every day. Therefore a deterrent sentence is called for.

At the same time, however, I must take into account the recommendations of the Probation Services. It recommends that you be given a non-custodial sentence, because in the assessment of that service you are suitable for its supervision in a reformation program. They make that recommendation on the basis that, you have pleaded guilty and have expressed remorse for the wrong you brought upon the community. You are prepared to change and that you will not get into any other trouble again. The recommendation also reflects the fact that, you have no prior conviction.

The State whilst agreeing to a sentence between a few months to 3 years, it argues that the sentence must be made part custodial and part suspended. This it submits is to show the community’s disapproval of the kind of conduct you engaged in and to deter other would be offenders.

After a careful consideration of all of the above, I consider a sentence of 3 years appropriate. I consider it appropriate that part of that sentence should be custodial and part of it should be suspended on terms. Of that, I consider 1 year custodial appropriate. Of that the period of 9 months already spent in custody from the date of arrest being the 9th of October 2001 shall be deducted leaving 3 months more to be spent in custody. The balance of 2 years shall be suspended on the following terms upon you meeting the first two terms:

1. You immediately enter into your own recognition to keep the peace for the currency of your suspended sentence;
   
2. You pay into the National Court a sum of K500.00 as surety for faithfully meeting the terms of this order to be refunded at the expiry of the full suspended term upon the confirmation of faithful compliance from the Probation Service;
   
3. You render four hours free community service each Mondays and Thursdays by cleaning the Kaugere Police Barracks and the Kaugere Clinic under the supervision of the Probation Service in consultation with the Kaugere Police Barracks Commander and the Officer in Charge at the Kaugere Clinic for the whole of the suspended sentence;
   
4. Be at Foursquare Church at Kaugere every Sundays attending church and rendering such free community service as the leaders of that church may direct in close consultation with the Probation Services of the Department of Attorney General for the whole of your suspended sentence;
   
5. You be home bound between the hours of 6:00 pm and 5:00am at Kaugere National Capital District for the whole of your suspended sentence;
   
6. You do not leave the National Capital District without leave of this Court on prior application during the currency of your suspended sentence;
   
7. You do not consume any alcoholic drink at anytime anywhere during the whole of you suspended sentence period;
   
8. Not to be in the company of any male youths except for a biological relation, at anyone time for the whole of your suspended sentence;
   
9. You will allow for and permit Probation Services to visit your home on a regular basis to monitor your compliance of these terms and to make such recommendations, as they consider appropriate either for a variation or an implementation of these terms;
   
10. The Probation Service will attend on you each quarter to do a comprehensive review and report to this court of your compliance of these terms.
    
11. If for whatever reason you breach any of these terms, you will serve the balance of the term of your suspended sentence as at the time of the breach;
    
12. You will be at liberty to apply for a review and or variation of any of these terms supported by appropriate evidence or material.
    
13. You accept that any member of your family or community will be at liberty to report to this Court of a failure to meet any of these conditions without any prior notice or warning to you.
    

I make orders in terms of the above.
_______________________________________________________________________
Lawyers for the State: Public Prosecutor
Lawyers for the Prisoner: Public Solicitor