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State v Ila [2018] PGNC 170; N7262 (15 May 2018)

N7262

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1451 OF 2017

THE STATE

V

ILAGI ILA

Lae: Numapo AJ
2018: 18^th & 23rd April, 04^th & 15^th May

CRIMINAL LAW – Particular offence - Unlawful Use of Motor Vehicle – Plea of Guilty- Prisoner not involved in the actual Robbery – Driver of the vehicle after it was stolen - Actively involved in Concealing the Vehicle thereby Depriving the Owner of his vehicle - Very Remorseful- Court has Wide Discretion on Sentence – Sentenced to three years imprisonment – Part of the Sentence Suspended and Prisoner placed on Good Behavior Bond - Sections 383 and 19 of Criminal Code.

Held:

(i) Unlawful use of motor vehicle associated especially with armed robbery is becoming too prevalent.

(ii) Useful sentencing guidelines on unlawful use of motor vehicle found in The State v James Gurave Guba [2000] Unreported National Court Judgment N2020.

(iii) A deterrent sentence is needed to demonstrate community’s disapproval of the crime.

(iv) Prisoner sentenced to three (3) years partially suspended to be placed on a good behavior bond for a period of two (2) years after serving imprisonment term of one (1) year.

Cases cited:

The State v Dickson Talu, Cr. No. 1385 of 2004
The State v Jackson Ananias N3161 of 2006
The State v Rocky Graham Wesley Cr. No. 285 of 2014
The State v Tenson Guba Cr. No. 320 of 2016
The State v Wakai [2006] N165 of 2006

Counsel:

C. Langtry ,for the State
S. Katurowe, for the Defence

SENTENCE

15^th May, 2018

1. NUMAPO AJ: This is the decision on sentence. The accused pleaded guilty to one count of Unlawful Use of Motor Vehicle contrary to section 383 (1) (a) of the Criminal Code and was convicted accordingly. The brief facts are that: On the 12^th of November 2016 between 3:00pm and 5:00 pm the prisoner was with three of his accomplices at Limki settlement in Lae when they held up the complainant, Jack Benny with a homemade staple gun and stole the vehicle from him and drove to Watarais, Markham along the Okuk highway without his consent. The prisoner was the driver of the vehicle. The prisoner told the Court that he only drove the vehicle after it was stolen and that he was not involved in the actual robbery. He said he was threatened and forced to drive the vehicle by those who stole the vehicle. A few days later the prisoner was apprehended at West Taraka and he took the Police up to Watarais and showed them where the stolen vehicle was hidden. At Watarais whilst the Police were inspecting the stolen vehicle the prisoner escaped. He was later recaptured, arrested and charged.
   

Sentencing Trend – Unlawful Use of Motor Vehicle

2. The offence of Unlawful Use of Motor Vehicle under section 383 (1) (a) of the Criminal Code carries a maximum of penalty of five years imprisonment. It is trite law that the maximum penalty should be reserved for the worst type offence. See Goli Golu v The State [1979] PNGLR 653.
   
3. The current sentencing trend for this offence appears to be between 2 – 3 years as the head sentence with most starting at the lower end of the scale. Some useful guidelines on sentencing for unlawful use of motor vehicle can also be found in the case of The State v James Gurave Guba [2000] Unreported National Court Judgment N2020 and followed later in The State v Jimmy Banes Fre [2002] N2254. In these cases, his Honour Kandakasi J proposed some sentencing tariffs based on different levels of criminal culpability and suggested four broad categories as follows:
   
   • (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 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) exits. 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; and
  
• (d) The offence does not fall under (a) (b) or (c) but 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.
  

4. His Honour proposed that a category (a) offence should attract sentences between 4 and 5 years, a category (b) offence should attract a sentence of between 3 and 4 years, category (c) offence a sentence between 1 to 3 years and a category (d) offence should attract 1 year.
   
5. The proposed sentencing guidelines was however, viewed by some as taking away the discretion of the sentencing authority and the view held was that the exercise of sentencing discretion should be left to the trial judge and not prescribed by case law with some rigid formula that is tantamount to usurping the function of the legislature. See: Per Kirriwom J in The State v Jackson Anias Ananias [2006] N3161.
   
6. I am not aware of any sentencing tariffs set by the Supreme Court for the offence of unlawful use of motor vehicle in the same way as it did, for example, in homicide cases as set out in Manu Kovi v The State [2005] SC789 of 31 May 2005.
   

Whilst I agree with the view that sentencing discretion should be left to the trial judge alone, I also accept that sentencing guidelines are necessary to ensure that there is some degree of uniformity, parity and consistency in sentencing for like cases. As they say; ‘like cases must be treated alike’.

Appropriate Sentence

7. The common law principles on sentencing provide some guidance on sentencing to achieve certain outcome, purpose or objective such as deterrence, rehabilitation, restitution and retribution. The Courts have, over the years, being guided by these principles in imposing sentences that aims to achieve certain specific outcomes both for the offender himself, the victim and the community at large. In general, any sentence imposed by the court must be appropriate, just and fair that fits the crime taking into account all the relevant factors (aggravating and mitigating) including extenuating circumstances. The sentence must also reflect the views of the society at large such as for example, society’s reaction towards a particular type of offence, the prevalence of the offence and the economic costs to the country associated with the type of offence.
   
8. Both Counsels submitted that this case does not fall into the category of worst cases and invited the Court to consider the relevant aggravating and mitigating factors contained in their respective submissions and decide on the appropriate sentence. Counsels further urged the Court to impose a sentence that is consistent with the current trend on sentencing for the offence of unlawful use of motor vehicle and proposed that the head sentence of between 2 – 3 years to be imposed but that it is to be partially suspended with the prisoner entering into his own recognizance and be placed on a good behavior bond. A number of case laws similar in circumstances to the present case were cited to assist the Court and I refer to some of them here below:
   
   • (i) In The State v Jackson Anias Ananias (supra), the prisoner was not part of the gang that robbed the owner of his vehicle but was invited by the robbers to ride in the vehicle whilst knowing that the vehicle was a stolen vehicle. He pleaded guilty and was sentenced to 2 years imprisonment from which 1 year and 5 months were deducted for pre-trial custody and the balance of 7 months was suspended because of prisoner’s ill-health and he was placed on 2 years good behavior bond.
     
   • (ii) In another similar case of The State v Dickson Talu, CR 1385 of 2004, the prisoner did not take part in the robbery but was invited to jump into the vehicle to go for a ride knowing that it was a stolen vehicle. The prisoner was sentenced to 2 years which was partly suspended.
     
   • (iii) In The State v Wakai [2006] N165 of 2006, the prisoner took possession of the vehicle in the pretext of going to the hospital to visit his sick mother but instead he picked up another three prisoners – one of whom a police officer and used the vehicle to confiscate the two illegal horse race machines in Hanuabada and Hohola. The Court held that the prisoners had no lawful authority to use the vehicle for purposes of confiscating those machines and sentenced each of them to 4 years imprisonment. Two years were suspended on condition that each of the prisoners entered into their own recognizance in the sum of K1000 surety and keep the peace and be on good behavior for 2 years after the completion of their sentences.
     
   • (iv) And finally, in The State v Rocky Graham Wesley Cr. No. 285 of 2013 and The State v Tenson Guba Cr. No. 320 of 2016 the prisoners were sentenced to 2 years imprisonment in both cases for actively participating in the armed robbery with the use of dangerous weapons namely, home made shot guns that led to the stealing of the vehicle.
     
9. Two years appears to be the starting head sentence in most cases for the offence of unlawful use of motor vehicle. And in many of the cases the sentence is partially suspended after serving part of the term in prison and the prisoner is given a good behavior bond with certain conditions imposed. Factors such as the degree of the prisoner’s involvement in the commission of the crime and whether or not he played a major or minor role are all taken into account in determining the appropriate sentence. It is obvious from the case laws cited above that suspended sentence is given to those who played a minor role or became involved after the robbery has been committed. See Re: State v Jackson Anias Ananias (supra) and State v Dickson Talu (supra).
   
10. It is common knowledge that the offence of unlawful use of motor vehicle especially following an armed robbery commonly referred to as ‘carjacking’ is becoming too prevalent and is happening regularly in our major towns and cities around the country. The media is full of such reports on armed robberies and stolen motor vehicles almost on a daily basis. For this reason the Court must impose a sentence that reflects the prevalence of such offence and the community’s dislike towards it. A sentence that will also serve as deterrence to the offender himself and others that the Court will not tolerate such unlawful behaviour and those who are caught committing the offence can expect nothing less than a custodial sentence.
    

Present Case

11. In deciding the appropriate sentence, I consider the following:
    
    1. The relevant facts and the circumstances of the case – this is contained in the State’s brief facts including the committal depositions and other relevant statements tendered in Court.
       
    2. The nature of the offence and any special features (if any) about it – this can be ascertained from the Counsel’s address to the Court.
       
    3. The aggravating and mitigating factors including extenuating circumstances– this is contained in the respective submissions made by Counsels.
       
    4. What should be the appropriate sentence for the accused in this case? – this is also contained in the Counsel’s submission recommending range of head sentences and type of sentence available both custodial and non-custodial based on current trend for consideration by the Court.
       
12. The Aggravating factors are as follows:
    
    • (i) Unlawfully use of motor vehicles especially associated with armed robbery is becoming too prevalent in recent times.
      
    • (ii) Prisoner acted in concert with others.
      
    • (iii) The vehicle was taken from the owner through threats and intimidation.
      
    • (iv) Prisoner was the driver of the stolen vehicle and actively participated in committing the offence.
      
    • (v) Prisoner drove the vehicle some 160km to Watarais out of Lae City and concealed it with an intention to permanently deprive the owner of his vehicle.
      
    • (vi) Prisoner escaped from the scene after showing the Police where he hid the stolen vehicle.
      
    • (vii) Expenses were incurred by the State to search for the prisoner and have him re-arrested after he escaped at Watarais.
      
13. The Mitigating factors are as follows:
    
    • (a) Pleaded guilty early.
      
    • (b) First time offender.
      
    • (c) Expressed remorse.
      
    • (d) Prisoner was badly assaulted by Police during his apprehension which resulted in him losing four of his front teeth.
      

To the Prisoner

14. I consider the following in your favour:
    
    • (i) You pleaded guilty early to the charge saving the Court valuable time and resources.
      
    • (ii) You are a first time offender.
      
    • (iii) You expressed remorse and apologized to the Court and the victim of this offence.
      
    • (iv) You have two wives and the only bread-winner for the family.
      
    • (v) You gave an undertaking to the Court that you will not get into trouble again with the law.
      
    • (vi) You lost four of your front teeth at the hands of the Police during your arrest.
      
15. Against you, I observe the following:
    
    • (i) You played a big part in concealing the vehicle by driving it some 160km out of Lae City after it was stolen and hid it at Watarais with an intention to permanently deprive the owner of his vehicle.
      
    • (ii) The offence of unlawful use of motor vehicle associated with armed robbery has become too prevalent in recent times.
      
    • (iii) Although you were not involved in the actual robbery your involvement in driving the vehicle away knowing that it was a stolen vehicle makes you equally culpable with your other accomplices. You all acted in concert to commit the crime.
      
    • (iv) You had the opportunity to say ‘no’ or better still report the matter to the Police when you were approached by those who stole the vehicle to drive it but you didn’t. You said you were threatened and forced to drive the vehicle but I find this hard to accept.
      
    • (v) You led the Police to Watarais to retrieve the stolen vehicle at the location where you hid it and whilst the Police were in the process of retrieving it you escaped and was later apprehended. This indicated to me that you have not cooperated well with the Police and as a result the State had incurred additional expenses to look for you and arrest you again.
      
16. The aggravating factors and circumstances in my view outweighs the mitigating factors and this will be reflected in my decision on sentence.
    
17. Finally, I note from your Pre-Sentence Report that you are married to two wives. The first wife has five children mostly teenagers and some live in Aroma in the Central Province and some in Port Moresby. Your second wife has two young children and lives with you here in Lae. You worked as a truck driver previously with ABCO Transport and currently with Balus Numba Transport since 2014 but lost your job as a result of this case. You asked the court to consider your personal family circumstances as you are the only bread winner for the family and your two wives are both unemployed. Unfortunately, I must tell you that personal reasons and circumstances are not considered as adequate mitigating factors and therefore, cannot go in your favour. Any form of incarceration will always cause hardship on family members and close relatives. It has always been said that these are the consequences one should have thought about before committing the offence. Part of that means that you must be prepared to face up to the prescribed penalties set out under our laws and the hardship that may follow from any such consequences. The hardship that will be faced by your family must be balanced with the seriousness of the offence committed and the importance of making it clear that those who commit such offences must expect a custodial sentence.
    
18. Based on what I said above, I will impose a custodial sentence on you for the offence you committed and am doing that for two reasons; firstly, to reflect the seriousness of the offence and secondly, that the offence of unlawful use of motor vehicle associated with armed robbery is becoming too prevalent around the country in recent times and the Court must show its disapproval by punishing the perpetrators of such crimes with a sentence that would have a punitive effect.
    
19. Your lawyer has asked the Court to consider giving you a non-custodial sentence but I do not think justice of the case will be best served if I do so. Sending you to prison in my view would be an appropriate penalty as it will also serve as deterrence to you and other like-minded people to think twice before committing such offence. You gave an undertaking to the Court that you will not get into trouble again in future and I hope you can keep your word.
    

Sentence

20. The sentence of the Court is in the following terms:
    
    1. I sentence you to three (3) years imprisonment.
       
    2. Nine (9) months is deducted for the time you spent in custody awaiting this trial. This now leaves you with a balance of two (2) years and three (3) months.
       
    3. In the exercise of my discretion under s. 19 of the Criminal Code, I suspend fifteen (15) months from the balance of your term of imprisonment on the condition that you enter into your own recognizance to keep the peace and be of good behavior for a period of two (2) years after you have completed your prison term.
       
    4. I sentenced you to serve the balance of twelve (12) months imprisonment.
       

Orders Accordingly.

__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defence