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Gok, Public Prosecutor v [1977] PGSC 5; [1977] PNGLR 161 (2 June 1977)

Papua New Guinea Law Reports - 1977

[1977] PNGLR 161 - Public Prosecutor v Wiwi Gok�

[1977] PNGLR 161

SC115

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE PUBLIC PROSECUTOR

V

WIWI GOK

Waigani

Frost CJ Prentice DCJ Williams J

30 May 1977

2 June 1977

CRIMINAL LAW - Appeal against sentence - Inadequacy of sentence - General deterrent - Breaking and entering without lawful excuse - Term of six months� imprisonment substituted for recognizance to be of good behaviour for two years.

On appeal against inadequacy of sentence in circumstances where the respondent pleaded guilty to and was convicted of breaking and entering a dwelling house without lawful excuse, and sentenced to be discharged upon his entering into a recognizance in the sum of K200 to be of good behaviour for a period of two years, the evidence disclosed that the respondent, allegedly in company had broken into a house and entered it at night time, and was found asleep (and in an intoxicated state) under a bed in possession of a bottle of whisky and a knife, which the respondent stated was for scaring someone.

Held

The Court having unfettered discretion under s. 23 of the Supreme Court Act 1975, in all the circumstances including the apparent overlooking by the trial judge of the possession of the knife with, on the respondent�s admission, the intention of scaring someone, and the real need, having regard to the prevalance of the particular type of offence in Port Moresby, for a general deterrent, a sentence of six months� imprisonment should be imposed.

Appeal

This was an appeal pursuant to s. 23 of the Supreme Court Act 1975 against sentence on the ground of inadequacy.

Counsel

K. B. Egan, for the appellant.

W. Kaputin, for the respondent.

Cur. adv. vult.

2 June 1977

FROST CJ PRENTICE DCJ WILLIAMS J: This is an appeal brought by the Public Prosecutor pursuant to the Supreme Court Act, s. 23, against a decision of a judge of the National Court upon the ground of inadequacy of sentence. The case was heard on 24th November, 1976 at Waigani in the National Capital District.

The indictment contained two counts; one for breaking and entering a dwelling house in the night-time and therein stealing one bottle of whisky and a knife, the property of the householder, and the other for that the respondent on the same date without lawful excuse broke and entered the dwelling house.

The respondent was convicted following the entry of a plea of guilty to the second count. The sentence imposed was that he be discharged upon his entering into a recognizance in the sum of K100.00 to be of good behaviour for a period of two years.

It is convenient to refer first to the facts as contained in the depositions. Soon after the householder, accompanied by a friend, returned from the cinema, it was discovered that the house had been broken into during her absence. Security wire and flywire had been cut and two louvres removed. A man who proved to be the accused was found sleeping under a bed which was only about 8� from the floor. The fact that it was such a low bed had some relevance to the accused�s credibility as, in a question put by him in the committal proceedings, he claimed that he was tossed under the bed. He was not awakened until the police arrived. He then emerged by sliding out from beneath the bed. He appeared to be under the influence of alcohol. He was found to be in possession of a carving knife about 7� long and a bottle of whisky, nearly full, both of which had been removed from other parts of the house.

Later in an interview which was conducted with the accused he stated that after drinking with two other men at the Boroko Hotel they had gone to the house and decided to break into it. The accused stood watch outside. After the other two had finished breaking the house the accused went inside with them and, as he said, �they pulled the cupboard�, he got one knife and when he saw the whisky on the table he walked up and got it and went to the bedroom and slept. Asked what was in his mind when he got the knife and whisky, was he trying to do something silly on that lady or what, the accused replied that he had no intention �to do any trouble of that lady�, but he got the knife to scare anyone and run away. The interview was interrupted by a visit to the house, where the accused took the police to the back of the house and indicated the window in question as the place where entry was gained. The accused agreed that the record was correct when it was read over to him, but refused to sign it.

In his statement to the lower Court the accused said that two thieves had led him astray, and he slept in the house under the bed. If he was thinking of stealing anything he would have taken them and gone. He added that he thought that he was led by the two thieves to their house.

On arraignment, to the first count the accused said, �I thought the whisky and the knife belonged to the 2 men and they were giving them to me�. The trial judge accordingly entered a plea of not guilty on the ground that the theft was denied. To the second count the accused said, �It�s true I was wrong to go inside. I have no more talk about that�.

No application on behalf of the accused was made following this statement. Instead counsel for the accused in effect submitted that a plea of guilty should then be entered to this lesser charge. No objection was taken in this Court to that plea being entered.

On the allocutus the accused said, �The 2 men are at the moment at large, and I am the one who is now in Court. If it was my intention to steal, I would have left before the Police got there; but I thought it was the other 2 fellows� house, and I slept, and I was woken up by the Police. That is all.� Evidence of good character was then given to the Court by an Army officer, who had employed the accused as a domestic over a period of some 8 months prior to the trial.

In his judgment the trial judge said that the case was an unusual one in which inferences of widely-differing seriousness could be drawn from the facts. On balance he considered the prisoner�s story credible. We assume that the trial judge did not have in mind that part of the story that the accused thought that he was being taken to the thieves� house, and that the whisky and the knife belonged to the two men and they were giving them to him.

The trial judge saw it as a case of a man being found intoxicated and asleep under the bed, and he thought that his whole participation was coloured by his intoxicated condition. Taking into account the accused�s good character and the fact that he had been in custody (the period was four weeks), he considered the prisoner unlikely to offend again, so that a bond was in order.

However, there are two relevant considerations which in our opinion the trial judge overlooked. The first is that however he came by the knife, in fact on the respondent�s own admission he was in possession of it with the intention of scaring someone. The other was the real need, having regard to the prevalence of this type of offence in Port Moresby, for a general deterrent.

The basic facts, in our opinion, which the judge had to consider on sentence, were that the accused, in company as he alleged, had broken into the house and entered it at the night-time, and was found in a place of concealment in possession of the knife for the purpose stated. As experience has shown, when the intruder is armed there is a real risk that if confrontation does occur with a householder, violence will ensue.

Upon an appeal under s. 23 this Court has an unfettered discretion. Reg. v. Pia-Afu[clxii]¹. In all the circumstances we consider a custodial sentence should be imposed. It should be strictly related to the lesser offence, which carries a maximum of 3 years� imprisonment, to which the accused pleaded guilty. He was indeed fortunate that the prosecutor did not proceed to trial on the first charge in which the respondent�s unlikely story as to how he came into possession of the whisky and the knife would have been investigated.

N1>On the whole we consider a sentence of six months� imprisonment should be imposed. The appeal will be allowed, and in substitution for the order by the trial judge a sentence of six months� imprisonment will be imposed.

N1>Appeal allowed; sentence of six month�s imprisonment substituted for order of trial judge.

N1>Solicitor for the appellant: K. B. Egan, Public Prosecutor.

N1>Solicitor for the respondent: W. J. Andrew, Acting Public Solicitor.

[clxii][1971-72] P. & N.G.L.R. 393.