Misek v Roy [2007] PGDC 137; DC720 (9 January 2007)

DC720

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS GRADE FIVE CRIMINAL JURISDICTION]

GFCr 65 of 2007

BETWEEN

KUMUEWA MISEK
Informant

AND

OKU ROY
Defendant

Goroka: M Gauli, PM
2007: January 09

CRIMINAL - Particular offence – Breaking and entering a dwelling house – Entered by removing strips of timber affixed to the window – Meaning of break and enter – Unsworn statement of defendant – Weight on unsworn statement.

Cases Cited:
1. Regina –v- Kor Gabril [1973] PNGLR, 740
2. Regina –v- Witrasep Beningim [1975] PNGLR, 95
3. Koniel Alar and Hosea Biu –v- The State [1979] PNGLR, 33
4. Regina –v- Ulel [1973] PNGLR, 254
5. Regina –v- Daugamani Adamanika [1965-66] PNGLR, 80
6. Public Prosecutor –v- Wiwi Gok [1977] PNGLR, 161

References:
Nil

Counsel:
For the Prosecution – Senior Sergeant Mark Yamuje, Goroka Police Station
For the Defendant – In Person

09 January 2008

DECISION OF THE COURT

M Gauli, PM: The defendant Oku Roy, a male aged 18 years stands trial before this Court on a charge of breaking and entering a dwelling house. It alleged that on the 02nd of October 2007 in Goroka town, the defendant broke into and entered a dwelling house of one Paddy Fagan, thereby contravening Section 395 (1) (a) of the Criminal Code Act, Chapter 262 of the Revised Laws of Papua New Guinea. This provision states and I quote:

“A person who –

(a) breaks and enters the dwelling-house of another with intent to commit a crime in it _ _ _ _ is guilty of a crime”.

2. Facts

That on the 02 of October 2007 at about 4:30 in the morning, the defendant Oku Roy removed two strips of timbers (10 cm x 2 cm) that were vertically nailed with 4 inch nails to close the window at the kitchen area. He then entered through the opening. The occupants were awakened by their small puppy barking in the living room and they found the defendant standing against the wall in the kitchen area. He did not steal anything from the house. The house belongs to Paddy Fagan and is located at Section 41 Lot 5 at Maiya Street, Kama, West Goroka.

3. Issue

There is only one Issue for this Court to determine and that is:

“Whether or not the defendant broke the window and entered the house”.

4. Evidence

The prosecution called three witnesses namely Elizah Fagan, Paddy Fagan and the police informant Kumuewa Misek. The defendant gave unsworn statement. He had not witnesses.

5. For the prosecution’s evidence, witness Elizah Fagan, who is the son of Paddy Fagan gave sworn evidence that some two or three months before the 02 of October 2007, their house was broken into and some items being stolen. The kitchen window has no louver blades nor security wire affixed to it. So they nailed down three strips of 10 cm x 2 cm swan timber to the opening of the kitchen window vertically with 3 inch or 4 inch nails. On the early morning of the 02 of October 2007 about 4:30 am, he was awoken by the barking of their small puppy in the living room. He came out of his bedroom and he went straight to the kitchen. He noticed the kitchen light which they usually leave it on at night was been switched off. And when he switched on the light in the kitchen he saw the defendant standings against the wall. Elizah asked him what he was doing there. And the defendant responded saying, “Two men held me and pushed me into this house.” At that time his father Paddy Fagan, who was sleeping in the living room, woke up.

6. In the morning about 6:00 o’clock upon inspection of the window, he noticed that two of the three strips of timbers nailed onto the kitchen window were removed. One of them was found on the ground while the other timber was hanging down on the window. When the two strips of timbers were removed the space was large enough for a grown up person to enter in. However when the three strips of timbers were affixed to the window, the gap in between is too small for even a boy to slide in. They then referred the defendant to the police in Goroka.

7. The evidence of witness Paddy Fagan only corroborated and affirmed the evidence of Elizah Fagan his son. He said he was so sound asleep in the living room that early morning that he did not even feel the two timbers on the window been removed and the defendant gained entry. He only woke up when his son Elizah was questioning the defendant as to what he was doing there. By the time he woke he saw the defendant standing against the wall near the front main door at the living room. And he also asked the same question and the defendant repeated with the same answer.

8. The witness Kumuewa Misek, the police constable who arrested the defendant, gave evidence that during the record of interview the defendant has admitted the offence and he also made a confessional statement. In his confessional statement (EXHIBIT ‘B’) he said that two men held him at the hospital gate and took him down to Maiya Street. The two men opened the gate of one of the house and they pushed him through the opened window. He did not know what to do as a puppy was barking at him in the living room. And he was just standing there when the owners of the house woke up and assaulted him before they took him up to the police.

9. The defendant in his unsworn statement in Court repeated the same in his confessional statement. The two men used him as their spy to see how many people were inside the house but he was caught while inside the house and he did not steal anything in the house.

10. I now consider the Issue: “Whether the defendant broke the window and entered the house.”

11. From the evidence as it stands there is no dispute that the defendant entered the house through the window and he was caught while inside the house. But the question is – did he break the window and gain entry.

12. No one saw him removing the two timbers from the kitchen window. And no one inside the house heard him removing the timbers from the window. The prosecution’s evidence is that three pieces of timber sizes 10 cm x 2 cm, were permanently affixed to the kitchen window with 3 inch or 4 inch nails to prevent anyone from getting into the house through that window because that particular did not have louver blades nor security wires on it. Those pieces of timbers were still affixed to that window when they went to sleep that night. As far as the prosecution’s witnesses are concerned, that window was closed and was never left open that night immediately before this incident.

13. The defendant claimed that the window was left open already when he was pushed through that window by two unknown men. He gave unsworn statement. The common law gives him that right to make an unsworn statement which is applied in our jurisdiction in the case of Regina –v- Kor Gabril [1973] PNGLR 740. The question is what weight should be given to unsworn evidence compared to sworn evidence. His Honour Frost CJ said in the case of Regina –v- Witrasep Beningim [1975] PNGLR 95 at page 96 as follows”

“There are two mattes of law which I should advert. The first is the weight to be given to the accused’s unsworn statement. I take the law to be as laid down in Peacock –v- The King, that the prisoner’s statement is to be taken as prima facie a a possible version of the facts and considered with the sworn evidence, giving it such weight as it appears to be entitled to in comparison with the facts established by evidence, (per Griffiths CJ at pp. 640 – 641).”

14. His Honor then went on to say and I quote:

“It is largely upon the accused’s unsworn statement that Mr. Kaputin relies, but having given consideration to it together with other evidence I am unable to attach any weight to it.”

15. Justice Wilson in a Supreme Court hearing in an appeal case of Koniel Alar and Hosea Biu –v- The State [1979] PNGLR 33 has this to say regarding the weight on unsworn evidence:

“Broadly speaking, these cases lay it down that, if a defendant disputes circumstances of aggravation alleged in sworn evidence from the prosecution, he must do so by sworn evidence from himself or someone else, if on the other hand the aggravating matter is not sworn to and is only alleged on one hand, and denied on the other, in an unsworn form then it is the duty of the trial judge to act upon the version of the facts which, within the bounds of reasonable possibility, is most favourable to the accused. Mailand’s case _ _ _ but it is of great important, despite whatever inconvenience may be caused, that the right of the defendant should be preserved to have nothing beyond the essential legal ingredients of the crime assumed against him if it is denied by him, unless and until it is proved to the satisfaction of the Court by sworn evidence subject to cross-examination.”

16. I quite agree with his Honour’s decision here that where the sworn evidence alleged the aggravating matters the defendant’s denial to those aggravating matters need to be made on sworn evidence. The failure by the defendant to provide sworn evidence would mean that unsworn evidence may have less weight attached to it. Justice Clarkson in the case of Regina –v- Ulel [1973] PNGLR 254 held that and I quote:

“(4) Accordingly, when an accused makes an unsworn statement, it should be taken as prima facie a possible version of the facts, and should be considered with the sworn evidence, giving it such weight as it appears to be entitled to in comparison with the facts clearly established by the evidence. Peacock –v- The King [1911] HCA 66; (1911), 13 C.L.R 619 followed.”

17. In the present case the aggravating matters sworn was that three pieces of timbers were nailed vertically on the window to prevent persons from gaining entry through it. Those timbers were permanently affixed on the night of the incident. The defendant in his unsworn statement said that he was pushed through that window by two unknown men by force. The window was already opened then. However he did not resist the force being applied on him by the two men nor did he do anything to alert the occupants of the dwelling house when he was pushed into the house even though the owner of the house was sleeping in the living room. I am not convinced by the defendant’s unsown statement of him being pushed through the already open window by two unknown men.

18. The terms “breaking” and “entering” are defined by Section 394 (1) and (2) of the Criminal Code Act in these terms:

“(1) A person who –

(a) breaks any part, external or internal, of a building; or

(b) opens, by unlocking, pulling, pushing, lifting or any other means, any door, window, shutter, cellar, flap or other thing, intended to close or cover an opening a building, or an opening giving passage from one part of a building to another, shall be deemed to break the building.

(2) A person is said to enter a building as soon as any part of his body or any part of any instrument used by him is within the building.

19. I find from the evidence as presented before this Court that defendant did remove the timbers that covered the window and he entered the building. I find beyond doubt that he broke and entered the building. And I find him guilty as charged. The case of Regina –v- Daugamani Adamanika [1965 – 55] PNGLR, 80 applied.

20. Sentence

The penalty for breaking and entering a dwelling house is a term of imprisonment not exceeding 14 years or life imprisonment where the offence is committed at night. There is no dispute that the offence was committed at night therefore the defendant is liable to life imprisonment. Under Section 420 of the Criminal Code Act Ch. 262 where a person is charged with an indictable offence which is triable summarily as a Schedule 2 offence, the maximum sentence the Grade Five Court Magistrate can impose is a sentence up to ten (10) years. The offence of breaking and entering a dwelling-house under Section 395 of the Criminal Code Act is a Schedule 2 Offence regardless of the offence being committed at night.

21. The National Court in the case of Regina –v- Daugamani Adamanika [1965 – 66] PNGLR, 80 sentenced the accused to two (2) years imprisonment for breaking and entering a dwelling house by pushing open the unlocked and unlatched door and was apprehended while standing near the refrigerator. In the case of Public Prosecutor –v- Wiwi Gok [1977] PNGLR, 161 on appeal for inadequacy sentence, the Supreme Court substituted the two years good behaviour bond imposed by the National Court for breaking and entering a dwelling house to a custodial sentence of six months. I am unable to sight any recent cases by the National Court in respect of the similar offences to assist me in considering the sentence I should impose. However these two cases cited above clearly calls for custodial sentence for the offence of this nature.

22. I consider the defendant’s mitigating factors as well. He is a single young man aged 18 years. He is a villager. He has one prior conviction for drug offence. He was sentenced to three months in hard labour by Goroka District Court on 03 of March 2007 for that offence. Though the present charge is different from his previous convictions, he does have a prior conviction. The present offence was committed only seven months after his prior conviction and only four months after he served his previous sentence.

23. I consider that a custodial sentence of twelve (12) months is appropriate in the circumstances of the case. Accordingly I convict the defendant and sentence him to 12 months imprisonment in hard labour. I deduct three (3) months one (1) week for time in custody. He is to serve out the balance of 8 months 3 weeks in jail.

For the Prosecution – Senior Sergeant Mark Yamuje, Goroka Police Station
For the Defendant – In Person