Dala v Tom [2007] PGDC 85; DC610 (20 July 2007)

DC610

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

GFCr 31 of 2007

BETWEEN

REX DALA
Informant

AND

MINI TOM
Defendant

Goroka: M Gauli, PM
2007: July 20

CRIMINAL - Particular offence – Stealing - Plea – Guilty – Youthful first offender – Student in a primary school – Sentence – Own recognizance.

Cases Cited
The State –v- Manga Kinjip [1976] PNGLR 86
Wellington Belawa –v- The State [1988–89] PNGLR 496
Kuri Willie –v- The State [1987] PNGLR 298
The State –v- Akena Pawa [1998] PNGLR 387
Acting Public Prosecutor –v- Joe Kove Mailai [1981] PNGLR 258

References
1. Criminal Code Act, s. 19 (1) (e)
2. District Courts Act, s. 132 (1) (e)

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

20 July 2007

SENTENCE

M Gauli, PM: The defendant Mini Tom pleaded guilty to a charge of stealing properties belonging to one Ken Karu valued K3, 985.40 on 20 May 2007 at Ivangoi village, Okapa District of the Eastern Highlands Province. He is charged under Section 372 (1) of the Criminal Code Act, Chapter 262, which states that:

“A person who steals anything capable of being stolen is guilty of a crime.”

2. Facts

The facts which the defendant pleaded guilty to the charge are as follows. In about March 2007 the keys for the dwelling house, a poultry shed and the trade store belonging to Mr. Ken Karu went missing. On the 20 of May 2007 a cash amount of K3, 400.00 plus other goods including clothes, blankets, cooking utensils, tools, biros, soap, nails and other items were stolen from Ken Karu’s house and the trade store. On the 21 of May 2007 all those stolen items were found in the possession of the defendant in his house. The defendant was in house when he was caught red handed by Roger Kavu.

3. The defendant in his statement of defence said that this is his first time to appear in any Court. He is a student at Ivangoi Primary School doing grade seven (7) this year. He is sorry for what he did and he promised that he will not do this again. He asked the Court for leniency.

4. I have considered his plea of guilty, the statement of facts and the depositions in the file tendered by police prosecutor. I am satisfied that the defendant has made his plea in plain and unambiguous terms. In the case of The State –v- Manga Kinjip [1976] PNGLR 86, at 87 O Leary AJ said and I quote: “It is well established that the judge should only accept a plea of guilty to a charge if it is made in plain, unambiguous and unmistakable terms. If it is not, he should refuse to accept it and should direct a plea of not guilty be entered _ _ _.” Having considered the statement of facts and the defendant’s plea, I am satisfied that it is safe to accept his plea of guilty. Accordingly I find the defendant guilty as charged.

5. Sentence

I consider the sentence to be imposed. The penalty for stealing under Section 372 (1) of the Criminal Code Act is a term of imprisonment not exceeding three years. I also take into account of the defendant’s mitigating factors. He is aged 18 years. He is a first time offender. He is a youth and he has pleaded guilty to the charge. He is also a student doing grade seven at Ivangoi Primary School. He is very remorseful and truly sorry for the crime he had committed. And he promised not to repeat this again.

6. The case of Wellington Belawa –v- The State [1988 – 89] PNGLR 496 sets out the sentencing tariffs on stealing charges. By this case principle the defendant would be imprisoned up to two (2) years. In the case of Kuri Willie –v- The State [1987] PNGLR 298, on appeal against the sentence of three years for break enter and stealing, the National Court held that: “Where youthful first offenders are sentenced, the Court should treat imprisonment as the last resort _ _ _.” Acting Justice Lenalia, as then he was, in the case of The State –v- Akena Pawa [1998] PNGLR 387 held that a youthful first offender must not expect leniency from the Court where the offence is sufficiently serious. In that case the accused was charged for arson. The Supreme Court, in the case of Acting Public Prosecutor –v- Joe Kove Mailai [1981] PNGLR 258 held that youthful offenders should not receive any special treatments where offences like breaking entering and sealing are serious and prevalent unless some exceptional circumstances exists.

7. The defendant somehow was in possession of the keys to Mr. Ken Karu’s trade store and his dwelling house. He entered these premises by using the keys and stole the properties therein. There have been number of stealing charges in the year 2007 but it is not that prevalent. This year alone we have only five stealing charges brought before this Court.

8. I do take into account that the defendant is a student in a school. To send him to jail would only cause more harm to his future education. I consider his education to be an exceptional circumstance. This court is also empowered by Section 19 (1) (e) of the Criminal Code Act to discharge the defendant and enter him on his own recognizance to keep the peace and to be of a good behaviour on summary conviction. The Section 132 (1) (e) of the District Courts Act also allow this Court to discharge the offender conditionally to enter him on his own recognizance. I consider that this is an appropriate case to apply Section 19 (1) (e) of the Criminal Code Act and the Section 132 (1) (e) of the District Courts Act.

9. For the reasons given above, I convict the defendant but defer the sentence. And I enter him on his own recognizance without sureties to keep the peace and be of a good behaviour for a period of two years. And I further make an order that he be discharged from custody forthwith.

For the Prosecution - Sergeant Yamuje, of Goroka Police Station
For the Defendant - In Person