Nivani v Manakom [2008] PGDC 116; DC902 (8 April 2008)

DC902

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CIR NO: 85/2008

BETWEEN

SALVATORE NIVANI
Informant

AND

SABETH MANAKOM
Defendant

AITAPE: Malcolm Samala
2008: April 8

Case Cited: None

Plea Matter
Defendant pleaded guilty to the charge of unlawfully on premises

Counsel:

For the Prosecution - Constable John Bidau for the Prosecution, Aitape Police Station
For the Defendant - In Person

DECISION OF THE COURT

08th April 2008

M.Samala: The Defendant is 20 years old and comes from Karaite Village, Lumi District in West Sepik Province stand charged for being without lawful excuse was unlawfully on the premises of Ms Gabriella Masali, her dwelling house contravening section 20 of the Summary Offences Act. During plea admission Defendant pleaded guilty as charged.

2. The penalty provision of the Act carries a minimum fine of K400.00 or imprisonment term not exceeding two years.

3. Facts

It is alleged Defendant at the material time at 10o’clock in the morning (10:00 am) on 16 March 2008 went to Gabriella’s house and asked to drink water with one of her wantoks, also a female.

4. It was their first time to go to that Treasury residence as well. After learning that the house has only two under aged school children the two then asked the children if they could allow them in to count the mattresses in each of the rooms. The children’s Motorola mobile phone of K99.00 value was left on the table kept there to keep regular contact with their mother and it immediately went missing the time Defendant and her friend entered the house and after Defendant first leaving the house.

5. They searched the house and body searched the other girl accompanying the Defendant left behind with the assistance from the neighbours the children alerted but for the Defendant she refused being searched and there, it was strongly suspected that she stole the mobile after she offered the children her own mobile to dial children’s mobile number to locate their mobile that was switched on but found the phone was switched off.

6. This then made police to charge her for her strange behaviour going to the house for the first time, leaving too soon, offered her mobile to locate children’s missing mobile and refused body search while her other friend freely allowed neighbours to search her.

7. Verdict

The court attached the weight of Defendant’s plea admissions on contradictory version of her explanations why she went to the premises for the first time and with no justification had to enter the house to go through each rooms and count number of mattresses accepting guilty plea to be genuine and expedient in the interest of justice and retain guilty plea against her on the charge of without lawful excuse was in the dwelling house of Ms Gabriella Masali employee of District Treasury, Aitape.

8. Allocutus/Antecedent

In the allocutus Defendant stated she went to drink water but entered the house after her friend suggested to the children and her if they can be allowed in to count how many mattresses are in each of the rooms.

9. She generally denied having any knowledge of the Motorola phone but maintained she did her best to locate the missing phone by dialing its number but was switched off and didn’t know who stole it from the children or took it from the table where it was left.

10. In the antecedent report police alleged this was not Defendant’s first time in court in that she has been charged and convicted previously in 2006 of the similar offence.

11. Defendant is a single woman, unemployed and resides with her parents in Aitape Town with guilty plea seen as a factor taken in her favour in mitigation of her sentence.

12. Sentence

The offence carries a minimum penalty of a fine not exceeding K400.00 or imprisonment term not exceeding two years.

13. In the circumstances of this case, Defendant at all material times knew the owner was away on business travel to Vanimo with two under aged children only in the house and went to the house first with the intention to ask for a drink of water but realizing there was no adult person there changed her mind and asked to enter the house to count the number of mattresses in each rooms.

14. The fact she stated she has never been to Gabriella’s house before and went now wanting to drink water but entered the house to count mattresses in each room immediately infers criminal intention she has and leaving her female friend behind after Motorola mobile phone going missing between the time they were inside the house indicates to court that no one else would steal it apart from Defendant or her friend who both were unlawfully inside the house on of them is responsible for stealing the phone, most likely the Defendant due to her suspicious actions.

15. Her general denial was that she doesn’t know who stole the phone is very hard to believe when she has been convicted earlier of the same offence.

16. Accordingly, I am satisfied of her guilty plea supported by the material part of contradictory explanation offered in her stories why she entered the dwelling house which adequately satisfied the proof that Defendant was unlawfully on the premises and is guilty as charged per her admissions.

17. Finally, this is not Defendant’s first time in court and for sentencing I am of the view an imposition of a fine as well as compensation for lost of mobile phone be appropriate as deterrence and considered that a fine in the sum of K200.00 with K99.00 compensation or a replacement Motorola mobile phone at that value be sufficient for the Defendant.

18. Accordingly, with the reasons alluded to, the Court orders that:-

1. Defendant is convicted and fined K200.00 indefault be imprisoned to eight (8) months in light labour at Vanimo Correctional Service and K50.00 bail be ordered refunded.

2. Further ordered that Defendant to replace a Motorola mobile phone valued at K99.00 or pays K99.00 cash in compensation to the Informant Gabriella Masali within two weeks indefault be sentenced to six months in light labour at Vanimo Correctional Service.

3. Sentence be served cumulatively.

4. Compensation payment to be complied with before 22nd April 2008.

____________________________________________

For the Prosecution - Constable John Bidau, Aitape Police Station
For the Defendant - In person