Kafare v Bau [2008] PGDC 41; DC723 (11 February 2008)

DC723

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

GFCr 63 of 2007

BETWEEN

PETER KAFARE
Informant

AND

ZUIMO AMERA BAU
Defendant

Goroka: M Gauli, PM
2008: February 11

CRIMINAL - Particular offence – Break and enter into a dwelling house – Plea – Guilty – First time being charged by police – Previously broke and entered the same dwelling house – Sentence – Custodial sentence.

Cases Cited:
1. The State –v- Manga Kinjip [1976] PNGLR 86
2. Regina –v- Dangamani – Adamanika [1965-66] PNGLR 80

References:
Nil

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

11 February 2008

DECISION OF THE COURT

M Gauli, PM: You have pleaded guilty to a charge of breaking and entering a dwelling house of one Mr. John White an expatriate man, pursuant to Section 396 of the Criminal Code Act, Chapter 262 which states that:

“A person who, without lawful excuse (proof of which is on him) breaks and enters a dwelling house of another is guilty of a crime”.

2. Facts

The facts to which you have pleaded guilty are as follows. On the 14 of November 2007 at Negebi in Okapa District of Eastern Highlands Province at about 4:00 o’clock in the morning, you broke the three louver blades of the dwelling house of Mr. John White with a bush knife. And you gained entry through the window. At the time Mr. White and his wife were away in America visiting their children. You knew there was no one in that house. Your brother Kenny Ban was awaken at the sound of you breaking the louver blades. He went to investigate the noise and he notice someone was inside the house. He then called Pastor Soma Aiya. While they were outside the house they called out to you and you came out of that house. You then went to your house as they watched you. You were then referred to Goroka Police after Mr. and Mrs. White returned to Papua New Guinea from America. There is no doubt that you broke the louver blades and you gained entry through that opening.

3. In admitting the charge you only asked the Court to be lenient in considering the sentence. You also said that this was the first time you have been charged by the Police. But you said that you did commit similar offence to the same victim which case was dealt with by the Village Court. And so I take it that this is not your first time to be in Court and particularly for this type of an offence.

4. I have considered your plea of guilty. You have made your plea in plain and unambiguous or unmistakable terms. And I consider that it is safe for this Court to accept your plea of guilty. It is a well established law in Papua New Guinea in the case of The State –v- Manga Kinjip [1976] PNGLR 86 at page 87 that a judge (or the Court) should only accept a plea of guilty if it is made in plain, unambiguous and unmistakable terms. There is nothing to doubt that you made your plea in any uncertain terms. And so I am satisfied that it is safe to accept your plea of guilty.

5. Sentence

The penalty for the offence of breaking and entering a dwelling house carries a term of imprisonment not exceeding three years. It is evidence that you did not steal anything from the house. This was because your own brother Kenny Bau disturbed you while you were inside the house. I also consider that you committed this offence at night about 4:00 o’clock in the early hours of the morning. You knew the owner of the house was out of the country and you knew that no one was in the house at the time. You live next to the victim’s house. You have previously broken into this same house and stolen things from there. The victim is a missionary who works around your area but you did not have any respect for him.

6. I do also consider your mitigating factors. You are married with one child. You are a village coffee farmer. This is your first time to be charged by police and appear before the District Court. But this is not your first time to commit similar offence. You have previously appeared before the Village Court for the similar offence. You have asked for leniency and to be placed on probation. You come from a remote area where it is only accessible by plane. If I put you on probation it will be so difficult for you to be supervised by a probation officer. You have also pleaded guilty which saves time from running a trial.
7. I have considered Section 19 of the Criminal Code Act and the Section 132 of the District Court Act. These provisions allows this Court to impose other forms of punishment apart from custodial sentence. However, I take into account that you have broken into this same house more than once. On that basis I consider that a custodial sentence is more appropriate not only to punish you but also as a deterrence to both yourself and to those who might commit similar offences in future.

8. In considering the term of imprisonment I should impose on you, I consider the sentences imposed by the National Court on similar offences in our jurisdiction. In the case of Regina –v- Daugamani Adamanika [1965-66] PNGLR 80, the accused was sentenced to two years imprisonment. He broke into a dwelling house and was apprehended while standing near the fridge. He did not steal anything. This case is relevant to the present case now before this Court. The defendant Daugamani Adamanika was found guilty on trial of charge. In our present case you have pleaded guilty. Your plea of guilty is an advantage for you in that the sentence I am to impose on you should be within the vicinity of one year. And I convict you and sentence you to a term of twelve months imprisonment in hard labour. I deduct one month three weeks and five days for time in custody. You are to serve out eleven months and two days in prison.

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