Nebare v Weriga [2008] PGDC 64; DC727 (28 April 2008)

DC727

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

GFCr 18 of 2008

BETWEEN

TOBBY NEBARE
Informant

AND

KEN WERIGA
Defendant

Goroka: M Gauli, PM
2008: April 28

CRIMINAL – Particular offence – Stealing – Plea – Guilty – First offender – Prevalent offence – Custodial sentence imposed.

Cases Cited:
1. Wellington Belawa –v- The State [1988-89] PNGLR 496
2. Kuri Willie –v- The State [1987] PNGLR 298
3. Acting Public Prosecutor –v- Joe Korea Mailai [1981] PNGLR 258
4. In re Pogu –v- The State [1986] PNGLR 203

References:
Nil

Counsel:
For the Prosecution – Senior Sergeant Mark Yamuje
For the Defendant – In Person

28 April 2008

SENTENCE

M Gauli, PM: You have pleaded guilty to the charge of stealing under Section 372 (1) of the Criminal Code Act of Papua New Guinea. This provision states that “Any person who steals anything capable of being stolen is guilty of a crime.” And it carries a penalty of three years imprisonment.

2. The facts to which you pleaded guilty to are as follows. That on 17 March 2008 at the Gouna Centre Goroka town you in the company of other young people approached one Mr. Oren Kainda. Some of your friends approached him from the front while others from the back. He was carrying his six year old son and his string bag hanging down from is neck. In that process of approaching him in that manner you used a sharp razor blade, you cut open his string bag and removed a yellow or brown envelope from his bag containing K850.00 in cash. When he felt that someone was pulling his string bag from behind he turned around and he saw you passing on the brown envelop to one of your friends. Your friend escaped with the brown envelope containing the money but he managed to grab you.

3. You did not benefit from the money that was stolen nor the money been recovered. It appears that you must be experts in stealing in this manner. You may have some knowledge that the victim was carrying such an amount of money in is string bag because you only removed the brown envelope and nothing else when you cut open the string bag. This way of stealing by pick-pocketing is becoming prevalent here in Goroka town and especially by young people who are unemployed like you.

4. I consider your mitigating factors. You are aged 18 years of age. You are single and unemployed. You are from Okapa District in the Eastern Highlands Province and you are living with some friends at Pekpek wara settlement in Goroka town. You have pleaded guilty to the charge and you are a first time offender. You have asked for leniency in sentence.

5. The case of Wellington Belawa –v- The State [1988-89] PNGLR 496 sets out the sentencing range for stealing. A person who steals money between K1.00 to K1, 000.00 can be imprisoned for one year. The amount you stole falls in between this sentencing range. The National Court held in the case of Kuri Willie –v- The State [1987] PNGLR 298 that in sentencing youthful first offenders the Court should treat imprisonment as the last resort. I do consider this decision on that case. However the Supreme Court in Acting Public Prosecutor –v- Joe Korea Mailai [1981] PNGLR 258 held that “where the offence is serious, prevalent and invariably committed by young people the youthful offender must not receive special treatment unless there are exceptional circumstances calling for leniency.

6. As I have said that stealing by pick-pocketing in the streets by young people in Goroka town is so prevalent. The manner in which you cut open the string bag and removed the brown envelope containing the money shows that you must be expert in doing this and it is likely that you have done this before. There are no exceptional circumstances showing that this court should be lenient on you. I consider that a custodial sentence of twelve months should be imposed on you. You have being in custody awaiting the completion of this proceedings for one month one week five days. The time you spent in custody will be deducted – In re Pogu –v- The State [1986] PNGLR 203 followed.

7. Accordingly you are convicted and sentenced to twelve (12) months imprisonment in hard labour. Time spent in custody is deducted. You are to serve ten (10) months two (2) weeks and two (2) days in prison.

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