Bari v Mana [2008] PGDC 71; DC731 (29 July 2008)

DC731

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

GFCr 42 of 2008

BETWEEN

ROBERT BARI
Informant

AND

STALON MANA
Defendant

Goroka: M Gauli, PM
2008: July 29

CRIMINAL– Particular offence – Stealing – Principle Offender – Sentence – Prevalent offence by youthful offender – Custodial sentence.

Cases Cited:
1. R –v- Potusi & Ors [1973] No. 730 (Unreported).
2. R –v- Tovaruka [1973] PNGLR 140
3. R –v- Hame Manga [1970] N596 (Unreported)
4. Awa Omowo & Or –v- The State [1976] PNGLR 188
5. Kuri Willie –v- The State [1987] PNGLR 298
6. Acting Public Prosecutor –v- Joe Kovae Mailai [1981] PNGLR 258
7. Wellington Belawa –v- The State [1988-89] PNGLR 496
8. In re Pogu –v- The State [1986] PNGLR 203

References:
Nil

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

29 July 2008

DECISION OF THE COURT

M Gauli, PM: The defendant Stalon Mana, a male person aged 22 years of Dumun village, Sinasina District, Chimbu Province, stands trial before this Court on a charge of stealing. It is alleged that on the 26th of June 2008 about 12:00 midday, he stole K2,000.00 in cash from one Dephane Walames at the Kakaruk Market in Goroka town, thereby contravening to section 372 (1) of the Criminal Code Act, Chapter 262, Revised Laws of Papua New Guinea. That provision states and I quote:

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

2. Issue

There is only one issue to be considered, and that is:

“Whether or not the defendant stole the money”.

3. The prosecution called only one witness namely Dephane Walames, the victim. Her evidence is as follows. She is an employee of Anomaly Resources as a Logistic Officer. Her employer gave her K2,000.00 cash to buy certain items for the company plus K1,600.00 cheque for Goroka Electricals. These were all put in a brown sealed envelop and she carried it in her zippered bilum bag on the 26th of June 2008, on a Thursday. At about 12:00 noon that day she walked into the Kakaruk Market near Goroka town main market, she unzipped her bilum bag and took out K20.00 bill and zipped up the bilum bag again. She bought K20.00 worth of betlenut, placed the betlenut in a plastic bag and held the plastic bag of betlenut in her hand. She hunged her zipped bilum bag over her neck in front of her. As she was walking up the hill within the Kakaruk Market to leave, the defendant approached her from the front, bumped into her face to face. She almost stripped and fell. At that instant moment, the defendant quickly removed the brown envelope from her zipped up bilum bag containing K2,000.00 cash all in K100.00 bills plus the cheque valued K1,600.00. Dephane Walames realizing that the brown envelope was missing from her bilum bag, she grabbed hold of the defendant only about five (5) metres from where the defendant bumped into her. The defendant then threw the envelope to one of his friends who got away with the money, Dephane took the defendant to the owner of the Kakaruk Market Mr. Jeffery who assaulted the defendant and there the defendant admitted stealing the money. He was then referred to police the same day and charged. The cheque was recovered but the cash was never recovered.

4. The defendant Stalon Mana has no witnesses either. He gave evidence on oath. He denied stealing the money. In his evidence he said that he was with his other male friend namely Soti Yatona of Dom, Gumuni in Chimbu Province. They were at the Kakaruk Market together on that day of the incident. Both approached Dephane Walames together as both planned to steal from her. The Defendant approached Dephane from her back; he tapped her on the back of her shoulder and said “excuse” to her to pass by her. Dephane then turned her face towards the defendant. At that instant moment his friend Soti Yatuna quickly removed the brown envelope containing the money and the cheque from Dephane’s bilum bag. Soti then disappeared into the crowd. One of the ladies in the crowd called out to Dephane that her money is been stolen by the defendant. And so Dephane went after him and grabbed him. The Defendant confirmed that Dephane took him to the owner of the Kakaruk Market who then belted him up before been referred to police. And he has been in custody since 26th June 2008.

5. From the evidence as presented before this court, I find that the evidence of the defendant to be more convincing than that of the police witness Dephane. She said that the defendant was the only person who approached her and bumped into her face to face. And the defendant removed the envelope from her bilum bag which was zipped up. I consider that to be quite impossible unless the bilum bag has an opening. I am convinced by the defendant’s evidence that he approached her from the back and he tapped or touched her on the back of her shoulder and said to her “excuse” pretending to pass by her. In doing so Dephane turned her face towards the defendant that drew her attention away from the bilum bag hanging in front of her. And that one Soti Yatona quickly unzipped the bilum bag and removed the envelope containing the said money.

6. The Defendant and Soti Yatona both pre-planed to rob Dephane. The Defendant participated in committing the crime by tapping Dephame on her shoulder pretending to pass by. In doing so he assisted Soti Yatona to remove the money from her bilum bag. It was done in a very professional way that it only took a split second to remove the money from her bag that Dephane was not able to feel the bag been opened and the money has been removed. The Defendant did not benefit from that money but he assisted his friend Soti Yatona in that act of stealing. The s. 7 (1) of the criminal Code Act states a person who actually does the act or aids another person in committing the offence is deemed to have taken part in committing the offence and to be guilty of the offence as a principle offender. Defendant by his own evidence admitted that he and his friend made a plan to rob Dephane and he took part in the execution of their plan and committed the offence.

7. A mere presence at the scene of a crime is not sufficient to create criminal liability, there must be active participation to the act. But if the defendant’s physical presence at the scene does encourages and supports the one who actually commits the crime then the defendant is said to be a principle offender – R –v- Potosi & Ors (Unreported) Judgment No. 730 of 28 February 1973. The presence must be willed and not accidental and with the intention of encouraging or assisting in the commission of the crime – R –v- Tovaruka (1973) PNGLR 140, R –v- Hame Manga (1970) No. 596 (Unreported). And where two persons participated in a crime, each person is responsible for the act of the other – Awap Omowo and Warsa Yimhem – v- The State (1976) PNGLR 188 applied.

8. From the evidence as presented before this court and from the defendant’s own admission that he did not only make plans with the other person to rob of Dephane, but he also actively took part in the act of stealing. Accordingly I find that the defendant is a principle offender as per s. 7 (1) (a) (c) of the Criminal Code Act, and I find him guilty as charged.

9. Sentence.

The penalty for stealing under s. 372 (1) of the Criminal Code Act carries a term of imprisonment up to three (3) years. I consider defendant’s mitigating factors. He is single and unemployed and he is a first time offender. He is sorry for what he did. The stolen cash money had not been recovered. Though the defendant participated in stealing the money, he was apprehended on the spot at the scene of the crime and he never benefited from the money. However, stealing by pick-pocketing from both the vendors and the buyers at the Kakaruk Market in Goroka is a prevalent offence. The law is well established in Kuri Willie –v- The State (1987) PNGLR 298 that imprisonment should be the last resort in sentencing a youthful first offenders. However, where the offence is prevalent and invariably committed by young persons, he would not be given any special treatment, especially where the stolen property is not been reinstituted – Acting Public Prosecutor –v- Joe Kovea Mailai (1981) PNGLR 258 referred and applied. The case of Welling Belawa –v- The State (1988-89) PNGLR 496 sets out the sentencing tariffs in stealing offences, that any amount stolen between K1.00 to K1,000.00, a term of one year imprisonment and between K1,000.00 to K10,000.00, a term of two years imprisonment. In the present case the amount stolen was K2,000.00, therefore a term of two years imprisonment would apply here. However I consider that the defendant did not benefit from any of the money stolen. And I consider that a term of one year imprisonment should be appropriate in the circumstances. And I convict the defendant and sentence him to twelve (12) months imprisonment in hard labour. I deduct time in custody for five (5) weeks one (1) day – In re Pogu –v- The State (1986) PNGLR 203 applied. The defendant is to serve the balance of Ten (10) months Three (3) weeks and Six (6) days in prison.

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