Police v James [2009] PGDC 101; DC935 (29 September 2009)

DC935

PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS CRIMINAL (SUMMARY) JURISDICTION

DCR 1059/2009

BETWEEN:

POLICE
Informant

AND:

ANNA JAMES
Defendant

Madang: J.Kaumi
2009:29th September

SUMMARY: Sentence – Stealing contrary to Section 48 Subsection (1) of the Summary Offences Act Chapter 264 – Plea of Guilt – Sentencing Guidelines – Mitigating and Aggravating Factors – No Expression of Remorse – Prevalent Offence – Need for Deterrence.

Cases cited
Public Prosecutor v Yapuna Kaso (1977) PNGLR 209
Public Prosecutor v Tom Ake (1978) PNGLR 469
State v Sabarina Yakal (1988-89) PNGLR 129
Acting Public Prosecutor v Don Hale SC564
State v Michael Kamban Mani (21/05/02 N2246
Saperus Yahbakut v St SCR No.5 of 2005, 27/04/06

Legislation

Constitution of PNG
District Court Act, Chapter 40
Summary Offences Act, Chapter 264

Abbreviations

The following abbreviations appear in the judgment
NAT CT National Court
PP Public Prosecutor
SECT Section
SUBS Subsection
SOA Summary Offences Act
ST State
SUP CT Supreme Court

Counsel
Police Woman First Constable Rose Bussil; for the informant
Defendant in person.

INTRODUCTION

1. KAUMI M. You pleaded guilty to a charge of stealing contrary to Section48 (c) Subsection (7) of the Summary Offenses Act.

THE FACTS

2. The relevant facts as put to you when I arraigned you and the statement of facts are as follows and there is authority for the use of such depositions to extract the relevant facts for sentencing purposes, St v Sabarina Yakal (1), P P v Yapuna Kaso (2) and P P v Tom Ake (3).

3. It was alleged that on Saturday the 26th of September, 2009, at about 11:00 am, at Best Buy Super Store, Madang, the defendant now before this Court namely, Anna James was walking into the said super store as normal customer, Madang.

4. Defendant after walking around in the store for some minutes and came out. Before walking out of the store, her physical built and appearance bit changed. She seemed to have trouble walking then when she first entered the store.

5. Defendant was questioned by security guards about the way she was walking and reluctantly admitted her trouble. A female security guard conducted a search and discovered 22xs basin dishes valued at a total of K209.00 at K9.50 each all tucked in between her two legs.

6. She was questioned in regards to her trouble and admitted saying “she had made a deal with the security guards and also gave them a K50.00 note purposely to walk out freely with out any thought”.

7. Defendant was taken by security guards to Jomba Police Station and handed over to duty Police Officer. She was formally cautioned and arrested, charged, given her constitutional rights and laced behind bars.

ANTECEDENT REPORT

8. The defendant is unemployed and married with seven children. She is currently living with her family members at Sisiak Mountain and has had no prior convictions.

ALLOCATUS AND SUBMISSIONS

9. In your address on the sentence, you did not express any remorse for what you did. On the contrary all your comments were self serving, you stated the following:-

“Mi gat 7pla pikinini blo mi, man blo mi indai pinis, na nogat man long lukautim ol displa pikinini. Nogat sampela wantok bolo mi stap. Kot iken marimari long mi long hau mi wokim dispel rong na mi bai igo long peles , mi no nap stap bek. Em tasol.

Cor.. How old are your children

Ans 3, 4 and 5 and the others are young boys and girls.

Cor.. When did your husband die?

Ans: 2007.

Cor.. How do you survive since your husband is dead?

Ans: I stayed in Mt Hagen and came down to visit one of my sisters and caused this trouble.

10. As the defendant has pleaded guilty she will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocatus or in submission that are not contested by the prosecution (Saperus Yahbakut v St) (4).

THE OFFENCE AND SENTENCING TREND

11 These submissions gives rise to only one issue for this Court to determine and that is, what the appropriate sentence in your case is. This issue can be decided by having regard to the sentence prescribed by Parliament, the sentencing guidelines and trends per the judgments and the particular circumstances in which you committed the offence from which come the factors in your aggravation as well as those in your mitigation.

12. The practice in the higher Courts has been for the Supreme Court to give sentencing guidelines in the course of deciding criminal appeals or reviews. These guidelines are often coined as ‘starting points for various types of cases’ The National Court then applies those starting points in the course of looking at the circumstances peculiar to each case i.e. identifying the aggravating and mitigating circumstances.

13. Whilst the practice in the District Court as a ‘creature of statute’ has been to adjudicate within the precincts of the empowering legislation, it should also bear in mind and apply where necessary the guidelines used for sentencing in the NAT CT.

14. In the present case I have been unable to locate a suitable precedent, so I will use the mid-point of six months as a starting point for the offence.

THE LAW

15. Section 48C (1) of the SOA provides for the offence of stealing as follows:-

(1) A person who steals or attempts to steal anything, capable of being stolen, of a value not exceeding K500.00, is guilty of an offence under this Act.

Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding 12 months.

16. I am therefore inclined to go higher for guidance and analogy and in doing so adopt as a matter of practice, His Honor Kandakasi. J’s guidelines on sentencing in St v Michael Kamban Mani (5) that:-

(a).The maximum prescribed penalty should not be imposed but should be reserved for the worst type of the offence under consideration;

(b).Guilty pleas and the offender being a first time offender and the existence of “such good “factors operate in the offender’s mitigation and sentence lower than the prescribed maximum may be imposed.

(c).The prevalence or otherwise of the offence which could be reflective of the ability of the previous sentence to either deter or not to deter would be offenders.

(d).The kind of sentences that one being imposed in similar but less serious offences should be considered to ensure that sentences in a higher or serious offense is not lower than these imposed for the less serious offences.

THE MITIGATING FACTORS

17. Before anything else, I take into account your personal background from your Antecedent Report you are married and have seven children and are unemployed and have no prior convictions.

18. In addition to your family background, I also take into account in your mitigation first, your plea of guilt. That saved the State the time and expense that would have been incurred in the successful conduct of a trial on the issue of your guilt or innocence. Further, it avoided the need for the victim of your offence to incur further costs and suffer inconveniences by coming into Court and testifying against you.

19. Next you are first offender in other words you have no prior convictions.

20. These are the only two factors that can be said in your favour.

THE AGGRAVATING FACTORS

21. I note that your offence of stealing is a very prevalent one. Accordingly it is incumbent upon the Courts to impose such sentences that will deter you personally and other like minded persons.

22. Also in your aggravation you expressed no remorse whatsoever for your actions. You have continued to lie in Court even after you accepted the Statement of Facts as read out by the Police, then stated in allocatus that you had no money and that’s why you stole. Why did you give K50.00 to the security guard? This shows that you had money to finance your stealing campaign.

23. You should have thought of your children before you embarked on your campaign to deprive Best Buy Store of its property. I find it deplorable that you should now use your children as an excuse for your actions.

24. The Modus operandi you employed in your attempt to unlawfully deprive Best Buy Supermarket of its property is that of a seasoned thief. It was a deliberate and calculated attempt to steal showing no fear or respect for the law. The amount of items was substantial that you stole although valued at an amount of K209.00 only.

THE SENTENCE

25. I note that this is your first ever offence. That means you have not been in trouble with the law before. The law allows for a lenient sentence in appropriate cases where the offender is a first time offender (6). The conversed of that is a repeat offender may be given a far sterner sentence. The idea behind this is to avoid crushing a first time offender with a heavier penalty and the risk of turning the offender into a hard core criminal. Hence a lighter sentence would serve as a punishment as well as serve the communities desire to prevent the offender from re-offending.

26. Weighing the factors for and against you, I note that though the aggravating factors out weigh those in your mitigation, bearing in mind the various sentencing principles I have alluded to earlier, I consider a non custodial sentence is appropriate. Accordingly, I sentence you, in the following manner:

(a) The defendant is fined K100.00 in default 3 months imprisonment with hard labor.

Police Prosecutor: for the State
Defendant in Person

______________________________________________________________________________
[1] [1988-89] PNGLR 129; N2254.
[2] [1977] PNGLR 209
[3] [1978] PNGLR 469
[4] SCR No.5 of 2005,27/04/06-Jalina.J, Mogish.J, Cannings.J)
[5](21/05/02)N2246
[6] Supra note 5