State v Marao [2009] PGDC 46; DC883 (29 June 2009)

DC883

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

GFCr 13 of 2009

BETWEEN

THE STATE
Informant

AND

BUKA MARAO
Defendant

Goroka: G.Madu
2009: March 11, 23
April 6, 21
May 4, 11, 25, 27
June 10, 29

CRIMINAL - Particular offence – break and enter and committing a crime of stealing – plea – guilty – sentence – criminal code s 398 (a) (1)

CRIMINAL – Sentence – consideration – aggravating factors – crime is prevalent – committed early hours of the night – no likelihood of confrontation – mitigating factors – first time offender – assisted co-accused after committed the crime – suspended sentence with probation imposed.

Cases Cited:

The State -v- Manga Kinjip [1976] PNGLR 86
Kali Mari –v- The State [1988] SC175
John Elipa Kalabus –v- The State [1988] PNGLR 193

References:

Criminal Code Act Ss 19 (1) (e) , 398 (a) (1)
District Court Act Ss 132

Counsel:

Sergant Gorosahu, for the State
Defendant In Person, for the defendant

29th June 2009.

JUDGEMENT ON SENTENCE

G Madu,PM.: The accused pleaded guilty to breaking and entering the Segenafamo Resource Centre building and therein stole mattresses belonging to the centre.

2. The accused was charged under Section 389 (a) (i) of the Criminal Code Act Chapter 262. This provision states and I quote:

“A person who breaks and enters a schoolhouse, shop, office, store, and commits a crime in it is guilty of a crime.”

3. The accused admitted that on the 15th of January 2009, at Konaiempi village around 9.00 pm in the night he was in the house when the co –accused Jeram Ereso came and asked him to come out. The accused then went out as requested by the co-accused and there he told him that he broke and entered the Resource Centre and stole eight mattresses and wanted his assistance to take them away and hide them and later on would be sold. The accuse agreed to his co - accused suggestion and both went and hid five of the eight mattresses and sold three of them to Arevo Marao, who is the accused brother for K50.00. The rest of the mattresses were later recovered by the community.

4. The accused in admitting the offence said he regretted his action as the mattresses belong to a community based project initiated by the Konaiempi youth members of which he was a member.

5. The accused when addressing the court on sentence said that this was his first time to appear in court and has never being involved in any crime before. He said that he is now involved with the Lutheran Church and asked the court for mercy. The admission of the offence by the accused clearly showed that he knew that by assisting his co-accuse to carry the mattresses from the scene of the crime and hiding them was criminally responsible for the break and enter and stealing with his co- accuse.

6. The accused from observation knew that what he did was against the law and entered his plea with no uncertainties but plainly and with certainty. It is an established law that where the accuse makes his plea of guilty in plain, unmistakable and without ambiguity then it is safe for the court to accept the plea – see The State –v-Manga Kinjip [1976] PNGLR 86 where O’Leary AJ, said at page 87:

“It is well established that a judge should only accept a plea of guilty to a Charge if it is made in plain, unambiguous and unmistakable terms.”

7. In this case the accused was not with the co – accused when the building was broken and mattresses were taken out of the building. The accused was being asked by his co - accused to help him to carry the mattresses away and hide them. The facts show that the accused was well aware that his co – accused had broken into the Resource Centre building and had asked his assistance to hide the stolen mattresses. He failed to realise that what he did was not proper and was criminally responsible for his action although he did not take part in the break, enter and stealing. What is clear is that by assisting the co – accused some of the mattresses were disposed thus depriving the Resource Centre’s ownership right. I find the accused guilty as charged.

SENTENCE

8. The sentence for breaking, entering and stealing carries a term of imprisonment of fourteen (14) years. However this court has a jurisdiction to impose sentencing up ten (10) years only pursuant to s 420 of the Criminal Code Act. In mitigating year sentence you pleaded guilty to the charge saving time and cost to conduct a trial –see John Elipa Kalabus –v- The State [1988] PNGLR 193 at 197. I also consider your co-operation with the police during the interview – see Kali Mari –v- The State [1980] SC175.

9. The aggravating factor is that the offence of break, enter and stealing is a prevalent one It is a type of crime that in nature falls between armed robbery and stealing. The crime entails the element of disregard for others and their ownership rights of properties. Where the crime committed is in the broad day light, the criminal intent and culpability is not equivalent to the case of armed robbery of a house in the night. There was no real possibility of confrontation as there was no one around during the early hours of the evening at about 9.00pm.

10. Having discussed both the mitigating and aggravating factors, I am of the view that the accused be given a special consideration on the basis that he is a first time offender and pleaded guilty to the charge and that the stolen properties were recovered and returned. The Court also took note of the Pre-Sentence report presented by the Probation Office who recommended that the accused is a suitable candidate for Probation as the community view was sought and said that there is no likelihood of re-off as the accused had felt the treatment given by the community. Under the circumstances it would not be appropriate to incarcerate the accused.

11. I consider that the accused be given a sentence that is alternative to imprisonment pursuant to s 19 (1) (e) of the criminal Code Act and s132 of the District Court Act. These provisions give this court power to impose non- custodial sentence. Accordingly I sentence the accused to eight months in hard labour. I suspend the eight months in full and place the accused on one year probation to be supervised by the Probation Office in Goroka.

Additional Probation Orders are:

1. The accuse ordered to perform 100 hours of community work at the Resource Centre

2. The accuse is ordered not to leave his current location to another location.

3. The accuse is ordered not to interfere in any way with the operation of the Resource Centre.

4. The accuse is ordered to report to Officer- In – Charge of Henganofi Police Station every Friday of the week.

5. The accuse is ordered to take part in the activities of the Four Square Church.

6. The accuse is ordered to co-operate fully with Mrs. Eriko Fufurefa

7. The CBC is ordered to provide status report to the Court after completion of the community work

__________________________

Lawyer for the Informant Police Prosecution
Lawyer for the Defendant In Person