State v Mauih [2015] PGDC 9; DC3016 (9 January 2015)

DC3016

PAPUA NEW GUINEA

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

GFCr 20,21 Of 2014

BETWEEN

CHARLIE KEAN
Informant

AND
ANDREW MAUIH
First defendant

AND

DAVID KOVENATA
Second Defendant

BUKA:TASIKUL, a/PM
2015, 09TH JANUARY

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

CRIMINAL –

CASES CITED:
The State Manga Kinjip [1976] PNGLR 86

REFRENCES:
S.132 District Court Act
s.398 (a) (i) Criminal Code
S.420 Criminal Code

COUNSEL:
Appearing for the prosecution: Constable Chris Markoe
Lawyer, for the Defendant: Mrs .Miringka of Public Solicitor

JUDGEMENT ON SENTENCE

1. B.TASIKUL: Both of you pleaded guilty to the charge of break and entered a shop, a small canteen belonging to Celestine and did commit a crime to wit stealing therein. You were charge under s.398 (a) (i) of the Criminal Code Act.
   
2. The summary of the facts in which both of you pleaded guilty to as follows. On the 16^th September, 2014 between 4-5pm both of you were at Tinputz, in which both of you were under the influence of alcohol. Bothof youarmed yourselves with two bush knife and you went to Celestine’s trade store.
   
3. The two of you broke into the trade store and stole goods value at K432.00. Both of you used knifes to cut through the bamboo wall of the store to gain entry. The owner of the shop was not present at that time. After stealing the goods both of you left behind some of the goods which was later picked up by the police.
   
4. Both of you were taken to the police station at Tinputz and you both were charged.
   
5. Both of you were asked by the court if each of you has anything to say in your defence but, both of you admitted to the facts read are true. From my observation both of you knew that what you did was against the law and entered your plea with no uncertainties but plainly and with certainty.
   
6. 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. I therefore confirm each of your pleas of guilty without any reservation.
   
8. The sentence for breaking, entering and stealing carries a term of imprisonment not exceeding fourteen (14) years. However this court has a jurisdiction to impose sentence up ten (4) years only pursuant to s 420 of the Criminal Code Act.
   
9. In mitigating your sentence you have told the court that both of you commit the offence for reason. The reason is that she owes both of you K400.00 each for the work both of you did for her.
   
10. While I appreciate your given reason I am not convince that it a good reason to commit such crime. There are avenue to address your grievances and not to take the law into your hand.
    
11. The prosecution has not much assist the court on the type of sentence should be impose. I have consulted the Probation Service Report submitted the Probation officer which is very comprehensive. I noted from the report that both of you were frustrated over nonpayment of the work you did for her. I also note that both of you are married with children. Both of you are not a risk to the community. Some of the properties taken were return to the owner. You have shown remorse and you are sorry for what you did.
    
12. Having discussed both the mitigating and aggravating factors, I am of the view that both of you be given a special consideration on the basis that some of the properties have been return to the owner and also you have been in custody awaiting this cases for two months.
    
13. I am of the view, that under these circumstances it would not be appropriate to incarcerate both of you. I consider both of you be given a sentence that is alternative to imprisonment pursuant to s.132 of the District Court Act.
    
14. Accordingly, I will place both of you on a twelve (12) months’ probation in which both of you to be of good behaviour bond for a period of twelve months. During this period both of you be restrain from taking any form of alcohol.