State v Ipai [1997] PGNC 118; N1629 (26 September 1997)

Unreported National Court Decisions

N1629

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 600/97
THE STATE
V
AITON IPAI

Wabag

Lenalia AJ
18-22 September 1997
26 September 1997

CRIMINAL LAW - Break, Enter and Stealing - Plea - Sentence - Criminal Code S. 395 - Ch. No. 262.

CRIMINAL LAW - Sentencing - Taking other offences into account - Principles applicable - May lead to increase in sentence - Sentence must not exceed maximum sentence that may be passed in respect of the offence for which he has been convicted; The Acting Public Prosecutor v Andrew Amona Yongga [1981] PNGLR 314 adopted

Cases Cited

Acting Public Prosecutor v Andrew Amona Yongga [1981] PNGLR 314

Acting Public Prosecutor v Joe Kovea Mailai [1981] PNGLR 258

Counsel

P. Kumo, for the State

B. Aipe, for the Accused

26 September 1997

LENALIA AJ: The accused was convicted on his plea at Wabag on 18th September 1997 on a charge of break, enter and stealing items valuing at K14,250.00 at Panakada Repeater Station.

The owner of the property is alleged by the State to be Post and Telikom Pty Ltd. The offence committed is contrary to S. 395 of the Criminal Code.

After having read through the committal depositions I was satisfied that the facts confirm the accused plea, I then formally confirmed the accused's plea by announcing this fact to the accused and the two counsels. Prior to inviting the accused in allocutus to have his final say, the Counsel for the accused made an application in terms of S. 603 (1) (a) (b) (c) and (2) of the Criminal Code which provides that where an accused has been convicted upon indictment of an offence not punishable with death or imprisonment for life and where the Court is satisfied upon any of the circumstance defined under S. 603 (1) (a) (b) and (c) and with the consent of the State Prosecutor, the Court may ask the convicted person if he admits his guilt in respect of any or all the offences specified in the list and if he wishes them to be taken into account in passing sentence on him. Mr Kumo for the State submitted briefly that he consented to the two outstanding stealing charges be taken into account upon sentencing the accused.

There are not that many authorities in support of this procedural aspect at least not to my knowledge at the present time but the leading case authority in this jurisdiction is Acting Public Prosecutor v Andrew Amona Yongga [1981] PNGLR 314. The principles set there by the Supreme Court are that all pending charges of a similar nature ought as far as possible may be taken into account on sentence where such outstanding charges are "of the same or closely allied class", and whether or not a trial judge takes into account other outstanding offences or charges is purely discretionary and can only be done with the consent of the State Prosecutor. Once a State Prosecutor has consented, it becomes necessary for the Court to observe the procedural requirement under S. 603 (1) (c) and (2) requiring the Court to ask the convicted person whether he admits his guilt in respect of the outstanding charges. The Court in the instant case then asked the accused whether he admitted his guilt on the two outstanding stealing charges. The prisoner indicated his guilt by answering that, he fully admits to stealing a radio valuing K547.00 the property of one Apa Kaspar and that he further stole a tool bag containing electrical tools valuing at K800.00 the property of Porgera Joint Venture. These charges were laid under S. 372 (1) of the Criminal Code.

The facts in relation to the indictment filed on which the accused was convicted are that the accused on the 23rd day of May 1996 he went to the Panadaka Repeater Station near Porgera owned by Post and Telikom. He noticed the door being securely locked, picked up an iron bar and used it to break the lock to the building thereby gaining entry. Once in the building, the accused stole a PFA Digital 30 Communication Analyser, one Lap Top Computer and a Fluke Meter.

In allocutus, the accused said that when he was in the building, to him it was like looking at a movie or a video show and most stolen items were useless to him. You said you never have committed such an offence previously. I had the benefit of hearing both Counsels on sentence. Your antecedence show that you are 16 years of age. You could be a little bit less than sixteen years. In your favour I take into account the following mitigation circumstances:

· &#t60; yoat lea pd guelty

· ҈& < < that you are stfird very yery youthful offender

· &#ټ ae property you syou stole were all recovered ll inng those items you you stolestole in the outstanding charges

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·&183; #160; ;& 60athahe in custody fody fody for onor one (1)e (1) year three (3) months awaiting this hearing

Let your appearance in this Court be a warning fo. Letemindthat , entd ste has alwa always beys been a en a serioserious crus crime. ime. The reason I say it is serious is because this is reflected by the penalties prescribed for burglary under SS. 395, 396, 397 and 398 of the Code. You could be imprisoned for fourteen (14) years in hard labour. This Court has been urged by both Counsels that it should consider a non custodial sentence. Sentencing a convicted prisoner is in the discretion of the Court. I would entirely agree with the decision in Acting Public Prosecutor v Joe Kovea Mailai [1981] PNGLR 258 which establishes two views in sentencing young persons. The extreme approach is that youthful offenders should not receive special treatment on sentence because the offences such as breaking entering and stealing are serious and quite prevalent and it is invariably committed by young persons. The reason I think it is serious is because those persons you stole from and their property is protected by law. This is why S. 44 of the Papua New Guinea Constitution says that:

"No person shall be subjected to the search of his person or property or to entry of his premises, except to the extent that the exercise of that right is regulated or restricted by a law..."

The second approach in the principle sent in the case of Joe Kovea Mailai is that, I could only treat you with leniency where there are exceptional circumstances calling for such leniency. I find that there exist such exceptional circumstances in your case. I find them to be that all the stolen property had been recovered. You co-operated well with the police up until the time this Court shall sentence you. You have also admitted the outstanding charges in the committal files of which I am very grateful saving the State time, money and effort and which I have considered. Above all you are very young and you have spent one year three months in custody. I consider that you should be sentenced to a term of two (2) years in hard labour. You have spent one year three months in custody, that period is deducted from that sentence. I consider that was sufficient punishment for you a and further order that the remaining portion of your sentence shall be suspended for two (2) years upon you entering into a recognizance without sureties to keep the peace and be of good behaviour for those two (2) years from today.

Lawyer for Plaintiff: The Public Prosecutor

Lawyer for Defendant: The Public Solicitor