N2246

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1604 of 2001

THE STATE

-V-

MICHAEL KAMBAN MANI

WEWAK: KANDAKASI, J.
2002: 13th and 21st May

CRIMINAL LAW & PRACTICE – Sentencing – Break enter and stealing – Sentencing guidelines suggested based on past sentencing practices - Sentences imposed in previous cases need to be considered – Sentences in subsequent cases need to be within the range of sentences being imposed for the kind of offence under consideration unless circumstances justifying a departure exist – Prevalence or its opposite is a relevant factor to determine whether or not to depart from past sentences – Criminal Code ss 398 (a)(i) and 19.

CRIMINAL LAW - Sentence – Break, enter and stealing from an hospital ward office – Item stolen a portable generator valued at K2,500 recovered – First time offender – Guilty plea and cooperation with authorities from the beginning - Prevalence of offence considered – Sentencing tariffs suggested by counsel not supported by any authority rejected – Past sentences suggesting tariff considered - Past sentences not deterring would be offenders – Sentence of imposed and part suspended on terms including community service orders – Criminal Code ss.398(a)(i) and 19

Cases cited:
The State v. Sabrina Yakal [1988-89] PNGLR 129.
The State v. James Gurave Guba (19/12/00) N2020.
The State v. Jack Oroko Tepol (08/10/99) N194.
The State v. Sam Nimino [1977] PNGLR 226.
The State v. Aiton Ipai (26/09/97) N1629.
The State v. Rocky Masa Kuno (14/07/98) N673(S).
The State v. Robert Kawin (24/12/01) N2167.
The State v. Abel Airi (20/11/00) N2007.
Acting Public Prosecutor -v- Clement Makei and Tom Kasen SC205.
Public Prosecutor v. Don Hale (1998) SC 564.

Counsel
Mr. M. Ruarri for the State 
Mr. K. Doko for the Accused

DECISION ON SENTENCE

20th May, 2002

KANDAKASI J: 	You pleaded guilty to one charge of break, enter and stealing of a generator from a hospital ward office at the Yangoru Station on the 8th of September 2001. The charge against you was presented under section 398 (a)(i) of the Criminal Code.

Upon reading the evidence against you, including you record of interview, I informed you in Court that the evidence supported your guilty plead. I therefore accepted your guilty plea and convicted you of the charge against you. I then heard from both yourself and your lawyer on sentence. I also heard from the State on that issue as well and I reserved a decision on sentence pending receipt of a pre-sentencing report. I requested such a report in view of you argument for a part suspended sentence. The requested report was received yesterday and I heard further submissions based on it from you and the State.

The Facts 

I note there is no dispute in this case in relation to the practice of using the depositions to extract the relevant facts for the purposes of sentencing. I consider it important however that I must state the law on it because there seem to be a view held by some that this should not be done. The practice is well established. One of the first judgements on that point is The State v. Sabrina Yakal [1988-89] PNGLR 129. I followed that judgement in The State v. James Gurave Guba (19/12/00) N2020. In The State v. Jack Oroko Tepol (08/10/99) N1941 per Kirriwom J and The State v. Sam Nimino [1977] PNGLR 226, the Supreme Court followed that practice. Usually the deposition is read to determine whether or not to accept a guilty plea. A guilty plea can only be accepted on the basis of the evidence or facts disclosed in the deposition. It follows therefore, that the facts as disclosed in the depositions become relevant facts, which must be considered to determine an appropriate penalty in order to meet the requirement that a penalty for an offence must reflect the circumstances in which the offence under consideration was committed.

In your case, the facts as they appear from the material in the deposition and the facts put to you during your arraignment are these. On the 8th of September 2001, you with another, Lesly Mani broke into Ward One Office at the Yangoru Health Center and stole from there a Yamaha generator set with an extension cord. Its model number was EF 1000 and engine number 010827. The generator belonged to the PNG Medical Research Institute, which you intended to deprive when you broke into the Ward office and stole those items. The value of the generator was estimated at K2, 500. 

After having stolen the generator, you hid it in the bushes near your house. Subsequently on the 11th of September 2001, you sold the generator to a Noel Wangi of Wangei village for K3, 000.00. Following successful police investigations, the generator was recovered from Mr. Wangi and you were arrested and you admitted to break, entering and stealing and dealing with the stolen property in the way just described. You continued to admit your guilt both before this Court and the Committal Court. In your own address before sentence, your expressed your remorse.

Submissions and Considerations

In considering an appropriate sentence for you, your lawyer has asked me to consider your expression of remorse, your educational and family background. He also asked me to consider and take into account in your favour that, you freely pleaded guilty to the charge against you and that your have fully cooperated with the authorities, including the police. That made police work easy and that this Court’s time that would have been taken by a trial was saved. He also asked this Court to note that you are a first time offender and that, you have not benefited from the offence and the generator you stole was recovered.

I take all of these factors into account in your favour. At the same time, I am required to take into account the State’s submissions as well has the community or country’s call for appropriate punishments to be given to people like you who break the law and commit offences. This proceeds on the basis that, although an offence may be against a particular person, it is collectively against the society because the society does not allow this kind of behaviour. 

The state submits and I accept that, the charge of break, enter and stealing involving amounts over K1, 000.00 attracts a maximum penalty of 7 years. You do not take issue with that. At the same time, both you and the State are agreed that the sentencing tariff in this type of cases is between 12 months and three years. However no authority has been cited to support that submission. It therefore requires me to consider the kind of sentences that have been imposed in this type of cases.

In The State v. Aiton Ipai (26/09/97) N1629, Lenalia A.J.,(as he then was) imposed a part suspended sentence of 2 years on a guilty plea. The prisoner was a first time young offender and most of the items stolen valuing over K14, 000.00 were recovered. He cooperated with the authorities like police. Further the court noted that he admitted to two further and pending charges committed in the one transaction.

Subsequently, Woods J imposed a custodial sentence of 3 years against the prisoner in The State v. Rocky Masa Kuno (14/07/98) N673(S). In that case, the prisoner also pleaded guilty to a charge of break, enter and stealing from a dwelling house at night. The prisoner acted with others and was armed.

Non of these cases provide any assistance in terms of providing a guideline for sentencing in these types of cases. In the circumstances, I consider what I am just about to say should in my view provide as useful guides for sentencing in this type of cases.

A closure examination of the above two cases make a number of points clear from which a guideline might be extracted. First, the maximum prescribed penalty should not be readily imposed. Instead it should be reserved for the worse type of the offence under consideration. Secondly, guilty pleas, and the offender being a first time young offender and the existence of such good factors operate in the offenders mitigation and sentences lower than the prescribed maximum may be imposed. Thirdly, the break, enter and stealing of a dwelling house armed with weapons and in the company of others attract sentences higher that those imposed for the commission of the offence involving structures such as a office. 

To these, a number of factors must be added. I consider these factors important in order to properly discharge the duty placed in a sentencing judge to impose a sentence that best meets the interest of the society to punish offenders and rid the society of such offenders if possible and the interest of an offender to be rehabilitated. First, is the amount or the value of property taken and whether all or any of the property stolen has been recovered. In my view, if the amount of money or value of the property involved is high and has not been recovered, that should attract a sentence higher than the kind of sentence imposed in one where they have been recovered. Secondly, prevalence and effect of the offence against the victim and the community or society as a whole. If the impact of the offence deprives the community of a vital service such as health services, important research work which as the potential of greater benefit to the society, the sentence should be sterner to reflect such impacts on the society. After all, criminal sentencing is a duty being discharged by the Courts on behalf of the community. Thirdly, prevalence or otherwise of the offence, which could be reflective of the ability of the previous sentence to either deter or not deter other would be offenders. For it would be a disservice to the society if too lenient sentences are imposed and they fail to rid the society of such offenders. At the same time, it would also be a disservice to the society if the sentence imposed does not adequately reflect the gravity of the offence and impacts of the sentence on the offender in terms of his rehabilitation. Finally, the kinds of sentences that are being imposed in similar but less serious offences such as a simple act of stealing should be considered to ensure that sentences in an higher or serious offence is not lower than those imposed for the less serious offences. 

Sentence in your case

In your case, you are a first time offender but not a young offender. You are over the age of twenty and as such there is going to be no discount which is usually given some cases for young first time offenders. You did not act alone. These two factors distinguishes your case from that of the Aiton Ipai(supra). But your case is similar to that case, in that all of the items stole estimated to have a value of over K14, 000.00, were recovered and the prisoner did not benefit from his offence. Properties housing the items stole were broken into in both your case and that case, which meant the respective owners’ had to incur extra, unexpected costs to repair them. Also equipment required for vital services to the community were the subject of the theft, telecommunication equipment in the Aiton Ipai case (supra), and power-generating equipment required by a medical research team in your case. 

The learned trial judge in the Aiton Ipai case (supra), did not with respect, have regard to the impact the offence on the victim and the community at large. It also did not have regard to any past sentences in this kind of cases and the effect of such on people like you. The learned trial judge did not have any regard to the competing interests of the community to punish offenders like you and the interest of the offender to be given an opportunity to reform. His Honour with respect appears not to have, considered the fact that the crime of, break, enter and stealing was prevalent. It seems His Honour was simply concerned with the interest of the offender more than that of the community or society. This was apart from an acknowledgement that the offence of, break, enter and stealing is a serous offence against society. In my view therefore, with respect, His Honour did not carefully weigh those two equally important and competing interests to do justice in the case. If His Honour considered all of these factors, he would have arrived at a sentence higher than 2 years.

 As for the other case, I consider it distinguishable from your case simply because of the fact that it was a case of, a break, enter and stealing from a dwelling house. Dwelling houses are considered the castle of a man, irrespective of whatever quality, shape or style it is. Perpetrating a crime at or out of such a place is a serous act. If the offence is committed in the night as it was in that case, it is even more serious. This is why commission of offences at such places is consider more serious than one that may be committed else. The only assistance this case may provide you is the fact that your sentence might have to be lower than the sentence in that case if a consideration of all the other factors I have just out lined above so dictate.

 Considering the factors I have outlined above, I note in your favour that there is no evidence of your offence depriving a vital community service in the area where the offence was committed. I also noted that the property you stole was recovered and as such you did not benefit from it, although I note this can not be a reason to excuse you from your criminal liability. Further, I note that you are a first time offender and that you cooperated with police, the committal court and this Court by freely admitting your guilt. This has saved the State and the Court substantial time and costs that would been incurred in running a trial against you.

On the other hand I find a number of factors operate against you. First, your are an adult and was therefore in a position to appreciate the negative impacts of what you were doing. Secondly, the estimated value of the property stolen was K2, 500.00, which above K1, 000.00 for the purposes of section 398 (a)(i). Thirdly, you acted in the company of any other. Fourthly, you broke into and therefore damaged a hospital ward office, which is part of providing a very vital medical service to the people in your area. Instead of looking after it, you broke into it and stole from it. This kind of offence is on the increase. That leads to the final factor against you, the prevalence of the offence of, break, enter and stealing. Our schools, health centres, hospitals, other government or public buildings, offices and or properties are almost on a daily basis falling victim to break, enter and stealing. In some areas of out country it is so serious that, vital services such as hospitals and schools are closing down. There is simply a lack of appreciation of the services these institutions provided to a large number of our people by a very few elements in society like you. There is a total lack of appreciation and respect for these services by people like you. Your kinds of people are showing no concern by your very conducts, which are not only going to offend one victim but an entire community as in your case, the whole of the people in the Yangoru District and ultimately the country.

One more factor against you is that, I have recently sentenced a man to 2 years cumulative on two charges of stealing presented under s.372 (1) for just stealing by act of forgery in breach of a trust placed on him by the victim. The total of the amounts stolen was K50.00 initially and K2, 200.00 later. Only K500.00 of that was recovered. That was in the case of The State v. Robert Kawin (24/12/01) N2167.

Now before going into my determination of your sentence let me restate what I said in The State v. Abel Airi (20/11/00) N2007 and cited in the Robert Kawin (supra) case at 6 that:

"… [T]he exercising of a sentencing judge or court’s discretion is not a matter of mathematics but rather an application of that discretion judicially having regard to the particular circumstances of the case, noting that a case as to be determine on its own facts. Exercising that discretion may well defer from judge to judge and that they may well be differences in the number of years imposed for similar offences depending on the nature and circumstances in which the offence is committed."

Considering all of the above, including both the factors for and against you and the sentences in the cases cited, I consider a head sentence of 3 years appropriate. This reflects your guilty plead by a reduction of 4 years from the maximum prescribed of 7 years. It also reflects the fact that the offence of, break, enter and stealing is prevalent and in some instances, it is seriously affecting the delivery of vital goods and services like medical services and education. Past sentences appear not to be deterring other would be offenders, which is evidenced by you committing this offence. Break, enter and stealing is a more serious offence than just stealing although the maximum penalty might be similar. This is because the offence of, break, enter and stealing is more violent then an act of mere stealing.

I will then have part of the sentence suspended based on authorities like Acting Public Prosecutor -v- Clement Makei and Tom Kasen SC205 and Public Prosecutor v. Don Hale (1998) SC564, in accordance with the pre-sentencing report which I accept. For that purpose, I will apportion the head sentence in terms of 1 year less the time already spent to be custodial and the balance of 2 years non-custodial, suspended sentence on the following terms:

1.	You immediate undertake to be of good behaviour bond and agree to faithfully comply with the terms that follow straight after this term;
2.	You render free 4 hours daily services between the hours of 8:00am and 4:00pm to the Yangoru Health Centre, under the direction and supervision of the Medical Superintendent or the Officer in Charge or in the absence of either of them, the Councillor in the area in close consultation and supervision with the Probation Service;
3.	You do not leave Yangoru District within the period of the suspended sentence;
4.	You be home bound between the hours of 5:30pm and 7:00am for the whole of the suspended period;
5.	You be not in the company of any youth for the whole of the suspended sentence; 
6.	You do not consume any alcoholic drink of whatever make including any home brew; and
7.	Allow for Community Correction Service to do home visits and do quarterly reports to this Court.

Any breach of these terms will automatically lift the suspended sentence and you will be required to serve the balance of the suspended sentence commencing from the date of the first default. I make orders in these terms.
________________________________________________________________________
Lawyer for the State: 		Public Prosecutor
Lawyer for the Accused:	The Public Solicitor