State v Sikar [2003] PGNC 7; N2545 (27 October 2003)

N2545

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1173 of 2003

THE STATE

-V-

PAEYAN SIKAR and LEONARD GAWI

WEWAK: KANDAKASI, J.
2003: 22nd and 27th October

DECISION ON SENTENCE

CRIMINAL LAW & PRACTICE – Sentencing – Break enter and stealing – Sentencing guidelines – Consideration of sentences imposed in previous cases –Need for sentences in subsequent cases to be within the range of sentences being imposed for the kind of offence under consideration - Circumstances justifying a departure– Prevalence or its opposite relevant factor to determine whether to depart from past sentences – Criminal Code ss 398 (a)(i) and 19.

CRIMINAL LAW - Sentence – Break, enter and stealing from government property – Four outboard motors stolen having total valued of K25, 808.00 – Recovery of some missing parts - First time offender – Guilty plea and cooperation with authorities from the beginning - Prevalence of offence – Sentencing tariffs– Past sentences not deterring would be offenders – 3 years sentence imposed - 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. Michael Kamban Mani (21/05/02) N2246.
The State v. Zima Munduai (12/12/00) N2036
The State v. Marety Ame Gaidi No.2 (26/08/02) N2279.
Public Prosecutor v. Don Hale (1998) SC564.
State v. Jamie Campbell Fereka (07/04/03) N2359.
The State v. Robert Kawin (24/12/01) N2167.
The State v. Abel Airi (20/11/00) N2007.

Counsel:
Mr. M. Ruarri for the State
Ms. S. Maliaki for the Accused

27th October 2003

KANDAKASI J: You pleaded guilty to one charge of break, enter and stealing of four outboard motors from the Department of Agriculture and Livestock’s motor shed at Ambunti Station on 12th May 2002. You were charged under s. 398 (a) of the Criminal Code.

On being satisfied that there was sufficient evidence supporting your guilty pleas, I accepted it and convicted you of the charge against you. I then heard from you and your lawyer on sentence. I also heard from the State on that issue as well and I reserved a decision on sentence. This is now constitutes the decision of the Court on your sentence.

The Relevant Facts

I note there is no dispute in this case with regard to the practice of using the depositions to extract the relevant facts for the purposes of sentencing. This accords well with the law and practice on it as represented by the cases of The State v. Sabrina Yakal;[1] The State v. James Gurave Guba;[2] In The State v. Jack Oroko Tepol,[3] and The State v. Sam Nimino.[4]

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 Sunday 12th May 2002, you two men with another Donald Wapai planned and broke into the outboard motor and fuel shed of the Department of Agriculture and Livestock at Ambunti Station. You gained entry by forcing and breaking the lock to the door of the shed. Once inside, you stole and escaped with four outboard motors. Two of these were 40 hose power, one 30 hose power and the other a 25 hose power. The total estimated value of these motors is K25, 808.00. These motors were for assisting people in the community with agriculture extension programs.

The next day your break in, enter and stealing was discovered. Concerned members of the Community, together with police from Ambunti mounted a search for the stolen properties, in the process of which they received a tip off. That resulted in an identification of you as the offenders. Upon persistent questioning, you eventually led the police and the community to the stolen property from their various hiding sites. The motors were all recovered in good condition except for one missing gear box, which you had sold to another person, one helmet or cover, and a propeller.

Your community needs to be commended for the support it gave to the police. For without their support, your arrest might not have been possible. This demonstrates the community’s abhorrence of the offence you committed, as it does not assist them in any way. It was a very selfish act on your parts.

Maprik police arrested you on 12th June 2003. That means you have been in custody for 4 months and 2 weeks and 3 days to today.

Both of you are first time offenders, with no prior convictions. You are both single and have no formal employment. Paiyan, you are 18 years old while Leonard you are 19 years old. Your respective levels of education are grades 10 and grade 6. Both of you are of the Christian faith, with the Catholic and SDA Churches respectively.

In your address on sentence, you pleaded for mercy and a lenient sentence to enable you to go back home and settle this matter with the people you have wronged. There is a pre-sentence report supporting that plea, prepared purely on your information only. There has been no in put from your victims and your village or community leaders as to how they might be prepared to contribute to your punishment and rehabilitation. During the period of adjournment, I left open the opportunity for you to furnish such information. There is only a letter from the CIS here in Wewak speaking of the possibility of officers in Ambunti that might be able to supervise you. Unfortunately, there is no indication from the proposed supervisor as what he or she would be able to do.

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 backgrounds. She also asked me to consider and take into account in your favour that, you freely pleaded guilty to the charge against you and that, you have fully cooperated with the authorities, including the police. That made police work easy and saved this Court’s time. She also asked this Court to note that both of you are first time offenders. Further, she submitted on your behalf that, you returned all of the properties you stole except for the missing parts.

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 as 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, there is agreement between counsel that, the sentencing tariff in this type of cases is between 12 months and three years. However, they cited no authority to support that submission. The task is therefore on the Court without the assistance of counsel to consider past sentences to assist in determining an appropriate sentence for you.

In The State v. Aiton Ipai,[5] the Court imposed a part suspended sentence of 2 years on a guilty plea. The prisoner was a first time young offender. There was a full recovery of most of the items stolen valuing over K14, 000.00. 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, the Court imposed a custodial sentence of 3 years against the prisoner in The State v. Rocky Masa Kuno.[6] In that case, the prisoner also pleaded guilty to a charge of break, enter and stealing from a dwelling house at night. He was armed and acted in association with others.

Noting that neither these cases nor any other case provided any guidelines for sentences in these type of cases. I suggest the following guidelines in The State v. Michael Kamban Mani[7]:

"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 offender’s 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. ... 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. ... 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."

Bearing these cases and the guidelines in mind, I will now turn to determining an appropriate sentence for you.

Sentence in Your Case

In your case, both of you are first time offenders and both of you are not over the age of 20 years. Paiyan Sikar, you are 18 years old while Leonard Gawi, you are 19 years old. Both of you pleaded guilty to the charge. This of course, saved the State extra costs it could have incurred in mounting a trial against you. It also saved the Court precious time. These are factors in your favour.

In addition to the above, the pre-sentence report calls for a non-custodial sentence in view of your guilty pleas and you being first time young offenders. This report has been prepared based only on what you told the Probation Officer here at Wewak. There is no input from the victims or your own community. I have said in a good number of cases already, that such a report must have inputs from both the victim and offender’s sides as well as inputs from the community itself as to how it will supervise any community-based correction. I have already expressed the view elsewhere that a pre-sentence report that is based only on an offender’s input is not well balanced. As such, the Court should be slow to act on it.[8]

This follows on from what the Supreme Court said in Public Prosecutor v. Don Hale,[9]in relation to the question of imposing a non-custodial sentence. The relevant part of the judgment in that case is at page 5 in these terms:

"If a judge is to consider some leniency on sentence because of age it is incumbent on him to obtain the relevant report such as a pre-sentencing report especially around the age of 17 to 19... Then for such a drastic suspension of sentence a further help to the court would be a community report from the community to which the offender belongs and whether the community seeing that the incident happened within that community, has any views on an appropriate punishment or whether the community is prepared to assist with any community management of any bond period. The courts are bound under the philosophy of the constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment for criminals definitely as an effect on the ordinary people. So community involvement with the punishment of offenders should be considered as firstly if the court wishes to return an offender to the community instead of imposing imprisonment. And we note here that the relevance of Criminal Law (Compensation) Act 1991. A return to the community should mean an appropriate report of the attitude of the community and whether the community is prepared to make some responsibility for their own offending members and supervise any alternate punishment."

In your case, although there is a pre-sentence report calling for a non-custodial sentence, it is not well balanced and has no input from any member of the community. I left room for you to get a member of your community to indicate the community’s attitude toward the offence and the kind of punishment you should receive. More importantly, the Court wanted the community’s indication in a number of respects. Firstly, what part it would play if the Court sent you back to the community. Secondly, how it would assist in your rehabilitation. Finally indicate how it could see to you meeting any terms and conditions this Court might impose. There is a total lack of input in these areas. Thus, there is no proper basis to consider a non-custodial sentence.

Now against you is the fact that the total value of the items you stole is over K25, 000.00. There was recovery of nearly all of the properties you stole but with some damage. You partially benefited in that you sold a gearbox to another person. The recovery of the properties was possible because of the good community corporation the victim and the police received. Only after persistent questioning did you admit your involvement and the disclosure of where you had hidden the stolen goods. I contrast this with a case in which there is a free admission with no community and police persistence but is totally out of the free will of an offender.

I also note that the offence you committed was at a building other than a dwelling house. But, it is an offence that is prevalent in the country and the past sentences appear not to deter other would be offenders from committing it. Your commission of this offence is a testimony to that fact. Further, I note your claim through the pre-sentence report that you committed this offence because the Department of Agriculture and Livestock employees used the outboard motors as their personal properties. If this was true, the community would not have acted in the way it did and or you should not have proceeded to deal with motors in the way you had. The community could have raised the point with the authorities. There is no evidence of any such complaints. The evidence clearly shows the community’s interest was to recover the stolen properties and have you dealt with according to law. This contradicts your claims in relation to the use of the motors. Additionally, even if what you claim was true, that does not give you or anybody any authority or excuse to steal the motors in the way you did. You only had a right to complain to the appropriate authorities and nothing more. There is no evidence of you having done that.

Finally, you both claim to be Christians. I consider what I said in The State v. Jamie Campbell Fereka (07/04/03) N2359 relevant. There I noted and said:

"Further, although you claim to be a Seventh Day Adventist Christian, your conduct was contrary to that church’s teachings and the Ten Commandments in the Bible, in particular the eighth commandment. That commandment says, "thou shall not steal." Your church also teaches in line with Romans 6:23 that the wages of sin is death. The Bible defines sin as a transgression of the law, which are the Ten Commandments. So even from your church’s viewpoint, you committed a very serious sin, which can only be punished by death unless saved by the grace of God if you truly confess and repent of your sin and accept Jesus Christ as your personal Saviour. But that is a matter between you and your God.

The laws of Papua New Guinea require this Court to impose a sentence of up to life imprisonment unless there a good mitigating factors to reduce it to a determinate term of years. The cases that have already dealt with similar armed robbery cases have imposed sentences between 8 to 15 years on a guilty plea. So, as I already intimated, I am obliged to give you a sentence within that range."

With these in mind, I will now compare and contrast your case with some of the cases this Court has already dealt with. I start that process with The State v. Aiton Ipai.[10] In that case, there was a recovery of all of the items stolen, which had an estimated value of over K14, 000.00 and so 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 State v. Aiton Ipai,[11] and outboard motors required for agriculture extension work, in your case.

The learned trial judge in that case did not with respect, have regard to the impact the offence on the victim and the community at large. He also did not have regard to any past sentences in this kind of cases and their impact on people like you. Further, 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.

The other case is The State v. Rocky Masa Kuno.[12] I consider that case 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 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 serious act. If the offence is committed in the night as it was in that case, it is even more serious. This is why the commission of offences at such places are regarded more serious than the one committed elsewhere. 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 outlined above so dictate.

In The State v. Michael Kamban Mani,[13] I had a case of break, enter and stealing from a hospital ward office, a generator set. I imposed a sentence of 3 years. Of that, I suspended 2 years on strict terms because of a well-balanced pre-sentence report. There was no evidence of your offence depriving a vital community service in the area where the offence was committed. In addition, there was a recovery of property stolen and so therefore, the offender did not benefit from his offence. Further, the offender was a first time offender and that he cooperated with the police, the committal process and the Court by freely admitting his guilt.

At the same time, I noted that the offender was an adult and was therefore in a position to appreciate the negative impacts of what he was doing. The estimated value of the property stolen was K2, 500.00, which was above K1, 000.00 for the purposes of section 398 (a)(i). Further, he acted in the company of another. Furthermore, there was a break in resulting in damages to a hospital ward office, which was part of providing a very vital medical service to the people in the offender’s area. In that context, I noted that instead of looking after it, it was broken into and stolen from it. This kind of offence is on the increase, where institutions such as schools, health centers, hospitals, other government or public buildings, offices and or properties are almost on a daily basis falling victim. I further noted that, in some areas of our 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 provide to a large number of our people by a very few bad elements in the society like you. I then observed that 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 Ambunti District and ultimately the country.

In another recent case, I 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. Of that, the only amount recovered was K500.00. That was in the case of The State v. Robert Kawin.[14]

Now before going into a determination of your sentence, let me restate what I said in The State v. Abel Airi[15] and cited in the The State v.Robert Kawin[16] as I consider it relevant:

"... [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 pleas your respective ages 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 to our people.

If there were a well-balance pre-sentence report and more particularly if the Court had assurance of good and regular supervision of any community-based sentence, the Court might impose, I would have suspended at least half of this sentence. That would have been in line with authorities like that of Public Prosecutor v. Don Hale.[17] But, since the report lacks such assurance, I am reluctant to suspend any part of the sentence.

Of the 3 years, I order the time already spent in custody awaiting you trial be deducted and the balance be served in hard labour at the Boram CIS.
________________________________________________________________
Lawyers for the State: The Public Prosecutor.
Lawyers for the Prisoners: The Public Solicitor.

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^[1] [1988-89] PNGLR 129.
^[2] (19/12/00) N2020.
^[3] (08/10/99) N1941.
^[4] [1977] PNGLR 226.
^[5] (26/09/97) N1629.
^[6] (14/07/98) N673(S).
^[7] (21/05/02) N2246.
^[8] See for example, The State v. Zima Munduai (12/12/00) N2036 and The State v Marety Ame Gaidi (No.2) (26/08/02) N2279.
^[9] (1998) SC 564.
^[10] Supra note 5.
^[11] Supra note 5.
^[12] Supra note 6.
^[13] Supra note 7.
^[14] (24/12/01) N2167.
^[15] (20/11/00) N2007
^[16] Supra note 14, at p.6.
^[17] Supra note 9.