State v Monalen [2004] PGNC 105; N2677 (22 September 2004)

N2677

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 870 of 2004

THE STATE

-V-

JONAH YOHANG MONALEN

LORENGAU: KANDAKASI, J.
2004: 15th and 22nd September

CRIMINAL LAW - Sentence – Burglary and stealing at night – Hammer and flat screw driver used - Number and value of items stolen not substantial – Properties not recovered - Prevalence of offence – No pre-sentence report supporting non-custodial sentence – No sentencing guidelines – One devised and applied - 10 years imprisonment in hard labour imposed – Criminal Code ss.395 (1) (c).

Cases cited:
The State v. Irox Winston, (13/03/03) N2347.
Public Prosecutor v. Don Hale, (1998) SC564.
Re Application by Anderson Agiru (08/10/01) SC671.
Application of John Mua Nilkare (15/04/97) SC536.
Avia Aihi v. The State [1981] PNGLR 81.
Ian Napoleon Setep v. The State (18/05/01) SC666.
The State v. Brendan Oll and Nathan Saisai (25/03/04) N2554.
The State v. Ian Bob Wali (11/06/04) N2580.
The State v. Michael Kamban Mani (21/05/02) N2246.
Gimble v. The State [1988-89] PNGLR 27.
Dadly Henry Gorop v. The State (03/10/03) SC732.
The State v Paul Maima Yogol & Anor (21/05/04) N2583.
The State v Andrew Yeskulu (24/04/03) N2410.

Counsels:
A. Kupmain for the State
A. Raymond for the Prisoner

23rd September 2004

KANDAKASI J: You pleaded guilty to one charge of burglary at night of a dwelling house and stealing therefore a number of personal items belonging to a school teacher. You committed that offence at Ahus Community School, Ahus village Manus Province between 12 midnight on 13th and 6:00am on 14th April 2004. That conduct was contrary to s. 395 (1) (c) of the Criminal Code.

The State admitted into evidence, the District Court’s depositions with your consent. On reading the depositions, I was independently satisfied that, the evidence against you, including your record of interview, supported your guilty plea. I therefore accepted your guilty plea and convicted you on the charge presented. 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 to today.

The Relevant Facts

The relevant facts are these. Between 12 midnight on 13th and 6:00am on 14th April 2004, you armed yourself with a hammer and a flat head screw driver and went to Agatha Keleheu, a teacher at the Ahus Community School. At that time, Agatha Keleheu was away on a teachers’ in service at the Manus Secondary and no one was in her house. Once at the house, you used the hammer and the flat screwdriver to break and enter the house through the window. Upon gaining entry in that way, you stole number of Ms. Keleheu’s personal items such as clothes, food, laundry and stationary items having an estimated total of K151.00. You escaped with these items through the window you broke into. You used up all of the properties you stole.

The village leaders on learning, about the burglary and stealing from the teacher’s house carried out their investigations. Through that process, the leaders discovered a sugar container in your uncle’s house. That led to your apprehension by the village leaders and bringing you into the police station at Lorengau, even though you chose not to admit to committing the offence. At the police station, you admitted to committing the offence in both your record of interview and a confessional statement.

Submissions and Considerations

In your allocutus, you said sorry to the Court and the victim for committing the offence. You then asked for mercy or leniency from the Court and asked specifically for a good behavior bond.

Your lawyer added to that by informing the Court that you are 22 years old, single and come from Ahus Island, Manus Province. You are the fourth child out of a family of seven children. You are of the Roman Catholic faith and have been up to grade 6 formal education, with no formal employment. Your lawyer also informed the Court that, police arrested you on 26th April 2004 and was in their custody for four months before your release on bail. According to the record of interview, you escaped from lawful custody. Your lawyer informed the Court that the District Court dealt with your escaped from lawful custody with a 6 months wholly suspended sentence. There is however, nothing to confirm that, let alone a report on the compliance of the conditions if any for the suspended sentence for escape.

Similarly, there is no pre-sentence report supporting your call for a non-custodial or a lenient sentence. At the time of receiving the submissions of the parties, I left the option open for you to get your parents to provide details as to who would provide supervision or oversee you complying with any terms or conditions this Court might impose if it were to impose a non-custodial sentence. I also left open the option for your parents to indicate what part they will personally play in your punishment and rehabilitation. These options were left open until today and I have not received the kind of information required. Accordingly, it would be inappropriate to consider any non-custodial sentence.

The law is clear, there can be no suspension of sentence unless there is pre-sentence report representative of the community’s views in relation to sentence, support such an exercise of the Court’s discretion. As I said in a number of cases as in The State v. Irox Winston, (13/03/03) N2347 already:

"The Courts are charged with the judicial power of the people under our constitutional framework to appropriately deal with offenders on their behalf. The Courts therefore, have a constitutional duty to seriously take into account the peoples wishes in relation the kind of sentence an offender should receive in each case when they give consideration to the appropriate penalty to be imposed. Not only that, they should ensure at the same time that, the kind of sentence they arrive at is reflective of the people’s wish. This is in addition to taking into account all the other considerations a sentencing judge should take into account and then arrive at a sentence that is reflective of all of those considerations."

In expressing that view, I had regard to a number of Supreme Court judgments as in Public Prosecutor v. Don Hale, (1998) SC564, Re Application by Anderson Agiru (08/10/01) SC671 and Application of John Mua Nilkare (15/04/97) SC536 citing with approval Avia Aihi v. The State [1981] PNGLR 81.

The Offence and Sentencing Tariffs

Your conviction is against s. 395 (1) of the Criminal Code. That provision reads in relevant parts as follows:

"395. Housebreaking: Burglary.

(1) A person who—

(a) breaks and enters the dwelling-house of another with intent to commit a crime in it; or

(b) having—

(i) entered the dwelling-house of another with intent to commit a crime in it; or

(ii) committed a crime in the dwelling-house of another,

breaks out of the dwelling-house; or

(c) breaks and enters the dwelling-house of another and commits a crime in it,

is guilty of a crime.

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding 14 years.

(2) If the offence is committed in the night, the offender is liable, subject to Section 19, to imprisonment for life."

Since, you committed this offence in the night, subsection (2) applies. Hence, the maximum sentence prescribed for the kind of offence you committed is life imprisonment.

As would be apparent from the prescribed penalty, this is a serious offence. This recognizes the importance of a dwelling house. Parliament has made the commission of the offence in the night much more serious by prescribing the penalty of life imprisonment. This is appropriately so because a dwelling house is a man’s castle. It does not matter whether it is of permanent and high-class level or one made out of bush material: see Ian Napoleon Setep v. The State (18/05/01) SC666 and The State v. Brendan Oll and Nathan Saisai (25/03/04) N2554.

Both counsel were not able to draw the Court’s attention to any case law that might be of assistance in terms of providing some guidelines for sentencing in this kind of cases. According to my own limited research, the nearest I could come to are cases on break enter and stealing under s. 398 of the Code. In The State v. Ian Bob Wali (11/06/04) N2580, I noted that the offence is prevalent offence, but there are not many judgments on it. Prior to that, I considered nearly all of the cases on break, enter and stealing in my judgment in The State v. Michael Kamban Mani (21/05/02) N2246, and noted that, none of the published judgments provide any assistance in terms of providing a guideline for sentencing in these types of cases. I therefore, considered it necessary to suggest some guidelines and I did so in the following terms:

"...[T]he 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. 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."

I consider these principles relevant and appropriate for the purposes of sentencing in case of burglary under s. 395 of the Code. Accordingly, I adopt them with the necessary modifications to reflect the particular aspects of the offence under s.395. Nevertheless, I note that these guidelines fall short of providing specific guidelines as to particular kind of tariff for the different categories of the offence.

I accept the counsels’ submission that in the absence of any guidelines to the contrary, I should adopt the kind of tariff ranges suggested in Gimble v. The State [1988-89] PNGLR 27. This is appropriate according to counsels’ submission, which I accept because the offence of burglary and stealing from a dwelling house is a property offence, involves some violence and force and stealing or removing of another persons property without that person’s permission.

The Supreme Court, in the case cited set sentencing guidelines for armed robbery cases lower than the prescription of Parliament for a maximum sentence of life imprisonment. That was in the exercise of its discretion under s.19 of the Code. Higher up on the sentences, it recommends is 7 years for robbery of a dwelling house and robbery of a person on the street at the lower end of the scale at 3 years.

At the same time, these guidelines provide for an increase or decrease from these starting points depending on the factors in aggravation and mitigation. Where there are features of aggravation such as actual violence, the amount stolen or its value is large, or where the robber is in a position of trust towards the victim, a higher sentence may be justified. On the other hand, a plea of guilty and an absence of any of these aggravating factors may justify a lower sentence.

Subsequent judgments of the Supreme Court have held that, these guidelines particularly the recommended sentences are outdated and have increased them. One of the latest judgments that takes a detailed review of the sentencing tariffs is Dadly Henry Gorop v. The State (03/10/03) SC732.

I considered this development including the effect of the judgment in in Dadly Henry Gorop v. The State (supra) recently in The State v Paul Maima Yogol & Anor (21/05/04) N2583 and summed it up in this way:

"If anything is clearer from these judgments is the fact that sentences in armed robbery cases have increased since the guidelines in Gimble v. The State ...The prevalence of the offence is the main contributing factor for the increase in the sentences. The lowest starting point for a simple robbery of a dwelling house is now 10 years. This may than be increased or decreased depending on the factors in aggravation as well as those in mitigation. However, if this is reconsidered in the light of the judgment in Hawai John v. The State ... the sentence could well start at 13 to 15 years at the top end of the range, with a starting point of 10 to 13 years for robbery on a street. The Supreme Court judgments in, Dadly Henry Gorop v. The State;...Norbert Maing v. The State...and Nelson Ngasale v. The State,... make this clear."

Allowing myself to be guided by these authorities and the principles emerging there from, I note that a case of a burglary under s. 395 already has the category of a mere break in of a dwelling house during the day time (subs.(1)). There, the sentence could be anywhere between 3 to 6 years. Where there is both a break in and a stealing of contents, may attract a sentence between 7 to 10 years. The next category would be cases in which there is a break in, contents stolen, or another offence is committed in the dwelling house and the value of the property stolen or damaged is substantial, may attract sentences between 11 to 14 years. The use of firearms and other dangerous weapons and injury to any human occupants would fall in the last mentioned category.

I would suggest a similar category where the offence is committed in the night and attracts the application of subsection (2) of s. 395. There, however, the range of sentences could be somewhere in the order of 14 years to 17 years in the first category. In the next category, a sentence between 18 to 21 years would be appropriate. A range of 24 to life imprisonment would be appropriate for the final category. Substantial injury to human occupants or damage to property, where the amount of property stolen is substantial and not recovered, may attract a sentence in the last category.

Of course, where very good mitigating factors such as a guilty plea by a first time offender or no substantial injury or loss of property may warrant a sentence well below the sentences recommended. Similarly, serious aggravating factors, such serious injuries to occupants of the dwelling house may attract sentence beyond the recommended range.

Sentence in Your Case

Bearing this principles and suggested guidelines in mind, I proceed to consider a sentence for you. I note firstly, in your favour that, you pleaded guilty to the charge. That saved the State substantial time and money it could have expended in mounting a trial against you to secure a conviction. It also saved the Court substantial time it could have taken hearing and deliberating on your guilt or innocence.

The next thing I note in your favour is the fact that, this is your first ever offence. Prior to that, you have had no trouble with the law evidenced by the lack of any prior conviction recorded against you. That means this is the first time you stepped out of line with the law.

Further, the number of properties you stole and applied to your own use after the break and enter is not substantial. However, I quickly point out that, this does not render the commission of the offence any less serious than it already is. Additionally, you broke into the house when there was no occupant to give you any challenge, as such, you did not injure any human being in the process of your break, enter and stealing.

Finally, it would appear that, you co-operated well with the police in the sense that, you gave a confessional statement and admitted to committing the offence. You however, negated any gain out of this with your escape from lawful custody of the police in relation to the offence. At the same time, I note that, you did not admit committing the offence to the village leaders when they established that you committed the offence. In that way, you showed, in my view, disrespect and contempt for the village leaders. Village leaders are the symbol of authority and order in the villages. The kind of conduct or attitude you adopted is unacceptable and should be stopped.

Against these factors is the fact that, you committed the offence at night between midnight and 6:00am, when most people are in deep sleep. At that time, you were armed with a hammer and a flat screwdriver. You used these tools or weapons to break into a teacher’s house at a community school. Conditions in which most of our teachers and other public servants are operating in our country is very hard. Yet, they brave these conditions and some of them find themselves teaching and working in such conditions out of a commitment for their desire to play a part in the advancement of the country. An attack on such persons is an attack on the whole of the community, as it has the potential of affecting the valuable services they provide. Therefore, this is an aggravating factor against you: The State v Andrew Yeskulu (24/04/03) N2410.

Another factor against you is the fact that, the kind of offence you committed is a prevalent offence. This could mean, in the absence of any evidence and suggestion to the contrary that, the kind of sentences imposed to date have not served their intended purpose of deterring persons like you who are inclined to committing the offence.

In order to determine an appropriate sentence for you, I take into account your personal backgrounds and particulars as put forward to this Court by your learned counsel and the factors both for and against you out of the particular circumstances in which you committed the offence. Then having regard to all these aspects, I agree with counsel that, your case is not one of the worse cases of burglary and stealing from a dwelling house at night. Nevertheless, it was a case of burglary at night and that dictates a starting point of 14 years imprisonment in hard labour. However, having regard to your guilty plea, being a first time offender and the amount of personal properties stolen not being substantial, I consider a sentence between 10 to 14 years appropriate. Accordingly, I impose a sentence of 10 years in hard labour at the Lorengau Correction Service, less the time you have already spent in custody awaiting your trial and sentence.

______________________________________________________________

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: The Public Solicitor