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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 236 & 237 of 2004
THE STATE
ALLAN NARETI and AMSTRONG KUPE
VANIMO: KANDAKASI, J.
2004: 9th, 16th, 19th and 26th March
CRIMINAL LAW - Sentence – Stealing K10, 250.00 in cash from a drunkard – Breach of de-factor trust – Parents prepared to repay full amount stolen by way of loan to offenders – Guilty plea by first time offenders – Offence out of character - Prevalence of offence – Sentencing tariffs and guidelines considered – Real chance of rehabilitation exists with good parental and community support - 5 years fully suspended on terms imposed – Criminal Code ss.398(a)(i) and 19.
Papua New Guinea Cases cited:
The State v. Robert Kawin (24/12/01) N2167.
Seo Ross v. The State (30/04/99) SC605.
The State v. Michael Kamipe (11/9/96) N1471.
The State v. Timothy Tio (21/05/02) N2265
Ala Peter Utieng v. The State (unreported and unnumbered judgment of the Supreme Court delivered in Wewak on the 23rd of November
2000) SCRA 15 of 2000.
Acting Public Prosecutor v. Don Hale (1998) SC564.
Doreen Liprin v. The State (9/11/01) SC675 (?).
The State v. Eric Emmanuel Vele (24/07/02) N2252.
The State v. Micky John Lausi (27/03/01) N2073.
The State v. Dobi Ao (No 2) (01/05/02) N2247.
The State v. Jimmy Solomon (6/7/01) N2100.
Overseas Cases cited:
R v. Davey [1980] FCA 134; [1980] 2 A Crim R 254
Counsel
F.K. Popeu for the State
D. Kari for the Accused
DECISION ON SENTENCE
26th March 2004
KANDAKASI J: Both of you pleaded guilty to one charge of stealing K10,250.00 in cash from a Jack Seimone being the property of Lumi Health Center here in Vanimo on the 30th of May 2003, which conduct was contrary to s. 372 (1) and (10) of the Criminal Code.
Following your guilty pleas, the State admitted into evidence the District Court depositions containing the evidence against you. After a careful consideration of its contents, I was satisfied that, there was basis for the charge and your respective guilty pleas. I therefore, accepted your guilty pleas and had both of you convicted on the charge presented. Then on your application, I ordered the furnishing of a pre-sentence of report as well as a means assessment report and deferred a decision on your sentence until after the receipt and consideration of the requested reports.
The Court did receive the reports it requested from the probation services here in Vanimo. However, the Court found out that, it required more information before arriving at a final decision on your sentences. It therefore directed the probation service to furnish additional information. That was after the Court partly heard from your respective parents as to their preparedness to assist you to repay the money you stole and as to the parts they will play in your rehabilitation efforts.
On Friday, the 19th of this instant, the Court received the additional information it requested from the probation service. It also heard further from your parents and then adjourned for final decision on your sentence to today. This is now the Court’s decision on sentence.
The Facts
On 28th May 2003, the victim of your offence, Jack Seimoni went to the BSP Bank and withdrew in cash a sum of K10, 250.00 for the purchase of food rations for the Lumi Health Centre. The money came from the Department of Sandaun. The victim put the money in his bag and carried it around with him whilst going on a beer drinking and playing pokies spree the next day. Whilst on this spree, the victim met you, Amstrong Kupe at your father’s house whilst looking for more beer. Soon Allan Nareti, you joined in. On finding that there was no beer at Mr. Kupe’s house, the victim, Mr. Seimoni asked both of you to go and look for a motor vehicle for him so he could go and look for more beer.
You responded favourably by going and looking for a motor vehicle for him. You did not however quickly return to him with a motor vehicle. He therefore, got impatient and went with a Vincent Wawala and another to the lodge where he had been staying and from there to a Otto Welly’s house and sat on the lawn on the side of the road. There, he and his companion went off to sleep with his hands around the bag containing the money, after being up the whole night. The time was about 2:00am.
When the victim woke up from his sleep, he found the zip to his bag where he put the money opened. He quickly searched for the money and found out that it was gone. After having made enquiries elsewhere, you two were asked about the money and both of you denied taking it.
The matter was eventually reported to police. Police investigations resulted in information of Armstrong having spent a lot of money on beer at the Beach Hotel, where a dance was going on in the night of 30th May 2003. They also received information that Allan Nareti played a lot of money on pokies on 31st May 2003.
Police eventually arrested you and took you to the police station. There, they conducted separate records of interview with each of you and Allan Nareti admitted to having stolen the money off from Mr. Seimoni’s bag. Allan Nareti, you also admitted to sharing the money between yourselves and spending it all on beer, pokies and dances and flying to Wewak, thereby making any recovery of it impossible. Armstrong chose not to say anything to the police.
Submissions and Considerations
In your address before sentence, you elected to leave it all to your lawyer. For submissions on your behalf, your lawyer adopts the information and recommendations put forward in the respective pre-sentence reports. These reports highlight the fact that, this is your first ever offence and that, you are both law-abiding citizens. The commission of this offence was therefore out of character. There is preparedness on the part of your parents and relatives and the community to help repay the money you stole and for you to do community work. Both of you do not have any permanent employment or a source of income.
Based on these, your lawyer submits that, you should be given a non-custodial sentence to help you reform and to avoid being turned into hard-core criminals if sent to prison. The State makes no submissions, choosing instead to leave it to the Court’s discretion.
The Law
The Court needs to first consider what the law says in relation to sentence because justice must and can only be administered or arrived at according to law. Section 372 (1) and (10) of the Criminal Code creates the offence and its penalty. The maximum penalty under these provisions is 7 years subject to s.19 of the Code.
Both counsels were not able to assist me with any case on point. Proceeding therefore unassisted, I note that, I have published a number of judgments dealing with your kind of cases. One of them is my judgment in The State v. Robert Kawin.[1] That was a case of stealing brought under subsection 1 instead of subsection 10 of s. 372 for two counts of stealing by forgery in a breach of a trust situation. In sentencing, the prisoner on a plea of guilty to a cumulative sentence of 2 years, I noted that there were no sentencing guidelines and I tried to formulate one in these terms at pp. 5- 6:
"In line with the accepted principle that, the maximum prescribe sentence in any offence should be reserved for the worse category of the offence under consideration, I am of the view the that the maximum of 3 years should be reserved for the worse category of stealing under s. 372 (1). A worse case of stealing would be one that might have factors like, the total value or the actual amounts of money stolen falls just short of K1, 000.00, thereby escaping an application of the provisions of subsection 10. It would also be a worse case if say an element of a breach of trust whether legal or a defector kind of trust not caught by any of the other subsections in s. 372 exists and the offence is committed in furtherance of an illegal activity or another offence.
At the end of the scale would be simple cases of stealing, such as, pocket pickings, or someone leaving some valuable item mistakenly at a place and another person steals it with full knowledge of its owner. Stealing in such a situation should attract a sentence of a few months say about 3 to 4 months. Then there would be cases in between. These might be cases in which say the amount of money or the value of item stolen is small but the offence is committed in pursuance of an illegal activity or another offence. In this category might be cases where the amount of money or value of item stolen is substantial but not necessarily up to K1, 000.00. In such cases the sentence could range from more than 4 months and closer to the maximum prescribed sentence of 3 years.
Of course a guilty plea by a first time offender, or a young offender could reduced the kind of sentence suggested. The need to do that as been made clear in a large number of cases though in the context of other offences as in the case Gimble v The State [1988-89] PNGLR 271, by the Supreme Court at page 275. The above suggestion is only put forward as a guide in the absence of any other guideline to the contrary. A judge may impose a sentence outside what is suggested, provided there is a good reason to depart from the suggested guideline."
After that judgment, I found a number of other cases, which I was not able to find before or at the time of that judgment. The first is the Supreme Court judgment in Seo Ross v. The State.[2] In that case, Seo Ross pleaded guilty to two counts of stealing under s.372 (5) of the Code. The National Court imposed a sentence of two years for each count and ordered him to serve them cumulatively. It did so after noting that, the prisoner was a first time offender and that the properties stolen were recovered. On appeal against that sentence, the Supreme Court held that the National Court did not err in its judgment. Instead, it agreed with the trial judge that it was a serious offence because it involved a breach of trust by a security officer.
The second is a judgment of my brother, Justice Sawong in The State v. Michael Kamipe,[3] where the prisoner was given 4 years concurrent with a sentence of 6 years for hijacking an airplane, involving large sums of money.
However, as I noted in The State v. Timothy Tio,[4] these cases do not clearly provide us with any guideline for sentencing for any or all of the offences under s.372 of the Code. In the circumstances, I considered what I said in the The State v. Robert Kawin[5] as a useful guide, for adoption and application with necessary modifications for an offence under subsection 10. I then proceeded to state a number of principles as emerging from these cases.
These were, firstly, the maximum prescribed penalty is not automatic. Instead, it is 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 favour of sentences lower than the prescribed maximum. Thirdly, a recovery of the properties stolen may operate as a factor in mitigation of an offender whilst on the other hand if the properties stolen are substantial and or not recovered, may attract a higher sentence. Fourthly, prevalence and effect of the offence against the victim and the community or society as a whole is an important factor for consideration.
You Case
There is neither any reason nor is there any argument against an adoption and application of these principles to your case. I therefore, adopt them and apply them to your case. Similarly, there is neither an argument nor a reason not to adopt and apply the guidelines I suggested in The State v. Robert Kawin.[6] Accordingly, I also adopt them and apply in your case.
Bearing these guidelines and principles in mind, I note that, Armstrong Kupe, you are married with one child. You are originally from the Manus Province. However, you have lived all of your life with your parents here in Vanimo. Your father is self-employed with an outboard motor, a chainsaw, a lawnmower and 2 portable generators and other asserts. I take it that, your father uses these to earn his living.
In addition, I note that, your mother is employed as a keyboard operator with the Vanimo/Green District office, earning about K280.00 per fortnight.
You are the first bone in the family and you have other younger siblings. Your commission of the offence, your arrest, standing before this Court, I believe has, will, and continues to be a lesson to your younger siblings and other youths in the area in which you live. You could have kept yourself busy by helping your father. Whether you did that or not, is not in evidence before me. However, the potential for you to do that is there.
As for Allan Nereti, I note you are 22 years old and single. Originally, you come from Warapu village, Aitape, Sandaun Province. However, both at the time of the commission of the offence and currently, you live with your parents here in Vanimo town as they both work and leave in here. Your father is an auto electrician with the Department of Works whilst a trading company here in Vanimo, employs your mother as a cashier. Both of your parents are prepared to help you to meet any conditions the Court might impose as part of your sentence.
You have a vocational training as a motor mechanic and had work experience with Ela Motors during your course of studies. Currently, you are unemployed and are dependant on your parents. You are the 3rd born out of 7 children in your family. Two of your sisters are now married and one of them has formal employment. They are also prepared to help you to meet any conditions this Court might impose as part of your sentence. Obviously therefore, what you did and the consequence following you would be a lesson for your siblings and other members of your immediate community.
In order to determine an appropriate sentence for the both of you, I note firstly in addition to your respective family backgrounds that, there are a number of factors against you. Firstly, the amount of money you stole is K10, 250.00. Secondly, you used up this money in beer, pokies, and dances and therefore not recovered. You did not do something useful with the money you stole. Therefore, you stole for no good reason, legal or otherwise. Thirdly, the money you stole belonged to the Lumi Health Centre, although, there is no evidence that, you knew that was the case. You stole in circumstances in which, I find that there was a de factor trust. This is apparent from the fact that the victim trusted you by coming to you and you agreed to look for a vehicle for him. When you returned, you found him asleep. You then proceeded to steal from him. I note of course, that Mr. Seimoni was careless, by choosing to go on a drinking spree late into the night and sleep outside when he knew very well that, he had a large sum of money, belonging to the public and meant to feed sick people. I am somewhat suspicious of Mr. Seimoni’s conduct. He might well have planned the theft and gain from it. However, there is no evidence of that being the case, so I cannot say that is what happened. Hence, I can only proceed to deal with your case on the fact before me in the terms already noted.
Finally, the offence of stealing is prevalent. There is already a bad state of affairs with there being so much armed hold ups and robberies at houses, stores, offices and other people almost everywhere in the country. There is no longer trust and good faith in a majority of the people of your age group anymore. None of your people is taking good care of someone or his property for nothing anymore, unlike the times during the colonial and the few years just after independence. Something must therefore, done to restore the good habits, culture and the traditions of our forefathers of respecting one another. Parliament has thought about it and prescribed the various kinds of sentences under each of the subsections in s. 372 of the Code. The obligation is thus, on the Court to impose a sentence that reflects the societies wish to clear the society of thieves like you.
In this regard, I note that, past sentences appear not deter other would be offenders like yourself. The State v. Robert Kawin[7] represents one of the latest sentences for the offence of stealing. That was a case of stealing brought under subsection 1 instead of subsection 10 of s. 372 on two counts of stealing by forgery in a breach of a trust relation. The prisoner received a sentence of 2 years cumulative. The State v. Timothy Tio,[8] was a judgment subsequent to the one in The State v. Robert Kawin.[9] That was case of stealing by a security guard.
No doubt, both of these cases were serious because of the direct trust placed on the respective offenders. In your case, the trust was only a de factor one and certainly not as serious as the breach of trust in these cases. Nevertheless, these sentences and the fact the offences carry a maximum of 5 years did not deter you from committing the offence. It therefore calls for a penalty closer to the one received by the prisoners in those cases.
Against these factors in aggravation, there are a number of factors in your favour. Firstly, you have pleaded guilty to the charge against you. This has saved the State money it could have spent in running a trial to establish your guilt. Secondly, you have no prior conviction and as such I note that, this is your first ever offence. The probation report states that, the offence both of you committed was one out of character. Thirdly, although you did not said it in Court, the pre-sentence report states that, you have expressed remorse over what you have done and that, you have undertaken not to re-offend and recommends a non-custodial sentence on terms.
Nevertheless, as the Supreme Court said in Ala Peter Utieng v. The State,[10] an expression of sorrow is meaningless unless accompanied by something tangible to show it, in terms of directly saying sorry to the victims of your offence and making it right with them. Accordingly, both of you saying sorry without anything tangible, through the probation service and not directly to this Court and importantly the victims of your offence is of no value to you or to anybody. I therefore reject that.
In appreciation however, of the other factors in your favour, the State makes no submission contrary to your submissions. I also note that, you have a good pre-sentence report that has inputs from your parents and other members of your immediate community. The Supreme Court, in Acting Public Prosecutor v. Don Hale,[11] made it clear that criminal sentencing is a community responsibility. Therefore, before this Court sends an offender back to the community, it must first have a pre-sentence report demonstrating preparedness on the part of the community to assist in the supervision of compliance of any terms the Court may impose toward an offender’s rehabilitation.
In its subsequent judgment, the Supreme Court in Doreen Liprin v. The State,[12] highlighted the need to give serious consideration to alternatives to prison sentences to non violent offences. This would serve as a punishment and at the same time, reduce the costs to the society in terms of the costs of incarceration and void the risk of turning an offender into a hard-core criminal.
I agreed in The State v Eric Emmanuel Vele[13] that, it was time to consider seriously alternative to imprisonment sentences for non-violent offences. However, that with respect does not necessarily mean that, there should be drastic reduction on the head sentences. Rather, it means that, there be sterner head sentences and then either, have the sentences wholly or partly suspended on strict terms. This is to show the seriousness of the offence and to serve both the purposes of deterrence and rehabilitation of offenders. It would also give the offender a reason to faithfully meet any conditions imposed for a suspended sentence. The absence of a sanction or conditions might give no reason to the offender to appreciate his sentence and take meaningful steps to rehabilitate.
Earlier I observed in The State v. Micky John Lausi[14] that:[15]
"It is erroneous to treat the suspension of sentence for imprisonment as merely an exercise in leniency. Because such an order is made in the community interest and is generally designed to prevent re-offending which a prison sentence, standing alone, seldom does. A person so released as an obvious incentive not to re-offend. Therefore, there should be no misconceptions as to what will occur if he does. From time to time, persons charged with more serious offences may be dealt with in this manner by reason of good character, the court’s view that there will be no re-offending, that treatment is required outside prison and, at times, by reason of the fact that the court believes that a particular offender will be positively damaged by immediate incarceration.
With respect therefore, a non-custodial sentence does not grant the offender immediate liberty. He is simply allowed to serve his penalty out of the prison system for reasons such as those noted in the above passage. Hence, the need to impose a head sentence and conditions for a suspended sentence that will make that clear to an offender."
This follows from an appreciation of the fact that, sending a prisoner back to serve his penalty outside the prison system is a form of punishment that serves the purposes of penalizing an offender and giving the offender an opportunity to rehabilitate.
Weighing all the factors for and against you, I do not consider your case serious enough to warrant an imposition of the maximum prescribed sentence of 7 years. That is despite the fact that the amount of money you stole was K10, 250.00, which you wasted in alcohol, pokies and dancing and hence not recovered. In arriving at that view, I note that your respective parents and other relatives are prepared to help you to repay the money you stole out of their hard-earned income in these difficult economic times. There is no evidence that, your respective parents or relatives benefited from the money your stole.
In The State v. Dobi Ao (No 2),[16] I observed that the long established principle of punishing only the offender has been imposed on us because of our adopting almost whole scale the Western norms of criminal law punishment. I then noted that:
"Traditional or customary Papua New Guinea is more communal and family responsibility. Everyone affected by a problem in society contributes towards resolving it. Schedule 2.1 (1) of the Constitution adopts custom as part of our underlying law provided it is consistent with the Constitution, any statute and is not repugnant to the general principles of humanity."
As already noted, sentencing or punishing an offender is a community responsibility. However, when it comes to the question of when should the immediate family of an offender contribute or share in his punishment, I repeat what I said in The State v. Dobi Ao (N0.2).[17] There, I said relatives and the community could contribute or participate in an offender’s penalty if they contribute to the commission of the offence at the first place or have benefited from the offence.
In a case where the relatives or the community have not contributed to the commission of the offence or have not benefited from it, they could still share in the penalty particularly in the context of paying compensation. I have taken that approach in one or two cases already only on the condition that the contribution from the relatives is treated as a form of a loan to the offender. I have taken that approach on the basis that, sentencing is a community and family responsibility and the more parents are involved, they will have an interest in seeing the offender reform to avoid seeing further unnecessary loss of money in payment of compensation for the wrongs of one of their offending elements. In addition, parents have a direct responsibility in ensuring that a child is brought up in a way to love and respect the law and to leave as honest and trustworthy persons in society. When they offend, it becomes their responsibility as much as that of the State to ensure that, they reform and become useful members of the society. At the same time, in treating as a loan the parents and other relatives’ contribution toward a restitution or compensation, it makes the offender to take personal responsibility for the offence and its consequence. He needs to appreciate that and the fact that, it is his actions that has caused his parents and or relatives to lose their money to restitution or compensation which he is obliged to repay in cash or kind. In that way, the offender is made to appreciate there is no such a thing as free contribution toward paying for one’s contribution.
In both of your cases, I note that, your parents and relatives are prepared to help you repay the money you stole. Ignoring this and sending you to prison will no doubt result in the State incurring extra costs to keep you in prison and feed you. You will have a holiday for the duration of your sentence. Your immediate community will not see you paying for you offence. There is also the risk that, you might have hardcore criminals in prison that might help turn you into hardcore criminal during the period of your holiday. You have in the past, had a very good record with the community. The community should be interested in enabling you to return to that good record and that, your parents, relatives and the community have a responsibility to ensure that, you return to that good record and never again be involved in any more criminal activities.
I have heard both of your respective parents. They have made a commitment in Court to help you both to rehabilitate and to become good law-abiding citizens apart from helping you to repay the money you stole by way of a loan to you. Your parents and the community through the pre-sentencing report are all supportive of a non-custodial sentence but on terms.
Taking all of these factors into account, I consider a head sentence of 3 years appropriate. I am also prepared to have all of that suspended less the 3 weeks you have already spent in custody awaiting your sentence, strictly on the following terms and conditions as an alternative to serving time in prison:
I consider the sentence and the terms and conditions of the sentence proposed above, sufficiently accommodates all of the comments
and concerns raised in the foregoing. Accordingly, I make orders in those terms.
_________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the Accused: The Public Solicitor
[1] (24/12/01) N2167.
[2] (30/04/99) SC605.
[3] (11/9/96) N1471.
[4] (21/05/02) N2265.
[5] Supra note 1.
[6] Supra note 1.
[7] Supra note 1.
[8] Op Cit n.
[9] Op Cit n.
[10] (unreported and unnumbered judgment of the Supreme Court delivered in Wewak on the 23rd of November 2000) SCRA 15 of 2000.
[11] (1998) SC 564.
[12] (9/11/01) SC675 (?).
[13] (24/07/02) N2252.
[14] (27/03/01) N2073.
[15] Adopt with variations the judgment of Muirhead J. in R v. Davey [1980] FCA 134; [1980] 2 A Crim R 254. This passage was cited in The State v. Jimmy Solomon (6/7/01) N2100.
[16] (01/05/02) N2247.
[17] Supra note 16.
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