State v Wali [2004] PGNC 199; N2580 (11 June 2004)

N2580

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 445 of 2004

THE STATE

-V-

IAN BOB WALI

WEWAK: KANDAKASI, J.
2004: 9th and 11th June

DECISION ON SENTENCE

CRIMINAL LAW - Sentence – Break, enter and stealing from police station by second in command’s son – Serious offence – Two firearms and cash stolen – Offender caught in the act – All items stolen recovered – Prevalence of offence - No pre-sentence report supporting call for non custodial sentence – 6 years sentence with option to suspend part or whole of the sentence if a good community based sentence proposal is submitted with one month – Criminal Code ss.398(a)(i) and 19

Cases cited:
Acting Public Prosecutor v. Don Hale (Unreported judgment delivered on 27/08/98) SC564.
The State v. Michael Kamban Mani (Unreported judgment delivered on 21/05/02) N2246.
Acting Public Prosecutor -v- Clement Makei and Tom Kasen SC205.
The State v. Abel Airi (Unreported judgment delivered on 28/11/00) N2007.
The State v. Gilbert Peter Diga (Unreported judgment delivered on 17/04/00) N1991.
The State v. Jerry Mana (Unreported judgment delivered on 02/05/03) N2367.
The State v. Lucas Yovura (unreported and unnumbered judgment delivered 29/04/03) N2366.
Peter Naibiri and Kutoi Soti Apia v. The State (Unreported judgment delivered on 25/10/78) SC137.
Ure Hane v. The State [1984] PNGLR 105.
Joe Foe Leslie Leslie v. The State (Unreported judgment delivered on 07/08/98) SC560.
The State v. Robert Kawin (Unreported judgment delivered on 24/12/01) N2167.

Counsel:
J. Wala for the State
L. Siminji for the Accused

11th June 2004

KANDAKASI, J: You pleaded guilty to one charge of break, enter and stealing from the Maprik Police Station, two firearms and K305.00 cash being the property of the State, on 20th December 2003, contrary to s. 398 (a)(i) of the Criminal Code.

The State admitted into evidence, your District Court Depositions. On reading it, the Court 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 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 to today.

The Relevant Facts

The relevant facts are these. Between 11:00pm and 12:00 midnight, you broke into the Maprik Police Station. You gained entry into the police station by breaking through the wall and thereafter, you proceeded to also break into the CID office. There, you made a mess of the office, opening up all the draws, picking up files, which included court and other papers and throwing them all over the place. You did this in search for valuables and firearms. Your opening a safe and taking out of it a sum of K305.00 and opening and stealing from the exhibits room two firearms confirm this.

You could have easily escaped with them had it not been for a policeman, Paul Lawrence who was alerted by a sound of metal dropping on the concrete floor. He was on his way to the police station to hand over a pump action short gun to the next shift, 12:00 midnight to 8:00am members. This policeman called out as to who it was, corking the gun, as he did and headed to where the noise had come from. At this time, you saw the policeman and called out his name.

The policeman looked around and discovered the break in and he proceeded to question you. In response, you admitted to break and entering the police station and the CID office. Thereafter, you put your hand into your pocket and produced some cash saying, you took it from the CID office and handed the money over to him. As you did that, the policeman called out for one of his colleagues, Don Anikata, a CID member and the two of them counted the money, which added to K305.00. He searched around and found, a coffee scale, a brief case and papers lying outside the building. These items were recovered along with the two firearms. The firearms were recovered from near your father’s house.

Thereafter, the policeman and his colleague went to your father who is the second in command of the Maprik Police, Chief Sergeant, Bob Wali and reported your break, enter and stealing to him. From there, the two of them went and reported the matter to another CID member to proceeded with formal charges. Subsequent to that, you were arrested and placed in the cells.

On 7th January 2004, you swore to an affidavit admitting to committing the offence. In that affidavit, you acknowledged that your father is a respected member of the community and that he is the second in charge of the Maprik Police Station. You claim that, at the time of committing the offence, you were dead drunk and did not know what you were doing. You go on to say that, before the break, entering and stealing from the CID office, you did not know that you also stole some vanilla and a shirt from a woman called Esther Kiano. Further, you say that, if you were sober, you could not have done what you did. You also claim that, when you came to your sense, you surrendered yourself to the police. Furthermore, you claim that, you fully repaired the damage you had done.

Submissions and Considerations

When the Court asked you to address it on your sentence, you effectively, repeated the contents of your affidavit. This includes an emphasis that, you are a first time offender, and that you pleaded guilty to the charge. You also said sorry for what you have done and asked for mercy from the Court.

You further told the Court that, you are married with 2 children, a 1 year old and another 2 and half month old baby. You and your family live with your parents at Maprik. Papindo employs you with its construction business. You go on to say that, if you are sent to prison, you will be a burden to your parents. To avoid that, you ask for a lenient sentence in terms of a good behaviour bond.

Your lawyer then added that, there are 5 children in your family. You are the eldest and the only male child. You attend the AOG church and completed grade 10 High School education. He emphasized that, this was your first ever offence, and that you pleaded guilty and reiterated your call for a lenient sentence.

At the same time however, this submission agrees with suggestions from the Court that your case require examination from a different light considering that this offence was committed against a police station by a policeman’s son. In other words, there is no contest that, this is a serious case of break, entering and stealing because it was an offence against a law enforcement agency. The State joins in that submission by saying, the sentence must reflect that seriousness.

Your lawyer also asks for a non-custodial sentence with the endorsement of the Counsel for the State. However, both Counsels’ submissions ignored what the Supreme Court said in Acting Public Prosecutor v. Don Hale (Unreported judgment delivered on 27/08/98) SC564. There, the Supreme Court said, there can be no suspension of sentence either in part or in whole unless, there is a pre-sentence report supporting it and in cases where the offender is below the age of 19 years. Counsel therefore correctly abandoned that submission, as I have no pre-sentence report before me, supporting a non-custodial sentence.

The Offence and Sentencing Tariffs

Section 398 (1) (i) of the Criminal Code provides for the offence of break, enter and stealing from amongst others an office. It also provides for a maximum penalty of 14 years.

This is a prevalent offence, but there are not many judgments on it. I considered nearly all of the cases on break, enter and stealing in my judgment in The State v. Michael Kamban Mani (Unreported judgment delivered on 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. I then said:

"... [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."

Allowing myself to be guided by these principles, I imposed in that case a sentence of 3 years. That was in a case of a break, enter and stealing of a generator from a Health Centre and sold to a third party. However, good police work recovered it. The prisoner pleaded guilty from the time of his apprehension to the point of his arraignment.

I then suspended part of the sentence based on authorities like that of Acting Public Prosecutor -v- Clement Makei and Tom Kasen SC205 and Public Prosecutor v. Don Hale (supra) in accordance with a good pre-sentencing report, which I accepted. That was on strict terms.

Sentence in Your Case

For the purposes of determining an appropriate sentence for you, I note and take into account your personal and family backgrounds as noted in the earlier part of this judgment. In particular, I note in your favour that, you are first time offender. That means, this is your first offence and that, this is the first time you are before this Court. There is no pre-sentence report or any other evidence regarding your personal character.

You co-operated well with the police by freely admitting the commission of the offence. You maintained that position up to this Court. This saved the State and the Court substantial trial time and costs. At the same time, however, I note that, a policeman, Paul Lawrence, caught you in the act. Indeed, I note that, he disturbed you from completing your act of stealing after you broke into the police station.

Further, I note that, you have also assisted the police in the recovery of the items you stole. Therefore, you did not benefit from the proceeds of your offence. Nevertheless, I find on the facts before me that, this was inevitable. Paul Lawrence caught you in the act. Given that, and the fact that your father is the second in command of the very place you broke into and stole from, you had no choice but to return all the things you stole.

I also note and take into account, your expression of remorse. But, I do not accept your excuse of being under the influence of alcohol and that causing you to commit the offence for two reasons. Firstly, you chose to get drunk, particularly in the absence of any evidence to the contrary. It is a known fact that, people like you who get drunk, chose to act stupid and do stupid things because it is common knowledge that, that is what drunkards become. As such, the law clear is that, being under the influence of alcohol is no excuse for committing an offence.

In The State v. Abel Airi (Unreported judgment delivered on 28/11/00) N2007, I expressed the view that:

"... [A]nyone who voluntarily gets himself drunk, must know that his capacity to control himself will be impaired and it is no reasonable explanation by him after the event that his self-control was affected. On its own, it ought not to be taken as a mitigating factor."

My brother, Sawong J took a similar view in The State v. Gilbert Peter Diga (Unreported judgment delivered on 17/04/00) N1991. There, His Honour said this to the prisoner:

"You and your friend were drunk when you committed this offence. Unfortunately, we once again see the effect of alcohol abuse. This is not a factor in your favour; in fact it is a factor against you."

Citing these and other cases, I said in The State v. Jerry Mana (Unreported judgment delivered on 02/05/03) N2367 in the context of an alcohol related killing:

"What this means is that, the kind of sentences that have been imposed for alcohol related killings, will now have to be seriously reviewed with a view to increasing them, given the high incident of the deaths in this kind of cases. Being drunk and coming under the influence of alcohol is not an excuse and cannot be a factor in the prisoner’s favour."

The second reason why I do not accept your plea of being under the influence of alcohol and not knowing what you did is this. You broke into in the main police station. Thereafter, you broke into the CID office. You then opened all of the draws in the office, then got court files and other documents and scattered them all over the place. It seems you were specifically looking for valuables to steal. This is confirmed by the items you eventually stole and took them out of the CID office and the station. Included in the items you decide to steal were two firearms from the exhibit holder and K305.00 from a cash box. You carried out the break, enter and stealing at the time when there was going to be a hand over of shift in the middle of the night. At about this time, there would have been a lapse in someone being physically at the Police station. These actions speak of a person who knew what he was doing at a time that was right, but for, Paul Lawrence turning up. For a drunkard would not ordinarily break and enter a police station and then further break into an office within the building. He or she would then not know what and where to look for and steal only valuable items.

The final thing I make mention of is your plea for the Court to take into account your family and personal backgrounds and needs. In respect of that, I repeat what I observed in The State v. Lucas Yovura (Unreported judgment delivered 29/04/03) N2366:

"Indeed I note what the Supreme Court in Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000 said is relevant. In that case, the Court observed that an offender should consider his background first before committing any offence. Implicit in that is the fact that, it is a little too late to talk about an offenders personal background including the needs of his family concerns once he is proven guilty according to law. His background and concerns should have little or no weight against the need to impose a sentence or punishment that best befits an offence he has committed in the particular circumstances in which the offence was committed.

I followed this principle in a number of cases already. An example of that is the case of The State v. Raphael Kimba Aki (No.2) (28/03/01) N2082. Following this line of authorities and the reasoning behind them, your plea for leniency to avoid suffering to you family has no place. If at all, that plea has little or no weight in determining an appropriate sentence for you."

Taking into account the foregoing discussions, I note that, you are left with only one factor in your mitigation. That factor is you being a first time offender. Against this are a number of aggravating factors.

Firstly, as noted in the course of your arguments, this was a direct offence against a law enforcement agency namely a police station. The offence was committed against a rural police establishment. It is a well known fact that, police are poorly equipped, given the country’s financial problems. Any attack on them not only slows them down but also, affects the entire community or even the country on a wider scale. Therefore, it is now settled law that, an offence against a law enforcement agency is a serious offence.

In Peter Naibiri and Kutoi Soti Apia v. The State (Unreported judgment delivered on 25/10/78) SC137, the Supreme Court said in the context of an attack on a policeman:

"Outbreaks of violence.......appear to be on the increase....... The Courts must therefore do their duty to try to assist the preservation of orderly life and to convince police that they will be assisted and protected in carrying out their duties by the sanction that will be involved against anyone who attacks them."

Subsequently, the Supreme Court judgment in Ure Hane v. The State [1984] PNGLR 105 continued to emphasis this point in the context of classifying the types of wilful murder cases. There at p. 107 Bredmeyer J. listed wilful murder of a policeman in the execution of his duty as one of the worst type of wilful murder cases.

In 1998, the Supreme Court emphasized this yet again in Joe Foe Leslie Leslie v. The State (Unreported judgment delivered on 07/08/98) SC560. It did so by affirming the judgment of the National Court, per Sevua J., who said:

"I want to reiterate my own belief that, where a policeman is attacked in the course of his lawful duty, the attacker must be severely punished. It is my view that an attack on a law enforcement agency, be it a police officer, Judge, Magistrate or CIS officer, is a very serious matter. I consider that an attack on any of the law enforcement agency is tantamount to an attack on the fundamental democratic institutions we have under our Constitution. The attack on the police officer in the present case, in my view, is tantamount to attack on the function of the Police Force under s 197 of the Constitution. Neither the Courts nor the community at large should condone or tolerate violence against police officers who are going about their lawful and constitutional duties."

The Supreme Court also added that, there has been an increase in the use of violence against the police since the cases referred to by the trial judge and that, it was a matter of public knowledge that, the use of firearms against the police by violent offenders was prevalent in the National Capital District. The Supreme Court was therefore, of the view that, the trial judge correctly referred to the principles and found no error in the application of these principles to the facts of the case.

In your case, it is not a case of an attack on a policeman or a police officer. Instead, it was an attack on the entire police establishment in the Maprik District of this Province. I have already expressed the view, as for example in The State v. Michael Kamban Mani (supra), that where an offence affects the provision of a service to the community, it calls for a sterner punishment in these terms:

"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."

In my view, attacking a police station or its establishment is a more serious offence. It is already worse enough to attack a single policeman. It is far worse to attack a whole establishment. The country’s security depends on them. It is organized from the headquarters down to the little establishments. It is not just any other establishment. A police station is the one place, or that which assures the community that, their security is taken care of by the presence of a policeman or of a police station amongst them. The mere presence of a police station brings with it law and order and respect for authority and the lives and properties of others. Hence, an offence against a police establishment, has to be dealt with severely and sternly to give the police force and the community the protection they need in order for them to provide the community and the country security and law and order.

Your Sentence

In your case, you are the son of the second in command of the Maprik police station. Of all people, you would have been the last to do anything against it. Apart from providing the community a vital service, it was the very place, where your father worked to generate the income necessary to support you and your siblings and others, including your wife and children. You brought on total disrespect to your father and a very bad lesson for others.

As noted in the context of your drunkenness claim, I do not find this a simple drunkard’s action. Instead, this was an action of a person who had carefully planned and executed the offence at the right time, but for being, caught red handed. The aim was to get to the valuables particularly, two firearms, K305.00 and a coffee scale and that is what you went for before being caught. I find that the scattering of the files and other documents was to make it look like a break, enter and stealing by some other person not having any relation and knowledge of the police station layout and the working shifts and schedules.

Another factor against you is the fact that, this is a very prevalent offence. Our schools, health centres, hospitals, other government, churches and or public buildings, offices and or properties are almost on a daily basis falling victim to break, enter and stealing. 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 inconsiderate 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 Maprik area and ultimately the country. The past sentences appear not to serve their purpose of deterring other offenders from committing the offence.

On balance, therefore, I find that the factors in your aggravation far outweigh those in your mitigation. There is therefore, nothing except for your being a first time offender, against an imposition of the maximum prescribed penalty.

Bearing all of these in mind, I now turn to a determination of a sentence for you. I remind myself at the outset of what I said in The State v. Abel Airi (supra) and cited in the The State v. Robert Kawin, (Unreported judgment delivered on 24/12/01) N2167:

"... [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 other cases to date, I consider a sentence of 6 years appropriate. This reflects your guilty plead by a reduction of 8 years from the maximum prescribed sentence of 14 years.

There is no pre-sentence report before me to warrant a suspension of either the whole or part of the sentence. I will leave this open for you to take it up if you wish to have the whole or a part of the sentence suspended. I will seriously consider suspending the whole or part of this sentence if the Court receives a proposal from the probation service in this province, within one month from today. Such a proposal should have amongst others detailed inputs from the community leaders including all of the policemen, and church leaders and Councillors in Maprik, with a clear and definite provision for supervision and enforcement of a community based sentence. It follows therefore that, if such a report is not received or it is received but is not sufficient to suspend either the whole or any part of the sentence, you will serve the whole of your sentence less the time you have already spent in custody awaiting trial. A warrant in those terms shall issue forthwith.
________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the Accused: The Public Solicitor