State v Simonopa [2004] PGNC 214; N2551 (29 April 2004)

N2551

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 265 of 2004

THE STATE

-V-

ROMNEY NAPTELAI SIMONOPA

POPONDETTA: KANDAKASI, J.
2004: 15th and 29th April

DECISION ON SENTENCE

CRIMINAL LAW - Sentence –Stealing with violence within school premises – Prisoner in company of another – Accomplish using a spade to attack the victim but victim not hurt – Stolen property partly damaged and recovered – Possible armed robbery charge reduce to stealing – Guilty plea – First time offender –Pre-sentencing report supportive of non-custodial sentence – Sentence of 3 years suspended on strict terms imposed – Criminal Code ss. 19 and 372(1).

Cases cited:
The State v Richard Dusal Bix and Siprian Sipi Karo (Unreported judgment delivered on 06/06/03) N2415.
The State v. Timothy Tio (Unreported judgment delivered on 21/05/02) N2265.
The State v. Robert Kawin (Unreported judgment delivered on 24/12/01) N2167.
Gimble v The State [1988 – 89] PNGLR 271.
Seo Ross v. The State (Unreported judgment delivered on 30/04/99) SC605.
The State v. Michael Kamipe (Unreported judgment delivered on 11/9/96) N1471.
Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000.
The State v. Lucas Yovura (Unreported judgment delivered 29/04/03) N2366.
The State v. Thomas Waim [1995] PNGLR 18.
Bokum Umba v. The State, SC 92, unreported, 2nd April 1976.
The State v. Michael Amuna Koupa, [1987] PNGLR 208.
The State v. Kevin Anis & Martin Ningigan (Unreported judgment delivered on 07/04/03) N2360.
The State v. Wesley Nobudi & Ors, (Unreported judgment delivered on 19/12/02) N2310.
Joseph Nimagi, Tom Gurua Kerui and David Bawai Laiam v. The State (Unreported judgment delivered on 01/04/04) SC741.
The State -v- Abel Airi (Unreported judgment delivered on 28/11/00) N2007.
The State v. John Micky Lausi (Unreported judgment delivered on 27/03/01) N2073.
Acting Public Prosecutor v. Don Hale (Unreported judgment delivered on 27/08/98) SC564.
The State v. Jimmy Solomon (unreported judgment delivered on 20/07/01) N2100.
The State v. Rex Rongo (Unreported judgment delivered on 20/12/00) N2035.
The State v. Fredinand Naka Penge (Unreported judgment 24/05/02) N2244.
The State v. Louise Paraka (Unreported judgment delivered on 24/01/02) N2317.

Counsel
P. Kaluwin for the State
P. Kumo for the Accused

29th April, 2004.

KANDAKASI, J: On your guilty plea to a charge of stealing, supported by the evidence before the Court, the Court convicted you. The charge was under s. 372(1) of the Criminal Code.

Facts

The facts supporting your charge are simply these. On 1st December 2002, a Peter Ami went to the Resurrection primary school to visit his daughter. On the way, as he was walking toward his daughter’s house, you and your accomplish armed with a spade approached him from behind and grabbed a bag the victim had on him. The victim held firmly onto his bag and you struggled to pull it out of him. Your accomplished tried to hit him with the spade and the victim grabbed hold of the spade whilst continuing to pull onto his bag. However, in the process of pulling the bag, it broke into two parts. The part containing the victim’s valuable items, namely a pair of trousers, a cold shirt, and cash of K600.00 ended up with you. You and your accomplished tried to run away with the victim’s bag. Fortunately, however, people at the school helped the victim who was chasing you. They helped him to catch you whilst your friend appears to have escaped.

Upon catching you, the victim recovered his bag containing his valuables. They then handed you over to the police, who arrested and charged you.

Submissions and Considerations

When the Court asked you to address the Court in relation to your sentences, you said, you would leave that to your lawyer. Your lawyer informed the Court that you are 18 years old. You have not been to school and a villager from Waseta here in the Oro Province. He further informed the Court that you are the first born in a family of three (3) children. Both of your parents are alive with your father being old and blind. Therefore, your mother is the breadwinner of the family and you assist her with that responsibility. You have 1 oil palm block and 50 vanilla plants.

Your lawyer then pointed out that the offence you committed carries a maximum penalty of three (3) years imprisonment. Nevertheless, he urged the Court to note the recovery of all of the stolen properties and so therefore, you did not benefit from the offence. Then he submitted that, when the Court considers a sentence for you the Court should note your guilty plea and that you are a first time offender. He also asked the Court to take into account your personal and family backgrounds as noted above. Then before ending his submissions, your lawyer asked for a pre-sentencing report from the Probation Services.

The Probation Service provided the report requested of it and is before the Court. I express the Court’s sincere appreciation to the Probation Service here for being able to produce it within a very limited time and on short notice. I will take this up further a little later, for now I note that the report recommends a non-custodial sentence. Based on this report, your lawyer submits on your behalf for a non-custodial sentence. The State submits that, it is the less serious offences that lead to offences that are more serious. As such, he submits that your sentence should reflect that. I will now consider the offence you committed and the relevant sentencing tariffs and or practice.

The Offence and Sentencing

The offence of stealing has various categories, depending on the amount of money or the value of property stolen and the surrounding circumstances of the offence. The charge against you is under s. 372 (1) of the Criminal Code. This provision reads:

"372. Stealing.

(1) Any person who steals anything capable of being stolen is guilty of a crime.

Penalty: Subject to this section, imprisonment for a term not exceeding three years."

(Emphasis supplied)

The penalty provision is not final but is subject to the rest of the subsections in section 372. The phrase "Subject to this section" in the penalty provision indicates that. The rest of the subsections in the section then go onto provide for different and or varying penalties depending on the amount, the place and the relationship between the offender and the victim. In your case, the relevant additional subsection is subsection (5) which reads:

"(5) If—

(a) the thing stolen is from the person of another person; or

...

the offender is liable to imprisonment for a term not exceeding seven years."

What this means, in my view, is that, if there is a case of stealing that does not fall into any of the other subsections than the penalty provision provided for under subsection (1) is applicable. If however, the circumstances in which the offence was committed falls under anyone of the other subsections, than the sentence should be the one provided for in that other relevant subsection.

A recent case on a s. 372 offence is my judgment in The State v. Richard Dusal Bix and Siprian Sipi Karo (Unreported judgment delivered on 06/06/03) N2415. In that case, I had regard to nearly all of the previous judgments and in particular, the kind of sentences imposed in the past. These included my own judgments in The State v. Timothy Tio (Unreported judgment delivered on 21/05/02) N2265 and The State v. Robert Kawin (Unreported judgment delivered on 24/12/01) N2167.

The latter of the above cases, was a case of two counts of stealing under subsection 1, rather than subsection 10 of s. 372. It was a case of stealing by forgery and in a breach of a position of trust. In sentencing the prisoner on a plea of guilty to a cumulative sentence of 24 months or 2 years, I noted that there were no sentencing guidelines and I tried to formulate one. In so doing, I said in line with the accepted principles of sentencing, the maximum sentence is for the worse case of its kind. I then said:

"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."

I also stated that 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. I then expressed the view that, stealing in such a situation should attract a sentence of a few months say about 3 to 4 months. Then in between the worse and the less serious offences would be cases, which are neither serious nor less serious. Such cases 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.

At the same time, I stated that a guilty plea by a first time offender, or a young offender could reduce the kind of sentences suggested. That was again in keeping with a large number of cases though in the context of other serious offences such as armed robbery, as in the case of, Gimble v. The State [1988 – 89] PNGLR 271 at p.275.

Then after the judgment in The State v. Robert Kawin case (supra), I found a number of other cases, I was not able to find before or at the time of my judgment in that case, because I was on circuit. However, I did refer to them in The State v. Richard Dusal Bix and Siprian Sipi Karo (supra). The first of these cases is the judgment of the Supreme Court in Seo Ross v. The State (Unreported judgment delivered on 30/04/99) SC605. In that case, the appellant pleaded guilty to two charges of stealing under s.372 (5) of the Code. He was a first time offender who returned the stolen properties. The National Court imposed a cumulative sentence of two years for each. On appeal, the Supreme Court dismissed the appeal and confirmed the sentence imposed by the National Court because the offence was in breach of trust by a security officer.

The second of the other cases is The State v. Michael Kamipe (Unreported judgment delivered on 11/9/96) N1471. There the Court imposed a sentence if 4 years concurrently with a sentence of 6 years for hijacking an airplane, involving large sums of money.

In The State v. Timothy Tio (supra), I referred to the above cases and noted that, 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 State v. Robert Kawin case (supra), as a useful guide, for adoption with necessary modifications for an offence under subsection 10.

I then said, if we consider what I said in The State v. Robert Kawin (supra) in the light of the above cases, a number of principles emerge:

"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 favour of sentences lower than the prescribed maximum. Thirdly, if the properties stolen are recovered it may operate as a factor in mitigation of an offender whilst on the other hand if the properties stolen are substantial and or have not been recovered, a higher sentence may be imposed. Fourthly, prevalence and effect of the offence against the victim and the community or society as a whole is an important factor for consideration."

Applying these principles to the case before me, in The State v. Richard Dusal Bix and Siprian Sipi Karo (supra), I imposed a sentence of three (3) years against the prisoners. That was in a case of guilty plea by two first time offenders. They were both drunk at the time and had used a piece of timber to scare of a bar attendant and steal a sum of K2,700.00 of which, K800.00 was recovered. I found the circumstances in which the offence was committed closer to armed robbery. I then decided to suspend the whole of the sentence on the condition of a repayment of the balance of the stolen money K1, 900.00.

Your Case

Your case is similar to that case because, the circumstances in which you committed this offence, were closer to armed robbery. You committed the offence in the company of another person. It is however, distinguishable in a number of respects. Firstly, and against you is that, your accomplisher, was armed with a spade, which he was ready to use, and did use it against the victim. In The State v. Richard Dusal Bix and Siprian Sipi Karo, the offenders used a piece of timber. The other is that the amount of money stolen in that case was more than in your case. Also, the properties you stole were recovered not quite so in the case contrasted. Nevertheless, the penalty for the offence under s. 372(1) and (10) in that case and s. 372 (1) and (5) in your case are the same, which is subject to s. 19 of the Code, a term of imprisonment not exceeding seven (7) years.

In order to arrive at an appropriate decision on a sentence for you, I take into account all of the foregoing, including both the factors for and against you. In particular, I first note in your favour that, this is your first ever confirmed offence. That means you have not been in trouble with the law before. Hence, it would appear that this offence is an out of character act. Your village and church leaders appear to confirm that per the pre-sentence report.

Secondly, I note that you have pleaded guilty to the charge. That has saved the time and money it would have taken for the State to establish your guilt. It has also saved the Court the time and money it would have incurred in sitting in Court on your trial. I otherwise note that you were caught red handed. Therefore, you assisted only yourself by pleading guilty, as the State would have had no difficulty establishing your guilt after a trial.

Additionally, I note your personal and family backgrounds as put to me by your counsel and as noted in the earlier part of this judgment. There is however, ample authority for the proposition that, an offender should first consider his personal and family backgrounds before committing an offence. This is because whatever becomes of these aspects is the result of an offender’s own criminal actions. As such, the authorities go on to say that, it is too late to talk about these things after the commission of an offence. For examples of authorities on point, I refer to the Supreme Court judgment in Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000, and subsequent National Court judgments such as in The State v. Lucas Yovura (Unreported judgment delivered 29/04/03) N2366.

Bearing this in mind, I note that obviously any term of sentence will affect you personally and your parents. These would be the inevitable consequences of the offence. If you thought about them and decided not to commit the offence, the consequence would be different. Further, I note that, if indeed, you have an oil palm block and several vanilla trees, you would have been busy working on them and that you would have had no time or the need to go and steal from your victim. Your actions therefore speak against your claims.

Another factor that might operate in your favour is the fact that you are a young offender. However there are many authorities that provide support for the proposition that plea of youthfulness is now not a factor in favour of an offender. Cases on point amongst others are The State v. Thomas Waim [1995] PNGLR 18; Bokum Umba v. The State, (Unreported judgment delivered on 02/04/76) SC 92, The State v. Richard Amuna Koupa, [1987] PNGLR 208, The State v. Kevin Anis & Martin Ningigan,(Unreported judgment delivered on 07/04/03) N2360 and The State v. Wesley Nobudi & Ors, (Unreported judgment delivered on 19/12/02) N2310. The Supreme Court approved all of these in its sitting in Mt. Hagen this month in Joseph Nimagi, Tom Gurua Kerui and David Bawai Laiam v. The State (Unreported judgment delivered on 01/04/04) SC741.

I now turn to consider the factors operating against you. Firstly, I note that you committed this offence in circumstances closer to an armed robbery. In fact, you acted in the company of another. You armed yourself with a spade, which you used for the purposes of committing the offence. I accept the State’s submission that, it is the less serious offences that lead to a commission of more serious offences. In your case, the charge to which you pleaded guilty is less serious but the facts disclose the serious offence of armed robbery.

Secondly, there is no evidence of you paying any compensation or saying sorry to the victim of your offence, who was an old man. An offender like you ought to take personal responsibility and say sorry directly to the victims of their offence and not to third parties. They should show that by the payment of compensation or some other tangible way of showing it. Without any of these, a plea for leniency or mercy has no meaning and effect of the kind of sentence an offender should receive.

Finally, I note that the kind of offence you committed are still on the increase despite the kind of sentences imposed to date. There is therefore still the need for an imposition of a deterrent sentence. At the same time, I consider it important in cases where very first time young offenders are involved, the need for rehabilitation should always be a factor in appropriate cases only and as an exception to the recent development in relation to a plea of youthfulness as noted in the foregoing. This is because in appropriate cases, a lenient sentence such as a suspended sentence could better meet one of the important purposes of criminal sentencing, rehabilitation.

I have covered the principles governing the imposition of a non-custodial sentence as a form of punishment in a number of judgments. The earlier ones are my judgments in The State v. Abel Airi (Unreported judgment delivered on 28/11/00) N2007 and The State v. John Micky Lausi (Unreported judgment delivered on 27/03/01) N2073. Without repeating what I said in those cases, it is useful however, to quote what I consider to be the law, based on authorities on point at page 9 of the judgment in The State -v- Micky John Lausi case in the following terms:

"It is erroneous to treat the suspension of sentence for imprisonment as merely an exercise in leniency. Because such 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 death 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."

However, because it calls for an exercise of a judicial discretion, a judge needs to remind him or herself of what the Supreme Court said in Acting Public Prosecutor v. Don Hale (Unreported judgment delivered on 27/08/98) SC564. In that case, the Supreme Court, in my view, correctly pointed out that, there should be no suspension of sentences either in part or in whole unless a well-balanced pre-sentence report support it. In its own words, the Supreme Court said:

"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-sentence report, especially around the age of 17 to 19. Age considerations may of course be more obvious to a judge if an offender is under the age of 16 years. 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 of criminals definitely has an effect on the ordinary people. So community involvement with the punishment of offenders should be considered especially if the court wishes to return an offender to the community instead of imposing imprisonment. And we note here the relevance of the 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 take some responsibility for their own offending members and supervise any alternate punishment."

What is obvious in this, apart from the need to require and have a pre-sentencing report, the report must disclose the community’s attitude to the offence "and whether they are prepared to take some responsibility for their own offending members and supervise an alternate punishment."

In some of my judgments, I have held that pre-sentence reports with inputs from independent members of the community, in addition to both the offender and the victim’s side are reliable. This would render the report more balanced and reliable and therefore save the Court to act on. The cases saying that, and the ones that quickly come to mind in this regard are my judgments in The State v. Jimmy Solomon (Unreported judgment delivered on 20/07/01) N2100; The State v. Rex Rongo (Unreported judgment delivered on 20/12/00) N2035 and The State v. Fredinand Naka Penge (Unreported judgment 24/05/02) N2244.

To this, I add one clarification. The clarification is this; a reliable pre-sentence report is one that also specifies amongst others, the kind of supervision that is available in terms of the names of the persons available to supervise, where and when, the kind of activity planned and the means available to ensure compliance of any terms and conditions the Court might impose.

In your case, there is the pre-sentence report from the Probation Officer here in Popondetta, Mr. Paulinus Awai. I repeat the Court’s appreciation for his prompt services, considering that, he had only seven days to come up with the report. To avoid rushing the Probation Service in the last minute as in this case, I reiterate what I said in The State v. Louise Paraka (Unreported judgment delivered on 24/01/02) N2317:

" ... [W]here there is going to be a submission for a wholly or partly suspended sentence, it is incumbent on counsel to secure a pre-sentence report before bringing the matter to Court. For as the Supreme Court said, there can be no suspended sentence unless there is a strong community support or call for it: Acting Public Prosecutor c. Don Hale (supra). If a pre-sentence report is pre-arranged, it will help avoid unnecessary adjournments or otherwise a delay in judgment. Time is a scarce resource and every minute or hour is valuable to the Court. Counsel should therefore, take careful note of this and in particular, their obligation under s. 15 (3) of the Professional Conduct Rules (supra). A failure to do so should visit the counsel responsible with serious consequences."

Now turning to the report itself, I note it has inputs from yourself, your mother, and two community leaders. There is nothing to indicate that they are independent. Also, there is no indication as to your immediate community’s response to the offence you committed and whether it will play a part in your rehabilitation including the provision of any supervision if you were sent back to the community to serve your sentence instead of the prison.

Taking all of the above discussions into account, I consider a sentence of three (3) years appropriate. Although a suspension of the sentence in part or whole would be appropriate, I do not consider that I should do that right now with immediate effect. Instead, I will allow the community through the Probation Service, sufficient time to meet the deficiencies in the pre-sentence report, which I have just highlighted, above. Provided the Court receives such a report within one month from today, and the Court is satisfied that it is appropriate to do so, it will suspend the whole of the sentence as from the date of the Court making that decision and confirms it in writing to the Correction Service with copies to both counsel. There shall be no suspension of your sentence unless a detailed work, and supervision schedule accompanies the probation report. If the Court decides to suspend, it will be on the following terms during the currency of your suspended sentence:

1. You immediately enter into your own recognition to keep the peace;
   
2. You render eight hours free community service each Mondays, Tuesday and Wednesdays except any public holidays to a public or community institution in your area as may be specified in the work and supervision schedule endorsed by the Court;
   
3. You be home bound between the hours of 6:00pm and 7:00am everyday;
   
4. You abstain from consuming or dealing with any alcohol or drug of any sort including home brew or steam and not to go anywhere near a club or pub selling any alcoholic drink, any drinking party or feast;
   
5. You do not leave your home and the township of Popondetta except with the prior written leave or approval of the Court on your formal application;
   
6. You will allow for and permit Probation Services to visit your home on a regular basis to monitor your compliance of these terms and to make such recommendations, as they consider appropriate either for a variation or an implementation of these terms;
   
7. The Probation Service will attend on you each quarter to do a comprehensive review and report to this Court of your compliance of these terms the first of which shall be due on the expiry of the third month from the date when the suspension takes effect;
   
8. If for whatever reason you breach any of these terms, you will serve the balance of the term of the suspended sentence of 3 years as at the time of the breach;
   
9. You will be at liberty to apply for a review and or variation of any of these terms supported by appropriate evidence or material.
   

Until at such time the Court confirms in writing a suspension of your sentence, you shall serve your sentence in hard labour at the Biru Correction Services less the time you have already spent in custody awaiting your trial and sentence. A warrant of commitment in those terms shall be issued forthwith.
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Lawyers for the State: Public Prosecutor
Lawyers for the Prisoner: Public Solicitor