State v Iari [2006] PGNC 152; N3238 (23 October 2006)

N3238

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1801 OF 2005

THE STATE

-V-

URIKA IARI

Kerema: Kandakasi, J.
2006: 5th and 23rd October

DECISION ON SENTENCE

CRIMINAL LAW – Sentence – Break, enter and stealing of tradestore – Prisoner acting in the company of two others - Using knife to gain excess through window – Goods and cash totalling K3,360 stolen and shared amongst the offenders – Prisoner returned all of his share – Accomplice arrested but escaped from lawful custody – Guilty plea by first time offender – Sentence of 2 years part suspended on conditions imposed.

Cases cited:
The State v. Ian Bob Wali, (11/06/04) N2580.
The State v. Michael Kamban Mani, (21/05/02) N2246.
The State v Buka Irai (27/02/03) N2448.
The State v. Dominic Kanga (22/09/05) N2953.
The State v. Terence Ago (20/05/04) N2673.
The State v. James Gatana & 3 Ors (19/04/01) N2127.

Counsels:
Mr. D. Mark, for the State.
Mr. P.Kapi, for the Prisoner.

23 October, 2006

1. KANDAKASI J: You pleaded guilty to a charge of break, enter and stealing contrary to s. 398 (a) (i) of the Criminal Code presented by the State on the 5th of this instant. On your plea for a lenient sentence, the Court requested a pre-sentence report from the probation service and reserved its decision on sentence pending receipt of that report and further submissions if any. The Court received that report on the 12th of this instant, which I will refer to in the course of this judgment.

The Facts

2. The relevant facts as put to you during your arraignment and the depositions are these. Between 2:00 and 3:00 am on 14 June 2005, you and two others namely, Meavilla Meapi and your brother, Philip Iavi, broke, entered and stole from a trade store, at Kaivakavu village, here in the Gulf Province. A Mr. and Mrs. Maki Kaivavore owned the tradestore and operated it under the name "Kaivavore Family Trade Store. Meavilla was the main mastermind behind the break, enter and stealing from the store. The three of you gained entry of the store through the use of a small knife to force open a window. Upon gaining entry, you helped yourselves to the goods valued at K3, 200 and cash of K160. Before you had time to go further, Mrs. Kaivavore heard noises of coins being collected and sounded alarm. You therefore left in a hurry, leaving yours and your accomplices’ pair of slippers. Mrs. Kaivavore and her children woke up from their sleep and conducted a search of the store & found pairs of slippers you left behind and found that most of the goods and the K160 missing.

3. At the time when you broke, entered and stole from the store, Mr. Kaivavore was out. He returned a week later and his wife reported the incident. Initial investigations revealed you and your companions as the offenders. The owners eventually reported the matter to the police who arrested the three of you and questioned all of you. You all freely admitted to committing the offence and gave an account of what you took out of the break, enter and stealing. You returned the whole of what you stole having an estimated value of K2,967.50, while the other two returned only part of what they took. The other two also escaped from lawful police custody, leaving only you to face the law.

Allocutus and Submissions

4. In your address on sentence, you said sorry for what you have done, and promised not to do it again. Your lawyer added by drawing the Court’s attention to pre-sentence report from the probation service. That report outlines your family and personal background and eventually recommends that you be given a non-custodial sentence with conditions to be supervised by a volunteer probation officer here in Kerema who is equipped with a two way radio communication.

6. Your lawyer also urged the Court to take into account the fact that you pleaded guilty to the charge. That saved the State the time and money it could have outlaid to secure your conviction through a trial. He further urged the Court to take into account the fact that you are a first time offender, meaning that you have not been in trouble with the law before. Hence, this is your first ever offence. Furthermore, your lawyer urged the Court to take into account the fact that you did not gain from the offence because you returned the goods you stole. Finally, your lawyer urged the Court to take into account the fact that, you cooperated well with the authorities and have expressed genuine remorse with your promise not to commit any offence again.

7. At the same time, your lawyer correctly acknowledged that you committed a very serious offence, which carries a maximum penalty of 14 years. At the same time, he urged the Court to note that, this does not mean that your sentence should be 14 years. Instead, he correctly pointed out that the maximum is usually reserved for the worse kind of the offence under consideration. Your lawyer also correctly acknowledged that the offence you committed is a prevalent offence. He was however, not able to assist the Court with the relevant sentencing guides, trend and tariffs for break, enter and stealing offences. Counsel for the State, Mr. Mark, who endorsed the submissions of your lawyer was also not able to assist.

The Offence and Sentencing Trend

8. Section 398 (a) (i) of the Criminal Code provides for the offence of break, enter and stealing from amongst others a structure such as a tradestore. It also provides for a maximum penalty of 14 years. There are a number of cases dealing with an offence under this provision, which confirm that this is the case. I confirmed that position in the case of The State v. Ian Bob Wali,[1] Unfortunately, both your lawyer and that of the State appear not to be aware.

9. In The State v. Michael Kamban Mani,[2] I noted that, none of the published judgments up to then provided 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 as follows:

"...[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 has 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."

10. Taking guidelines into account, I imposed in that case a sentence of 3 years. There, the prisoner pleaded guilty to break, enter and stealing from a health centre a generator set. Although the stolen property was sold, the prisoner did not gain and the property was recovered to the health centre through good police work.

11. Since that decision, there has been a number of other cases in which this Court has imposed varying sentences given the difference in the facts of each case. These cases demonstrate that sentences range as low as 2 years and as high as 14 years for a worse case. The decision of Jalina J., in The State v Buka Irai,[3] represent the lowest, in a case of break, enter and stealing from a store and depriving the liberty of two security guards by a group of youths. Goods and cash stolen totalled K7, 300. The prisoner was however, only a watchman and his share of the goods and cash were recovered. Of the 2 years, 4 months already spent in custody pending trial was deducted and the balance suspended on conditions. On the top end is my decision in the case of The State v. Dominic Kanga,[4] where the prisoner with the help of others broke into a PNGDF armoury and stole from there certain firearms and ammunition, which were later used to stage a mutiny in Wewak. The prisoner was convicted after a trial. Most of the stolen properties were still at large.

Your Sentence

12. In order to arrive at an appropriate sentence for you, I need to take into account the foregoing sentencing guidelines as well as the sentencing trend or tariff and the particular circumstances of your case, in particular, the factors for and against you. Before anything else, I take into account your personal background as outlined in the pre-sentence report. That outline shows amongst others that, you come from a family of 8 including your parents who are both alive. Family discipline is good and you belong to the United Church faith. You have reached up to grade 6 community school education level in 1994. You are single and wish to return to your village to lead a village life alongside your parents and siblings.

13. In addition to your family background, I also take into account in your mitigation first, the fact that you pleaded guilty. That saved the State the time and money it could have spent to successfully have you tried and convicted. It also saved the Court the time it could have spent in conducting a trial on the issue of your guilt or innocence. Further, it avoided the need for the victims of your offence to incur further costs and suffer inconveniences by coming into Court and testify against you.

14. Secondly, I note that this is your first ever offence. That means you have not been in trouble with the law before. The law allows for a lenient sentence in appropriate cases where the offender is a first time offender. The conversed of that is that a repeat offender may be given a far sterner sentence. The idea behind this is to avoid crushing a first time offender with a heavier penalty and the risk of turning the offender into a hard core criminal. Hence, a lighter sentence would serve as a punishment as well as serve the community’s desire to prevent the offender from re-offending.

15. Thirdly, you returned all of the goods and cash you stole through the break and enter. So you did not gain from the offence. That does not mean however that the victims have suffered nothing. The evidence clearly shows that the victims of the offense did not recover fully the cash and goods your two accomplices stole.

16. Fourthly, you said sorry for what you have done. You regretted committing the offence and promised not to repeat it. I am sure you appreciate that your conduct brought shame and suffering to your family and your community.

17. Finally, I note that, you were not armed with any dangerous weapon to force open the door, or threaten the victims or anybody else and deprive them of their personal liberties as in the Buka Irai. In the same vain, I note that, your offence did not lead to other offences as in the Dominic Kanga case or had the potential and or did in fact deprive the community of a vital service as I noted in the Michael Kamban Mani case.

17. Against the factors in your mitigation, I note that you committed an offence that is prevalent. This alone calls for more stiffer penalties to send out a clear message to you and to other like minded persons that sentences are going to increase even to the maximum prescribed sentence in appropriate cases.

18. Another factor against you is the fact that you committed the offence in the company of two others in the night. I can only repeat what I said in The State v. Terence Ago:[5]

"It is clear now that acting in the company of another and more seriously a group provides more strength and encouragement. This makes the commission of an offence by a group more serious than a case in which only one person is the offender. As such, those who act in a group deserve a higher penalty."

19. In your case, you acted in association with your two accomplices. The three of you gave each other the necessary strength and courage to commit the offence. If it were not for each other’s company I do not think that you alone would have easily committed the offence.

20. Weighing the factors for and against you, I note that the factors in your mitigation outweigh those in your aggravation. This does not in anyway mean that, what you did is acceptable and that it must be repeated. No, it means quite the contrary. Now that you have committed an offence and come before the Courts and have had a conviction recorded against you, your case may not be viewed in the same light as in this case should you ever be found committing any offence. If I were you, I would stay well away from committing any offence and be a good and useful member of the society.

21. Carefully weighing the factors for and against you and considering the kind of sentences that have been imposed to date in this kind of cases, I consider a sentence of 2 years appropriate.

22. Of the head sentence of 2 years I order a deduction of the period of 1 year 3 months and 19 days from 4 July 2005 you have spent in custody awaiting your trial and sentence. That will leave you with the balance of 8 months 11 days yet to serve. I am prepared to order a suspension of the whole of that period on your acceptance of the following conditions:

(1) Immediately, upon the handing down of this decision you attend on Mr. Joseph Frank, the Volunteer Probation Officer, here in Kerema with the Catholic Mission and settled with him a supervised 8 hours per week community work schedule commencing 6 November, 2006 week and have that schedule delivered to the Court later today or no later than 9:00 am tomorrow for the Court’s approval;

(2) Scheduled a date and time with Mr Joseph Frank for you to meet up with the victims of your offence and offer an unconditional verbal apology to the victims in the witness of Mr. Joseph Frank, your parents and your community leaders and others and the same time plead for your accomplishes to voluntarily surrender to the police and urge others not to commit any criminal offences because the law will still catch up with them;

(3) You immediately enter into a recognizance to keep the peace and be of good behaviour for a period of 8 months and 11 days as from today;

(4) You be home bound between the hours of 6:00 pm and 6:00 am each day;

(5) You shall reside only in your village at Iuku and shall not leave your village during the term of your suspended sentence unless leave of this Court has been first sought and obtained;

(6) Any member of the Police here in Kerema or the country shall be at liberty to report and enforce any attempted or actual breach of any of the terms of the suspension of your sentence.

(7) You will allow for and permit Mr. Joseph Frank to visit your home on a regular basis at your costs to monitor your compliance of these terms and to report with such recommendations as he might consider appropriate either for a variation or an implementation of these terms;

(8) The Probation Service shall furnish a bimonthly report to this Court with the first being due by December 6th, 2006.

(9) If for whatever reason you breach any of these terms, you will serve the full suspend sentence term of 8 months and 11 days; and

(10) You will be at liberty to apply for a review and or variation of any of these terms including a lifting of any of these terms and conditions, provided there has been substantial compliance, which shall include a full compliance of terms 1, 2 and 3 above.

________________________________________________

Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner

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^[1] (11/06/04) N2580.
^[2] (21/05/02) N2246.
^[3] (27/02/03) N2448.
^[4] (22/09/05) N2953.
^[5] (20/05/04) N2673, per Kandakasi J.; See also, The State v. James Gatana & 3 Ors (19/04/01) N2127 for similar statements.