State v Maite [2007] PGNC 132; N3269 (16 November 2007)

N3269

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO.1340 OF 2004

THE STATE

-V-

JACK MAITE & TAMRING NIO

Kokopo: Lenalia, J.
2007: 8, 14 & 16 November

CRIMINAL LAW – Stealing – Plea of guilty – Matters for consideration - Sentence – Criminal Code Sections 372 (1) Ch. No.262.

Cases cited:
Public Prosecutor v Tardrew [1986] PNGLR 91
Wellington Belawa v The State [1988-89] PNGLR 496
The State v Bygonness Tuse Nae (1996) N1474
The State v Vurmete (2000) N2008
The State v Benson Likius (2001) N2618
The State v Louise Paraka (2002) N2317
The State v Nakikus Konga (2002) CR.No.32 of 2001
The State v Shirly Tainoli (2004) Unnumbered Judgment
The State v Lukeson Olewale (2004) N2758
The State v Jack Ozeketal Metz (2005) N2824
The State v Jim Kendi (No.2) (17 April 2007) Unreported Judgment CR.No.1272 of 2003

Counsels:

Mr. R. Auka, for the State.
Mr. B. Sumsuma, for Accused.

16 November, 2007

1. LENALIA, J. The two prisoners pleaded guilty to one count of stealing an out-board motor valuing K10, 500 the property of one Lesley Anton, an offence contrary to 372 (1) of the Criminal Code.

Facts

2. On 8 April, 2004, the complainant Lesley Anton left his village at Sala by boat to come to Kokopo to follow up on a complaint he had earlier lodged with the police here at Kokopo. The complaint related to an earlier incident where unknown persons had gone to his village at Sala and maliciously damaged certain household properties valuing thousands of Kina.

3. While Lesley was away, on that very same date he left by boat to Kokopo, the two prisoners went to Sala village and stole the outboard motor engine. The owner of that stolen property is Lesley Anton.

4. Jack Anton a subsistence farmer from the same village said, the motor, a Yamaha 40 horsepower would have cost the complainant K10, 500 if it was a new machine. Another person Romalus Charlie said he bought that machine for K10, 000.00 at Ela Motors at Lihir. He estimated that the value of a new motor would be K10, 500.

Allocutus

5. After the two prisoners pleaded guilty, the Court administered allocutus to each of them. In the case of Jack Maite, this is what he said:

"I say sorry because of what I did. I know I am guilty already. We could not have taken the machine but it was already old. I say sorry to the victim for what I did. I say sorry to his family and mine. The engine was an old one. Some people had damaged it earlier on. We decided to take it because it was exposed to the sun and rain. Due to this, I went and took the engine. We took the engine on 8th of April 2004 and we returned it on 10th April 2004. After returning the engine, we apologize to the victim and I now say sorry to the State and the Court."

6. In the case of the prisoner Tamring Nio, he said:

"I have the same story as the other prisoner to tell the Court on allocutus. I just whish to say Your Honour that I have pleaded guilty to the charge. The engine we took was given back after two days. When I returned the engine, I apologized to the victim. The Court has found me wrong, I say sorry. I say sorry to the victim and his family for the shame I have caused. This is my first time in Court today. I am not that type of person. I do not whish to appear in Court again. I ask the Court to consider leniency".

Defence address on sentence

7. On Wednesday this week (14th instant), This Court heard counsels’ addresses on sentence. For the two prisoners, Mr. Sumsuma spoke to his two sets of well prepared written submissions. On the one for accused Jack Maite, counsel submitted the following particulars:

• the prisoner is a villager from Kait village, West Coast Namatanai, New Ireland Province,
• he is a Christian and a member of the Kait United Church,
• he’s about 30 years of age,
• was educated at his village to Grade 6, then to Namatanai High School where he completed Grade 10,
• both parents are alive,
• he is a third born in a family of 5 siblings,
• He is married with one child.
  

8. On prisoner Tamring Nio:

• a villager from Kait village, West Coast Namatanai, Konoagil Local Level Government Council, New Ireland Province,
• a member of the Kait United Church,
• he is aged about 27 years,
• completed Grade 6 at Kait Primary School and went on to Namatanai High School and completed Grade 10,
• parents all alive,
• comes from a family of 7 children,
• He is a single man.
  

9. On both prisoners, they do not have any record of previous convictions. Mr. Sumsuma asked the Court to consider the prisoners’ guilty plea to this serious charge. Counsel submitted that, the issue for the Court to consider is what should be the appropriate penalty to be imposed on the two prisoners and secondly, would this be the case where the maximum penalty should be imposed. He cited the case of the Public Prosecutor v Tardrew [1986] PNGLR 91 where the Supreme Court had occasion to discuss the principles applicable on suspension of sentences. The Court shall return to the discussion in that case a little later.

Prosecution address on sentence

10. Mr. Auka of counsel for the State replied to the above submission by saying that, the principle of law in relation to sentencing an accused person in each case depends on its own sets of circumstances. He submitted however that, despite what he said, stealing in this country is very prevalent and almost invariably, young people are involved.

11. Counsel cited the example of the recent stealing of TELIKOM copper wires in the main centres of Papua New Guinea which at sometimes have caused great havoc in the telecommunication system in the country. Mr. Auka further submitted that, stealing from small businessmen in the village environment is serious like the case in the recent case where the two prisoners stole the 40 horsepower outboard motor. Counsel asked the Court to consider the deterrent aspect of sentencing.

Relevant Law

12. The two prisoners are charged for one count of stealing a 40 horsepower outboard motor which was valued at more than K1, 000.00 under s.372 (1) (10) of the Criminal Code. I quote Subsections (1) to (10) of the above Section which is put in the following terms:

"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.

(2) If the thing stolen is a testamentary instrument, (whether the testator is living or dead), the offender is liable, subject to Section 19, to imprisonment for life.

(3) If the thing stolen is anything in course of transmission by post, the offender is liable, subject to Section 19 to imprisonment for life.

(4) If the thing stolen is an aircraft, the offender is liable to imprisonment for a term not exceeding 14 years.

(5) If—

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

(b) the thing is stolen in a dwelling-house, and—

(i) its value exceeds K10.00; or

(ii) the offender at or immediately before or after the time of stealing uses or threatens to use violence to any person in the dwelling-house; or

(c) the thing is stolen from a vessel, vehicle or place of deposit used for the conveyance or custody of goods in transit from one place to another; or

(d) the thing is stolen from a vessel that is in distress or wrecked or stranded; or

(e) the thing is stolen from a public office in which it is deposited or kept; or

(f) the offender, in order to commit the offence, opens a locked room, box or other receptacle by means of a key or other instrument,

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

(6) If the offender is a person employed in the Public Service, and the thing stolen—

(a) is the property of the State; or

(b) came into the possession of the offender by virtue of his employment,

he is liable to imprisonment for a term not exceeding seven years.

(7) If the offender is a clerk or servant, and the thing stolen—

(a) is the property of his employer; or

(b) came into the possession of the offender on account of his employer,

he is liable to imprisonment for a term not exceeding seven years.

(8) If the offender is a director or officer of a corporation, and the thing stolen is the property of the corporation, he is liable to imprisonment for a term not exceeding seven years.

(9) If the thing stolen is—

(a) property that has been received by the offender with a power of attorney for its disposition; or

(b) money received by the offender with a direction that it should be applied to any purpose or paid to any person specified in the direction; or

(c) the whole or part of the proceeds of a valuable security that was received by the offender with a direction that the proceeds of it should be applied to a purpose or paid to a person specified in the direction; or

(d) the whole or part of the proceeds arising from a disposition of any property that have been received by the offender by virtue of a power of attorney for such disposition, the power of attorney having been received by the offender with a direction that the proceeds be applied to a purpose or paid to a person specified in the direction,

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

(10) If the thing stolen is of the value of K1, 000.00 or upwards, the offender is liable to imprisonment for a term not exceeding seven years."

13. Because, the value of the item stolen by the prisoners is more than the amount stated in Subsection (10), they could be sent to jail for the maximum penalty of 7 years. The Court has discretion to sentence the prisoners to a term less than the prescribed maximum.

14. Let me cite a number of stealing cases to illustrate the type of penalty that have been imposed by other Judges for offenders who have either stolen monies, fixtures or chattels to the value above that is mentioned in Subsection (10) of s.372 of the Code.

15. In Wellington Belawa v The State [1988-1989] PNGLR 496, the Supreme Court set out sentencing guidelines in dishonest cases. The case before me is not similar to Belawa’s case which was a misappropriation case. The current case is a stealing case simplicita. There are a number of considerations mentioned in the above case that are appropriate to the case of the prisoners.

16. First, the amount or value of the property stolen. Though, the State has specifically pleaded the value of the 40 horsepower outboard motor, I do not think, an old machine would have cost so much money. The person who bought that engine from Ela Motors at Lihir, Charlie Romalus said, he bought the engine for K10, 000.00 and his estimate was that, for a brand new outboard motor engine would cost about K10, 500.00.

17. According to Belawa’s case, the two prisoners could be sentenced to 2 years if the estimated value was ten thousand kina or less. If there was proper valuation as to the amount pleaded in the indictment, the pair could be sentenced to terms of between 2 or 3 years.

18. There has been an increase in sentences for both misappropriation and stealing cases. In State v Bygonnes Tuse Nae (1996) N1474 (Sawong J) where there were 19 counts of sums totalling or involving over K103, 000 an effective sentence of 4 years IHL was imposed. In The State v Vurmete (10/11/2000) N2008 (Gavara-Nanu J) K41, 000 was taken, none repaid, a sentence of 3 years 6 months was imposed.

19. In The State v Benson Likius (8/3/2004) N2518 a sum of K68, 679 were misappropriated by a payroll clerk. There were assets from which substantial restitution could be made immediately. This court sentenced the accused to 5 years imprisonment IHL, 2 years were suspended on probation with conditions of repayment. (See also The State v Lukeson Olewale (2004) N2758).

20. In State v Shirley Tainoli (24/11/2004) (Mogish J), unnumbered judgment, the offender had deposited a stolen cheque to the value of K185, 000 into an account controlled by her and her husband. At the time of sentence she had a 9 months old baby, the whole of the amount was recovered, she did not benefit from the fraud, there was no breach of trust and the offence was perpetrated only once. The offender was sentenced to 4 years imprisonment in light labour which was wholly suspended on probation conditions.

21. I have also looked at cases such as The State v Louise Paraka (2002) N2317, a case where the accused was charged with two charges of forgery and two others for uttering the two cheques worth K6, 000.00, offences contrary to s.462 (1) and s.463 (2) of the Code. The accused in that case pleaded guilty and was sentenced to three years imprisonment. The sentence was wholly suspended.

22. In The State v Jack Oseketal Metz (2005) N2824, the prisoner incurred a bill of K70, 445.36 by falsely pretending that he was expecting millions of kina from sales of treasury bills. The accused in that case pretended to the complainants that the payments would be made through the then Papua New Guinea Banking Corporation.

23. Amounts incurred were for accommodation, meals and drinks, cigarettes and provisions for extra guests at the DALCREST Guest House in Madang. He was sentenced to three and a half years imprisonment.

24. In two of the misappropriation cases in this Province involving large sums of monies on the first one that of The State v Nakikus Konga (2002) CR.N0.32 of 2001 an unreported and unnumbered judgment, the prisoner was the Member of Parliament for Gazelle Open Electorate and was found guilty and convicted of misappropriating public funds totalling K50, 000.00 belonging to the National Gaming Control Board.

25. This Court on 24 May 2002 sentenced him to 5 years imprisonment suspended with conditions and a fine of K2, 000.00, and an order for restitution. On the second count involving K10, 000 he was found not guilty and was acquitted.

26. Then in The State v Jim Kendi (No.2) (14 April 2007) CR.No.1272 of 2003, the prisoner was charged with two counts. One for false pretences and the second charge for misappropriation under s.404 and s.383A (1) of the Criminal Code. It was a case of misappropriation of the State’s money by a private citizen.

27. The total amount claimed and misappropriated was K4, 298, 037.33. The Court found that, that amount was the biggest ever amount misappropriated in the history of Papua New Guinea.

28. In that case, the prisoner falsely claimed that his earth moving machinery and road construction machines were used by the defence force soldiers in Arawa, Bougainville during the period of the civil war. He submitted his claim to the then Secretary of the Department of Defence. The claim was processed and the funds were disbursed to the prisoner. He was sentenced to a cumulative sentence of 13 years for the two offences.

Mitigations

29. On their mitigations, I have considered the prisoners’ guilty pleas to the charge. They are first offenders. I have also considered the fact that even prior to charging the two prisoners, they returned the motor engine to the complainant. The facts show that the stolen item was returned two days after the two stole the engine.

30. The Court has also taken into account counsel’s submission on mitigation. I have read the affidavits deposed to by Reverend Robin Buluanis and Elder Hanneth Steven both of Kait United Church. Reverend Robin speaks highly of accused Tamering Nio. This prisoner was converted and gave himself to the Lord in 2002. He is the Chairman of the Youth Ministry of the above church. Elder Steven said the same about Jack To Maite as well.

31. When making his submission on mitigations, Mr. Sumsuma cited the case of the Public Prosecutor v Tardrew [1986] PNGLR 91 where the Supreme Court consisting of Kidu CJ, Bredmeyer & Barnett JJ), the Supreme Court said, the appropriate sentence in a case where there was repayment of the whole amount misappropriated of K82,202.73, was five years. The Court in that case set down three broad categories but not exhaustive on suspending a sentence in a misappropriation case. They are first, where a suspension will promote personal deterrence, reformation or rehabilitation. Secondly where suspension will promote restitution of stolen money or goods, and thirdly where imprisonment would create excessive degree of suffering where an offender has bad physical or mental heath.

32. In the case before me, the stolen item has been restituted. In fact restitution was effected two days after the two illegally obtained the motor. Going through the case law authorities in dishonest offences, there were cases more serious than the current case in which cases, prisoners have been given suspended sentences. Examples of those cases include The State v Louise Paraka, The State v Nakikus Konga, The State v Shirley Tainoli or The State v Lukeson Olewale (supra).

33. I am satisfied in the circumstances of this case that if the Court was to impose a suspended sentence, it would promote personal deterrence, reformation or rehabilitation. The fact that, the prisoners had returned the motor, well before they were charged and only 2 days after they had taken that machine, may explain the purposes for which they had taken the machine. I am of the opinion that a sentence of 2 years is a sufficient penalty for the two accused. They are each and severally sentenced to terms of 2 years imprisonment. The time they have spent in custody which works out to be 1 year 5 months and 21 days or so shall be deducted from the head sentence and the balance shall be fully suspended on condition to keep the peace and be of good behaviour for a period of 12 months.

_______________________________________
The Public Prosecutor: Lawyer for the State
Sumsuma Lawyers: Lawyer for the Two Accused.