State v Bonga [2007] PGNC 154; N3388 (2 November 2007)

N3388

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1400 of 2006

THE STATE

-V-

NEWMAN SAIMON BONGA

Waigani: Kandakasi, J.
2007: 18th, 22nd October
2nd November

DECISION ON SENTENCE

CRIMINAL LAW- Sentence - Particular offence – Assault with intent to steal – Accused under influence of alcohol – Confronting victim in his vehicle and forcing victim out of his vehicle – Accused attempted to steal vehicle but prevented by victim – No injury to victim – Guilty plea – First time offender – Pre-sentence report recommending release on probation – No sentencing guideline – Guideline suggested and applied – One year eight months sentence imposed part suspended.

Cases cited:
The State v. Michael Kamban Mani (2002) N2246.
Mase & Anor. v. The State [1991] PNGLR 88.
The State v. Ian Bob Wali (2004) N2580

Counsel:
M.Zurenouc, for the State.
V. Awalua, for the Accused.

2 November, 2007

1. KANDAKASI J: You pleaded guilty to a charge of assault with intent to steal. Following that, I heard from you and your lawyer as well as the lawyer for the State as the kind of punishment you should receive for the offence you committed. You asked for a sentence up to the rising of the Court or alternatively a part suspended and custodial sentence which should allow for the period you have already spent in custody. The State did not oppose that submission.

Relevant Issue

2. The issue before the Court is what is, an appropriate sentence for you? That issue can be decided having regard to the particular facts giving rise to the charge against you, your personal and family backgrounds, sentencing trends and guidelines in these kinds of cases and the factors for and against you.

The Relevant Facts

3. From the outset of the presentation of the indictment against you, both the State and you agreed to the relevant facts on the basis of which the Court arraigned you. They start with you getting drunk and being under the influence of alcohol around 11: 30 am on 19th May 2006. At that time, you were at the Gordons Market. When you were there, you saw a man in his parked motor vehicle, a Mazda 626 station wagon, bearing the registration number BBI 176. You aggressively approached that man and got him out of his vehicle. You grabbed the man by his shoulders and pushed him down the dirt or ground and got yourself into that man’s vehicle. You then put your hands on the keys to the vehicle. On realizing that you were going to drive his vehicle off, the man confronted you and hit your hands and called for help. Help came and eventually saw to your apprehension and taken to the nearby police station.

Address on Sentence

4. In your address on sentence, you said sorry for breaking the law. You expressed regret that you did not have the opportunity to say sorry to the victim of your offence as the police arrested and apprehended you on the same day. Further, you told the Court that you have been in custody since last year. You went on to inform the Court that, there was a jail break out and you could have escaped as did some prisoners but you did not. Finally, you asked the Court to exercise mercy toward you and have you released on good behaviour bond.
   
5. Your lawyer drew to the Court’s attention that, you are about 20 years old now, 19 years old at the time of the commission of the offence. You come from Karude village in the Oro Province and that you are single. You are unemployed and leave with both of your parents in a settlement in the city. You are the last born in a family of seven. Education wise, you have reached grade 3 at the Sogeri Community School and dropped out due to school fee problems. By way of religion, you belong to the Anglican Church.
   
6. Then in your favour, your lawyer pointed out that, you pleaded guilty to the charge and that you are a first time offender. Additionally, he pointed out that, you cooperated well with the police and that you are a first time offender. Further, your lawyer pointed out that, you expressed genuine remorse and that you are a youthful offender. Finally, your lawyer urged the Court to note that, you have been in custody from 19th May 2006. That means you have been in custody for over 1 year 5 months. Bearing all of these in mind, your lawyer asked for a sentence not exceeding 1 year 5 months but if the Court decides to impose a sentence beyond that period he asked that the additional period be suspended.
   
7. The State agreed with your submissions. In so doing counsel for the State, noted that you did not pre-meditate or plan the commission of the offence. It was a crime of opportunity. He also pointed out that, you did not act in the company of others and that you were intoxicated with alcohol. Further, he pointed out that you direct no threats at the victim.
   
8. In view of the submissions of the parties, I ordered the Community Based Corrections to furnish the Court with a pre-sentence report. The report has been furnished on 22nd October. The report supports the imposition of a more lenient sentence including a placement of you under probation to help you to rehabilitate and become a better law abiding citizen.
   

The Offence and Sentencing Trend

9. Section 388 of the Criminal Code creates the offence and prescribes its penalty in the following terms:

"A person who assaults any person with intent to steal any thing is guilty of a crime.

Penalty: Imprisonment for a term not exceeding three years."

10. Both counsel were not able to draw the Court’s attention to any case on point that might be of assistance to me for sentencing purposes. There seem to be no case authority dealing with sentence for this offence. I had a similar situation in the case of The State v. Michael Kamban Mani (2002) N2246, which was a case of stealing. There, I allowed myself to be guided by the general principles of sentence and will follow that approach. In the Michael Kamban Mani I 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 than those imposed for the commission of the offence involving structures such as a office."

11. I then added a few more principles specific to the offence of break, enter and stealing with a view few to assisting a sentencing judge to properly discharge the duty placed in him or her to impose a sentence that best meets the interest of the society to punish offenders and rid the society of such offenders if possible, as well as the interest of an offender to be rehabilitated.

12. In the case of assault with intent to steal, I would add that, the nature of the assault and injuries if any occasioned to the victim, any premeditation, accompaniment and use of any, weapons or any dangerous object, acting with and in the company of others and the value of the property intended to be stolen are all relevant. The existence of one or more of these factors could put the offence in the serious category, whilst an absence of any of these factors could place the offence on the less serious side.

13. Of course, other factors such as, prevalence and effect of the offence against the victim and the community or society as a whole, and the kinds of sentences that are being imposed in similar but less serious offences, such as, a simple act of stealing should be considered. These factors are important because, in the case of the offence’s impact, if it deprives the community of a vital service such as health services or education, the sentence should be sterner to reflect such impacts on the society. With regard to sentences in other similar but slightly more serious offence such as grievous bodily harm or less serious offences, such as a simple act of assault are relevant. This is to ensure that a sentence for an offence of assault with intent to steal is not higher than offences more serious and that they are not lower than the kind of sentences imposed in less serious offences.

Sentence in Your Case

14. Bearing in mind the foregoing, I now proceed to give consideration to the issue presented before me. The issue once again is what is an appropriate sentence for you?

15. Section 388, which create and prescribe the penalty for the offence of assault with intent to steal, prescribes 3 years as its maximum penalty. As I noted already, that does not mean that I must impose a sentence of 3 years against you. Instead, under s.19 of the Code, I am duty bound to take into account the factors I have outlined in the foregoing and arrive at a sentence that best befits your case.

16. First, I note and take into account your personal and family backgrounds as your lawyer put to the Court in his submissions on your behalf. Secondly, I note that, this is your first ever offence. That means you have not being in trouble with the law before. So you have been a good law abiding citizen until the commission of this offence. Thirdly, I take into account the fact that, you pleaded guilty to the charge. That saved the State a lot of money and time that would have been otherwise spent in conducting a trial to establish your guilt. It also saved the Court precious time. Fourthly, I note your expression of remorse. In that regard, I also accept your submission that, you have not had the opportunity to say sorry to the victim of your offence because the police arrested you on the same day of the offence and kept you in custody all these time awaiting your trial. Fifthly, I note and accept your submission that you had the opportunity to escape from lawful custody but remained at Bomana when there was a mess jail break out. Further, I note that, you did not pre-plan and execute the offence. Instead, it was a crime of opportunity, all on your own, possibly due to your being drunk without the use of any dangerous weapon. Finally, I note that, you did not cause any serious injury to the victim of your offence. All of these are factors in your favour.

17. Against you however, I note that, you were drunk and under the influence of alcohol, which is not an excuse for committing an offence but is a factor against you.[1] This is because getting drunk and disorderly in public is an offence and an act or conduct you chose to get into even though, the law prohibits such conduct. Secondly, I note that, the offence of stealing in all of its forms from pocket picking to armed robbery is on the rise. In that regard, it is a prevalent and serious offence. Indeed in your case, I note that if it had not been for the victim of your offence calling for help and other people coming for his help, you would have stolen his vehicle and driven off and may well have damaged it beyond repair or otherwise permanently deprive the victim of his vehicle.

18. Carefully, weighing the factors for and against you, I note that the factors in your favour seem to outweigh those against you. Accordingly, I will not impose the prescribed maximum sentence of 3 years. Further I note that, sentences for grievous bodily harm which is a more serious offence with a maximum prescribed sentence of 7 years is at the average attracting sentence around three years with most of them suspended. At the same time, I note that, although there is no reported case, sentence for simple assault cases are attracting, at the most, a few months sentences. What this means in your case is this. Your case has to be well below the sentences that are being imposed in grievous bodily harm cases and above those imposed in simple assault cases. In all of the circumstances, I consider a sentence of 1 year eight months appropriate and impose that sentence against you.

19. Of the head sentence of 1 year 8 months, I deduct the period of 1 year, 5 months and 12 days you have already spent in custody while waiting for your trial. That will leave you with a balance of 2 months, 2 weeks and 2 days. Then on the basis of the pre-sentence report, I will have that period suspended on the following conditions:

(1) You immediately enter into a recognizance to keep the peace and be of good behaviour for the currency of your suspended sentence;

(2) You be not in the company of other men or youths;

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

(4) You shall reside only at your parents’ house and do not leave their home or the National Capital District during the currency of the suspended period;

(5) You refrain from consuming any form of alcohol or liquor and undertake alcohol counselling which the Community Based Corrections will organize for you;

(6) If for whatever reason you breach any of these terms, you will serve the full suspended part of your sentence; and

(7) 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.

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

---

^[1] See for examples of authorities on point Mase & Anor. v. The State [1991] PNGLR 88 and The State v. Ian Bob Wali (2004) N2580