State v Kuli [2007] PGNC 224; N5058 (17 August 2007)

N5058

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 264 OF 2006

THE STATE

V

JETHRO KULI

Kimbe: Cannings J
2007: 9 July, 7, 17 August

CRIMINAL LAW – sentencing – unlawful breaking and entering, dwelling house – Criminal Code, Section 396 – sentence on plea of guilty – offender broke into house in middle of night, while people asleep – sentence of 18 months.

The offender got drunk, then broke into a woman's house at 1.00 am when the woman and her friends were asleep. He slept next to the woman on her bed. He was convicted of unlawfully breaking and entering the house.

Held:

(1) The maximum penalty is three years imprisonment so a proper starting point for sentencing purposes is 18 months imprisonment.

(2) Mitigating factors are: little damage done; only one offender; apology, compensation, reconciliation; pleaded guilty; first-time offender; young offender; strong community and family support.

(3) Aggravating factors are: house was occupied; break-in at night; victim traumatised; did not give himself up; no remorse.

(4) A sentence of 18 months imprisonment was imposed. The pre-sentence period in custody of three weeks was deducted and 12 months of the sentence was suspended on conditions.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
Tom Longman Yaul v The State (2005) SC803

PLEA

A man pleaded guilty to unlawfully breaking and entering a dwelling house and the following reasons for sentence were given.

Counsel

F Popeu, for the State
R Beli, for the accused

17th August, 2007

1. CANNINGS J: This is a decision on the sentence for a man, Jethro Kuli, who pleaded guilty to one count of unlawful breaking and entering a dwelling house under Section 396 of the Criminal Code, arising from the following facts. On the evening of 20 October 2005 he was at Nahavio, near Kimbe, consuming alcohol with friends. At 1.00 am the next morning he went to the OPIC area, to a house occupied by the complainant, a woman. The complainant and her friends were asleep in the house. The offender tore some flywire covering a window near the door, removed some louvres, put his hand in, opened the door and entered the house. He searched the house, picked up some cassettes, entered the room where the complainant was sleeping and went to sleep next to her. The complainant woke up, was shocked by what she saw and raised the alarm. The offender escaped. The offender had no lawful justification or excuse for being on the premises.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. The offender said:

I apologise to the court for what I did and ask for mercy.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty, he is entitled to the benefit of the doubt on mitigating factors that are apparent from the depositions, the allocutus (or plea) or matters raised by his defence counsel that are not contested by the prosecutor (Saperus Yalibakut v The State (2006) SC890). However, I have been unable to identify any mitigating factors from those materials.

PRE-SENTENCE REPORT

5. I received a favourable pre-sentence report from the Community Corrections and Rehabilitation Service, which is summarised below.

JETHRO KULI: 20-year-old male.

Residence: lives with his family at Sarakolok, near Kimbe.
Family background: parents (both still alive) are from Yangoru, ESP – grew up in WNBP and regards it as home – oldest of four children.
Marital status: single.
Education: grade 12, Kimbe Secondary School, 2005 – the offence was committed while he was still at school.
Employment: never formally employed.
Health: OK.
Financial status: relies on his parents, who are blockholders, for support – his father had a paid job but left it when Jethro committed the offence.
Plans: continue his education.
Victim's attitude: has reconciled with the complainant – he and his family have paid her compensation of K1,500.00 cash, which she is satisfied with – does not want to see him go to jail.
Attitude of community: regarded as a quiet and law-abiding member of the Sarakolok community.
Assessment: a low-risk offender.
Recommendation: suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Beli submitted that the offender had received a good pre-sentence report and therefore should be given a fully suspended sentence.

SUBMISSIONS BY THE STATE

7. Mr Popeu, for the State, conceded that the pre-sentence report favoured a non-custodial sentence.

DECISION MAKING PROCESS

8. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what should the head sentence be?
• step 4: should the pre-sentence period in custody be deducted?
• step 5: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. Section 396 (unlawful breaking and entering) of the Criminal Code states:

A person who, without lawful excuse (proof of which is on him) breaks and enters the dwelling-house of another is guilty of a crime.

Penalty: Imprisonment for a term not exceeding three years.

10. The maximum penalty is therefore three years imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

11. I have been unable to locate a suitable precedent, so I will use the mid-point of 18 months as the starting point.

STEP 3: WHAT IS THE HEAD SENTENCE?

12. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be reduced below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point. Three sorts of considerations are listed. Numbers 1 to 5 focus on the circumstances of the incident. Numbers 6 to 10 focus on what the offender has done since the incident and how he has conducted himself. Numbers 11 to 13 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

1. Was little damage done to the house to gain entry? Yes.
   
2. Was just one offender involved? Yes.
   
3. Was the house broken into when it was unoccupied? No.
   
4. Was the house broken into during the daytime? No.
   
5. Did the offender ensure that no one was alarmed or traumatised by the break-in? No.
   
6. Did the offender give himself up after the incident? No.
   
7. Did the offender cooperate with the police in their investigations? Neutral.
   
8. Has the offender done anything tangible towards repairing his wrong? Yes, he has apologised, paid compensation and reconciled.
   
9. Has the offender pleaded guilty? Yes.
   
10. Has the offender genuinely expressed remorse? No. Though he has apologised to the victim he expressed no remorse in allocutus.
    
11. Is this his first offence? Yes.
    
12. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence? Yes, he was aged 19 at the time and still going to school.
    
13. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Yes, he has strong community and family support, evident from the favourable pre-sentence report.
    

13. After weighing all these factors and bearing in mind that there are seven mitigating factors compared to five aggravating factors, I will fix the head sentence at the starting point: 18 months.

STEP 4: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

14. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is three weeks.

STEP 5: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

15. This is an appropriate case in which to consider a suspended sentence. He has a good reputation in the local community, he has strong family support and he has conscientiously tried to make good his wrong. However, it was a serious case of breaking and entering, and it must have been a terrifying experience for the victim. It seems to have been a case of the offender's drunkenness fortuitously saving him from doing something much worse. The seriousness of this case does not justify a fully suspended sentence. I will, however, suspend 12 months of the sentence on the following conditions:

1. must reside at Sarakolok, Section 1, and nowhere else except with the written approval of the National Court;
   
2. must not leave West New Britain without the written approval of the National Court;
   
3. must perform at least six hours unpaid community work each week at the Sarakolok Community, under the supervision of the District Evangelist;
   
4. must attend New Apostolic Church, every Sunday for service and worship and assist the church in its community activities under the supervision of the District Evangelist;
   
5. must report to the Probation Office at Kimbe on the first Monday of each month;
   
6. must not consume alcohol or drugs;
   
7. must keep the peace and be of good behaviour;
   
8. must have a satisfactory probation report submitted to the National Court Registry at Kimbe every three months after the date of sentence;
   
9. if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.
   

16. The last condition is very important. If any of these conditions is breached, any person may report the matter to the police or to any person nominated to supervise the offender or to the Probation Office, any of whom may bring the matter to the attention of the National Court. The Court may then issue a warrant for arrest of the offender and he can be brought before the Court to show cause why he should not be sent to jail to serve the rest of his sentence (Tom Longman Yaul v The State (2005) SC803).

SENTENCE

17. Jethro Kuli, having been convicted of the crime of unlawfully breaking and entering a dwelling house, is sentenced as follows:

Length of sentence imposed	18 months
Pre-sentence period to be deducted	3 weeks
Resultant length of sentence to be served	17 months, 1 week
Amount of sentence suspended	12 months
Time to be served in custody	5 months, 1 week

Sentenced accordingly.
_________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused