State v Bobo [2011] PGNC 139; N4416 (13 September 2011)

N4416

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 394 of 2011

THE STATE

V

BITAOKO BOBO

Kokopo: Maliku, AJ
2011: 06th, 12th & 13th September

CRIMINAL LAW – Stealing - Section 375(1)(10) Criminal Code Act

CRIMINAL LAW - Sentence on guilty plea- First Offender- Appropriate scale of sentence - Breach of trust by accused- Suspended two years imprisonment considered appropriate

Cases Cited:

Wellington Balewa- v- The State [1988-89] PNGLR 496
State v Alekun (2004) N2636

Counsel:

Mr A. Bray, for the State
Mr P. Kaluwin, for the Accused

13th September, 2011

1. MALIKU, AJ: The accused stands charged that between the 27th and

the 28th of February 2011 in Kokopo town, East New Britain Province stole monies amounting to One Thousand Eight Hundred and Twenty Kina and Forty toea (K1820-40),the property of one Danny Ilikis Waila, thereby contravening Section 372 (1) and (10) of the Criminal Code Act.

The Law

2. The relevant law is Section 372 (1) (10) of the Criminal Code Act.

Section 372 Subsection (1) says: A person who steals anything capable of being stolen is guilty of a crime".

Penalty

3. Subject to this section, imprisonment for a term not exceeding three years

Section 372 Subsection (10) says: 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.

Plea

4. The accused pleaded guilty to this one count of stealing.
   

The Facts

5. The State alleges that between the 27th and 28th of February 2011, the

accused was in Kokopo town.

6. On the 27th of February, 2011, the complainant Danny Ilikis had sent his

two children to K-Central Shop opposite the Kokopo market to do shopping with his ANZ Bank Card.

7. When the children returned from the K-Central Shop they left the ANZ

Bank Card on the table. The accused is the complainant brother in-law and was living at the same house with the complainant.

8. The accused then stole the complainant's ANZ Bank Card and came into

town and used it at various shops located at various locations in Kokopo town purchasing goods from the shops. The total amount of money spent is K1840-40 which the State alleges the defendant had stolen and is the property of one Danny Ilikis Waila.

9. The complainant did not give permission to the defendant to do, thereby

contravening Section 372 (1) and (210) of the Criminal Code Act.

Antecedent of the Accused

Date of Birth

10. The Accused was born in 1976 and is 35years old. His actual date of birth

is unknown and he comes from Butuwin village, Kokopo District, East New Britain Province.

Religion

11. The accused was baptized into the United Church of Papua New Guinea

and is a member of United Church of Papua New Guinea.

Education

Primary School Education

12. The accused complete his primary school at the Kalamanagunan Primary

School.

High School Education

13. The accused completed Grade nine (9) at Kokopo High School in

1994.

Other Educational Institutions

14. The accused attended a Private School in Lae studying Sales and

Marketing Course for six (6) months.

Employment

15. The accused was employed by Niugini Table Bird for two years. The year

of that employment is unknown. He was supported until the time he committed this offence by his sister who is married to the complainant of this matter. He has no regular means of income at all.

Marriage

16. The accused is married with no children. The name of his wife is

unknown.

Prior Convictions

17. The accused has no prior conviction and is a first offender
    

Allocutus

18. When I administered the allocutus of the accused he said "I have nothing

to say but my lawyer would say something on that later" shaking his head to indicate that he had nothing to say.

Submission on penalty by Mr Kaluwin for the accused

19. Mr Kaluwin concedes that there was a breach of trust on the part of the

defendant because he stole from his brother in law and to some extent was an embarrassment too.

20. Mr Kaluwin then submits:
    
    1. That the amount involved does not warrant an imprisonment because his client has been in custody for seven months and three days.
       
    2. The defendant had pleaded guilty to the charge.
       
    3. The defendant is a first offender.
       
    4. The Court should consider a suspended sentence as appropriate to the charge against his client.
       
    5. That the defendant be allowed to repay the money stolen within a certain period.
       
    6. Finally Mr Kaluwin urges the Court to consider a suspended sentence and defendant allowed to repay the money within a certain period of time.
       

Response on submission on penalty by State

21. In response to the defence submission on the appropriate sentence the

State submits as follows:

(i) The maximum penalty is seven years imprisonment because the defendant stole an amount over K1000.00

22. Mr Bray referred to the case of Wellington Balewa-v- The State [1989-

89] PNGLR 496. This is a case of misappropriation however Mr Bray submits the principle set out in that case in regard to the scale of sentence is relevant to the present case. Mr Bray sets out the scale of sentence as follows:

(i) Where the amount is between K1 and K1000.00 a gaol term is rarely be imposed.

(ii) Where the amount is between K1000 and K10000.00 a gaol term of up to two years is appropriate.

(iii) Where the amount is between K10000.00 and K40000.00 a gaol term of two to three years is appropriate.

(iv) Where the amount is between K40000.00 and K150000.00 a gaol term of three to five years imprisonment is appropriate.

23. Mr Bray submits this matter fall in the 2nd category of two to three

years imprisonment is appropriate.

24. Mr Bray further referred the Court to the case of The State-v- Tobby

Alekun (2004) N2634. This is a case where the defendant grabbed hold of the victims bilum and ran away with. In the billum was K2900.00. The defendant pleaded guilty and was sentenced to two years imprisonment.

25. Mr Bray conceded that the offence was committed by an opportunity or

not planned by the defendant. This is also stated by the writer of the Pre Sentence before the Court for consideration.

26. Mr Bray further submits:
    
    1. That the Court should take into account in considering the appropriate sentence against the defendant that there was a breach of trust on the part of the defendant.
       
    2. The Court should also take into account in considering the appropriate sentence against the defendant is how, what and the manner in which the defendant spent the money, for example the defendant spent the money on liquor.
       
    3. The Court should also take into account in considering the appropriate sentence against the defendant that the money was for the school fees of the complainant's son and because it was stolen it caused a withdrawal of the child from continuing his education.
       
27. Mr Bray urges the Court to impose a sentence of two years but to let the

Court to consider the issue of suspension of the sentence to be imposed on its own wisdom. We submit that should the Court consider a suspended the sentence in whole or partially it should consider imposing condition on the defendant such as the defendant to be restrained from consumption of any forms of alcohol for a certain period considered appropriate by the Court.

The prescribed penalty

28. The penalty prescribed under Section 372 (1) is imprisonment for a term

not exceeding three years. However Subsection (10) says if the thing stolen is of the value of K1000.00 or upwards, the offender is liable to imprisonment for a term not exceeding seven years. However the Court has discretion pursuant to Section 19 of the Criminal Code for other appropriate sentences.

29. I have considered the submissions of both counsels together with the

materials put before me. I consider a custodial sentence of two years is appropriate for the present case.

30. Accordingly I sentence the defendant to two years imprisonment. I

suspend the sentence of two year wholly and order the defendant to repay the sum of K1820.40 within six months from this date.

31. The defendant shall be recalled to serve the balance of two years

imprisonment after the pre trial custody of seven months and three day is deducted should he fails to repay the said K1820.40 within six months.

_________________________________________________________
Public prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused