State v RP [2011] PGNC 337; N4311 (16 June 2011)

N4311

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 220 OF 2011

THE STATE

V

A JUVENILE, "RP"

Madang: Cannings J
2011: 18 April, 9, 16 June

SENTENCE

CRIMINAL LAW – sentence – stealing – Criminal Code, Sections 372(1) & (10) – property of a value of K7,000.00 stolen – juvenile offender – property stolen from parked car.

A 14-year-old boy pleaded guilty to stealing cash and other property to a total value of K7,000.00 from a parked, unattended car. He had two accomplices.

Held:

(1) The maximum penalty is seven years imprisonment. A useful starting point is the middle of the available range: three and a half years imprisonment.

(2) Mitigating factors are: no physical violence involved; the offender was not the mastermind of the plan and had a relatively small role to play in it; he returned his share of the proceeds of crime; co-operated with police and made early admissions; guilty plea; early plea; first-time offender; juvenile offender; expressed remorse; good pre-sentence report; has already spent time in custody.

(3) The aggravating factors are: stolen property was of substantial value; inevitable nervous distress caused to those from whose custody the property was stolen.

(4) The appropriate sentence is 18 months imprisonment. The pre-sentence period in custody was deducted and the balance of the sentence was suspended, subject to conditions.

Cases cited

The following cases are cited in the judgment:

Alice Kware & Addie Uvi CA 34-35/2006, 23.03.07
Saperus Yalibakut v The State (2006) SC890
The State v A Juvenile, "KK", CR 188/2009, 04.03.10
The State v Danis Langu Jack, CR 183/2009, 21.12.09
The State v Douglas Boku CR 844/2009, 18.08.09
The State v George Pelly, CR 672/2003, 04.03.10
The State v Martin Kairing Awi, CR 352/2008, 12.12.08
The State v Philip Bola Malagau & Michael Bio Tavulo, CR 678/1998, 17.02.09
The State v Tobby Alekun (2004) N2636

SENTENCE

This was a judgment on sentence for stealing.

Counsel

P Kaluwin & S Collins, for the State
A Turi, for the offender

16 June, 2011

1. CANNINGS J: The juvenile offender, "RP", has pleaded guilty to a charge of stealing and been convicted of that offence under Sections 372(1) and (10) of the Criminal Code. He is 14 years old. The offence was committed at lunchtime on 14 January 2011. The Middle Ramu District Administrator was having lunch at the Bangui Haus Kai in Madang town, after parking and leaving unattended his vehicle on the street. Inside the vehicle were a laptop computer, K6,000.00 cash, cheques, airline tickets and personal items including his children's original school certificates. RP was with two friends and they used a piece of wire to open the vehicle and stole property within it. RP has pleaded guilty to stealing the cash plus K1,000.00 worth of other property, the total value of the property he stole being K7,000.00.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:

I apologise for what I did. I will not do such a thing in future. Everything that I took I returned. I am attending school and this is my first time in court. I ask for the court's mercy.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). In that regard, I will take into account that the offender was not the mastermind of the plan and had a relatively small role to play in it; he returned his share of the proceeds of the crime; he co-operated with police and made early admissions.

PRE-SENTENCE REPORT

5. A pre-sentence report prepared by the Madang branch of the Community Based Corrections and Rehabilitation Service reveals that RP is aged 14. His parents are alive and strongly supportive of him. He has two brothers and one sister. He is presently a grade 7 student, though his education has been greatly interrupted by his involvement in this crime. He dreams of becoming a doctor. He relates well to children in his peer group and is a keen sportsman. His health is sound and he is recommended for probation.

SUBMISSIONS BY THE DEFENCE

6. Ms Turi stressed that as a young, first-time offender who has pleaded guilty and already spent time in custody, the court should impose a moderate sentence of 12 to 18 months and suspend the balance of the sentence.

SUBMISSIONS BY THE STATE

7. Mr Collins agreed with Ms Turi's submissions and did not press for a 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 sentences have been imposed for equivalent offences?
• step 4: what is the head sentence?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. The offence of stealing is created by Section 372(1) and the maximum penalty, if there are no circumstances of aggravation, is three years imprisonment. In this case the value of the thing stolen exceeded K1,000.00, which is a circumstance of aggravation under Section 372(10). This circumstance of aggravation has been charged in the indictment and the effect of this is that the maximum penalty is seven years imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

10. I will use the middle of the available range: three and a half years imprisonment.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

11. Stealing is an offence that covers a wide array of situations and it is difficult to compare sentences but those that I have dealt with are shown in the following table.

SENTENCES FOR STEALING, CRIMINAL CODE, SECTION 372, CANNINGS J

No	Case	Details	Sentence
1	The State v Tobby Alekun (2004) N2636, Wewak	Guilty plea – offence committed in Maprik market – offender came from behind a woman, grabbed and ran off with her bilum containing K2,900.00	2 years
2	Alice Kware & Addie Uvi CA 34-35/2006, 23.03.07, Kimbe	District Court appeal against sentence – guilty plea – two poker machine cashiers stole K2,000.00 from their employer – original sentence of 2 years, 8 months quashed	1 year; 1 year
3	The State v Martin Kairing Awi, CR 352/2008, 12.12.08, Kimbe	Guilty plea – punched and stole from a man in the street (with whom he had a grievance) mobile phone, camera, cash – total value = K480.00	3 years
4	The State v Philip Bola Malagau & Michael Bio Tavulo, CR 678/1998, 17.02.09, Kimbe	Guilty pleas – stole bilum and K410.00 cash from man on bush track – no weapons used	2 years
5	The State v Douglas Boku CR 844/2009, 18.08.09, Buka	Guilty plea – stole 27 mobile phones from his employer, Digicel (with whom he had a grievance) – total value = K8,100.00	3 years
6	The State v Danis Langu Jack, CR 183/2009, 21.12.09, Kimbe	Guilty plea – punched and stole property from a man in the street, late at night – total value = K180.00	3 years
7	The State v George Pelly, CR 672/2003, 04.03.10, Madang	Trial – offender stole a 25 hp outboard motor from a dinghy moored at a wharf – conviction under s 372(1) only – maximum penalty of 3 years	2 years
8	The State v A Juvenile, "KK", CR 188/2009, 04.03.10, Madang	Guilty plea – juvenile offender – went into unlocked house at night – stole household property worth K2,106.50	18 months

STEP 4: WHAT IS THE HEAD SENTENCE?

12. Mitigating factors are:

• no violence involved;
• the offender was not the mastermind of the plan and had a relatively small role to play in the plan;
• he obtained a relatively small amount of the proceeds of the crime;
• he co-operated with police and made early admissions;
• others involved have not been prosecuted;
• he pleaded guilty;
• it was a very early guilty plea;
• first-time offender;
• he has expressed remorse and promised not to do such a thing again;
• he is a juvenile;
• he has already spent time in custody.
  

13. Aggravating factors are:

• the stolen property was of substantial value;
• the inevitable nervous distress caused to those (in particular the District Administrator) from whose custody the property was stolen.
  

14. There are more mitigating factors than aggravating factors so the sentence should be below the starting point of three and half years. The strength of the mitigating factors brings the sentence down to 18 months.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

15. Yes. 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 which is 3 months.

STEP 6: SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?

16. I agree that the offender has spent sufficient time in custody for this sort of offence. I will suspend the balance of the sentence on the following conditions:

(a) must report to the Probation Office within 72 hours after release from custody and submit to supervision by a Probation Officer;

(b) must reside with his parents and nowhere else except with the written approval of the National Court;

(c) must continue his education and his school principal and his parents must co-operate with the Probation Office and ensure that he commits himself to his education;

(d) must not leave Madang Province without the written approval of the National Court;

(e) must perform at least three hours unpaid community work each week at his local church under the supervision of the church;

(f) must attend church every weekend for service and worship;

(g) must report to the Probation Office at Madang on the first Monday of each month between 9.00 am and 3.00 pm;

(h) must not consume alcohol or drugs;

(i) must keep the peace and be of good behaviour and must not cause any further trouble within or outside his community;

(j) must have satisfactory probation reports submitted to the National Court, Madang, every six months;

(k) if the offender breaches one or more of the above conditions, he shall be brought before the National Court to show cause why she should not be detained in custody to serve the rest of the sentence.

SENTENCE

17. "RP", having been convicted of one count of stealing under Section 372(1) of the Criminal Code, in circumstances of aggravation under Section 372(10) of the Criminal Code, namely that the value of the thing stolen exceeded K1,000.00, is sentenced as follows:

Length of sentence imposed	18 months
Pre-sentence period to be deducted	3 months
Resultant length of sentence to be served	15 months
Amount of sentence suspended	15 months
Time to be served in custody	Nil, subject to strict compliance with conditions of suspended sentence

Sentenced accordingly.
_________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender