N5402

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 367 OF 2013

BETWEEN:

THE STATE
Applicant

AND:

JOEL NOLPI
Accused

Mendi: Kassman, J
2013: 18th & 25th April

CRIMINAL LAW – Sentence – break & enter and stealing – guilty plea - no violence – no weapon – prompt apology and compensation – genuine expression of remorse - no prior conviction – sentence of one year – wholly suspended with conditions including twelve months good behavior bond and community service for six months.

Cases Cited:

The State v. Jackson Anarias (2006) N3161
The State v. James Gurave Guba (2000) N2020
The State –v- Patrick Sogi (2008) N3437

Legislation Cited:

Section 19 of the Constitution
Section 383(2) of the Criminal Code.

Counsel:

Mr Waine, for State 
Mr Kolowe, for Accused

DECISION

1.	KASSMAN J: This is my decision on sentence following a plea of guilty to a charge of break & enter and stealing.

Preliminary 

2.	On 26 November 2012, the Mendi District Court committed Joel Nolpi ("Nolpi") to stand trial in the National Court on the charge of break & enter and stealing contrary to Section 398(a)(i) of the Criminal Code. The offender has been held in remand since his arrest on 10 October 2012.

Indictment

3.	On 18 April 2013, Nancy Lipai of the Office of the Public Prosecutor presented the indictment. The indictment stated:

"Joel Nolpi of Tente Village, Mendi, Southern Highlands Province stands charged that he on 6th September, 2012 at Mendi in Papua New Guinea broke and entered into a Shop namely, Southsman Enterprise Ltd and stole goods worth K8,824.00, the property of Southsman Enterprise Ltd".

4.	Nolpi pleaded guilty to the charge. After reading the depositions, I accepted the plea and recorded a conviction.

5.	In allocatus, Nolpi said 

"Firstly, I apologise to this Honourable Court for what I have done. I also apologise to the owner of the company shop. This is my first time to stand in Court. I apologise for what I have done in the eyes of God and also to this Honourable Court. Now ask if the Court can have mercy on me. That's all".

6.	I then heard submissions on sentence and reserved for delivery of my ruling which I do now. Apart from the committal file depositions and indictment, I have perused and considered the written submission of Cecelia Koek for the offender. No affidavits have been filed on sentence. 

Brief Facts

7.	The brief facts presented are:

"That on Thursday the 06th day of September, 2012 at about the time between 9:00pm to 10:30pm, the defendant now before the court namely, Joel NOLPI was at Southsman Enterprise in Mendi, Southern Highlands Province."

The defendant was accompanied by another defendant, broke into Southsman enterprise and stole goods (foods) in the wholesale area and proceed onto the stationary section of the shop stealing white goods again totalling the value altogether up to K8,824.00 all in goods and took off.

Four days later the complainant with the help of his relative talked to the defendant's relatives and brought in the said defendant into the police custody.

At the police station, police questioned the defendant about the said offence and the defendant admitted committing the offence.

The defendant was then formally arrested, charged, cautioned and was told of his rights under Section 42(2) of the Constitution and was locked in the cells".

Offence and penalty

8.	Nolpi has pleaded guilty to the charge of break & enter and stealing. Section 398(a)(i) of the Criminal Code provides:

398. 	Breaking into buildings and committing crimes

"A person who – 

(a)	Breaks and enters – 

(i)	a schoolhouse, shop, warehouse, counting-house, office, store, vehicle, garage, hangar, pavilion, factory, workshop, tent, caravan, petrol-station, ship, aircraft, vessel or club; or

(ii)	a building that is adjacent to a dwelling-house and occupied with it, but is not part of it,

and commits a crime in it; or

(b)	having committed a crime in – 

(i)	a schoolhouse, shop, warehouse, counting-house, office, store, vehicle, garage, hangar, pavilion, factory, workshop, tent, caravan, petrol-station, shiop, aircraft, vessel or club; or

(ii)	a building that is adjacent to a dwelling-house and occupied with it, but is not part of it,

breaks out of it,

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 14 years

[Penalty provision subst Act No. 10o, 1983 (Criminal Code (Minimum Penalties) 0Amendment Act 1983), s 15; am Act No 17, 1986 (Criminal Code (Amendment No. 2) Act 1986), s 25]

is guilty of a crime.

Penalty:	Imprisonment for a term not exceeding14 years.

9.	The prescribed maximum penalty is imprisonment for a term not exceeding fourteen years.

10.	The Supreme Court said in Goli Golu v. The State [1979] PNGLR 653 that the maximum penalty should be reserved for the worst type of cases in terms of the facts and circumstances leading up to, during and following the crime. 

11.	This court may also suspend part of or the entire sentence with or without conditions. This is authorised under Section 19 of the Constitution. This section of the Criminal Code provides among others, a shorter term may be imposed [subsection (1)(a)], a fine not exceeding K2,000.00 in addition to, or instead of, imprisonment may be imposed [subsection (1)(b)], a good behavior bond in addition to, or instead of, imprisonment may be imposed [subsection (1)(d)], the offender can be discharged and the sentence postponed [subsection (1)(f)] or a part of or all of the sentence can be suspended subject to conditions [subsection (6)].

12.	Nolpi's lawyer submits the appropriate sentence is one year imprisonment with time spent awaiting trial of six months and 13 days deducted and the balance to be wholly suspended with conditions. The State disagreed saying imprisonment for a term above five years was appropriate.

Nolpi's personal particulars and background

13.	Nolpi is 17 years old and is from and resides in Tente Village, Mendi in the Southern Highlands Province. All other particulars are stated in his lawyers written submissions. 

Mitigating factors

14.	By pleading guilty, Nolpi admits the charge and the evidence as contained in the court depositions.

15.	Nolpi was taken into the police station by his relatives after being approached by the shop owner. Nolpi then fully cooperated with police by admitting that he was involved in the crime and he also identified two others in his company who were also equally liable for prosecution. The court was not advised as to their fate. 

16.	Nolpi does not have any previous conviction or charge recorded against him. There was no actual violence to anyone and no weapons were used. He realised his actions were wrong and constituted a criminal offence. He ultimately pleaded guilty thus saving the prosecution and this court the time and expense of a full hearing. 

17.	Nolpi's relatives were quick to express remorse for Nolpi's wrongful actions. Two months after the incident, Nolpi's relatives paid cash of K6,000 to the shop owner and apologised for what Nolpi had done. This was accepted by the shop owner.

Comparative cases

18.	The state offered no prior case authority. Nolpi's counsel referred to The State v Aiton Ipai (1997) N1629. "In that case the accused a 16th year old plead guilty on the charge of break and enter stealing items valuing at 14,250.00 at Panakada Repeater station in Wabag. The court considered the mitigating factors such as the prisoner plead guilty, he was a first and youthful offender in deciding his sentence. Having considered the fact that he was only a "Watchman" and the total value of items stolen, the court considered that he be sentenced to a term of two years in hard labour. However, he had spent one year three months in custody and that period was deducted from that sentence. The court considered that was sufficient punishment for him and further ordered that the remaining portion of his sentence be suspended for two years upon him entering into a recognizance without sureties to keep the peace and be of good behaviour for those two years". 

Sentence

19.	Considering the facts and circumstances of this case and the cases referred to, I am satisfied that a sentence of one year is appropriate. 

20.	I also accept the submission of Nolpi's lawyer that time spent awaiting trial of six (6) months and 13 days be deducted and the balance of the sentence be wholly suspended. 

21.	I believe Nolpi was genuine in his expression of remorse and his commitment to be a law abiding citizen in that he has learned from this experience. 

22.	Nolpi's expression of remorse in court is consistent with his prompt action to apologise to the shop owner for his wrongful actions. 

23.	In saying all of this, there must be some sanction from the court. This court is tasked with the authority and responsibility to impose punishment where wrongful conduct is found to have occurred without lawful excuse. The punishment must be fitting of the wrongful action and all relevant circumstances and should also serve as a warning or deterrence to any member of the public that they must at all times act lawfully and with respect for all. Nolpi certainly let his own people down and brought shame to his family. 

24.	It is appropriate that Nolpi serve a non-custodial sentence with conditions. Nolpi is placed on a good behaviour bond for one year. Nolpi will also perform community service for six months to be arranged and supervised by the appropriate authorities. 

25.	Nolpi must perform community service for at least eight hours every Friday. This must be performed over a continuous period of six months within one year from the date of this sentence. Other conditions are imposed as stated below.

26.	The orders of the Court are:

a.	A sentence of one year imprisonment is imposed.

b.	From the sentence of one year, six months and six days are deducted and the balance of the term is wholly suspended with conditions that:

i.	Nolpi will be of good behaviour for one year from the date of this order; and

ii.	For a continuous period of six months within the next twelve months, Nolpi will perform community service in:

1.	Cleaning services and providing such other appropriate initiatives at the Mendi Police Station Detention Cells and the main streets of Mendi Town

2.	For at least eight hours every Friday. 

3.	Under the supervision of the Community Based Corrections Officer supported by the Corrective Institutions Service Commander at Bui-Iebi and Mendi Police Station Commander (or their nominees). 

iii.		For the duration of one year:

1.	Nolpi will not leave the Southern Highlands Province, except with the leave of the National Court

2.	Nolpi will not consume alcohol

3.	Nolpi will report to the Assistant Registrar, National Court, Mendi on the first Friday of every month between 8am and 9am. 

4.	Nolpi must have a satisfactory probation report submitted to the National Court Assistant Registrar once every three months

c.	The Mendi Town Manager is directed to provide all necessary assistance to the Community Based Corrections Officer in the conduct and supervision of community services as described above.

d.	If Nolpi 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 to serve the rest of his sentence in custody.

Judgment accordingly.
_______________________________________________________

Office of the Public Prosecutor: Lawyer for the Applicant
Office of the Public Solicitor: Lawyer for the Accused