State v Noutim [2014] PGNC 233; N5794 (23 August 2014)

N5794

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1002 & 1003 OF 2013

BETWEEN;

THE STATE

V

DANIEL NOUTIM & BANDIK JOHN
Defendant

Kimbe: Cannings J
2014: 12, 23 August

CRIMINAL LAW – sentence – break, enter and stealing – Criminal Code, Section 395(1)(c) – guilty plea – offenders broke into a teacher's house in the night and stole personal items.

Two men pleaded guilty to break, enter and stealing in the night. They broke into a teacher's house and stole her mobile phone, a cap and a sleeping mat. This is the judgment on sentence.

Held:

(1) The maximum sentence for break, enter and stealing (Criminal Code, Section 395(1)(c)) is 14 years imprisonment.

(2) Mitigating factors are: nobody physically injured; guilty plea; first-time offender; young offender; property returned; not much stolen.

(3) Aggravating factors are: happened at night; home invasion; very traumatic event for the victim.

(4) A sentence of three years was imposed on each offender, the pre-sentence period in custody was deducted and no part of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
The State v Jethro Kuli (2007) N5058
The State v Jonathan Nelo, CR No 813 of 2009, 16.10.09
The State v Kenneth Maigi CR No 118 of 1997, 22.10.09

Sentence

This was a judgment on sentence for break, enter and stealing.

Counsel

F K Popeu, for the State
D Kari, for the offender

23rd August, 2014

1. CANNINGS J: This is a decision on sentence for two young men, Daniel Noutim and Bandik John, who pleaded guilty to one count each of break, enter and stealing contrary to Section 395(1)(c) of the Criminal Code. The offence was committed on 13 June 2013. They went to a female teacher's house at Tamba Primary School. The teacher had locked the door and was inside. The offenders opened the door by pushing their hands through a hole in the wall and opened the lock from the inside. They stole a Nokia phone, a cap and a sleeping mat. The teacher woke up and screamed and called for help and the offenders ran off with the stolen property.

Antecedents

2. Both offenders have no prior convictions.

Allocutus

3. Each of the offenders apologised to the victim and to the court for what they had done and asked for the mercy of the court.

Other Matters of Fact

4. As the offenders pleaded guilty each 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). I will take into account that they each made admissions to the Police when interviewed on 24 June 2013.

Personal Particulars

5. Each of the offenders is aged 19. They have been raised in West New Britain. Neither has been in conflict with the law before.

Submissions by Defence Counsel

6. Mr Kari submitted that the guilty pleas and the fact that no physical harm was done to the victim warrant a moderate sentence, which should be at least partially suspended in view of the fact that they each have no prior convictions.

Submissions by the State

7. Mr Popeu did not press for a heavy sentence but suggested that some time in custody is required.

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. Section 395 (housebreaking: burglary) states:

(1) A person who—

(a) breaks and enters the dwelling-house of another with intent to commit a crime in it; or

(b) having—

(i) entered the dwelling-house of another with intent to commit a crime in it; or

(ii) committed a crime in the dwelling-house of another, breaks out of the dwelling-house; or

(c) breaks and enters the dwelling-house of another and commits a crime in it, is guilty of a crime.

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding 14 years.

(2) If the offence is committed in the night, the offender is liable, subject to Section 19, to imprisonment for life.

10. Each offender has been convicted under Section 395(1)(c) so the maximum is 14 years. The fact that the offence was committed at night was not charged in the indictment as a circumstance of aggravation.

Step 2: What Is A Proper Starting Point?

11. I will use the midpoint of seven years.

Step 3: What Other Sentences Have Been Imposed Recently For Equivalent Offences?

12. Some recent sentences are summarised in the following table.

Recent Sentences for Break, Enter & Stealing

No	Case	Details	Sentence
1	The State v Jethro Kuli (2007) N5058	Drunk offender – broke into a woman's house at 1.00 am when woman and her friends were asleep – slept next to the woman on her bed – convicted of unlawfully breaking and entering the house – convicted under Criminal Code, Section 396 (which has a maximum of 3 years).	3 years
2	The State v Jonathan Nelo, CR No 813 of 2009, 16.10.09	Guilty plea – offender joined with five others and broke into the City Pharmacy store – young offender – K9,000.00 worth of property stolen.	4 years
3	The State v Kenneth Maigi CR No 118 of 1997, 22.10.09	Guilty plea – offender in company with one other broke into a dwelling house – tore off the fly-wire on a window, removed the louver blades and got into the house – stole personal property to the value of K4,798.00.	5 years

Step 4: What Is The Head Sentence?

13. Mitigating factors are:

• nobody physically injured;
• guilty plea;
• first-time offender;
• young offender;
• property returned;
• not much stolen.
  

14. Aggravating factors are:

• happened at night;
• home invasion;
• very traumatic event for the victim.
  

15. After weighing all these factors and bearing in mind that there are more mitigating factors than aggravating factors, the head sentence should be below the starting point. I impose a head sentence of three years imprisonment.

Step 5: Should The Pre-Sentence Period In Custody Be Deducted From The Term Of Imprisonment?

16. Neither offender has yet spent any time in custody.

Step 6: Should All or Part of the Head Sentence Be Suspended?

17. This was a serious offence and no strong case has been presented for suspension of any part of the sentences.

Sentence

18. Daniel Noutim and Bandik John, having been convicted of one count of break-enter-and-stealing under Section 395(1)(c) of the Criminal Code, are each sentenced as follows:

Length of sentence imposed	3 years
Pre-sentence period to be deducted	0
Resultant length of sentence to be served	3 years
Amount of sentence suspended	0
Time to be served in custody	3 years
Place of custody	Lakiemata Correctional Institution

Sentenced accordingly,
____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender