State v Joe [2015] PGNC 192; N6099 (24 September 2015)

N6099

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 663 OF 2015

BETWEEN

THE STATE

V

JACKSON JOE
Prisoner

Mendi: Nablu, AJ
2015: 14, 15 & 24 September

CRIMINAL LAW – Sentence - Break, Enter and Stealing - Plea – Section 398(A)(1) of the Criminal Code – Substantial value of goods stolen – Goods recovered – Young Offender – Mitigating factors – No serious aggravating factors - Sentence – 3 years Sentence – Partly suspended sentence with conditions for community service.

Cases cited:

Goli Golu v. The State [1979] PNGLR 635
State v. Ipai (1997) N1629
State v. Mani (2002) N2264
State v. Oll (2004) N2554
State v. Joe Nolpi (2013) N5402

Counsel:

S.Luben, for the State
C.Koek, for the Prisoner

DECISION ON SENTENCE

24 September, 2015

1. NABLU, AJ: The prisoner Jackson Joe pleaded guilty to one count of break and enter pursuant to Section 398(A)(1) of the Criminal Code and stealing over K19,000.00 worth of goods from a store which was owned by Henry Yakura. After having satisfied myself from the Court depositions presented by the State that the charge was made out, I convicted the prisoner accordingly.

2. The facts put to the prisoner on arraignment were that on 3rd August 2013 between 3am and 5am, the prisoner, in the company of two others, broke a window of the store owned by Henry Yakura and went into the Store. The prisoner and others removed store goods including food items, kitchen utensils, shoes, work tools, generators, cash registers and loud speakers. The stolen items were taken out through the back door and taken to the accused home and kept there. The total value of goods stolen was K19, 199.50. At about 7am of the same day, the store owner was informed of the incident and surrounding villagers then proceeded to search houses within the vicinity. They located the stolen items in the accused house.

3. On allocutus, the prisoner expressed his remorse, by firstly saying sorry to God and to the Court. He also said sorry to the owner of the property, to his community and his parents and asked the Court for mercy.

4. The lawyer for the prisoner submitted the following mitigating factors which the Court should take into consideration.

5. The prisoner is 19 years old and comes from Lawiri Village in Pangia District, Southern Highlands Province. At the time the offence was committed, he was 18 years old, and therefore, a young offender. The prisoner plead guilty which saved costs to the State in prosecuting the offence; he is a first time offender; he co-operated with Police which is evident from the admissions in his record of interview; the properties were recovered and returned to the owner; no weapons were used at the time the offence was committed; the prisoners' family paid compensation of K2000.00 and twelve (12) pigs to the owner.

6. Ms Koek also submitted that another mitigating factor which the Court should take into consideration is that whilst he was in custody, there was a break out in the prison but he remained incarcerated.

7. Ms Koek also submitted that prior to his arrest, the shop owner and his relatives instituted their own form of jungle justice which has now left the prisoner with some injuries. There is no medical evidence of this, however the State did not object to these assertions.

8. The prisoners' lawyer also submitted that this is not the worst type case of break enter and stealing. Despite the fact that it was pre-planned, there were no serious aggravating factors. No weapons were used during the commission of the offence. The stolen property was returned to the owner, and the offence was committed in a shop and not in a school, hospital or church which are, public purpose institutions which provide vital services to the community.

9. She submitted further that a head sentence of three (3) years be imposed. One year four months, should be deducted for the time spent in custody and the rest be suspended on conditions that the prisoner is placed on one year good behaviour bond with conditions such as community service.

10. The State, on the other hand, argued that there were aggravating factors which the Court should take into consideration. That the offence of break and enter is a serious and prevalent offence; the prisoner did not act alone but was in the company of two others; and the value of the goods stolen were K19, 000 which is a substantial amount. The prisoner and others pre-planned the criminal act. Ms Luben of counsel for the State submitted that a head sentence of three years be imposed and that a part custodial and part suspended sentence is appropriate in the circumstances of this case.

11. Section 398(A)(1) of the Criminal Code provides that the maximum penalty for the offence of break and enter is imprisonment for a term not exceeding fourteen (14) years.

12. It is trite law, that the maximum penalty should be imposed on the worse type of cases; Goli Golu v. The State [1979] PNGLR 635.

13. Section 19 of the Criminal Code provides the discretion to the Court to impose a lower sentence.

14. Bearing in mind that the Court should determine the punishment on the facts and merits of each case. Counsel have referred a number of cases which I have had regard to for the purposes of ascertaining a comparative view of the types of sentence imposed by this Court for the offence of break, enter and stealing.

15. Counsel for the prisoner submitted the following cases which I have considered. In the earlier case of State v. Ipai (1997) N1629, the prisoner plead guilty to a charge of break and enter. The prisoner used an iron bar to break the lock to the Panadaka Repeater Station near Porgera which was owned by Post and Telikom and gained entry into the Station. He stole a PFA Digital 30 Communication Analyzer, a laptop computer and a fluke meter valued at K14,250.00. The Court took into account that he was a young and first- time offender and imposed a two year sentence, deducted 1 year and 3 months for time spent in custody and suspended the rest of the sentence upon good behaviour. The prisoner was 16 years old at the time of the offence.

16. In State v. Mani (2002) N2264, the prisoner plead guilty to break and enter of the Yangoru Hospital Ward and stole a generator worth K2, 500.00. The Court was of the view that the crime of break and enter were prevalent and therefore imposed a sentence of 3 years and suspended part of the sentence with conditions for community service.

17. The State submitted the cases of State v. Oll (2004) N2554 and the recent case of State v. Joe Nolpi (2013) N5402 to assist the Court to determine an appropriate sentence.

18. In State v. Oll (supra), two offenders plead guilty to break, enter and stealing property worth K5, 860.00 such as chainsaws from the Catholic Missions' Bishop Hill warehouse. The Court took into consideration that they co-operated with Police and assisted Police in the recovery of the stolen items. Despite the fact that the goods were recovered, that fact did not absolve the prisoners from criminal responsibility. They were sentenced to three (3) years, after deduction of time spent in custody pending trial, the balance of 1 year 10 months was suspended with conditions.

19. In Joe Nolpi's Case (supra), the prisoner and another stole store goods worth K8, 824.00 after breaking into the Southsman Enterprise store in Mendi Town. The Court sentenced the prisoner to one year imprisonment and suspended the rest of the sentence with conditions.

20. In those cases which were submitted, the value of the properties stolen were below K15, 000.00. In the present case, the property stolen is valued at K19, 199.50 which is substantial. Sentences imposed, range from 2 to 3 years which have been suspended with conditions in most cases.

21. In the present case, it is a case of unlawful break, enter and stealing pursuant to Section 398(A)(1) of the Criminal Code. In serious or worst cases, the offence attracts a maximum penalty of 14 years imprisonment. The issue is whether this is a worst case and what punishment should be imposed.

22. I take into account the following mitigating factors submitted by Counsel in favour of the prisoner. That he, is a young offender of 19 years. At the time the offence was committed, he was 18 years old. He plead guilty. His parents and siblings are alive and he was living with them prior to his arrest and incarceration in Lawiri Village, Pangia, Southern Highlands Province. He has very little to no formal education, being educated to grade 3 level.

23. In terms of mitigation, I take into account that the prisoner has no prior convictions and is a first time offender. He plead guilty therefore, demonstrating his acceptance of criminal responsibility for his actions.

24. In his allocutus, he was remorseful and plead for leniency from the Court. This is further confirmed by his family's actions in paying compensation of K2000 and 12 pigs to the shop owner to restore peace and community relations.

25. I also take into account the factors against the prisoner. The offence was committed in a group and there was some pre-planning involved. Such offences of break, enter and stealing are prevalent in the community and the society. The substantial value of the properties is also an aggravating factor that must go against the prisoner. A sentence should reflect the seriousness of the offence and its prevalence in the community.

26. I am of the view that a sentence of 3 years is appropriate in the circumstances following deduction of time spent in custody prior to trial. The balance to be suspended on conditions.

27. After careful consideration, I have exercised my discretion to suspend the balance of the sentence not as an act of leniency but to give effect to the sentencing principle of rehabilitating a young offender. In exercising that discretion, I took into account the fact that the prisoner is a young offender, and a form of compensation was paid to the shop owner. The evidence indicated that, two other persons were involved, however, he was the only one arrested and charged for the offence.

28. It would appear that a form of immediate jungle justice was inflicted by the community on him which has left him scarred and hopefully, he has learnt a lesson from that experience. Because of the quick action of the store owner, the properties were recovered and returned, therefore, he did not benefit from them. However, this factor does not absolve him from criminal responsibility. He has plead guilty and accepts criminal responsibility.

29. I enquired with Counsel for the State to confirm whether the other accomplices were dealt with by the law. She did inform me that the prisoner was the only one charged for the offence which also persuaded me to suspend the sentence.

30. In the present case, after careful consideration and weighing of the aggravating and mitigating factors, I am of the view that a sentence of 3 years is appropriate in the circumstances. I deduct one year four months for the time spent in custody prior to trial. The balance of the sentence, of 1 year eight months is suspended on the following conditions.

31. The Prisoner to enter into good behaviour bond for one year from the date of his release.

32. The Prisoner shall undertake free community work for eight hours every week on Friday for eight months to be arranged by the Community Based Corrections Officer preferably in Pangia District, or an appropriate location near his village.

33. The Community Based Corrections officer shall ensure that a report of the Prisoner is obtained from the Supervisors of the community service after four months from commencing community work and at the end of the service which shall be submitted to the National Court.

34. The Prisoner is to reside in his village, Lawiri Village, Pangia District, and not to leave Southern Highlands Province for the duration of his suspended sentence unless granted leave by the National Court.

35. He is not to consume alcohol or other illicit drugs, including home brew during the duration of his suspended sentence.

36. The Prisoner is at liberty to apply for variation of these conditional orders.

37. If the Prisoner breaches any of the conditions, he shall be arrested and brought to the National Court to explain the reasons for such breach. If the Court is not satisfied with the explanation, the Prisoner shall be committed to serve the rest of his sentence in custody at CIS - Bui - Iebi.

Sentence accordingly.

Office of the Public Prosecutor: Lawyers for the State
Office of the Public Solicitor: Lawyers for the Prisoner