State v Tommy [2016] PGNC 407; N6719 (16 December 2016)

N6719

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1915 of 2016

THE STATE

V

ALLAN ALEX KANA TOMMY

Kerema: Koeget, AJ
2016: 14^th & 16^th December.

CRIMINAL LAW- Sentence – Guilty to Break, Enter, Steal under section 398(a)(i) of the Criminal Code Act – First time offender – sentence wholly suspended pursuant to section 19 of the Criminal Code Act – Offender promise to Keep Peace and be on Good Behaviour Bond for 11 months and three weeks.

EVIDENCE – Freedom of quite enjoyment of property as enshrine in the constitution was invaded.

Case cited:

The State –v- Aiton (1997) N1629,
The State –v- Jonathan Nelo (CR 813 of 2009),
The State –v- Noutim (2014) N5794
The State –v- Nolpi (2013) N5402

Counsel:

D. Mark, for the State
W. Dickson, for the Accused

16^th December, 2016

1. KOEGET, AJ; Introduction: The accused is charged with Break, Enter and Steal. The charge is brought under section 398(a) (i) of the Criminal Code Act.

FACTS:

2. On the morning of 14^th June 2015, between 1 o’clock and 2 o’clock in the morning the accused climbed the fence and entered the premises of Murua Trading Ltd and stole assorted store goods valued at K6,211.40. In the process of committing the offence, the accused locked the shop owner and wife inside their house so they had no opportunity to prevent him from removing the goods out of the shop.
   
3. A week later the accused was arrested and some of the store goods in the custody of the accused and his parents were recovered. The value of the store goods recovered totalled up to K299.00. The balance of the goods stolen cannot be easily found and they remain outstanding.
   

ARRAIGNMENT:

4. The accused pleaded guilty to the charge and was convicted accordingly.
   

ISSUE:

The issue for the court to determine is, what is the appropriate sentence to impose on the prisoner.

LAW:

Section 398(a)(i) of the Criminal Code Act:

“A person who –

(a) breaks and enters –

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

and commits a crime in it is guilty of a crime.

Penalty: imprisonment for a term not exceeding 14 years.”

Personal Particulars:

5. The prisoner was 16 years of age at the time he committed the offence. He is now 17 years old and is a bachelor. He is a first time youthful offender.
   
6. He was in grade 10 at Kerema Coronation High School at the time he committed the offence but now attends FODE, an adult matriculation program to upgrade marks he attained in Grade 10.
   
7. The prisoner’s parents are alive and are public servants in Kerema town. He has a brother and a sister and he is the first born in the family.
   

Aggravating factors:

8. He was intoxicated and in company of others when he committed the offence.
   
9. The actions of the prisoner amount to intrusion of private property of the shop owner and his constitutional rights to “freedom of quite enjoyment of premises was invaded”.
   
10. The courts in this jurisdiction have treated such offences as serious and severe sentences are imposed on offenders.
    
11. In this case most of the store goods stolen were not recovered and may never be recovered at all. The balance of the goods not recovered is valued at K5,912.40.
    

Mitigating Factors:

12. The prisoner made admissions in the record of interview with the police. He pleaded guilty to the charge. So he cooperated well with the police and saved valuable time of this court when he pleaded guilty to the charge. There is only one week left in this circuit in Kerema and credit is given to him for saving valuable time of the court. There was no weapons used in the commission of the offence and no one was injured or threatened.
    
13. He was in custody at Kerema Police station cells for 1 week and three days.
    
14. The learned counsel for the State and prisoner suggested the court imposed the sentence of two years in hard labour in view of sentences in the cases of The State –v- Aiton (1997) N1629, The State –v- Jonathan Nelo (CR 813 of 2009), The State –v- Noutim (2014) N5794 and The State –v- Nolpi (2013) N5402.
    
15. I accept that the sentences in these decided cases are useful and so apply the guide lines to this case.
    

SENTENCE:

16. The prisoner is sentenced to be imprisoned for one year in hard labour. The pre-trial custodial period of one week three days is deducted. The balance of 11 months 3 weeks is wholly suspended and the prisoner enters into recognisance and he promise to keep Peace and be on Good Behaviour Bond for 11 months and 3 weeks.

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Public Prosecutor : Lawyers for the State
Public Solicitor : Lawyer for the Defence