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State v Agori [2016] PGNC 419; N6910 (8 March 2016)

N6910


PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]


CR NO.351 OF 2015


THE STATE

V

RAYMOND AGORI
Prisoner


Kainantu: Polume-Kiele J
2015: 4th & 17th November
2016: 29th February & 8th March


CRIMINAL LAW - Sentence - Break, enter and stealing, s 395 Criminal Code, Maximum penalty imprisonment for a term not exceeding 14 years


CRIMINAL LAW- Sentence – Early guilty plea – No prior convictions – First time offender – s 19, Criminal Code, Suspension of sentence considered.


CRIMINAL LAW – Sentence - 3 years imprisonment- less period of 12 months 11 days held in custody- s 3(2) Criminal Justice (Sentences) Act 1986 – Balance of sentence suspended on terms, s 19, Criminal Code.


Brief Facts:


The prisoner was charged on the indictment that on the morning of 6th September 2014, he broke and entered a dwelling house and stole a Ufa Boom Box valued at K125.00, the property of one, Nancy Dimo. The prisoner on the brief statement of facts pleaded guilty to the offence. The maximum penalty under s.395 of the Criminal Code is 14 years imprisonment subject to s 19 of the Criminal Code Act. Break, enter and stealing is a very serious offence, an offence which the courts have handed down tough sentences.


The prisoner is a young adult aged 23 years old from Tunuku Village in Okapa, resident at Yonki, Obura Wonenara District, Eastern Highlands Province. He is educated up to Grade 9 level and unemployed.


Held:


  1. The offence of break, enter and stealing under s 395 of the Criminal Code subject to Subsection (2) imprisonment for a term not exceeding 14 years
  2. The prisoner during his arraignment admitted to the charge of break, enter and stealing contrary to s 395 of the Criminal Code.
  3. The State relied on documentary evidence which comprised of the Police Record of Interview and Witnesses’ Statements that were tendered into evidence by consent.
  4. Sentence of 3 years imprisonment imposed. I deduct the period of 1 year 11 days that he has been in custody, in the exercise of discretion under s 19 of the Criminal Code, the balance of the term of sentence of 1 year 11 months 19 days is suspended on terms.

Cases cited:


Avia Aihi v the State [1982] PNGLR 92
Golu v the State [1979] PNGLR 635
Public Prosecutor -v- Don Hale (1998) SC564
SCR No. 1 of 1984: Re Maximum Penalty [1984] PNGLR 418
State v. Ipai (1997) N1629
State v. Joe Nolpi (2013) N5402
State v Karl (2000] N1978
State v. Mani (2002) N2264
State v. Oll (2004) N2554
Ure Hane v the State [1984] PNGLR 105


Counsel:


Ms B Gore , for the Acussed
Mr S Ifina, for the Prisioner


JUDGMENT ON SENTENCE

8th March, 2016


  1. POLUME-KIELE J: The prisoner appeared before me on the 5th of November 2015 charged with the offence of breaking, entering and stealing, an offence which he had entered a plea of guilty upon arraignment. It appeared from the evidence in the Kainantu District Court Committal depositions that the accused broke into the house alone. The police subsequently charged him at the Kainantu District Court on one count, breaking, entering and stealing an Ufa Boom Box valued at about K125.00; the property of one Nancy Dimo.

Committal Court Disposition


  1. The Committal Court Disposition lodged at the Kainantu District Court alleged the particulars of the premises as follows: the prisoner broke, entered and stole an Ufa Boom Box valued at K125.00 and being inside the premises situated at the SOQ quarters at the Yonki PNG Power Station in the township of Yonki. Furthermore, the prisoner pleaded guilty to the charge and on the statement of facts, he admitted that he had used a knife to remove the louvres and he entered the house and stole an Ufa Boom Box; an act intended to deprive the owner of the use of the Boom Box.
  2. The State did not call any oral evidence to substantiate its allegations against the prisoner. However, the State relied on documentary evidence which comprised mainly of statements from the witnesses including the victim and the Police Record of Interview which were contained in the Kainantu District Court Deposition that had been tendered into evidence by consent.
  3. Upon the reading of the Committal Court dispositions and being satisfied that the evidence contained in the dispositions supported the charge, the prisoner’s guilty plea was accepted. The prisoner was convicted on the charge of robbery under s 395 of the Criminal Code Act (Ch No 262).

Antecedent Report


  1. The prisoner has no prior convictions.

Pre-Trial Detention


  1. The prisoner was remanded into custody on the 26th of February 2015. He has been held in custody for a period of 12 months 11 days to the date of this ruling on sentence.

Allocutus


  1. When administering the allocutus, you were asked if you had anything to say on the issue of penalty and you stated that you wished to speak to the Court on the issue of penalty. You were then given the opportunity to speak on the issue of penalty. In your statement on penalty, you said that you were sorry for what you did. You apologised to the court and court staff and all those people present in the court room for what you had done. In addition, you asked for leniency from the Court. Furthermore, you stated that you are currently attending school but no details of this was provided then. However, these details have been provided in the Pre-Sentence Report dated 16th November 2015. In your overall statement to the Court on the issue of penalty, you have stated that you are very sorry again for what you did and that you asked this Court that you be placed on probation so that you can go home and continue with your education. You asked again for leniency from the Court and said that you are prepared to pay compensation for the wrong done to the victim.

Pre-Sentence Report


  1. Because you had asked to be placed on probation and to pay compensation, your lawyer, Mr Ifina requested that this Court direct the Community Based Corrections (CBC) Office to prepare a Pre-Sentence Report and a Means Assessment Report for purposes of assessing your suitability as a candidate for supervisory probationary orders and capacity to make compensation payments if so ordered and also to assist this Court determine penalty. This process is now a necessary component of the Court process where prisoners have exercised their right to ask the Court to be placed on probation. To facilitate this process, this Court had directed the Probations Officer, (Kainantu) to prepare and file a Pre-Sentence Report and Means Assessment Report which was compiled and filed prior to the 17th of November 2015.
  2. These Reports were promptly provided and I thank the Probation Officer for his assistance in this matter. According to the Pre- Sentence Report, you have four brothers and two sisters. You are the second child in the family. Your eldest sister is married and employed as a Chef at Yonki Lodge. You were living with your sister when you committed the offence for which you are now before this Court. All your other siblings are living with your parents in June Valley in the National Capital District and one is adopted by an uncle. You are unemployed and depend entirely on his sister for your everyday needs. However in spite of you not earning a regular income, your sister Sandy is willing to pay compensation in the sum of K500 and to reconcile with the victims your behalf whatever the outcome of this proceedings. This Court also notes you’re your sister however has asked that the court give her a grace period of three months to pay compensation. Aside from your sister’s commitment to making reconciliatory matters with the victim, the community was also consulted as to your suitability for supervisory probationary orders and the community in this instance spoke highly of you and hold the view that payment of compensation is necessary for purposes of reconciliation with the victims and encourage the payment of compensation to the victim.
  3. Overall, the Pre-Sentence Report compiled by the Probation Officer, recommended that you are a suitable candidate to be placed on Probationary supervision with certain terms and conditions and these are:
  4. Having considered the assessments contained in the Pre-Sentence and Means Assessment Reports and noting that some of these recommendations need more clarifications, clarifications which this Court can readily rectify; I will now consider these assessments including case authorities cited by Counsels to assist this Court determine penalty.

Mitigating Factors


  1. The relevant mitigating factors in your favour are that you pleaded guilty early which has resulted in saving Court’s time and State’s expenses which has resulted in this early outcome. In addition, this Court also noted that you are a first time offender and that you have co-operated well with the police including your explanation relating to the offence as recorded in the Record of Interview.

Aggravating Factors


  1. The aggravating factors against you are however that although the value of the item stolen is not very substantial; you have a law of this country and that is, you broke, entered a dwelling house and stole an Ufa Boom Box the property of one, Nancy Dimo, with the intention of depriving her of the use of her Boom Box. This type of offence is prevalent. An offence for which you have to face the consequences of your wrongdoing.

Relevant Law


Elements of the Offence - s 395 Criminal Code


  1. In order to prove the charge of breaking, entering and stealing, the elements of the offence must be established by evidence under section 395 of the Criminal Code. In that the State must prove the following:
  2. In this present case, the State relied on the oral statements of witnesses and the Police Record of Interview as evidence to corroborate the charge of break, enter and stealing which had been tendered into evidence by consent to substantiate the allegations. The witnesses’ statements clearly showed that a break, enter and stealing has occurred on the premises of one, Nancy Dimo in the township of Yonki PNG Power Station and that an Ufa Boom Box has been stolen on the 6th of September 2015. Furthermore, the prisoner by his own admission had pleaded guilty to the charge.

Submission on Sentence


  1. Mr Ifina on behalf of the prisoner submitted that although the prisoner had pleaded guilty upon indictment to the charge of one count of break, enter and stealing an offence for which the maximum penalty prescribed under s 395 of the Criminal Code Act (Ch No 262) subject to Subsection (2) imprisonment for a term not exceeding 14 years. He submitted that this is not the worst type case of break enter and stealing and said that this case should be considered on its own set of facts and merits and referred to SCR No. 1 of 1984: Re Maximum Penalty [1984] PNGLR 418; Avia Aihi v the State [1982] PNGLR 92, Golu v the State [1979] PNGLR 635 and Ure Hane v the State [1984] PNGLR 105 in support of his submission. He submitted further that by operation of s 19 of the Criminal Code, the Courts have wide discretion under s 19 of the Criminal Code to impose a lesser penalty and on that basis, this exercise of powers gives this Court wide discretion in making the maximum sentence discretionary. A number of case authorities were also referred to in support of his submission on sentence and some of these case authorities are referred to in this judgment. Other factors which were necessary to take into consideration by this court in its determination of penalty include the prisoner’s early plea which has resulting in saving court time and expenses to the State. Further, this offence was not pre-planned and the prisoner acted alone and that there was no weapons used to commit the offence. The stolen item had been returned to the owner on the same day. Furthermore, the prisoner is a first time offender with no prior convictions. He had cooperated well with the Police and is remorseful and has apologised for his behaviour to this Court, the victim and the community of Yonki Township through this Court.
  2. Mr Ifina submitted that this Court in the exercise of its discretion impose a prison term of 1 year however, deduct the period that the prisoner has been held in custody and wholly suspend the remaining term of the sentence on conditions that the prisoner pay compensation in the sum of K500.00 to the victim within 3 months.
  3. Ms Gore for the State; in reply, submitted that this is a case where the prisoner had unlawfully broken, entered the premises of one Nancy Dimo and stole from the victim, property namely, an Ufa Boom Box valued at about K125.00 depriving her of the use of this property. Whilst Counsel for the State acknowledged that the stolen item has since been returned to the owner and that there was no weapons used and no physical violence was applied to steal this property, the offence of break, enter and stealing is nonetheless serious in nature and prevalent in this Country and must be dealt with.
  4. Ms Gore submitted that whilst the prisoner has stated in the Pre-Sentence Report that he is willing to pay compensation, there is really no genuine attempt or efforts made to do so nor there being any serious attempt made to reconcile or to pay compensation to the victim.
  5. With regard to sentence, Ms Gore submitted that this Court has wide discretion under s 19 of the Criminal Code to impose an appropriate penalty; including discretion to also impose conditions as to the payment of compensation and to reconcile and make peace with the victims and their family. Overall, Ms Gore submitted that the Court exercise discretion to impose a custodial sentence.

Determination of sentencing criteria


  1. The issue before the court is whether the prisoner should be sentenced according to the penalties prescribed under s 395 of the Criminal Code Act (Ch No 262)? Having heard counsels on sentence; this Court accepts that the maximum sentence imprisonment not exceeding 14 years is not applicable in this case given the reasons established in the case of SCR No. 1 of 1984 (supra); Avia Aihi v the State (supra) and Ure Hane v the State (supra) which cases held that each case is peculiar and different thus this court should consider imposing sentence on a case by case basis. Thus the maximum penalty should be reserved for the very worst case type of break, enter and stealing when determining the issue of penalty and the following case authorities to assist this court arrive at a determination on sentence.
  2. In the case of the State v. Ipai (1997) PGNC 118, N1629, the prisoner was convicted on his plea at Wabag on the 18th of September 1997. He was charged for break and enter and stealing items valued at K14, 250.00 from the Panakada Repeater Station, at Porgera, an offence contrary to s 395 of the Criminal Code. In determining sentence, the Court took into consideration; the following matters, the prisoner was 16 years old, a young and first- time offender and imposed a term of sentence of two year imprisonment deducted 1 year 3 months which was the period that the prisoner was held in custody and the balance of the remaining sentence was suspended on terms.
  3. In State v Karl (2000] PGNC 22; N1978 the prisoner on his own plea, pleaded guilty to the charge of break, enter and stealing on the night of 2nd October 1998 from a dwelling house belonging to one, Theodore Muriki contrary to s 395 of the Criminal Code. Almost all of the items stolen were returned to the owner on the following day. The prisoner in this case was in the company of other youths. The Court imposed a sentence of 18 months imprisonment. None of the sentence was suspended.
  4. In State v. Mani (2002) N2264, the prisoner by his own plea, pleaded guilty to break, enter and stealing from the Yangoru Hospital Ward, a generator valued at K2, 500.00 contrary to s 395 of the Criminal Code. The Court was of the view that the crime of break and enter were prevalent and imposed a sentence of 3 years and suspended part of the sentence with conditions for community service.
  5. In State v. Oll (2004) N2554, two offenders; the prisoner and another by their own plea, pleaded guilty to break, enter and stealing a Chainsaw and other items valued at K5, 860.00 from the Catholic Missions' Bishop Hill warehouse. In considering what is to be an appropriate penalty to be imposed, the Court took into account, their co-operation with Police including their assistance in recovering the stolen Chainsaw. However, although the property was recovered, the Court considered that this type of offence was very prevalent. Thus returning the property does not in any way absolve the prisoners’ from their unlawful actions and criminal liability and both prisoners were sentenced to three (3) years imprisonment, less the period of time spent in custody, with the balance of 1 year 10 months suspended on terms.
  6. In the case of Joe Nolpi's (2013) N5402, the prisoner in the company of another broke, entered and stole K8, 824.00 worth of store goods from the Southsman Enterprise store in Mendi Town. The Court in this case imposed a sentence of 1 year imprisonment, wholly suspended the sentence on terms.

Findings of this Court


  1. In considering what is an appropriate sentence to be imposed in the present case and the varying range of sentence terms imposed in the cases discussed above, this Court took into account the value of the item or property stolen in comparison to the cases outline above and considering the range of property values and items stolen, value of the property and or items stolen; it would be appropriate to consider a sentence that is more in line with the circumstances, facts and merits of this current case. Thus in serious or worst cases, the offence attracts a maximum penalty of 14 years imprisonment. The issue for this court is whether this is a worst case and what punishment should be imposed.
  2. Other facts which this Court took into account include the prisoner’s mitigating factors which are that the prisoner is a young offender of 23 years with no prior convictions. He pleaded guilty early on arraignment saving court’s time and expenses to the State. He has cooperated with the Police and the stolen item has since been returned to the owner. The prisoner apologised to this Court and the victim and appears remorseful in his allocutus. Furthermore, his parents and siblings are alive and all living in the National Capital District but the prisoner is living in Yonki with his sister and according to his allocutus, was a student at Yonki. This is confirmed in the Pre-Sentence Report which indicated that he was a student at the Agamore Christian School. In addition, the Community is of the view that the prisoner will learn from his mistakes and change. His sister has offered to assist pay K500 compensation and reconcile with the victim and her family.
  3. The aggravating factors which do not favour the prisoner are that the offence of break, enter and stealing are prevalent. It is therefore important to exercise some control through the justice systems in Papua New Guinea to ensure that communities within Yonki, the Eastern Highlands Province and Papua New Guinea feel safe that they are protected from such unlawful activities. Whilst this Court noted that the value of the item stolen is not substantial and that the stolen Ufa Boom Box has been returned to its owner, a home had been broken into and items of value taken, save to say that no one was hurt during the commission of the crime. Thus this calls for a sentence which should reflect the seriousness of the offence and its impact on society and its prevalence.
  4. The Pre-Sentence Report provided by the Probation Officer has also recommended that the prisoner is a suitable candidate for a suspended sentence and this is supported by the case of the Public Prosecutor -v- Don Hale (1998) SC564 and where the prisoner has requested for a suspended sentence.
  5. In the light of the cases discussed above and upon consideration of both the mitigating and aggravating factors applicable to this case, the prisoner is sentenced to 3 years imprisonment. I deduct the period of 12 months 11 days that the prisoner has been held in custody pursuant to s 3 (2) of the Criminal Justice (Sentences) Act 1986. In the exercise of discretion under s 19 of the Criminal Code, the balance of sentence of 1 year 11 months 19 days is suspended on the following terms:
(4) The prisoner shall remain in Kainantu and not move to any other Province until he has completed all the terms of his Supervisory Probationary Orders

Orders accordingly
__________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Prisoner


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