State v Kamlak [2017] PGNC 325; N6963 (20 May 2017)

N6963

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1340 of 2016; 1344 of 2016; 1345 of 2016

THE STATE

V

GABRIEL KAMLAK; DONIUS SUKEK; LAWRANCE PIUS
Kandrian: Batari J
2017: 16, 20 May

CRIMINAL LAW– Sentence – Break Enter & Stealing – group of youths broke into missionary home with intent to commit crime - household properties valued in excess of US$20,000.00 stolen - Burglary – BE&S at night – circumstance of aggravation in element of ‘night’ - plea – mitigating factors - restitution – victim’s impact statement on punishment - community school graders - first youthful offenders - 3 years imprisonment with probation orders appropriate.
Cases Cited:

Gimble v The State [1988-89] PNGLR 271
John Elipa Kalabus v The State [1988] PNGLR 195
The State v Barnabas Janguan (2008) N3363
The State v Daniel Noutim & Bandik John (2014) N5794
The State v Jonah Yohang Monalen (2004) N2677
The State v Koi Poyep Posanau (2004) N2642
The State v Paul Kalu (2011) N5270
The State v Peter Rasta Karl (2000) N1978

Counsel :

Bray, for the State
D. Kari, for the Accused

SENTENCE

20 May, 2016

1. BATARI J: INTRODUCTION: On 23^rd March 2016 a group of youths broke and entered the dwelling house of a missionary couple at Gasmata Island, south coast of West New Britain Province and committed a crime in it thereby, contravening s. 395 (1)(c) and (2) of the Criminal Code. The three of you were part of that group. You have been convicted following your plea of guilty four days ago. Today you are in Court again to receive your punishment.
   

Background

2. For the purpose of your sentence, you committed the offence in this way. On the night of the day in question, you together with some eight or nine other youths invaded the home of New Tribes Mission couple, Adam Martin and Julie Martin at Gasmata Island, Gasmata. The couple were away so, two of your members, a Bradley Sareng and an Audrey Buku led you to break into the couple’s home. After gaining entry, you literally stripped the house clean of its contents. You took various household goods and personal items worth about US$20,000.00. Your foolishness and bigotry was short-lived as village elders soon rounded you up resulting in your arrests and detentions. Some of the stolen items have been recovered. Some were destroyed or recovered damaged.
   

The Offence & Sentencing Guide

3. The offence of breaking and entering a dwelling house and committing a crime in it in the night under s. 395 (1) (c) and (2) of the Criminal Code carries the maximum penalty of life imprisonment. The crime in your case was “stealing”. Like armed robbery, the offence of break, enter and stealing is a highly aggravated form of stealing. The aggravated circumstances of break enter and stealing exists where the offence is committed at night under Subsection (2). The intention of Parliament is clearly that breaking into a home at the night and committing a crime in it must meet with severe punishment.
   
4. The maximum penalty is not mandatory because of s.19 of the Criminal Code. It is nevertheless a guide for the Court in the exercise of its sentencing discretion, bearing in mind on the one hand, the seriousness of the offence and the public interest that those who break the law must be punished to payback the society, their wrongs. On the other hand, the interest of the individual, the circumstances of his conduct and personal circumstances that mitigated his conduct and favour rehabilitation must be taken into account.
   
5. The sentencing authority ought to also refer to sentencing trends from decided cases so as to maintain consistent sentencing pattern for a particular offence. In that regard, my brief research suggests that the aggravated offence of break, enter and stealing under s. 398 (2) of the Code as in this case is rarely prosecuted. Most of the cases point to a common practice of prosecutorial preference to charge the offence simpliciter under s. 398 (1) the maximum penalty for which is 14 years imprisonment.
   
6. In The State v Barnabas Janguan (2008) N3363 the prisoner broke into the home of a soldier at night and stole military apparel worth K16,022.47. This was the second time that he broke into the same house. Most of the items were recovered except 3 ammunition magazines amongst other items. The court imposed a sentence of 4 years imprisonment.
   
7. In a much earlier case of The State v Peter Rasta Karl (2000) N1978 the circumstances of which similar to this case, the prisoner pleaded guilty to breaking, entering and stealing from the dwelling house of the Police Station Commander of Kundiawa Police, in the night. The offender was in the company of other youths. They entered the house through the back door after forcing it open. Prosecution preferred a charge under s. 395 (1) of the Criminal Code. Close to all the items stolen were returned the next day. The court imposed a sentence of 18 months imprisonment in hard labour.
   
8. On the other hand, the case of The State v Jonah Yohang Monalen (2004) N2677 with respect, represented the hardline approach. The prisoner pleaded guilty to break, enter and stealing simpliciter under s. 395 (1) (c) of the Criminal Code. He broke and entered into a teacher’s house with the aid of a hammer and screw driver while the teacher was then away attending an in-service course. A number of personal items of clothing, food, laundry and stationary valued at K151.00 were taken. None of those items were recovered. With respect, 10 years imprisonment represented a quantum leap resulting in an inordinately high sentence against the simple and less aggravated facts of the case.
   
9. My view is fortified by a recent burglary case committed in similar circumstances. In The State v Daniel Noutim & Bandik John (2014) N5794 the court imposed a 3 years sentence where two young men pleaded guilty to break, enter and stealing from a lady teacher’s house in the night. The burglars stole her mobile phone, a cap and a sleeping mat. They gained entry by pushing their hands through a hole in the wall and opened the lock from the inside. The burglars fled with the stolen property after the teacher woke up and called for help. The charge was brought under s. 395(1)(c) of the Criminal Code.
   
10. With respect, the case of The State v Koi Poyep Posanau (2004) N2642 made sense in using precedent cases as a guide. That case reviewed pre-2004 cases and concluded that sentences imposed by the National Court have been between a non-custodial sentence and a custodial sentence of 3 years. The court imposed 4 years where a youthful offender pleaded guilty to two counts of breaking into a dwelling house at night and stealing items of food, camera and clothing. The court was also mindful, that under Schedule 2 of the Criminal Code, the offence of break, enter and stealing is also punishable summarily.
    
11. It is apparent that while the offence carries the maximum penalty of life imprisonment if committed at night, the sentences for similar type offences in the late 90s and early 2000s to recent times have generally been low.

Sentence

12. Now turning to your case, your lawyer, Mr Kari has made useful submissions on factors I should take into account. Counsel’s submissions are well backed by the probation reports in the form of Pre-Sentence Reports (PSRs) and Means Assessment Reports (MARs) on each one of you. I have considered those and taken into account factors that are in your favors as following.
    1. Arrest, cooperation and Custody
       
13. Community police arrested and detained you almost immediately after the burglary. You spent a month in custody, before bail. That is not a significant custody period. But no doubt, your time in custody has taught you some valuable lessons that breaking the law do not pay. I accept in your favour, that following your arrest, you cooperated with the police and freely admitted the offence.
    
    2. Plea
       

You have each pleaded guilty upon arraignment. A plea of guilty will usually be reflected in the final outcome of the sentence on the basis of time and costs savings to the State in running a trial. However, in crimes of violence like wilful murder, murder, violent rape or violent armed robbery, a plea of guilty by itself will not warrant any credit. Existence of such factors like good background, restitution, old age, young age, etc., remorse and contrition may added to the plea factor and thus a cause for some discount on sentence: John Elipa Kalabus v The State [1988] PNGLR 195.

14. The weight to be given for a plea may also depend on how soon the plea is taken after commission of the offence or committal. An early plea has long been recognised as a relevant factor in mitigation. The rationale as I alluded to in The State v Paul Kalu (2011) N5270 is in the following passage:
    

“The significance of an early plea is the opportunity the prisoner would have missed in having to serve the penalty early. Besides, a plea at the earliest opportunity adds to consistency of the offender’s mitigating behaviour and penitence since the commission of the offence. It has been long recognised that a guilty plea may demonstrate and support remorse and contrition. See, Public Prosecutor v Tom Ake [1978] PNGLR, 469; Kalabus v The State [1988] PNGLR 193.”

15. In this case, your personal circumstances showing unblemished youthful pasts with no prior conviction, your expressions of remorse, offer of restitution and your early admissions to the police, all go to support your pleas of guilty. In the upshot, you pleas of guilty deserve good credits in the final result of your sentences. I will extend you that benefit.
    100. Remorse
         
16. When asked if you anything to say on punishment, each one of you expressed regret. Your statements on guilt have support in your cooperation and early admissions to the police, your return of stolen goods and offer to pay restitution for unrecovered or damaged goods, and your subsequent plea of guilty. All that adds to genuine expressions of remorse.
    4. Personal Circumstances
       
17. Your personal backgrounds are comprehensively set out in the PSRs and MARs. These will be read into the records. In brief, you were all attending Akur Primary School at the time of the offence. Gabriel Kamlak is 20 years old and in Grade 8. Donius Seksek is also 20 years and in the same Grade. Lawrence Pius is 19 years and was doing Grade 7. You all have good, supportive family backgrounds with no personal behavioral issue. The community and church views on your general conduct and the punishment you should get are in your favour. For each one of you, this is your first conviction. I accept that you all fall into the category of first-time youthful offenders.
    
18. I find it very disturbing that you were school students at the time of the offence. Your foolishness has led to early disruption of your schooling. For some of you, this may be the end of the road towards a better education and better prospect for employment. Given the prevailing limited educational opportunities at your rural setting, you have in a way, brought upon yourself, self-inflicted hardship. That in itself has a punitive effect which I take into account. I also take into account, the peer-group pressure associated with your offence.
    5. Motive
       
19. In a common explanation of your conduct, you blamed the victims for spreading inflammatory and divisive comments against the Catholic faith and its reverence of Mama Maria (widely accepted as Mary, Mother of Jesus). You also alleged the couple was engaged in unusual activities, detrimental and destructive to conservation of both land and sea wild life. So, on the night of the incident you came to their home to confront them about those matters.
    
20. First, I suspect your anti-social behaviour led from mere community talk and dissent against the victim couples’ purported innuendos against the Catholic Church community and concerns for safe-guarding wild life conservations. Hence, you purportedly acted on behalf of the community. In that context your degree of culpability is lessened. Second, whether those claims are true or not is a matter that should be mediated at a formal avenue involving mature adults. It is clear that by going to the couple’s home at night instead of using the formal means for dispute resolution, you intended to take law into your own hands. Your folly has now landed you in deep trouble for which you must pay both financially and with your personal liberties.
    6. Aggravating Factors
       
21. State Prosecutor, Mr Bray submitted that this is a very serious case, aggravated by the prevalence of the offence, the substantial amount that was taken and that it was committed in the night. Counsel requested that a stern punishment is warranted. I accept, as observed earlier, the statutory aggravating factor of break, enter and stealing charged on the indictment is it being committed in the night.
    
22. In armed robbery cases, it has been stated that robbery of the occupant of a house in the night is more serious than the robbery of a store or business because it is an invasion of privacy and family life. The Supreme Court in, Gimble v The State [1988-89] PNGLR, 271 stressed the point, that one of the basic rights enshrined in the Constitution is 'protection for the privacy of their homes'. A man's home, whether it is a mansion or a shack, is his castle and so, the punishment for robbery of a home should reflect those community values.
    
23. The same sentiments can extend to the offence of break, enter and stealing committed in a home at night. A home is a place an individual should feel most free, safe and secure any time of the day. It is his or her sanctuary. Breaking into a home at night is a violent breach of home and personal security. It is a direct attack on the freedom and right to peaceful enjoyment of personal and family privacy and properties. The risk of serious injury and even death is real because the victim is virtually entrapped in his home. The trauma from terrifying moments and shock, uncertainty and anxiety are factors that make burglary of a home at night such a serious crime deserving stern punishment.
    
24. The amount taken can also aggravate the offence of break, enter and stealing. Where the offence involved substantial value of properties, higher sentence will be warranted. In this case, the amount was substantial. Against that some of the goods have been recovered. I also accept that this is a prevalent offence invariably committed by young persons.
    
25. Luckily for you, the house was unoccupied. Hence, your conduct did not in any way place the occupant’s life in imminent danger of harm. I also note absence of any form of weapon and that you gained entry by mere opening the window.
    

g). Witness Impact Statement

26. The victims of your offence have assessed their losses and asked for restitution as part of your punishment. The couple has quite sensibly indicated that they do not want to see you go to jail and suggested that if a term of imprisonment cannot be avoided, you should serve that outside prison.
    
27. That witness impact statement is in my view, a profound testimony of compassion. The suggestion for alternative imprisonment is consistent with the age-old sentencing principle, that imprisonment as much as possible be avoided for young first time offenders as past experiences show prison can be harmful than rehabilitative. Your community view also support the proposition that where restitution is made as part of the penalty to be imposed, rehabilitation outside prison should be encouraged. I think that makes some sense particularly in close-knit communities in rural places where reported criminal cases are low.
    
28. Both lawyers agreed with the recommendations of the Probation Officer that I order restitution and consider alternatives to imprisonment to enable payment of restitution. They feel that suspended sentences on probation orders would serve the justice of the case.
    
29. I have decided to do two things, taking into account the circumstances of your offence, your personal circumstances and your plea of guilty –
    
    1. You will all be given jail terms to punish you and show you at personal levels that crime does not pay. Other like-minded persons should also learn that they will meet with stern penalty when they break the law;
    2. I will order restitution of the value of the things stolen or destroyed which I will shortly confirm with the lawyers.
       
30. In my view, a term with 3 to 5 years is warranted on the facts. I propose to suspend the whole term and place you on probation orders. However, to ensure that you are also effectively punished in and by the community, I propose to include community work orders.
    
31. You are sentenced to 3 years imprisonment each IHL. Time in custody which is 1 month is deducted. The balance of 2 years, 11 months is wholly suspended to be served on probation as follows. You Shall;

1. Conditions
   
   1. Report to the probation officer within 48 hours of release from custody;
   2. Within 4 months or by 20/9/17 repay the victims, the goods lost;
   3. Reside at your own village during the probation supervision period and not go anywhere without approval of the National Court;
   4. Not to leave your place of abode or Gasmata whilst under probation;
   5. Perform 300 hours of unpaid community work at a site nominated by the probation officer;
   6. Perform 100 hours of the 300 hours of unpaid community work at the mission area of the victim’s location;
   7. Attend church every weekend for service and worship and submit to counseling;
   8. Join your local church youth group and participate in all its programs and activities;
   9. Keep away from known criminals or persons with anti- social behavior or inclinations towards criminal activities;
   10. Keep the peace and be of good behavior at all times;
   11. Not consume alcohol or drugs whilst on probation;

B. Supervision

12. The probation officer shall compile a report on your restitution compliance by October, 2017 and thereafter, shall provide six monthly reports;
13. You shall have satisfactory reports or assessments of your probation orders;
14. You shall appear in court whenever required to do so for review of your progress on the probation;
15. In default, you shall be summoned to appear in court to show cause why you should not be sentenced to serve the balance of your imprisonment.

C. Restitution

1. The amount claimed for reimbursement being US$4,285.00 shall be repaid to the claimant victims as follows;

1. Offenders shall repay the victims US$2,205.00, by way of restitution in equal portions of K800.00 equivalent by each offender;
2. Transportation Costs of US$ 2,080.00 be reimbursed by the State through Police Department upon production of receipt or Statutory Declaration.

2. The sum of US$4,285 be reimbursed in Kina equivalent by 20/9/2017.
3. Bail monies be reimbursed and paid to the victims in part-satisfaction of the restitution orders.
   
32. In conclusion, I make two observations. First, besides the three prisoners in this case, three other accomplices have earlier pleaded guilty and his Honour, Miviri AJ has reserve on their sentence. The calculation of restitution orders of K800.00 against each prisoner in this case takes into account and extends to their three accomplices before Miviri AJ. The same amount may be ordered unless some injustice may be caused by making such orders.
    
33. Second, is a matter for enforcement of the rule of law. Two suspected principal instigators of this offence namely, Bradley Sareng and Audrey Buku appear to have been over-looked or spared in the arrest of their accomplices. Police ought to investigate, arrest and charge those persons, if warranted. I make that recommendation for appropriate action by the Provincial Police Commander and the OIC CID of Kimbe Police Station.
    

__________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Accused