State v Kalamak [2017] PGNC 99; N6739 (8 May 2017)

N6739

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. (FC) NO. 19 OF 2017

STATE

V

MELVIN KALAMAK

Buka: Bona J.
2017: 26^thApril, 3^rd &8^th May

CRIMINAL LAW – Stealing – Employed by Victim – Cash Money and Gold Bars – Goods left in House – Stealing from House – De Facto Provocation – Money Recovered - Criminal Code Section 372 (1).

Cases Cited:
`
Public Prosecutor v. Don Hale (1998) SC564
Stanley Sabui v. State (2007) SC 866
State v. Kaidori [2016] N6425
State v. Kanjip [2014] N5590
State v. Paul [2015] N 6132
State v. Sam [2014] N5766
State v. Vincent [2014] N5698
Taiba Maima v. Sma [1971-1972] PNGLR 49
Yalibakut v. State [2006] SC890

Counsel:

C. Sopa, for the State
C. Momoi, for the Accused

SENTENCE
8^th May, 2017

1. BONA J: The prisoner pleaded guilty to one count of Stealing a cash amount of K98, 000.00 and two gold bars valued at K10, 274.00 contrary to Section 372 (1) of the Criminal Code Act Chapter 262.

2. The facts of the case are that two expatriate gold buyers came to Arawa for the purpose of buying gold from the local people who have been doing alluvial mining along the rivers in the Panguna area.
Jacob Allan and his partner Ryan Hawker were in Arawa with the prisoner who is employed by them as an Assistant. On the 6^th September, 2016 while the two Australian men were out at lunch the prisoner decided to help himself and went into Jacob Allan’s room. There he took two boxes containing cash money and two small gold bars and left Arawa for Buka. In Buka, he bought an Air Niugini ticket and was trying to go to Kokopo, East New Britain province but was apprehended by the Police and charged.

3. On allocatus he stated that he is sorry for what he did but that he had only taken K75, 000.00. He used K5, 000.00 cash and returned K70, 000.00 plus the two gold bars to the owners. He asks the Court to have mercy on him so he can go back and complete his education.

4. The prisoner’s personal particulars are that he is 21 years old and comes from Brikiti village, Maprik in the East Sepik Province. He is single. He attended Brikiti Primary School and reached Grade 10 at the Maprik Secondary School. He went to live with his elder sister in Katangan village in Central New Ireland Province in 2013 and attended the Namatanai Technical School where he took up mechanical and electrical courses. He has been employed as a Salesman. He is a member of the Assembly of God Church and has spent eight (8) months in pre-trial custody. In mid-2015 he was offered a job by the complainant so he moved to Arawa where this offence occurred.

5. The offence of which the prisoner is charged comes under Section 372 (1) (10) of the Criminal Code Act and is as follows:

372 STEALING

(1) Any person who steals anything capable of being stolen is guilty of a crime.

Penalty: Subject to this Section, imprisonment for a term not exceeding three years.

(2).......

(3).......

(4)......

(5)......

(6) .......

(7)........

(8).......

(9)......

(10) If the thing stolen is of the value of K1, 000.00 or upwards, the offender is liable to imprisonment for a term not exceeding seven years.

(11)......

(12).......

6. In the instant case the term of imprisonment prescribed by the Criminal Code is for a term not exceeding seven (7) years. However it is settled law that the maximum term is always reserved for the worst type of the offence under discussion here. See: Taiba Maima v. Sma [1971-1972] PNGLR 49; Stanley Sabui v. State (2007) SC866 and SCR. No.1 of 1984; Re Maximum Penalty [1984] PNGSC 12.

7. In mitigation counsel for the prisoner submitted that the prisoner pleaded guilty thus saving the Court time and expense. He is a first time offender with no prior convictions. He co-operated well with the Police as evidenced by his admissions in his Record of Interview. And has expressed genuine remorse. Counsel argued that there was present de facto provocation in that the prisoner has been employed by the complainant since 2015 but has not been paid a salary or wages since then. There was a verbal agreement between the prisoner and the complainant that the prisoner will be paid K500.00 per fortnight as his wages but this was not forthcoming and he was never paid until he committed this offence out of frustration.

8. He stated that he only took K75, 000.00 in cash and two gold bars. He used up K5, 000.00 and returned K70, 000.00 plus the two gold bars when arrested by the Police. He questions why the Police said they only had K65, 510 in their possession when he returned K70, 000.00 plus the two gold bars. Counsel submitted that the prisoner be given the benefit of reasonable doubt as to the above facts alluded to by the prisoner. Counsel cited that case of Yalibakut v. State [2006] SC 890 to support that contention.

9. Counsel also cited the case of State v. Sam [2014] N5766 where the prisoner pleaded guilty to stealing K19, 000.00. He was sentenced to 2 years imprisonment. One year was suspended and prisoner served one year. In State v. Paul [2015] N6132 the prisoner pleaded guilty to stealing goods worth K9, 969.70. He was sentenced to 3 years. One year was suspended for prisoner to repay the amount stolen.

In the State v. Kanjip [2014] N5590 the prisoner pleaded guilty to stealing K19, 800.00. He was sentenced to 3 years imprisonment.
Counsel submits therefore that a sentence in the range of 2 – 3 years imprisonment is appropriate minus time spent in custody. Due to the very favourable pre-sentence report the sentence imposed should be wholly or partially suspended.

10. The State submits that this is a prevalent offence and a substantial amount was stolen. The fact that two-thirds of the amount stolen has been recovered should not be a relevant factor in sentencing. The prisoner has abused the trust of his employer.
Counsel cited the case of State v. Kaidori [2016] N6425 where the prisoner pleaded guilty to stealing goods to the value of K12, 000.00. The Court placed greater emphasis on the prevalence of the offence and sentenced the prisoner to 3 years imprisonment. Two years and 10 months was deducted and the balance was served.
In the State v. Vincent [2014] N5698 a bank teller pleaded guilty to stealing K100, 000.00 in cash from the Bank. He was sentenced to 3 years imprisonment.

11. It seems to this Court that the range of sentences cited by both counsel range between two (2) to four (4) years imprisonment but the average sentence seems to be three (3) years imprisonment. The discretionary power to suspend the whole sentence or a partial suspension depends on each individual case and circumstances.

12. In this case the Court takes into account the prisoner’s plea of guilty and that this is his first offence. He has no prior convictions. He co-operated well with the Police and has accepted his responsibility in relation to the commission of the offence. He has expressed genuine remorse. The Court also takes into account that a substantial amount of the stolen amount of money and the two gold bars have been returned to the complainants. The Court also accepts that he only used up K5, 000.00 of the amount he stole.
Therefore it is the view of this Court that a sentence of three (3) years imprisonment is appropriate under the circumstances of this case. The period of eight (8) months in pre-trial custody shall be deducted which leaves a term of two (2) years and four (4) months to be served.

13. Should the rest of the term be suspended or should a partial suspension be ordered? It is correct to say that this is a prevalent offence and a custodial sentence has been imposed in most of the cases cited above. It seems to this Court that the emphasis in sentencing is placed on the deterrent aspect of sentencing principles.
This aspect of sentencing is still discretionary under Section 19 of the Criminal Code.

14. The prisoner is a young man of 21 years of age and has a very good record. He stated that he committed this offence out of frustration because he has not been paid for all the work he has done for the complainants for about a year and six months.
The pre-sentence report is very favourable to the prisoner and it is the opinion of this Court that this young man should be given a chance to rehabilitate himself and to improve his life to becoming a good citizen of this Country. See: Public Prosecutor v. Don Hale (1998) SC 564.
The scales of justice must be tempered with mercy in some particular cases and this Court is of the view that this case is one where this young man should be given that opportunity.

15. Accordingly the rest of the term of two (2) years and (4) months imprisonment will be wholly suspended and the prisoner be placed on a Parole Order under the following conditions:

(a) that the prisoner keep the peace and be of good behaviour for the period of two (2) years.

(b) that he reside with his sister Rose Banvi at Katangan village in Central New Ireland Province or wherever she is currently residing and to report to the Probation Services in New Ireland Province within one month of the date of sentence.

(c) that he shall not leave New Ireland Province unless he obtains leave from the Probation Service or the National Court in New Ireland Province.

(d) that he shall refrain from taking any alcohol or other intoxicating drugs or substances during the duration of the Order.

(e) that he attends church services and take part in church activities.

(f) that he reports to the Probation Service in New Ireland Province within one month after his release from custody and to submit to directions from the Senior Probation Officer there.

16. The prisoner should take note that a breach of any of the above conditions will cause him to be brought before the Court to explain why he should not be remanded in custody to serve the rest of the term.

17. Accordingly the sentence of the Court is as follows:

Length of sentence – 3 years

Pre-trial custody deducted – 8 months.

Sentence to be served – 2 years 4 months

Amount of sentence suspended – 2 years 4 months.

Time to serve in custody – Nil – subject to compliance to conditions

Sentenced Accordingly,
______________________________________________________
Prosecutor Public: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner