State v Rukie [2018] PGNC 420; N7470 (21 September 2018)

N7470

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. (FC) N0. 232 OF 2018

THE STATE

V

PATRICIA RUKIE

Kokopo: Susame, AJ
2018: 10 & 21 September

CRIMINAL LAW – Sentence on Plea- Particular Offence – Stealing –S372(1)(10) Criminal Code – Amount K11 640.30 - Sentencing Considerations – No Restitution Made – Breach of Trust, Authority or Dependency – 3 Years Custodial Sentence Imposed Less Period in Custody.

Cited Cases

Wellington Belawa v The State [1988-89] PNGLR 496

Counsel
Mr. Tugah, for the State
Ms. Ainui, for the Prisoner

DECISION ON SENTENCE

21 September, 2018

1. SUSAME, AJ: You pleaded guilty to the charge of stealing under section 372 (1)(10) of the Criminal Code. You are in court again to receive your sentence.

FACTS

2. Conviction was entered against you on these facts. You and your boyfriend of 3 months, Bernard Tavtavun were on Lihir Island, New Ireland Province. While there he gave his BSP SAVE CARD and PIN number to you to withdraw some cash for you both to use. Without him knowing you stole his SAVE CARD and began using it commencing 16 March 2017. You drew funds from the account and did shopping at various shops in Lihir and Kokopo after you ran away from him. Total amount drawn from the complainants account amounted to K11 640.30 between 16 and 22 March 2017.

ALLOCUTUS

3. Before the counsels addressed the court on sentence court gave you the opportunity to speak in regard to your sentence. You expressed your apology to the court and God Almighty. You also expressed apology to the complainant and your family for your actions. You also pleaded for mercy of the court.

FACTORS IN MITIGATION

1. Your early plea
2. You are a first time offender with no history of prior convictions.
3. You cooperation with police

FACTORS IN AGGRAVATION

1. Substantial amount stolen
2. No compensation or restitution made
3. Though you expressed remorse it is partial and not complete with nothing done to restore complainant’s loss.
4. You breach the trust your boyfriend had of you.

SENTENCING CONSIDERATIONS & GUIDELINES

4. The amount drawn and stolen from the complainant’s account was K11, 640.30. Maximum penalty provided in s 372 (1) (10) for theft of a thing exceeding value of K1000.00 is imprisonment not exceeding 7 years, subject to s 19.
   
5. Counsels have rightly reminded the court of the principle of law on maximum penalty by case authority. That maximum penalty for any offence should be reserved for the worst category of case. (Golu Golu v The State [1988-99] PNGLR 653). I do not consider your case falls within the worst category. As such a lesser sentence shall be considered in the exercise of s19 sentencing discretion.
   
6. The Supreme Court case of Wellington Belawa v The State [1988-89] PNGLR 496 (which Mr. Tugah had cited) is the leading case setting out four categories of recommended sentences. The guidelines apply to all category of stealing cases. I set them out below:
   
   1. Stolen thing of value between K1.00 – K1000.00: a goal term should rarely be imposed.
   2. Stolen thing of value between K 1000.00 – K10 000.00: a goal term of 2 years.
   3. Stolen thing of value between K 10 000.00 – K40, 000.00: a goal term of up to 2 to 3 years.
   4. Stolen thing of value between K40 000.00 – K150 000.00: a goal term up to 3 to 5 years.
      
7. That case was decided 29 years ago. The court has not been assisted if there has been a further review of the suggested tariffs. Wellington Belawa is the current authority setting out sentencing guidelines in stealing offences.
   
8. Your case involved theft of K11, 640.30. Going by the tariff in Wellington Belawa your sentence should be between 2 -3 years’ imprisonment term, which comes under category 3.
   
9. Let me make a few additional remarks of your case. Counsel representing you submitted complainant should accept some responsibility in disclosing his PIN number hence opening the risk for his Save Card to be stolen and used by you.
   
10. Court is not in agreement with that argument. The couple was in a boy-girl relationship. The boyfriend in his courtship to his girlfriend would have done anything to please her. He took his girlfriend on trust and went to the extent of disclosing his PIN number to her, unsuspectingly she would steal his Save Card and use it. When the prisoner did that she breached the trust her boyfriend had of her.
    
11. You expressed some remorse of what you did in court. I consider your expression of remorse would have been more meaningful if you had apologized to the complainant and restored the lose he had suffered. The amount stolen is quite substantial which complainant has not recovered. There is no positive indication from you to repay the money; it is unlikely because you do not have the means and ability to do so in future.
    
12. Counsel pleading on your behalf has asked the court to impose a 3 years suspended sentence as you have been in custody for 3 years. Three (3) years jail term falls within category 3 of tariff suggested in Wellington Belawa. It has been said by the courts that tariffs suggested serve as useful guide in arriving at a specific sentence in much as possible to maintaining parity and consistency without necessarily limiting the court’s discretion.
    
13. There was a breach of trust, authority and dependency. Without your boyfriend’s expressed authority you started drawing funds and purchasing items from his account using the stolen SAVE bank card. You ran away from him and travelled to Kokopo and continued to use the stolen cards using up all his hard earned savings leaving a balance of 43 Toea in the account. You have not made any real effort to repay the amount which remains outstanding.
    
14. Sentence imposed is aimed at achieving personal and public deterrence.
    

15. Accordingly, you are sentenced to 3 years imprisonment term.

16. You are entitled to a discount for pre-sentence custody period commencing 7 April 2017. In the exercise of courts discretion 1 year 4 months and 21 days will be deducted from the 3 years.

17. The balance of 1 year 7 months and 9 days is to be served with hard labour at Kerevat Jail.
______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused