State v Bill [2020] PGNC 388; N8658 (21 October 2020)

N8658

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO. 66 OF 2018

THE STATE

V

ISAAC BILL

Kokopo: Batari J
2020: 12^th, 21^st October

CRIMINAL LAW – Sentence – stealing simpliciter – offender stole boat property value of K45,000.00 and sank it – guilty plea - whether restitution of value over K1,000 appropriate where the offender is charged with stealing simpliciter under s. 372(1) of Criminal Code with maximum sentence of 3 years for property value of less than K100 and K1000 – sentence to maximum term wholly suspended on conditions appropriate

Cases cited:

No cases cited

Counsel:

Mr A. Bray and Ms J. Batil, for the State
Mr P. Yange, for the Offender

SENTENCE

21^st October, 2020

1. BATARI J: The offender appeared before this Court on 12 October and pleaded guilty to one count of stealing charged under s. 372(1) of the Criminal Code. The maximum penalty is three years imprisonment. This is his sentence.
   
2. The facts of this case are simple but, disturbing. I will return to the disturbing aspect later. On or about 10 December 2017 (around 12:30 to 2:00 am) Isaac Bill left from Eremas Wartoto’s premises at Seawall, Karavia No. 1 village, Kokopo, East New Britain with three accomplices in a 100-horse powered boat across the harbour to Rabaul Yacht Club. The boat was/is owned by Eremas Wartoto. The offender untied a boat named, “Kanai” owned by one, Ronnie Livi from its mooring place at the Yacht Club and sailed it out to Talvat point where he punched holes on the floor of the boat causing the boat to sink. Isaac was arrested on 31 January 2018. He admitted the offence to the police and has been waiting to stand trial since.
   
3. This simple mode of stealing though simple, involved malicious and violent disposal of the thing stolen and substantial loss to the victim. The offender exhibited extremely high level of arrogance, stupidity and foolishness motivated by greed from higher order.
   
4. Isaac Bill was at the time of the incident, employed by Bismarck Pilot Services, a company owned by Eremas Wartoto. It is unclear, but I think the company ran pilot boat(s) hire services to, inter alia, guide large container ships into Simpson Harbour and the wharf. He was employed as skipper of the pilot boat. He is related to Eremas Wartoto as his uncle.
   
5. I also think the victim, Ronnie Livi operated a rival boating services company. This is uncertain from the court records. But it is clear, the victim would at times hire from Bismarck Pilot Services, the pilot boat skippered by the offender. It also seems to be the case, that the victim was responsible for awarding pilot boat contracting.
   
6. Overtime, things must have gone sour between Bismarck Pilot Services and the victim. Isaac Bill admitted to the police, his conduct was retaliatory against Ronnie Livi when he ceased giving Bismarck Pilot Services contracts or business in preference to others. He said, Eremas Wartoto then instructed him to steal the victim’s boat and he obliged.
   
7. That is the first disturbing fact about this case. To put it into its proper perspective, Eremas Wartoto was/is a well-known businessman. He owns the nationwide vehicle hire company, No. 1 Hire Car and diversified into other business activities including inter alia, building constructions, pilot boat contracting, and airline operations. Eremas Wartoto was subsequently convicted and imprisoned for fraud and corrupt offences involving public funds.
   
8. So, the offence involved another person in higher position of power, authority and influence, in all probability, an accomplice. Isaac Bill was the fall guy, the executioner. He possibly saw the downside to his conduct but no doubt, succumbed under the authoritative influence and coercion of his employer/relative, Wartoto. One can also deduct, Isaac Bill complied under customary obligation to obey the wishes of his elder where the family tie runs deeper as is common with many customary beliefs and practices in traditional communities.
   
9. The second disturbing fact about this case is the value of property lost to the victim. From the photo image on file, it was a luxury half cabin leisure boat. Ronnie Livi valued his loss at K90,000.00. He would rather settle with restitution of his loss than see the offender jailed. The common or agreed value of the boat before this Court is K45,000.00.
   
10. There has not been any serious divergence of facts on the value of the boat. I therefore conclude for the purpose of sentencing, the value of the property loss is K45,000.00. Any claim over that amount is a matter for another cause at the liberty of the complainant.
    
11. Be that as it may, the value of the property loss raises a potential difficulty on the question of restitution. Isaac Bill has been convicted of stealing simpliciter under s. 372(1) of the Criminal Code following a guilty plea. By reference to the sentencing variables based on the amount or value of the property loss in other provisions in particular, Sub-section (10) in connection with stealing property of the value of K1,000.00 or upwards and Sub-section (11) in connection with stealing rented fixture or chattel in excess of K100.00 value, there is a clear inference that sub-section (1) applies only to property of the value of less than K1,000.00 under Sub-section (10) and less than K100.00 under Sub-section (11).
    
12. If that is so, the question then arises as to whether the Court has the power under Sub-section (1) to order restitution where the value of the property is in excess of K1,000.00 under Sub-section (10) and K100.00 under Sub-section (11). Both counsel submitted, the opening phrase, “Subject to this section” in Sub-section (1) connotes a grant of power to the Court to order restitution of larger sums of property value charged under Sub-section (1).
    
13. I am reluctant to interpret Sub-section (1) in the way that the Court has repository power to order restitution of property of substantial value. That would lead to unlikely outcomes where someone stealing property of substantial value can simply avoid severe penalty if charged under Sub-section (1). That will lead to unjust results. It will be against the public interest that those who steal property of substantial value must meet with severe penalty.
    
14. I have considered whether to vacate the plea or declare a mistrial. Yet, the matter has been long outstanding, in the meantime the victim has impounded the boat owned by Eremas Wartoto, the parties have been anxiously waiting long for the outcome of this case. More importantly, the accused has pleaded guilty, convicted of stealing simpliciter, he has expressed remorse, offered restitution and accepted his wrongdoing. The criminal process has been completed and in fairness, the offender is entitled to be sentenced based on his charge and conviction. I think I can safely proceed under s.19 of the Criminal Code to order restitution. The accused will not be prejudiced, the interest of justice favours finality of this case.
    
15. This is the worst form of stealing. It is aggravated by a deliberate and determined ploy to permanently deprive the victim, of the property ownership of his boat and possibly with an intention to undermine the victim’s business operations.
    
16. For the offender, I have considered, his statement on allocutus and what his lawyer, Mr Yange has submitted in mitigation. Also, before the Court are comprehensive Pre-Sentence and Means Assessment reports. The reports compiled by Probation Officer, Mr Noel Awagalas are highly commendable. The contents will be read into the records.
    
17. The offender’s personal circumstances have been without blemish. This is his first conflict with the law. His expression of remorse seemed genuine as it followed his guilty plea.
    
18. It is settled sentencing policy that a plea of guilty ought to result in some discount in practical terms. The outcome in the sentence ought to reflect the advantage of pleading guilty. That advantage can be an incentive itself to plead guilty so that the offender must know that his guilty plea has been well appreciated and acted on by the Court. This would also encourage other accused persons who genuinely want to plead guilty, must do so knowing it will help them in their punishment.
    
19. When an offender pleads guilty, the weight and measure of genuineness of the guilty plea are relevant considerations. These are often dependent on but not exhaustive to:
    
    • seriousness of the offence;
    • post-incident conduct of the accused indicative of genuine remorse and unqualified recognition of wrongdoing (co-operation with police in admitting involvement, etc.);
    • how long after committal to stand trial in the National Court, the plea is taken;
    • Restitution before arrest (and may include genuine offer of restitution after arrest);
    • Very young age or advanced aged of the offender;
    • Special personal circumstances of offender e.g. a medical condition or a disability.
      
20. In this case, the guilty plea is belated. The record of interview contained admissions and there has been no notice of a voir dire to challenge its admissibility. It has taken two years to deal with this case as a short matter largely due to what I consider, unnecessary procrastinations that are often associated with inexperience lawyers or lawyers acting merely on instructions and failing to be resolute in advising clients on the strength of his or her clients’ case. The pre-trialling of this case was also inadequate. There were clear admissions in the record of interview which the prosecution would mostly likely rely on. This is where adequate pretrial conferencing would have exposed the weakness in the defence of mere denials.
    
21. In this case, the value of the guilty plea is reduced against the seriousness of the case and its lateness. I propose to impose the maximum sentence as the appropriate penalty.
    
22. I have also considered the option of alternatives to imprisonment and whether to suspend the whole or part of the sentence I will shortly impose.
    
23. I am satisfied on two issues on which basis I have reached a decision. The first is the genesis of this offence which goes back to the involvement of a person in a position of power, authority and influence over the offender. I am satisfied, Isaac Bill did not act on his own volition. He committed the offence under external influences. So, I am not inclined to make him a scapegoat for the wrongdoing of the principal instigator who may likely escape being investigated and charged.
    
24. Secondly, I am satisfied from the Pre-Sentence Report, Isaac Bill has genuinely accepted his wrongdoing. This has support in his guilty plea, his expression of remorse and offer of restitution. I believe he will unlikely re-offend as he does not show any apparent propensity towards anti-social behaviour. Too, he has a strong support from his own family. It is also apparent from the pre-sentence report, the victim is only interested in restitution.
    
25. In sentencing cases like this, I believe the sentencing aspects of retribution, restitution and rehabilitation can be achieved in alternative ways than imprisonment. Where restitution is appropriate to be ordered in the circumstances of the case, incarceration may not promote rehabilitation and may cause serious hardship to the offender’s ability to organise restitution.
    
26. Isaac Bill has made some tangible proposals for restitution. His uncle, Benjamin Titila is willing to purchase a new 23-footer banana boat complete with a 40-horsepower outboard motor for the victim and has produced quotations from Ela Motors in the sum of K27,878.52. Her sister Grace will chip in K1,000. The offender also appears to have the means and ability to organise restitution. This is apparent in his engagement of private legal representation.
    
27. On those considerations, I am satisfied, restitution is a significant measure to restore harmony and relationships. It will generally put the victim back in the position he was in before the offence. I am satisfied, an alternative to imprisonment will achieve the purposes of retribution, restitution and rehabilitation. I am further satisfied; Isaac Bill has the means and ability to repay his wrongdoing and that he required the time and opportunity outside prison to make full restitution and to continue his rehabilitation.
    
28. The Orders of the Court are that:
    
    1. Isaac Bill is convicted and sentenced to 3 years imprisonment IHL.
       
    2. The whole sentence is suspended, and Isaac Bill is to be released on probation orders for three years as follows:
       
       1. Shall within 48 hours upon release from custody, report to the Probation officer;
       2. Shall pay restitution to Ronnie Livi in the sum of K45,000 within six months from today or by 21 April 2021;
       100. Shall reside at a place approved by the National Court;
       4. Shall not leave his current place of abode, Rabaul or East New Britain Province without written approval of the National Court;
       5. Shall perform 800 hours of unpaid community work at a work site nominated by the Probation officer and approved by the National Court;
       6. Shall attend church every weekend for service and worship and submit to counselling;
       7. Shall not consume any form of liquor, alcohol or drug;
       8. Shall keep the peace and be of good behaviour;
       9. Shall have a satisfactory probation report submitted to the National Court Registry as required;
       10. Shall appear before the National Court as and when required for assessment of your progress on probation;
           
    3. The Probation Office shall file at Kokopo National Court Registry, six-monthly reports with the first of such report due on, 1^st April 2021.
       
    4. The Probation Officer shall appear in Court on the first call-over in April 2021 for review of the Order 1 for restitution.
       
    5. In the event of a breach of any of these conditions, you shall be summoned to show cause why you should not be incarcerated to serve the remaining term of imprisonment
       

Sentenced Accordingly
________________________________________________________________
Public Prosecutor: Lawyers for the State
Islands Legal Services: Lawyers for the Offender