State v John [2022] PGNC 569; N10070 (18 November 2022)

N10070

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 210 0F 2022

THE STATE

V

LARE JOHN
Prisoner

Kerema: Sambua, A J
2022: 2^nd, 11^th & 18^th November

CRIMINAL LAW – Sentence – break & enter and stealing of properties in a dwelling house– guilty plea - no use of violence – house was empty when broken into - genuine expression of remorse - no prior conviction –favorable pre-sentence report – no means for restitution - sentence of one year is considered appropriate.

Cases Cited:
State v Nolpi [2013] N5402
State v Ula [2018] N7758
State v Ombo & 2 Ors [2018] N7744
State v Noutim [2014] N5794

DECISION ON SENTENCE

18^th November, 2022

1. SAMBUA, AJ: The prisoner Lare John pleaded guilty to one count of break enter and stealing under Section 389 of Criminal Code Act.
   

Background

2. The State had alleged that on the 13^th of December 2019, the victim Paul Mane and his family left their house at Murua and came and spent three days here in Kerema town. And when he and his family returned to Murua on the 17^th of December, 2019 after spending the three days here in Kerema town, discovered that his family house had been broken into and personal items and food stuff had been stolen.
3. The break-in was reported to Police and the investigations revealed that the prisoner Lare John had broken and entered the victim’s family dwelling house and had stolen their personal properties on the 16^th of December 2019, while the victim Paul Mane and his family were in Kerema town. The total value of the items stolen was estimated at Kl ,535.30.

Allocutus

4. In his statement in allocutus he said that Your Honour, I want to say sorry to this court for breaking the law of this country and therefore, ask the Court for its mercy and put me on probation.

Personal Particulars

5. The prisoner Lari John is 24 years old and comes from Siviri village, Kerema District, Gulf Province. He is a Catholic by faith and he is married with two children who are below the age of six years. He left school in grade 5 after his mother passed away and has not been formally employed in any paid job and makes a living though subsistence farming.

Submission by Counsels

6. The State submitted that this is not the worst instance, but it is still a serious case. Therefore, submitted that a sentence of between two (2) to four (4) years in hard labour would be an appropriate sentence. The sentence imposed would operate both as a personal deterrence to the prisoner and a general deterrence to the public at large.

7. The State referred to two cases as case precedents and they were:

1. The State v Daniel Noutim & Banik John CR NO 1002 & 1003 OF 2013
   

The two offenders pleaded guilty to break, enter and stealing in the night. They broke into a teacher's house and stole her mobile phone, a cap and a sleeping mat. They were sentenced to three (3) years in hard labour without suspension of sentence

2. The State v Kenneth Majgi, CR No 118 of 1997
   

The prisoner pleaded guilty to break, enter and stealing. He was in company with another, and they broke into a teacher’s house by tearing off the fly-wire on a window, removed the louver blades and got into the house — stole personal property to the value of K4,798.00. He was sentenced to five years

8. The defence submitted that the circumstances of this case as well as the Pre-sentence report make this case as not being the worst or serious and therefore submitted that an appropriate starting point would be a three (3) years imprisonment term.

9. The defence also referred to a few cases as case precedents for break, enter and stealing sentences which were:

1. State v Noutim [2014] PGNC 223, two men pleaded guilty to break enter and stealing in the night. They broke into a teacher's house and stole her mobile phone and some other items. The offenders were sentenced to 3 years.
   
2. State v Jethro Kuli 2007 N5058, the offender was drunk and broke into a woman's house in the night and slept next to her. The offender was sentenced to 3 years imprisonment.
   
3. State v Jonathan Nelo CR No 813 of 2009, the offender pleaded guilty. He joined with 5 others and broke into the city pharmacy store. He was a young offender and the property stolen was valued at K9000.00. He was sentenced to 4 years.
   
4. State v Kenneth Maigi CR No 118 of 1997, the offender pleaded guilty. He was in company of one other and broke into a dwelling house, tore off the fly wire on a window, removed the louver blades and got into the house and stole personal properties to the value of K4,798.00. offender was sentenced to 5 years.
   

The Law

10. The crime of Break, enter and stealing is created by section 398(a)(i) of the Criminal Code and it also prescribes it’s penalty. Section 398 (a) (i) states:

"A person who –
(a) Breaks and enters –

(i) a schoolhouse, shop, warehouse, counting-house, office, store, vehicle, garage, hangar, pavilion, factory, workshop, tent, caravan, petrol-station, ship, aircraft, vessel or club; or

(ii) a building that is adjacent to a dwelling-house and occupied with it, but is not part of it,

and commits a crime in it; or

(b) having committed a crime in –

(i) a schoolhouse, shop, warehouse, counting-house, office, store, vehicle, garage, hangar, pavilion, factory, workshop, tent, caravan, petrol-station, ship, aircraft, vessel or club; or

(ii) a building that is adjacent to a dwelling-house and occupied with it, but is not part of it,

breaks out of it,

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 14 years
Mitigating and Aggravating Factors

11. In this case the mitigating factors were that the prisoner pleaded guilty and he was a first time offender, he returned few stolen items and he acted alone whilst the factors in aggravation were that properties stolen were worth over Kl ,000.00, the offence was prevalence, firewire window was damaged and most of the property stolen were not recovered. Whilst the

The Pre-Sentence Report

12. The Pre-Sentence Report is favorable to the prisoner and does recommend him to be a suitable candidate for probation supervision.

Sentencing trend

13. I am grateful to both lawyers for referring to the case law precedents they referred to in their respective written submissions on sentence to demonstrate the trend in sentences for break, enter and stealing under section 398 of the Criminal Code.

14. In State v Noutim [2014] N5794, a decision by His Honour Cannings, J in Kimbe where two men had pleaded guilty to break, enter and stealing in the night. They broke into a teacher's house and stole her mobile phone, a cap, and a sleeping mat. In that case it was held:

(1) The maximum sentence for break, enter and stealing (Criminal Code, Section 395(1)(c)) is 14 years imprisonment.

(2) Mitigating factors are: nobody physically injured; guilty plea; first-time offender; young offender; property returned; not much stolen.

(3) Aggravating factors are: happened at night; home invasion; very traumatic event for the victim.

(4) A sentence of three years was imposed on each offender, the pre-sentence period in custody was deducted and no part of the sentence was suspended.

15. In the case of State v Jethro Kuli (2007) N5058, the offender was drunk and broke into a woman's house in the night and slept next to her. Offender was sentenced to 3 years imprisonment.

16. In the case of State v Kenneth Maigi CR No 118 of 1997, the offender pleaded guilty. He was in company of one other and they broke into a dwelling house by tearing off the fly wire on a window and removed the louver blades and got into the house and stole personal properties to the value of K4,798.00. offender and he was sentenced to 5 years.
Sentence

17. It seems that National Courts has been imposing varying sentences ranging from 4 months as in the case of State v Ombo & 2 Ors [2018] N7744 and 3 years in State v Noutim [2014] N5794 for Break, Enter and stealing. And most of the sentences were either suspended in full or partial suspension and part custodial depending on the circumstances of each case.

18. After having considered all factors on sentence, both mitigating and aggravating factors, and the prisoner’s personal background and the circumstance in which this crime was committed, I consider that a sentence of one (1) year will be an appropriate penalty in the circumstances of this case. The pre-trial custody period if any will be deducted from the head sentence of one (1) year leaving the balance to be served in prison will be wholly suspended with conditions.

Order of the Court

1. Prisoner is sentenced to one (1) year IHL
2. Pre-trial custody period if any will be deducted from the head sentence of 1 year.
3. The balance to be wholly suspended and prisoner is placed on Probation for a period of 1 year under the supervision of the Probation Officer Mr Martin Makieu with the following conditions:

1. Within 72 hours of this order, the prisoner/probationer reports to the Probation Officer Mr Martin Makieu
2. The prisoner/ probationer pays a sum of K500.00 to the victim as a sign of goodwill and peace within 6 months of this order

100. The prisoner/probationer is to keep the peace and order in the community within the period of probation

4. And the prisoner is not to consume alcohol or take any form of drugs or any illicit substances during the probation period
   

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