State v Oroa [2022] PGNC 572; N10069 (18 November 2022)

N10069

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 207, 208 & 1292 OF 2022

THE STATE

V

PEDRO OROA
SAKU AURTHUR
LOIDY LOVAITE
Prisoners

Kerema: Sambua, A J
2022: 9^th ,15^th & 18^th November

CRIMINAL LAW – Sentence – break & enter and stealing – offence committed against an hospital -break, enter & stealing against a public general hospital is considered serious - guilty plea – genuine expression of remorse - no prior convictions – favorable pre-sentence report – sentence of 5 years 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 prisoners Pedro Oroa, Saku Arthur and Loidy Lovaite pleaded guilty to one count of break enter and stealing under Section 389(a)(i) of Criminal Code.
   

Background

2. The State alleged that between 9.00 pm on the night of Saturday 23^rd May 2020 and 6.00 am on the morning of Sunday 24^th May 2022, the prisoners, Pedro Oroa, Saku Arthur and Loidy Lovaite broke and entered the office/mess hall of Oil Min and Gulf Provincial Health Authority (GPHA) and stole properties belonging to the Oil Min and the Gulf Provincial Health Authority. The office/mess hall was built out of a large shipping container.
   
3. It was alleged that the prisoners used a red fire extinguisher to break the lock and open the door and when they got inside, the prisoner Loide Lovaite stole a Black HP laptop valued at K2,800.00, the prisoner Saku Arthur stole a white HP printer valued at K280.00 together with half a carton of ice-cream, one chips packet, one egg pulp, one mixed vegetable pack and half a bottle of black soy sauce and the prisoner Pedro Oroa stole twelve tinned fish and four scone packets.
   
4. The State therefore said that the actions of the prisoners in breaking and entering into the Oil Min and Gulf Provincial Health Authority (GPHA) office/mess hall and stealing their properties, contravened s.398(a)(i) of the Criminal Code
   

Allocatus

5. When allocutus was administered, the prisoner Pedro Oroa elected for his lawyer to make submission on penalty on his behalf while the prisoners Saku Arthur and Loide Lovaite elected to address the court themselves on the type of penalty the court will impose on them.
   
6. The prisoner Saku Arthur told the court that he wanted to say sorry to God and to the court and asked the court to allow him to go free and when he is outside, he wants to make peace with the victim.
   
7. The prisoner Loide Lovaite said sorry to the court and was apologetic about his actions. He stated that he was with the boys and was following them and didn’t expect to do that.
   
8. He further stated that since then he had secured a good job with the Gulf Provincial Administration and therefore begged for the court to be lenient and merciful to him and not to jeopardize his new job and future
   

Personal Particulars

Pedro Oroa

9. The prisoner Pedro Oroa is 19 years old, He is from Luluitera Village, Kerema District, Gulf Province. He belongs to the Jehovah Witness Denomination. He is single and does not have any children. He attended Ilakaraeta Primary School and went on to Kerema Coronation Secondary school and completed his grade 10 this year 2022. He is unemployed and spent one day in the cell before he was released on bail.
   

Saku Arthur

10. The prisoner Saku Arthur is 22 years old. He is from Luluitera Village, Kerema District, Gulf Province. He belongs to the United Church Denomination. He is married with one child who is six years old. He has never been to school, and he is unemployed. He spent one day in jail before he was released on bail.
    

Loide Lovaite

11. The prisoner Loidy Lovaite is 32 years old. He is from Luluitera Village, Kerema District, Gulf Province. He belongs to the Christian Revival Church (CRC) Denomination. He is married with one child. He attended Ilakaraeta Primary School and went on to Kikori Secondary school to complete his secondary education. He holds a diploma in Information Technology, a diploma in Government studies and a Certificate in Computer Science. He is currently employed with the Gulf Provincial Administration as an Administrative Officer. He spent one day in jail before he was released on bail.
    

The Law

12. The crime of break, enter and stealing is created by section 398(a) (i) of the Criminal Code and it also prescribes its’ penalty. Section 398 (a) (i) provides:
    

"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.

13. The mitigating factors in this case were that the prisoners pleaded guilty to the charge and that they were first time offenders and prisoners Saku Arthur and Loidy Lovaite expressed remorse in their respective statements in allocutus
    
14. The aggravating factors in this case were that the offence of break, enter and stealing is a prevalent offence, and the crime was committed against a hospital which provided an essential free health service to the people of Gulf Province
    

Submission by Counsels

15. State submitted that the court should impose a sentence that would operate both as a personal deterrence to the prisoners and a general deterrence to the public at large.
    
16. The State submitted further that this is not the worst instance, but it is still serious. Therefore, submitted for a sentence between three (3) to four (4) years in hard labour as an appropriate penalty.
    
17. The defence also submitted that this was not the worst kind of break, enter and stealing case and did not require a higher sentence to be imposed. Therefore, submitted for a one-year sentence as appropriate in the circumstances of this case.
    
18. And in support of that proposition, the defence referred to a number of cases for the court to consider when determining an appropriate penalty to be imposed in the circumstances of this case. The cases referred to were:
    
    1. State v Alelok [2018] PGNC 538; N7748, (Koeget J) the accuseds pleaded guilty to one count of break, enter and stealing under section 398 (a) (i) of the Code. They acted in concert and aided and abetted each other in the commission of the offence so the State invoked section 7 of the Code. The accuseds went to the Crusher located at Tabubil with a hammer and small grass knife, entered the Geology and Exploration office of Ok Tedi Mining Limited. One of the accused namely Keron John stood at the corridor of the office as a watchman while his accomplices namely Alford Pame and Kaka Kelly went into the office. They then broke open a window in the office using the hammer. The three (3) accused persons assisted each other to pack various electronic items into their bags. The total value of goods stolen was K11,719.00. The accuseds then fled the scene and took the stolen goods to their respective houses and hid them. The court considered the aggravating factors that the prisoners planned to commit the offence at night and they aided each other. The laptop and the printer were the only items that were recovered by the police but the perishables were not recovered. The mitigating factors were that the prisoners were first time offenders and surrendered to the police and most of the valuable goods were recovered by the police although few were still missing. No lives were threatened in the commission of the offence. The prisoners were sentenced to 3 years each in hard labour, their pre-trial custodial periods of 2 months were each deducted, and the balance of 2 years and 9 months was wholly suspended on conditions that they both enter into recognisance and promise to keep the peace and be of good behaviour bond for 2 years.
       
    2. State v Ombo [2018] PGNC 580; N7744 (Koeget J- Kiunga) This was a decision on sentence for three (3) accused persons who pleaded guilty to break, enter and stealing under section 398 (a) (i) of the Code. The accused persons with other accomplices went to a Supermarket at Ningerum station. They went to the main entrance and used a bolt cutter to cut the chain. They went in and opened the till and took out the cash of K5,000.00 and eleven mobile phones. They took the cash and mobile phones and left the shop. The court held that the prisoners did not use weapons at the time of the offence and it was committed at night. No lives were threatened and in the circumstances of the case, imposition of the maximum sentence was inappropriate. This was not the worst type of break, enter, and stealing so the court exercise its sentencing discretionary powers and since they have been in custody for 4 months and 1 day before being released on cash bail, their pre-trial custodial period were substituted for sentences imposed and they were discharged from custody.
       
    3. State v Kapoka [2018] PGNC 579; N7743 (Koeget J, Kiunga), the offenders pleaded guilty to a charge under section 398 (a) (i) of the Code. The accuseds went to J.K.J. Trading Limited in Kiunga in Western Province and broke into the shop. They were armed with a wrecking bar and used it to break open the locks on the main entrance to the gate and the two metal doors. They entered the shop whilst one stood and kept watch. They stole items including 2 T-shirts, 3 bags, a bicycle, 37 various electronic devices, 9 biscuit packets, 12 tinned fish, Digicel mobile phone flex cards, and 72 packets of cigarette all valued at K7,704.50. The accused fled the scene and shared the stolen items. They were later identified using the CCTV footage from a camera installed in the shop and were apprehended and charged. The aggravating factors were that the offence was prevalent in the country and the company experienced loss of profit because some of the goods stolen were never recovered. The mitigating factors were that they were first time offenders and cooperated well with the police. They admitted committing the offence and pleaded guilty. They did not gain much out of the commission of the offence. The court considered that a lenient sentence was appropriate. The prisoners were sentenced to Eleven (11) months each in hard labour. For two accused persons who remained in custody, their pretrial custodial periods were substituted for the sentences imposed and were discharged. For the other offender who was released on bail after 2 months his pretrial custody period of 2 months was deducted, and the balance of 8 months was wholly suspended upon his entering into recognisance and promise to Keep the Peace and be of Good Behaviour Bond for a period of Eight (8) months.
       
    4. State v Nolpi [2013] PGNC 257; N5402 (Kassman, J - Mendi), the prisoner pleaded guilty to a charge of breaking and entering a building and committing a crime under section 398 (a) (i) of the Code. The accused was in company of another and broke into the Southsman Enterprise and stole goods (food) in the wholesale area and proceeded onto the stationary section of the shop and stole white goods again which valued altogether at about K8,824.00, the property of Southsman Enterprise. The court sentenced the prisoner to one-year imprisonment. Six months was deducted, and the balance were wholly suspended with conditions.
       
19. Whilst I am grateful to both counsels for referring to case law authorities in their respective submissions, the case they had referred to involved business house who are money generating businesses. They may be providing business services to their respective localities but not the kind of services as in this case where these three (3) prisoners broke, entered and stole from was a hospital, the Kerema General Hospital.
    
20. Hospitals provide vital service, the health services to the people. In this case the Kerema General Hospital was provided by the National Government to provide free health services to the people of Gulf Province. The hospital is there to provide free health services for the benefit of the people of Gulf Province and it is not like in the cases referred to by counsels where they, the business houses that had been broken, entered and stole therein were money generating businesses.
    
21. What these prisoners did was a foolish, selfish and greedy act that could have put the lives of many patients at risk. Their actions could have resulted in the hospital being shut down and the patients being asked to seek medical assistance elsewhere and perhaps at their own cost because of their foolish, selfish and greedy actions.
    
22. I note from the court depositions that the Kerema General Hospital was located or built on the land in their Luluitera village and therefore they thought that they have every right to go into the hospital premises and do and take anything they please. Let me state it clearly here for the three of them that the Kerema General Hospital may have been built on their land, but they have no right to go into the hospital premises to do and take anything. The hospital was built by the National Government to provide free health services to people of Gulf Province. And they should be proud that National Government has chosen their village land to build the Kerema General Hospital to provide health services to the people of Gulf Province.
    
23. They should take ownership of it as their own as it was built on their Luluitera village land and look after it instead of breaking into and stealing from it like in this case. By doing so they had put many innocent lives at risk.
    
24. I also note from the committal depositions that these prisoners committed the crime whilst under the influence of intoxicating liquor. They committed the crime after they have consumed bottles of blueberry and warrior drinks which gave them encouragement to enter the hospital premises and break, enter and steal a laptop, a printer and assorted food stuff.
    
25. And I also note that the laptop and the printer that were stolen have been returned and that goes in their favour.
    
26. That being said, I am however of the view that this case falls into the worst or the most serious cases of break, enter and stealing. This is because in this case the three (3) prisoners broke, entered a hospital and then stole from a hospital, the Kerema General Hospital.
    
27. Kerema General Hospital was built by the National Government on their Luluitera village land to provide free health services to the people of Gulf Province. Their foolish, selfish and greedy actions had a potential to have put the lives of the people of the Gulf Province at risk especially the patients and those would be patients. Hence it calls for a strenuous and a long punitive and deterrent sentence to prevent such recurrences at such free public services providers like hospitals, schools, aid posts etc.
    

The Pre-Sentence Report

28. The Pre-Sentence Report is favorable to the prisoners and recommended them as suitable candidate for probation supervision and I will take that into consideration in sentencing them.
    

Sentencing trend

29. In State v Nolpi [2013] PGNC 257; N5402, a Mendi case by His Honour Kassman, J, it was a break & enter and stealing case. The prisoner pleaded guilty to the charge break & enter and stealing, no violence and no weapon used, prompt apology and compensation was paid. There was genuine expression of remorse. The prisoner had no prior conviction and a sentence of one year was imposed however wholly suspended with conditions including twelve months good behaviour bond and community service for six months. The brief facts presented are:

"That on Thursday the 06th day of September 2012 at about the time between 9:00pm to 10:30pm, the defendant now before the court namely, Joel NOLPI was at Southsman Enterprise in Mendi, Southern Highlands Province."

The defendant was accompanied by another defendant, broke into Southsman enterprise and stole goods (foods) in the wholesale area and proceed onto the stationary section of the shop stealing white goods value up to K8,824.00 and took off.

Four days later the complainant with the help of his relative talked to the defendant's relatives and brought in the said defendant into the police custody.

At the police station, police questioned the defendant about the said offence and the defendant admitted committing the offence.

30. In the case of State v Ula [2018] N7758, a decision by His Honour, Koeget, J in Kiunga, the accused was charged with one count of break, enter and stealing pursuant to section 398 (a)(i) of the Criminal Code.
    
31. The facts of the case were that at about 7 o’clock on the morning of 1^st of September 2017, Anthony Hang, Manager of Zong Siang Trading in Kiunga went to his shop and discovered that several goods such as mobile phones, flex cards and bottles of alcohol were missing from the shelves. He noticed a hole in the roof of the liquor barn section of the shop and realised that his shop was broken into. He then checked the surveillance camera of the shop and saw image of the accuseds in breaking into the shop and stealing goods.
    
32. The incident was reported to the police and the suspect seen in the camera footage, was identified as the accused, and was apprehended. The accused admitted to police that he broke into the shop at 4 o’clock in the morning by climbing over the tree and he used a pinch bar to break open the wall and he entered the bar section. He admitted stealing 15 mobile phones, 2 alcohol bottles and cash of K12,800.00.
    
33. He distributed the phones, flex cards and cash to other youths and he kept one mobile phone and cash of K5,000.00. He was sentenced to 13 months imprisonment term however since he had been waiting in custody for his court case, it was substituted for his sentence and was ordered to be released from CS custody forthwith
    
34. In State v Ombo & 2 ors [2018] N7744, a decision by His Honour Koeget, J in Kiunga, the accuseds were charged with Break, Enter and Stealing pursuant to section 398 (a)(i) of the Criminal Code chapter 262. The brief facts were that on the night of 24^th of July 2017 between 10 o’clock and 11 o’clock, the accuseds in company with accomplices Allen Numi, Bani Onku and Manu Haoda went to Lin Brothers Supermarket at Ningerum station. They went to the main entrance and an accomplice held the chain whilst the others used a bolt cutter to cut the chain. The six accuseds entered the shop and four of them stood at the entrance and kept watch while two of them went and open the till and took out the cash of K5, 000.00 and eleven mobile phones.
    
35. They took the cash and mobile phones and left the shop and went to the banks of the Alice River and shared the cash and mobile phones. The following morning, the store mananger discovered the break and enter the shop and a stock-take was conducted. It was confirmed that a cash of K5,000.00 was stolen with various electronic items totalling K35,122.40.
    
36. The prisoners were sentenced to 4 months and 1 day. Since they have been in custody for 4 months and 1 day before being released on cash bails, their pre-trial custodial periods were substituted as their sentence.
    
37. 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 398(a)(i)) is 14 years imprisonment.

(2) Mitigating factors were that nobody was physically injured, it was a guilty plea, they were young first-time offenders and the property stolen were returned.

(3) Aggravating factors were that the break, enter and stealing happened at night and it was an home invasion and was 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.

Sentence:

38. 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 cases. And most of these sentences were either suspended in full or partially suspended and partial custodial depending on the circumstances of each case.
    
39. As I have alluded to above, in this case the three prisoners broke, entered and stole from a hospital, the Kerema General Hospital. Hospitals provide vital service, the health services to the people. In this case the Kerema General Hospital which was built by the National Government to provide free health services to the people of Gulf Province and not like in the cases referred to by counsels in their respective submissions which were money generating businesses. Hence a worst or a serious case of break, enter and stealing case which calls for a strenuous and long punitive and deterrent sentence
    
40. After having considered all factors on sentence, both mitigating and aggravating factors, the prisoners’ personal backgrounds and the circumstance in which this crime was committed, especially it was a break, enter and stealing against the Kerema General Hospital which makes this case fall into a worst or more serious case of break, enter and stealing, I consider that an appropriate penalty is a sentence of five years imprisonment term.
    

Order of the Court

41. The Court orders as follows:

1. Prisoners are sentenced to 5-year IHL

2. However in the exercise of sentencing discretion, I order that the sentence of 5 years is wholly suspended on the following conditions:

1. You will be on Probation and under the supervision of the Probation Officer Mr Martin Makieu for a period of the suspended sentence of 5 years
2. Whilst on probation you will observe peace and order in the village and in Kerema town

100. You are not to consume alcohol or take any form of drugs or illicit substances

4. You are not to leave your Luluitera village or Kerema town and the Gulf Province without Leave of the National Court
5. You are to attend church services every Sundays in your respective religious denominations and to be actively involved in all church organized activities and each Church elder of your respective church is to keep a record of your attendance and to be produced when required by the courts and the Probation Officer for a 6 monthly Progressive report of your attendance at the church services.
6. For the Prisoners/ Probationers Pedro Oroa and Saku Arthur the Probation Officer Mr Martin Makieu in consultation with the Kerema General Hospital CEO come up with a program whereby you two will provide 3 hours of free cleaning service twice a month for 3 years at the Kerema General Hospital and for the prisoner/probationer Loidy Lovaite to provide two hours of free cleaning services at the Kerema General Hospital on one Saturday of each month for a period of 3 years
7. The Probation Officer Mr Martin Makieu will provide a 6 monthly Probation Progressive Report to the National Court.
8. The three Prisoners/Probationers will appear at the National Court for review when required for review of their progress with these Probation Orders
9. Failure to comply or a breach of any one of these conditions will result in them being committed to prison to serve the balance of the suspended sentence

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