State v Manari [2023] PGNC 28; N10128 (17 February 2023)

N10128

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO. 125 & 127 OF 2021

THE STATE

V

HENRY MANARI & THOMAS MAIAII

Waigani: Berrigan J
2022: 5^th December
2023: 17^th February

CRIMINAL LAW–SENTENCE – S 372 of the Criminal Code – Stealing – Offenders stole container containing 2000 pieces of roofing iron worth K61,500 – Convicted following trial – Sentence of 4 years, wholly suspended on conditions including restitution and community service.

Cases Cited:

The State v Manari & Anor (2022) N9976
Wellington Belawa v The State [1988-1989] PNGLR 496
Dorren Liprin v The State (2021) SC673
The State v Alice Wilmot (2005) N2857
State v Taba (2010) N3939
State v Koima (2010) N4115
State v Tio (2002) N2265
The State v Neville Miria (2013) N5102
The State v Simon Paul Korai (2009) N3820
The State v Roselyn Waiembi (2008) N3708
The State v Ian Sevevepa, CR No.2007 of 2005, unreported, 10 May 2006
The State v Vagi (2017) N6994
The State v Yani Paul & Anor (2019) N8026
Lawrence Simbe v The State [1994] PNGLR 38
Sanawi v The State (2010) SC1076
David Kaya and Philip Kuman v The State (2020) SC2026
The State v Tardrew [1986] PNGLR 91
The State v Frank Kagai [1987] PNGLR 320

Legislation and other materials cited:

Sections 19, 372(1)(7)(a)(10) of the Criminal Code

Counsel

Ms S. Ilave, for the State
Mr M. Sumbuk, for the Accused

DECISION ON SENTENCE

17^th February, 2022

1. BERRIGAN J: The offenders were convicted following trial of one count of stealing two thousand sheets of corrugated zinc roofing iron to the value of K61,500, contrary to s. 372(1)(7)(a)(10) of the Criminal Code: The State v Manari & Anor (2022) N9976.
   
2. Henry Manari was employed as a semi-trailer driver with Highway Transport Ltd in Port Moresby. Thomas Maiai was a wharf clerk at Motuke United Ltd. On Saturday, 20 July 2019 Henry Manari used the Highway Transport Ltd semi-trailer to steal a container containing the corrugated iron from the back of the PNG Concrete Aggregates’ office and take it to a vacant lot at Dogura pursuant to a plan with Thomas Maiai and others with a view to selling the roofing iron. Police investigations revealed that the iron was subsequently taken to another yard at Dogura, where more than 600 sheets of iron were recovered under search warrant. Further investigations led police to recover about 70 sheets from Saraga Settlement. The offenders were subsequently arrested and charged. Two others had gone on the run, together with other employees of PNG Concrete Aggregates.
   
3. On allocutus Henry Manari apologised to the Court and to everyone involved. He is very sorry for what happened. Thomas Maiai thanked the Court and the Offices of the Public Prosecutor and Public Solicitor. It was his first time to offend. He and his wife have a young family and are expecting their fourth child. Both plead for their sentence to be served outside of prison so that they may make restitution.
   

Sentencing Principles and Comparative Cases

4. In Wellington Belawa v The State [1988-1989] PNGLR 496 the Supreme Court identified a number of factors that should be taken into account on sentence for an offence involving dishonesty, including:
   
   1. the amount taken;
   2. the quality and degree of trust reposed in the offender;
   100. the period over which the offence was perpetrated;
   4. the impact of the offence on the public and public confidence;
   5. the use to which the money was put;
   6. the effect upon the victim;
   7. whether any restitution has been made;
   8. remorse;
   9. the nature of the plea;
   10. any prior record;
   11. the effect on the offender; and
   50. any matters of mitigation special to the accused such as ill health, young or old age, being placed under great strain, or perhaps a long delay in being brought to trial.
       
5. In addition, the Supreme Court suggested that the following scale of sentences may provide a useful base, to be adjusted upwards or downwards according to the factors identified above, such that where the amount misappropriated is between:
   
   1. K1 and K1000, a gaol term should rarely be imposed;
   2. K1000 and K10,000 a gaol term of up to two years is appropriate;
   100. K10,000 and K40,000, two to three years’ imprisonment is appropriate; and
   4. K40,000 and K150,000, three to five years’ imprisonment is appropriate.
      
6. Whilst the suggested scale of tariffs in Wellington Belawa is relevant it is to be noted that the offender in this case has been convicted of stealing. Unlike misappropriation which attracts a maximum of 10 years for amounts more than K2000 (and less than K1 million post the 2013 amendments), stealing contrary to s372(1)(7)(a)(10) of the Criminal Code attracts a maximum penalty of 7 years of imprisonment.
   
7. The defence submitted in aggravation that the monetary value of the stolen goods was high, the offence was perpetrated with others over time, and the offence is prevalent. In mitigation the offenders cooperated with police, are first-time offenders, expressed remorse, and whilst acknowledging it is no excuse, said on allocutus that they had been driven to commit the offences.
   
8. Counsel submitted that a sentence of three to seven years was appropriate, partly or wholly suspended on strict conditions, including that the offenders make restitution within a reasonable period on the basis that consideration should be given to alternatives to custody: Dorren Liprin v The State (2021) SC673, and that restitution is not an act in leniency but rather punishment and personal deterrence where the prisoner will feel the real weight of the money lost towards restitution: The State v Alice Wilmot (2005) N2857.
   
9. The State acknowledged in mitigation that the offenders had no prior convictions. It submitted that a sentence in the range of three to five years is appropriate for each offender having regard to the amount involved, the period of offending, the effect on the victim, breach of trust on the part of Henry Manari, and the prevalence of the offence. It has no objection to partial or whole suspension on the condition of restitution.
   
10. It referred to the following cases in support of its submissions:
    
    1. State v Taba (2010) PGNC 178; N3939, Cannings J, in which the offender was convicted of one count of stealing contrary to sections 372(1) and (10) of the Criminal Code. He stole 1000 cartons of tinned fish valued at K58, 399.00 from his employer RD Tuna Canners Ltd in Madang. Documents were falsified and so the fish was packed into a container which the offender loaded onto a truck, transported to Lae, and subsequently sold to a third party. The offender had knowledge of the plan and took part in its implementation, and also received K2, 000 of the proceeds of the sale. He was sentenced to 2 years 6 months imprisonment less the time spent in custody, none of which was suspended.
       
    2. State v Koima (2010) PGNC 129; N4115, Cannings J, the prisoner was convicted following a trail of one count of stealing a house and its contents valued at K130, 992.00 contrary to sections 372(1) and (10) of the Criminal Code. The prisoner, acting with other persons, dismantled a house belonging to Mission couple, taking away the house and the property inside it. He was sentenced to a term of 6 years imprisonment less the time spent in custody, none of which was suspended.
    100. State v Tio (2002) PGNC 67; N2265, Kandakasi J, the prisoner pleaded guilty to one count of stealing a chainsaw valued at K8, 000.00 contrary to sections 372(1) and (10) of the Criminal Code. He stole the chain saw by taking it out of the hardware store where he was posted for his duty as a security guard. He later sold the chain saw to another person and received K1, 000.00. He was sentenced to a period of 5 years less time spent in custody.
         
11. I have also had regard to the following cases:
    
    1. The State v Neville Miria (2013) N5102, Gauli AJ, in which the offender, a data input officer with BSP, pleaded guilty to stealing K100,000 from his employer. He transferred the monies to an account in a single transaction. The theft was discovered promptly by the bank, which limited its losses to K28,183.05. The offender was sentenced to 4 years of imprisonment. One month in custody was deducted and 2 years of the balance of 3 years, 11 months was suspended on conditions including restitution of the monies lost;
       
    2. The State v Simon Paul Korai (2009) N3820, David J, in which the offender was employed by BSP, Kundiawa Branch, as a security guard. The offender was familiar with the victim and assisted her on several occasions to do her banking as she was illiterate. He came to know her PIN number and stole K21,460 from her account. He pleaded guilty and was sentence to three years of imprisonment less 9 months 3 weeks already served. Two years of the balance was suspended on the offender entering into his own recognisance to be of good behaviour; and
       
    100. The State v Roselyn Waiembi (2008) N3708 in which the prisoner pleaded guilty to stealing K15,000 between 28 June 2002 and 26 November 2004, whilst employed by a law firm as its accounts clerk. She stole this money by including extra amounts in the cheque requisition forms every payday Friday, and taking the balance of between K50 and K700 on each occasion. She was sentenced to three years’ imprisonment, less one month for time spent in custody. The balance of which was suspended upon conditions including restitution with the assistance of her family.
         
    4. The State v Ian Sevevepa, CR No.2007 of 2005, unreported, 10 May 2006, Lenalia J, in which the offender pleaded guilty to stealing the sum of K17,000 belonging to a service station proprietor. The offender walked into the office, pushed a female employee who was present away, and ran away with the bag of money, giving it to another person. He was sentenced to 3 years of imprisonment. The time spent in custody awaiting trial was deducted and the balance was ordered to be served out of custody;
       
    5. The State v Vagi(2017) N6994, Salika DCJ (as he then was) in which the prisoner, a manager of a petrol station stole K119,187.58 cash from a petrol station. She was sentenced to 5 years of imprisonment, wholly suspended on condition of restitution;
       
    6. The State v Yani Paul & Anor (2019) N8026, Berrigan J, in which two offenders pleaded guilty to stealing, in the company of others, electrical cable, worth K37,633.18 from a warehouse, for sale on the black market. Both were sentenced to three years of imprisonment, with time spent in custody taken into account.
       

Consideration

12. Section 19 of the Criminal Code provides the Court with broad discretion on sentence. Whilst guidelines and comparative cases are relevant considerations, every sentence must be determined according to its own circumstances: Lawrence Simbe v The State [1994] PNGLR 38.
    
13. In aggravation the offending in this case involved property of significant value, although I remind myself that I was unable to find that the offenders knew the actual value of the property. It is also relevant that property to the value of K20,602.50 was recovered by police thus reducing the loss to PNG Aggregates. It is unclear what happened to the balance of the sheets although it can be assumed that they were sold. It is also unclear to what extent the offenders personally benefitted from the theft of the iron sheets.
    
14. In further aggravation the offence involved planning and coordination between a number of persons. In the case of Henry Manari it also involved an abuse of trust.
    
15. The current manager of PNG Aggregates had little to say about the matter and there is little information about the impact on the business. Certainly PNG Aggregates suffered the inconvenience and cost of the theft. The manager at the time was flown to Port Moresby where he stayed for some time whilst assisting police, all of which would have added to the company’s cost. It is also highly likely it suffered embarrassment amongst customers and potential customers which may also have affected the business.
    
16. As for the offenders, Henry Manari is 30 years old. He comes from Kira Kira Village in the National Capital District, where he lives with his wife and three girls, two of whom are in primary school and the third is too young for school and stays at home with his wife, who has no formal employment. He is not well educated, completing Grade 6 only. He is currently unemployed but manages a rental property which sustains his family. He is in good health.
    
17. This is his first offence and he is of prior good character. Mr Tanarua Mahuru is a leader from Kira Kira Village and has known the offender his entire life. He says that he is a good leader in the village. He has never been in trouble before and is leading a group of young men in fellowship. Pastor Paul Baeau, of Kira Kira United Church provides a reference for the offender, confirming that he is a member of the Kira Kira Men’s Ministry and the Youth Ministry. He is also a leader of the Area Saturday Fellowship Group. The Honourable Arutu Bake, Member for Kira Kira also says that he has known the offender to be a humble, honest and hardworking young man in the village.
    
18. The offender, Thomas Maiai is also 30 years old. He is from Baii Village in East New Britain Province. He lives at Hohola with his wife, and three young children, two of whom are at primary school, and other members of the family. He completed Grade 12 at Jubilee Secondary School. In 2012 he obtained a Certificate from Port Moresby Technical College. He is currently unemployed. He is managing his father’s rental property and also supports himself by running a pest control business. He is in good health.
    
19. In mitigation this is the offender’s first offence. He is of prior good character. Ms Easy Koni is a community representative from Hohola. She says he is a quiet young man. His father has a property there and he grew up in the community who does work for the community from to time without charging them.
    
20. Both offenders plead for suspension of their sentences so that they may make restitution and continue to care for their very young families. Both are supported by their families, in particular their fathers, who have each indicated that they are willing to contribute to compensation if ordered by the Court.
    
21. The offences have had and will continue to have a severe impact on the offenders. Both lost secure jobs as a result of the offending and will likely struggle to get employment in the future given the nature of the offending. I also accept that they have brought shame and humiliation to their families. Whilst both have expressed remorse, it is of somewhat limited weight at this stage in the proceedings.
    
22. There are no matters of special mitigation to the offenders.
    
23. Having regard to the principles of parity there should be no marked disparity between their sentences: Sanawi v The State (2010) SC1076 applying Mario Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295; affirmed David Kaya and Philip Kuman v The State (2020) SC2026. Both share strikingly similar personal circumstances. As for the offence itself, it did involve a breach of trust on Henry Manari’s part and it was he who physically moved the property but Thomas Maiai was also clearly involved in the planning of the offence, and was associated with Gilbert, who appears to have played a key role in designing it.
    
24. Having regard to all of the above matters, I sentence each of the offenders to four years of imprisonment. Dishonesty offences are prevalent and this case calls for both general and specific deterrence. The offenders are not entitled to the discount that would have applied in the event they had pleaded guilty.
    
25. After careful consideration, I have decided to suspend the sentences on strict conditions. Probation Services supports suspension and reports that they have the means to make restitution with the support of their families. The State has no objection. In my view suspension will promote both restitution to the company and rehabilitation of the offenders. They will need assistance from their families, who are not wealthy and to whom they have brought shame. The offenders will not readily escape the weight of their offending, especially as restitution will need the assistance of their families. This is not an act in leniency but an order made in the community interest: The State v Tardrew [1986] PNGLR 91; The State v Frank Kagai [1987] PNGLR 320. I also intend that they serve some community service.
    
26. Each will be ordered to make restitution of K20,000 within a period of three years, reflecting the fact that about K20,000 worth of the property was recovered.
    
27. I make the following orders.
    

Orders

(1) Henry Manari is sentenced to four years of imprisonment.
(2) One month spent in custody to date is deducted from time to be served.
(3) The balance of the sentence is wholly suspended upon condition that:

1. The offender make restitution to Seaside Developments Limited trading as PNG Concrete Aggregates in the sum of K20,000 to be paid into the National Court Trust Account within three years of today’s date;
2. The offender serve 80 hours community service under the supervision of Probation Services within the first twelve months of the sentence;
3. The offender enter into his own recognisance to keep the peace and be of good behaviour for the period of his sentence.
   

(4) Thomas Maiai is sentenced to four years of imprisonment.
(5) One month spent in custody to date is deducted from time to be served.
(6) The balance of the sentence is wholly suspended upon condition that:

1. The offender make restitution to Seaside Developments Limited trading as PNG Concrete Aggregates in the sum of K20,000 to be paid into the National Court Trust Account within three years of today’s date;
2. The offender serve 80 hours community service under the supervision of Probation Services within the first twelve months of the sentence;
3. The offender enter into his own recognisance to keep the peace and be of good behaviour for the period of his sentence.
   

(7) The offenders’ bail monies are to be immediately refunded.

(8) Any sureties lodged by the offenders’ guarantors are to be immediately refunded.

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