Pena v The State [1980] PGSC 2; SC183 (3 November 1980)

Unreported Supreme Court Decisions

SC183

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

S.C.A. NO. 8 OF 1980
BETWEEN: BAKIRI PENA
APPELLANT
AND: THE STATE
RESPONDENT

Waigani

Greville Smith Kapi Pratt JJ
29 October 1980
3 November 1980

CRIMINAL LAW - sentence - application for leave to appeal - breaking and entering business premises at Mount Hagen and stealing therefrom - facts of particular case discussed - prevalence of offence - youth of offender - multiple offenders - “tariff” in breaking and entering cases.

Case Referred To

Paulus Mandatititip and Anor v. The State (1978) P.N.G.L.R. 128

Order of the Court

Application for leave to appeal refused. Sentence confirmed.

GREVILLE SMITH KAPI PRATT JJ: This is an application for leave to appeal against sentence.

The appellant was on 10th April 1980, in the National Court at Mount Hagen, before Andrew J, convicted on a charge that on 27th November 1979, he broke and entered the Highlander Hotel and therein stole forty-five cartons of South Pacific beer worth approximately eight hundred kina (K800.00) the property of the said Highlander Hotel. He was sentenced to imprisonment with hard labour for fourteen months.

In his observations made upon sentence His Honour the learned trial judge stated as follows:

“You have pleaded guilty to an offence of break and enter a warehouse and stealing 45 cartons of beer.

You are aged about 17 and you come from the Western Highlands. You have not been in trouble before.

I accept that you were not the leader in this enterprise and that you received 2 cartons of the beer and that you acted as a watchman. But this was a mob offence in which this gang cut their way into this warehouse.

The offence of Break and Enter is a serious one and the courts have warned repeatedly that deterrent sentences will be passed.

I take into account the fact that you have been in custody some 4 ½ months and I sentence you to imprisonment with hard labour for 14 months.”

To the matters referred to by His Honour the following may be added, which was not in dispute, namely that none of the stolen property was recovered or any reparation made, that the accused and his companions waited until about midnight and “when the moon was going down, properly going, we came”, that the offence was not prompted by need, that the accused had grown up on the outskirts of Mount Hagen where the requirements of the law have been long and well known, that the offence took place in a main part of the town, and that in the area in question the incidence of serious crime, including the offence of breaking and entering; has for some time now posed a most serious threat to the viability of important commercial enterprises and the security of citizens and their property.

Additionally, the accused informed the Police that “the other boys induced me to come with them and steal”, and that all he himself took were two cartons of beer. Counsel for the appellant has informed the Court that the accused told the Police the names of the other offenders but that apparently none of them has been apprehended, and that the accused feels aggrieved that he, a comparatively minor offender, who was misled by the others, who has pleaded guilty, and who has assisted the Police as to the identity of the other offenders; should be the only one to be punished and should be punished so heavily. There is nothing to gainsay any of this, though it seems to this Court to represent the common lot of the majority of offenders that come before the National Court on breaking and entering charges.

The grounds of appeal were stated as follows:

“The sentence was and is in all the circumstances manifestly excessive in:

(a) That the Appellant had no prior conviction;

(b) Light of the youth of the offender;

(c) Light of all the circumstances surrounding the commission of the offence.”

Breaking and entering offences of all kinds are grave crimes, very prevalent, and increasing in incidence. From breaking and entering business premises it is only a small step to breaking and entering private homes. This Court would repeat and confirm the statement of Prentice C.J. and Pritchard J, in Paulus Mandatititip and Anor v. The StateSC183.html#_edn38" title="">[xxxviii]¹ that “youth is no longer a satisfactory answer to crime, at least so far as the crime of breaking and entering is concerned”.

Learned Counsel for the Appellant made some submissions in respect of the “tariff” for breaking and entering offences in this country. We would point out that insofar as the “tariff” approach may be appropriate, the so-called “tariff” has been built up largely upon sentences imposed upon youthful first offenders, who often plead guilty, many of whom make claims to have been misled by companions and to having received only a small part of the total proceeds, so that the “tariff” tends to contain inbuilt discounts for all or most of such factors. Very frequently also, the offender dealt with is the only one of several offenders apprehended, though the identities of the others are not infrequently known.

We draw attention to the fact that the maximum penalty for this type of offence is imprisonment with hard labour for fourteen years. We do not think that the sentence appealed against was manifestly excessive. Indeed having regard to current lawlessness in and around Mount Hagen we think it may not inappropriately have been somewhat higher. We refuse leave to appeal and confirm the sentence imposed by the learned trial judge.

In conclusion we would refer again to the frequently occurring phenomenon of one member of a group of offenders being arrested, disclosing the identity of his co-offenders, and remaining nevertheless the only person ever charged. There may be a good explanation for such an occurrence in each case, but it so often happens that one cannot help wondering why, and whether there is some fundamental misconception within some part of the Police Force in multiple offender cases. The duty of the Police is of course to bring to justice where possible all offenders. We would, with due respect, commend this matter to the proper authorities as one well worthy of attention.

Solicitor for the Appellant: D.J. McDermott A/Public Solicitor

Counsel: D. J. McDermott

Solicitor for the Respondent: L. Gavara-Nanu A/Public Prosecutor

Counsel: J. Byrne

SC183.html#_ednref38" title="">[xxxviii]^{(1978) P.N.G.L.R. 128}