Kale v The State [1983] PGSC 3; SC250 (8 June 1983)

Unreported Supreme Court Decisions

SC250

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

(S.C.A. NO.29 OF 1982)
BETWEEN: KONDAN KALE
APPELLANT
AND: THE STATE
RESPONDENT

Waigani

Andrew Bredmeyer Kaputin JJ
27 September 1982
8 June 1983

CRIMINAL LAW - Appeal against sentence - breaking entering and stealing - prevalence of offence - function of Appeal Court to standardize sentences - need for increase by steps and not by leaps - “tariff” principle referred to.

Cases Referred

Paulus Mandatititip and Anor. v. The State - (1976) P.N.G.L.R. 123 at 131

R. v. Woodman - (1909) 2 Cr. App. R. 67

Wade v. Trotter - [1934] SAStRp 15; (1934) S.A.S.R. 62

Storey v. Wick - (1977) W.A.R. 47

R. v. Barber - (1976) 14 S.A.S.R. 388 at 390

R. v. Stehbens - (1976) 14 S.A.S.R. 240

William Norris v. The State - (1979) P.N.G.L.R. 605

Mauwe Antape v. The State - Unreported S.C. Judgment No. S.C.194 dated 26th March 1981.

Pokun Umba v. The State - Unreported S.C. Judgment S.C.92 dated 2nd April 1976

Mandatititip v. The State - (1978) P.N.G.L.R. 128

Bakiri Pena v. The State - Unreported Supreme Court judgment No. S.C. 183 dated 3rd November 1980.

Acting Public Prosecutor v. Joe Kovea Mailai - Unreported Supreme Court judgment No. SC 203 dated 31st July 1981.

ANDREW J: The appellant pleaded guilty at the May 1982 Sittings of the National Court at Wabag to a charge of breaking and entering a dwelling house in the night time and stealing cash and goods to the value of K1,405.50. He received a sentence of three (3) years imprisonment with hard labour and he now makes application for leave to appeal against the sentence on the ground that in all the circumstances it is manifestly excessive.

Prior to his conviction and sentence the appellant had spent four months in custody so that it can be said that the effective period of incarceration will be three years and four months.

The facts in the present case are that the appellant, aged 20 or 21 with some minimal education was with two others when they broke into the house of a doctor at Wabag. The learned trial judge accepted that the two others did the actual breaking into the house and that the appellant stayed outside and acted as a “watch-man”. Amongst the things stolen were K195 in cash, the doctor’s blood pressure cuff and electronic stethoscope, shoes and cooking utensils. The appellant received some of these goods and some were recovered later in his village. However, the medical equipment had been damaged.

The appellant had a prior conviction for driving without a licence but for purposes of sentence he was treated as a first offender. The trial judge also took into account that the appellant’s family had made some reparation to the doctor and he took into consideration the plea of guilty and the appellant’s remorse. He considered however that because of the prevalence of the offence and the need for deterence that a sentence of three years was warranted in the circumstances.

To these matters referred to by His Honour may be added the following namely that this was a determined break and enter committed at night, that the offence does not appea to be prompted by need, that the appellant was not unsophisticated as he worked and lived near Wabag where the requirements of the law have been well known for a long time and that the offence took place in a main part of the town.

It hardly needs to be said once again by this Court that breaking and entering offences of all kinds are grave crimes, very prevalent and increasing in incidence and that as in this case they pose a serious threat to the security of citizens and their property. I would cite once again what was said in Paulus Mandatititip and Anor v. The StateSC250.html#_edn205" title="">[ccv]¹:

“In Papua New Guinea at this time, when breaking and entering offences are prevalent generally and when there is widespread public concern about such offence, the courts must remind themselves that under both the introduced law and customary law such offences are viewed seriously. Indeed the maximum penalty laid down in Section 410(a) of the Criminal Code is fourteen (14) years imprisonment with hard labour. In addition, ordinary people are entitled to be protected, as far as it is possible for the law to protect them, from such offences involving the stealing of property from their homes and business premises. Such conduct must, in my view, be met by some firmness on the part of the court. In Bokun Umba v. The State (Unreported Judgment, S.C. 92 of 2nd April 1976) Prentice D.C.J. (as he then was) referred at p.8 to the need for ‘sternness in the community’s judicial officers.’ Of course, the distinction needs to be drawn between crime of breaking and entering which are premeditated and those which are spontaneous or committed out of necessity. The distinction should also be drawn between crimes of breaking and entering committed by gangs of men and those committed by individuals”.

In the present case the appellant was convicted under s.395 of the Criminal Code which carries a maximum penalty of imprisonment for life when the offence is committed at night.

Learned counsel for the respondent made some submissions in respect of the “tariff” for breaking and entering offences and said that because of the prevalence of the offence and the past warnings of this Court that sentences would rise which, he said, had not resulted in any decrease, it was time for the Court to increase sentences and to give further warning in order that there be some real deterence.

There is no doubt that it is one of the functions of a Court of Criminal Appeal to standardize sentences: R. v. WoodmanSC250.html#_edn206" title="">[ccvi]², Wade v. TrotterSC250.html#_edn207" title="">[ccvii]³. However, in my opinion, the word “tariff” must be approached with caution, implying as it does a rigidity in sentencing removed from relevant differences in culpability or relevant personal factors. There is no doubt that it is possible to identify a scale or range within which sentences (excluding individualized measures) will normally fall. Where the sentence is one imposed for a crime commonly dealt with in the National Court or in this Court we can have recourse to our own knowledge and our own records. Judges of the National Court exchange summaries of sentences with the purpose of ensuring equivalence of sentence where possible for equivalent crimes (see Bokun Umba v. The State Unreported Judgment S.C. 92). Clearly, a sentencing pattern for breaking and entering offences has been established over a period of time and a range has emerged and there is no doubt that sentences have risen substantially in say the past six years. A pattern of sentencing in the past is a material consideration to take into account when imposing a custodial sentence: Storey v. WickSC250.html#_edn208" title="">[ccviii]⁴.

It is also regrettably true that the offence of breaking and entering is once again on the increase and that this Court must again give warning that sentences will increase substantially.

However, it is a well-established principle, that if a standard of sentence is too low, it can be raised after due warning but “by steps and not by leaps” per Bray, C.J. in R. v. BarberSC250.html#_edn209" title="">[ccix]⁵, or in the same case in the words of Wells J., “I agree, of course, that if, for reasons that seem good to him, a sentencing judge decides to impose a term of imprisonment greater than any term as yet imposed on a first offender, or recently so imposed, for the same offence or similar offence, he should, speaking generally, advance with due circumspection, and not by unreasonable steps”.

But a sentence higher than any previous sentence is not necessarily excessive: R. v. StehbensSC250.html#_edn210" title="">[ccx]⁶.

The present case is a serious one as already indicated. However, it appears to be a non-professional burglary with no element of violence. In my opinion, the sentence of three years imprisonment on top of the five months already spent in custody is substantially in excess of the general level of sentences for like offences by like offenders, and without any circumstances to justify such a margin.

The principles to be applied in an appeal on sentence from the National Court are as have been repeatedly stated in Supreme Court decisions before and after independence and more recently in William Norris v. The StateSC250.html#_edn211" title="">[ccxi]⁷. The appellant has to show that an error occurred which has the effect of vitiating the trial judge’s discretion on sentencing. Such an error may be identifiable but if not identifiable the sentence may be shown to be on the face of it excessive, that is to say “manifestly” excessive, or out of all reasonable proportion to the circumstances of the crime, per Miles J. (as he then was) in Mauwe Antape v. The StateSC250.html#_edn212" title="">[ccxii]⁸.

Clearly there has not been any error shown on the part of the trial judge but, in my opinion, the sentence is about double the general level for like offences by like offenders and that in all of the circumstances it is manifestly excessive.

In my view, an appropriate sentence would be one of imprisonment with hard labour for twenty months. Such a sentence when considered with the four months that the appellant had already spent in custody represents an effective sentence of two years which still remains a severe punishment upon a first offender and marks an increase in sentence for this offence in accordance with the warnings previously given by this Court and now repeated.

I would give leave to appeal against the sentence, allow the appeal and quash the sentence and in substitution thereof impose a sentence of twenty months with hard labour.

BREDMEYER J: I consider that this court should substantially increase the punishments normally imposed for housebreaking. The great increase in the incidence of the offence, as seen by the installation of security bars, lights, fences and security services in recent years, warrants in my view the imposition of sterner punishments. I do not believe that the sentences for housebreaking over the years have increased to match the increase in the number of offences. In this I differ from my learned brother Andrew, J. Regrettably we have no academic study of the sentences imposed in this country, such as have been made in other jurisdictions, but my impression is that punishments for housebreaking have not increased over recent years. My impression is that the judges appointed after the Rooney affair - and I include myself among that number - are lighter sentencers for this offence than those who sat on the bench before the Rooney affair. I also note that a leading 1976 sentencing decision, Bokun Umba v. The State SC250.html#_edn213" title="">[ccxiii]⁹ which upheld a sentence of five years for break and enter has not been followed as a guide. My impression is that sentences for break and enter offences have gone down in recent years and that a sentence of about fifteen months is now the norm.

The second reason why I consider that the penalties imposed by the courts for housebreaking should increase is that the Criminal Code provides higher maximum penalties for housebreaking than burglaries of business premises and I consider that this court should reflect that difference in its sentences. Although there is some overlap between the penalties allowed for the two kinds of burglaries in the Code, in general the maximum penalties allowed for housebreaking are fourteen years and life (s.395) compared to the maximum penalties allowed for burglary of business premises of seven years and fourteen years (ss.399 and 398). I have read the leading decisions on sentencing for break and enter offences which are Mandatititip v. The State SC250.html#_edn214" title="">[ccxiv]¹⁰ and the earlier decisions reported therein, and the later decisions of Bakiri Pena v. The State SC250.html#_edn215" title="">[ccxv]¹¹ and Acting Public Prosecutor v. Joe Kovea Mailai SC250.html#_edn216" title="">[ccxvi]¹² but none of those decisions make any great distinction in the kind of punishment that should be imposed for housebreaking as distinct from burglaries of other premises. The Criminal Code makes housebreaking more serious than other break and enters undoubtedly for the reason that housebreaking involves danger or potential danger to the house occupants. The leading decisions of Mandatititip and Bakiri Pena, already cited, establish a sentencing range of about eighteen months to two years’ imprisonment with hard labour for burglaries of commercial premises by gang offenders aged 17 or more who have no priors and who plead guilty. I consider that housebreaking by similar offenders and stealing a similar quantity of goods merit higher sentences within the range of two to two-and-half years.

With that general range of sentence in mind I now turn to the particular circumstances of the appellant’s burglary of Dr. Struve’s house at Wabag. The salient features of the appellant’s offence have been carefully detailed by Andrew, J. but I would like to add to and reiterate some of his points. Dr. Struve was home on the night of the burglary, asleep. The gang of which the appellant was a part appeared to have “cleaned out” the doctor who appears to have been living simply. They stole his cash K195, his credit card, his unused cheque forms, his camera, torch, two pairs of shoes, and two knapsacks; they stole his electronic stethoscope and blood pressure cuff; they also stole his cooking utensils, and two bilums and a cassowary feather he had recently purchased. The medical equipment no doubt of great value for the good of others is the Enga Province was damaged beyond repair. The two bilums and the cassowary feather stolen had been sold to the doctor by the appellant about three days before! On top of all this the appellant was a Youth Co-Ordinator employed by the government at Wabag presumably trying to do something positive for the youth of the Enga Province. What an example to set for them! When I weigh up these matters, plus those matters which were mentioned before the trial judge and before this court in favour of the accused, I consider the crime a particularly shabby one and that a sentence of two years four months is merited. The trial judge’s effective sentence of three years four months is significantly higher, indeed 42% higher, than the sentence I would have imposed. Although the learned trial judge made no error in principle I consider that this significant difference in sentence makes the sentence which he has imposed manifestly excessive. For these reasons I would allow the appeal and substitute an effective sentence of two years four months. As a sentence can only commence from the first day of the sittings of the court at which the offender is convicted (Code s.20), and the appellant spent exactly four months in custody before then awaiting trial, I would now impose a sentence of two years’ imprisonment with hard labour.

I should add that the above reasons were prepared before the May 1983 sittings of the National Parliament when maximum penalties for burglary of 3 years and 8 years for burglary at night were imposed. Those penalties are not yet in force and cannot affect the punishment for this offence which was committed in October 1981 but they do indicate the nation’s desire for sterner punishments for burglaries.

KAPUTIN J: I agree with the judgment of Andrew J. and I have nothing further to add.

ORDER

Appeal against sentence allowed. Sentence of twenty months imprisonment with hard labour substituted for the sentence of three years imposed by the trial judge.

Lawyer for the appellant: Public Solicitor

Counsel: N. Kirriwom

Lawyer for the respondent: Public Prosecutor

Counsel: J. Byrne

SC250.html#_ednref205" title="">[ccv]^{(1978) P.N.G.L.R. 128 at 131}

SC250.html#_ednref206" title="">[ccvi] ^{(1909) 2 Cr. App. R. 67}

SC250.html#_ednref207" title="">[ccvii]^{[1934] SAStRp 15; (1934) S.A.S.R. 62}

SC250.html#_ednref208" title="">[ccviii] ^{(1977) W.A.R. 47}

SC250.html#_ednref209" title="">[ccix] ^{(1976) 14 S.A.S.R. 388 at 390}

SC250.html#_ednref210" title="">[ccx] ^{(1976) 14 S.A.S.R. 240}

SC250.html#_ednref211" title="">[ccxi]^{(1979) P.N.G.L.R. 605}

SC250.html#_ednref212" title="">[ccxii]^{Unreported Supreme Court Judgment, SC 194, dated 26th March, 1981.}

SC250.html#_ednref213" title="">[ccxiii]^{Unreported Supreme Court judgment SC92 dated 2nd April, 1976.}

SC250.html#_ednref214" title="">[ccxiv]^{(1978) P.N.G.L.R. 128.}

SC250.html#_ednref215" title="">[ccxv]^{Unreported Supreme Court judgment SC183 dated 3rd November, 1980.}

SC250.html#_ednref216" title="">[ccxvi]^{Unreported Supreme Court judgment SC203 dated 31st July, 1981.}