N2415

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 623 of 2003

THE STATE

-V-

RICHARD DUSAL BIX AND SIPRIAN SIPI KARO

WEWAK: KANDAKASI, J.
2003: 05th and 6th June

CRIMINAL LAW - Sentence – Stealing – Stealing from the bar of a motel sums of money totalling K2,700 with K800 recovered and returned to victim – Prisoners benefited from the proceeds of the offence – Generally the offence of stealing is prevalent – A deterrent sentence called for – Prisoners both first time offenders though not young – Prisoners both prepared to repay the balance of money stolen - Sentence of 3 years imposed to be suspended upon a full repayment of the balance of money stolen and on other terms including community service orders – ss.19 and 372(10) of the Criminal Code.

Cases Cited:
The State v. Sabrina Yakal [1988-89] PNGLR 129.
The State v. James Gurave Guba (19/12/00) N2020.
The State v. Jack Oroko Tepol (08/10/99) N194. 
The State v. Sam Nimino [1977] PNGLR 226.
The State v. Timothy Tio (00/05/02) N2265. 
The State v. Robert Kawin (24/12/01) N2167.
Gimble v The State [1988-89] PNGLR 271.
Seo Ross v. The State (30/04/99) SC605.
The State v. Michael Kamipe (11/9/96) N1471.
Ala Peter Utieng v. The State (23rd of November 2000) SCRA 15 of 2000.

Counsels:
Mr. P. Kaluwin for the State 
Mr. G. Korei for the Prisoner 

DECISION ON SENTENCE

06th June 2003

KANDAKASI J:	Both of you pleaded guilty to one charge of stealing a sum of K2,700.00 from the Windjammer Beach Motel on the 8th of February 2003 contrary to s. 372(10) of the Criminal Code.

The facts are straightforward. Between 1:00 and 2:00 am on the 8th of February 2003, you were amongst a group of men who were drinking beer at the Windjamer Beach Motel. You wanted the barmen to serve you free beer but he did not. So it seems, you Siprian Sipi Karo tried twice unsuccessfully to steal money out of the bar. Therefore, it seems you resolved to Richard Dusal Bix providing his shoulder as a form of improving your desire to reach the bar and steal money from there. That is exactly what you did resulting in Siprian Sipi Karo entering the bar and forcefully stealing from the barman sums of money totalling K2, 700.00. 

The proceeds of the theft were partly used to buy more beer for yourselves and your other friends. The rest were shared amongst you and your friends. Only K800.00 was recovered and returned to the victim.

There are other facts in the depositions that show clearly that, you use a piece of timber to threaten and indeed assault the barman. You also threatened to kill him by saying words to that effect. Whilst I do appreciate that you were charged and did plead to stealing simplicity, I must take into account the full circumstances surrounding the commission of the offence. This approach is supported by authorities like that of, The State v. Sabrina Yakal [1988-89] PNGLR 129. I followed that authority in The State v. James Gurave Guba (19/12/00) N2020. My brother, Justice Kirriwom did the same in The State v. Jack Oroko Tepol (08/10/99) N194. The Supreme Court in The State v. Sam Nimino [1977] PNGLR 226, has endorsed this practice. 

I note that you could easily have been charged with aggravated robbery. Indeed, you were committed to stand trial on that charge. Notwithstanding that, I accept that the Public Prosecutor has the power to present an indictment either higher or lower than the one for which an accused may have been committed to stand trial for. For as I said in The State v. James Gurava Guba (supra):

"… The State v. Jack Golu and Mopana Aure [1990] PNGLR 206, provides authority for the proposition that, once the prosecution and the defence have reached an agreement or a plea bargain and an indictment is presented in accordance with such an agreement, the only role of the Court in such a setting is to accept the presentation of the indictment. This emanates from the fact that, under our constitutional framework, the Public Prosecutor is the only one that has the power to decide whether or not to prosecute an offender and in what manner or for what offence. That power is not subject to any direction, control or supervision of any other authority, not even the courts. It also proceeds on the basis that the Public Prosecutor is in a better position to consider the interest of the people and the mechanics of proving a charge against an accused person and then proffers the charge he considers sustainable." 

In that case, I already expressed the view that, this is only relevant to avoid exercising more leniency toward an offender who has already had his penalty reduced by the presentation of a lesser indictment. 

Bearing this in mind, I note that s. 372(1) and (10) of the Criminal Code under which the indictment against you was presented carries a maximum of 7 years imprisonment. This has to be contrasted with the possible serious charge of armed robbery under s.386 (1) and (2), which carries a maximum penalty of life imprisonment.

A recent case on a s. 372 offence is my judgement in The State v. Timothy Tio (00/05/02) N2265. Before that, I dealt with the case of The State v. Robert Kawin (24/12/01) N2167. That was a case of two counts of stealing under subsection 1, rather than subsection 10 of s. 372. It was a case of stealing by forgery and in a breach of a position of trust. In sentencing the prisoner on a plea of guilty to a cumulative sentence of 24 months or 2 years, I noted that there were no sentencing guidelines and I tried to formulate one in these terms at pp. 5- 6. There, I said in line with the accepted principles of sentencing, the maximum sentence must be reserved for the worse case of its kind. I then said:

"A worse case of stealing would be one that might have factors like, the total value or the actual amounts of money stolen falls just short of K1, 000.00, thereby escaping an application of the provisions of subsection 10. It would also be a worse case if say an element of a breach of trust whether legal or a defector kind of trust not caught by any of the other subsections in s. 372 exists and the offence is committed in furtherance of an illegal activity or another offence." 

At the same time, I expressed the view that at the end of the scale would be simple cases of stealing, such as pocket pickings, or someone leaving some valuable item mistakenly at a place and another person steals it with full knowledge of its owner. I then expressed the view that stealing in such a situation should attract a sentence of a few months say about 3 to 4 months. 

I also stated that there would then be cases falling in between. These might be cases in which say the amount of money or the value of item stolen is small but the offence is committed in pursuance of an illegal activity or another offence. In this category might be cases where the amount of money or value of item stolen is substantial but not necessarily up to K1, 000.00. In such cases, the sentence could range from more than 4 months and closer to the maximum prescribed sentence of 3 years.
Further, I stated that a guilty plea by a first time offender, or a young offender could reduce the kind of sentences suggested. That was again in keeping with a large number of cases though in the context of other offences as in the case, Gimble v The State [1988-89] PNGLR 271 at p.275."

What I said in that case was intended to be only a guide. The actual sentence in each case must be determined on its own facts.

After the judgement in The State v. Robert Kawin case (supra), I found a number of other cases, I was not able to find before or at the time of my judgement in that case, by reason of being on circuit. The first of these cases is a Supreme Court Judgement that might be on point. That is the case of Seo Ross v. The State (30/04/99) SC605. In that case, Seo Ross pleaded guilty to two counts of stealing under s.372 (5) of the Code. The National Court imposed a sentence of two years for each count and ordered them to be served cumulatively. It did so after noting that the prisoner was a first time offender and that the properties he had stolen were recovered. On appeal against that sentence, the Supreme Court held that the National Court did not err in its judgement. Instead, it agreed with the trial judge that it was a serious offence because it involved a breach of trust by a security officer. 

The second is The State v. Michael Kamipe (11/9/96) N1471, where the prisoner was given 4 years to be served concurrently with a sentence of 6 years for hijacking an airplane, involving large sums of money.

I referred to these cases and noted in The State v. Timothy Tio case (supra), that these cases do not clearly provide us with any guideline for sentencing for any or all of the offences under s.372 of the Code. In the circumstances, I considered what I said in The State v. Robert Kawin case (supra), as a useful guide, which should be adopted with necessary modifications for an offence under subsection 10. 

I then said, when what I said in The State v. Robert Kawin (supra), is considered in the light of the above cases a number of principles emerge:

"First, the maximum prescribed penalty should not be readily imposed. Instead, it should be reserved for the worse type of the offence under consideration. Secondly, guilty pleas, and the offender being a first time young offender and the existence of such good factors operate in favour of sentences lower than the prescribed maximum. Thirdly, if the properties stolen are recovered it may operate as a factor in mitigation of an offender whilst on the other hand if the properties stolen are substantial and or have not been recovered, a higher sentence may be imposed. Fourthly, prevalence and effect of the offence against the victim and the community or society as a whole is an important factor for consideration."

Your Case

Bearing these principles or guidelines in mind, I now proceed to consider your case. I note in your favour that, you have pleaded guilty. That saved the State costs and time it could have otherwise expended to secure your conviction. I also note that you are both first-time offenders. Further, you did not use a firearm, a bush knife or such other dangerous weapons. 

At the same time, I note that you have some factors operating against you. Firstly, although you say sorry for what you have done, there is no evidence of you having said sorry to the victims of your offence, namely Windjammer Beach Motel and the barman. This is important because, as the Supreme Court said in Ala Peter Utieng v. The State (unreported and unnumbered judgement of the Supreme Court delivered in Wewak on the 23rd of November 2000) SCRA 15 of 2000) your expression of sorrow is meaningless unless it is accompanied by some tangible expression of that in terms of saying sorry to the victims of your offence and making right with them. Accordingly, your saying sorry is of no value to you or to anybody. I therefore reject that.

You chose to get drunk and expected the barman without any good reason to serve you free beer. You stayed up till very late and stole from the barman in circumstances close to armed robbery. You used parts of the proceeds of your theft to buy and drink more beer, which was a total waste. 

Thirdly, the value of the property you stole was more than the amount stated as the starting point in s.372 (10). You did not disguise yourself or did anything like that to avoid being caught. You acted like real heroes and committed the robbery in full view of others.

Fourthly, you substantially benefited from your criminal conduct. You bought beer and bought other items according to your address on sentence. 

Fifthly, the offence of stealing generally is prevalent. There is already a bad state of affairs with there being so much armed holdups and robberies at houses, stores, offices and almost everywhere. That is why security guards are employed to look after and protect people’s properties and lives at extra unnecessary costs. When people like you commit offences in the way you did, you showed contempt and disrespect for the law and decent people who are trying to provide a service to our people, and hence the country at a time when the economy of our country is in a seriously bad shape.

Finally, following on from the last mentioned factor, the more stealing there is, there is a grave danger that businesses might close down and the rest of the peaceful and law abiding persons who I note are in the majority will unnecessarily suffer. People will in the case of hotels and or motels and other service providers like Windjammer Beach Motel, will shut down and would close of business and employment opportunities to people in the community.

Apart from taking all of these factors into account, I also note both of your personal backgrounds and family needs. But I could add that, you should have taken your family needs and considerations into account before committing the offence. It is now too late to talk about such family needs and concerns. 

In the end, I consider a sentence of 3 years appropriate for both of you. But this sentence shall be suspended upon you repaying the balance of the money you stole from Windjammer Beach Motel when you are able to and on the following additional conditions:

1.	you immediately enter into your own recognition to keep peace for the currency of your suspended sentence; 

2.	you render eight hours free community service each Mondays and Wednesdays except any public holidays to the Wewak Police Station under the direction and control of the that Police Station’s Commander in consultation with the Probation Service here in Wewak;

3.	you be home bound between the hours of 6:00 pm and 7:00 am each day;

4.	you abstain from consuming any alcohol of any sort and not to go anywhere near a club or pub selling any alcoholic drink, any drinking party or feast for the period of suspended sentence;

5.	you do not leave your home and the township of Wewak during the whole of the suspended sentence;

6.	you will allow for and permit Probation Services to visit your home on a regular basis to monitor your compliance of these terms and to make such recommendations, as they consider appropriate either for a variation or an implementation of these terms;

7.	the Probation Service will attend on you each quarter to do a comprehensive review and report to this Court of your compliance of these terms.

8.	if for whatever reason you breach any of these terms, you will serve the balance of the term of the suspended sentence of 3 years as at the time of the breach;

9.	you will be at liberty to apply for a review and or variation of any of these terms supported by appropriate evidence or material;

10.	you accept that any member of your family or community will be at liberty to report to this Court of a failure to meet any of these conditions without any prior notice or warning to you.

In the end, I order that a Warrant of Commitment be issued forthwith to expire upon the express written authority for that from this Court which shall be done upon the Court receiving prove and confirmation of the payment of K1,900.00 to the Windjammer Beach Motel.
_____________________________________________________________________
Lawyers for the State:				Public Prosecutor
Lawyers for the Prisoner:			Public Solicitor