N2636

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 894 0F 2004

THE STATE

V

TOBBY ALEKUN

WEWAK	 : 	CANNINGS J
12, 13, 20, 25 AUGUST 2004

Criminal Law – indictable offence – Criminal Code, Division VI.1 – Section 372(1), stealing – guilty plea – offence occurring in public place – town market – appropriate head sentence – trend towards non-custodial sentencing for non-violent crimes – whether stealing from a person in a market is a non-violent crime – whether appropriate to suspend all or part of sentence – conditions – sentence.

Cases cited:
Wellington Belawa v The State [1988-89] PNGLR 496
Doreen Liprin v The State (2001) SC673
The State v Micky John Lausi (2001) N2073
The State v Jimmy Solomon (2001) N2100
The State v Dobi Ao (No 2) (2002) N2247

Counsel:
Mr J Wala for the State
Mr L Siminji for the accused

CANNINGS J: 

INTRODUCTION

This is a criminal case. The accused, Tobby Alekun, is a young man, aged 24, who lives in Maprik. 

The events giving rise to this case happened on 31 October 2003 at Maprik town market in the East Sepik Province. A lady was in the market carrying a bag in which there was an amount of cash, K2,900.00. It is alleged that Tobby Alekun came from behind that lady, grabbed the bag and stole all the cash. The money in that bag belonged to Norm Unabun.

LAW

The accused faced an indictment based on Section 372(1) of the Criminal Code.

Section 372 states:

(1)	Any person who steals anything capable of being stolen is guilty of a crime.

Penalty:	Subject to this section, imprisonment for a term not exceeding three years.

(2)	If the thing stolen is a testamentary instrument, (whether the testator is living or dead), the offender is liable, subject to Section 19, to imprisonment for life.

(3)	If the thing stolen is anything in course of transmission by post, the offender is liable, subject to Section 19 to imprisonment for life.

(4)	If the thing stolen is an aircraft, the offender is liable to imprisonment for a term not exceeding 14 years.

(5)	If—

(a)	the thing is stolen from the person of another person; or
(b)	the thing is stolen in a dwelling-house, and—

(i)	its value exceeds K10.00; or
(ii)	the offender at or immediately before or after the time of stealing uses or threatens to use violence to any person in the dwelling-house; or

(c)	the thing is stolen from a vessel, vehicle or place of deposit used for the conveyance or custody of goods in transit from one place to another; or
(d)	the thing is stolen from a vessel that is in distress or wrecked or stranded; or
(e)	the thing is stolen from a public office in which it is deposited or kept; or
(f)	the offender, in order to commit the offence, opens a locked room, box or other receptacle by means of a key or other instrument,

the offender is liable to imprisonment for a term not exceeding seven years.

(6)	If the offender is a person employed in the Public Service, and the thing stolen—

(a)	is the property of the State; or
(b)	came into the possession of the offender by virtue of his employment,

he is liable to imprisonment for a term not exceeding seven years.

(7)	If the offender is a clerk or servant, and the thing stolen—

(a)	is the property of his employer; or
(b)	came into the possession of the offender on account of his employer,

he is liable to imprisonment for a term not exceeding seven years.

(8)	If the offender is a director or officer of a corporation, and the thing stolen is the property of the corporation, he is liable to imprisonment for a term not exceeding seven years.

(9)	If the thing stolen is—

(a)	property that has been received by the offender with a power of attorney for its disposition; or
(b)	money received by the offender with a direction that it should be applied to any purpose or paid to any person specified in the direction; or
(c)	the whole or part of the proceeds of a valuable security that was received by the offender with a direction that the proceeds of it should be applied to a purpose or paid to a person specified in the direction; or
(d)	the whole or part of the proceeds arising from a disposition of any property that have been received by the offender by virtue of a power of attorney for such disposition, the power of attorney having been received by the offender with a direction that the proceeds be applied to a purpose or paid to a person specified in the direction,

the offender is liable to imprisonment for a term not exceeding seven years.

(10)	If the thing stolen is of the value of K1,000.00 or upwards, the offender is liable to imprisonment for a term not exceeding seven years.

(11)	If the thing stolen is a fixture or chattel let to the offender to be used by him with a house or lodging, and its value exceeds K100.00, he is liable to imprisonment for a term not exceeding seven years.

(12)	If the offender, before committing the offence—

(a)	had been convicted on indictment of an indictable offence against any provision of this Division; or
(b)	had been twice previously summarily convicted of an offence against any such provision punishable on summary conviction whether or not each of the convictions was in respect of an offence of the same character,

he is liable to imprisonment for a term not exceeding seven years. 

GUILTY PLEA

On 12 August 2004 the indictment was presented and the accused was arraigned. He pleaded guilty. I entered a provisional plea of guilty subject to my reading of the District Court depositions. 

I examined the depositions. There was adequate evidence on the face of the file of the commission of the offence. There were no reasonable defences available that had been over-looked. I was satisfied that the accused properly pleaded guilty. I accepted the guilty plea. I entered a guilty verdict and convicted the accused of the offence as charged. He was then referred to as the prisoner. 
ANTECEDENTS

I asked for the prisoner’s antecedents. Mr Wala, for the State, notified the Court that the prisoner has no prior criminal record. But there is a similar offence of which he was convicted by the District Court. That happened earlier this year. He is serving a 12-month sentence for that.

There was some discussion between bench and bar as to whether that is properly to be regarded as an antecedent. Both counsel suggested that this conviction should not be regarded as a prior offence. I did not make a ruling on that. I was not given the benefit of any authority on that point. I have not been able to locate any. I have reservations about counsels’ submissions. But ultimately I decided to give the prisoner the benefit of the doubt. I therefore regarded him as a first offender. 

ALLOCUTUS

I then administered the allocutus. The prisoner was given the opportunity to say what matters he considered ought to be taken into account when deciding on punishment. He said that this was the first time that he had done such a thing. He was very sorry for what he had done. He has a wife and children to look after. He will find it hard to pay back the money he stole. 

SUBMISSIONS ON PENALTY

Mr Siminji, for the prisoner, made detailed submissions on penalty pointing out that the prisoner was married with two children. His youngest child is aged 6 months. He looks after his mother and his sister back in the village. He attends the Assemblies of God Church. He was taken into custody on 9 April this year. He is currently serving a 12-month prison term imposed by the District Court at Maprik for a similar offence. 

Mr Siminji asserted that the maximum penalty for this crime is three years. He emphasised that the prisoner pleaded guilty. This saves time and expense. It indicates his genuine remorse. His guilty plea is consistent with prior admissions. He has maintained his regret all along. A suspended sentence would be the appropriate penalty. 

It was at that point that Mr Siminji suggested that a pre-sentence report be prepared. The case was adjourned to allow that to happen. That report was filed on 19 August 2004. The Court now has a pre-sentence report prepared by the Community Corrections Officer in Wewak, Mr Moses Galus. 

I have looked at that very carefully. Mr Galus has concluded, significantly, that Tobby Alekun is not considered a danger to the community or to any individual person. He is a suitable candidate for probation supervision on a longer term of 2 years. He is suggesting that the offender be ordered to pay back K2,900.00 within the probation period. 

Mr Wala did not object to the imposition of a non-custodial sentence. He suggested that the prisoner be given 6 to 12 months to pay. 

RELEVANT CONSIDERATIONS

In deciding on sentence I followed a three-step process. 

Step 1 – what is the appropriate head sentence? 

I considered the case of Wellington Belawa v The State [1988-89] PNGLR 496. I tried to apply the criteria outlined in that case to this case. But this is an offence of stealing as opposed to misappropriation. They both could be regarded, to some extent, as non-violent crimes. But in my view an offence of stealing – where a person invades the physical space of another person and steals from that other person’s body – is in a different category to the situation where someone engages in a fraud and gets money from another person. 

I carefully considered Mr Siminji’s assertion that the maximum penalty here was three years. Under Section 372(1) of the Criminal Code the offence of stealing, without any of the aggravating circumstances prescribed in other sub-sections of Section 372, carries a punishment of imprisonment for a term not exceeding 3 years. But Section 372(5) states that if the thing is stolen from the person of another person, the offender is liable to imprisonment for a term not exceeding seven years. Tobby Alekun stole from the person of somebody else. So I dealt with this case as if the maximum penalty is seven years, not three years. It is a serious case. 

The other thing I find particularly serious about this matter is that the offence occurred in a public place – in a market. In Papua New Guinea the market is a very special place in local communities. A market, particularly in a town like Maprik where in recent times there has been a lot of economic activity, should be a place where people of all walks of life and people from the villages and people from the town and visitors to the town and tourists should feel welcome and safe. 

Markets must be a place where families can come with their children. Everyone should be able to come in safety and security. They should be able to do their marketing, do their business, talk to their friends, tell stories and do everything that does not interfere with the rights and freedoms of others in an atmosphere of peace. They should be able to come into the market with cash in their bilums and trust their community neighbours. 

It is a very big problem in Papua New Guinea, particularly in the markets in the large towns, that people no longer feel safe. They do not go to the market because these sorts of crimes are happening with too much prevalence. The People of Papua New Guinea are fed up with pick-pockets and those who create violence and wreak havoc in markets. 

For these reasons the Court must regard the offence of which the prisoner Tobby Alekun has been convicted, as a serious one. The head sentence should be, in this case, two years. That is step one. 

Step 2 – should all or part of the head sentence be suspended? 

There has been a trend in recent times in non-violent crime cases to apply alternative punishments. In The State v Dobi Ao (No 2) (2002) N2247 Kandakasi J addressed the issue as follows:

I agree it is time now to seriously consider alternatives to sentencing in this type of cases. But, that with respect, does not necessarily mean head sentences be drastically reduced. Instead it means in my view that, there be sterner head sentences and then either have them wholly suspended or it be made part custodial and part non-custodial. This is to show the seriousness of the offence and to serve both the purposes of deterrence and rehabilitate an offender. It would also give the offender a consideration to faithfully meet any conditions that might be imposed for suspending either in part or in whole the head sentence. The absence of a sanction for failing to meet such conditions might give no reason to the offender to comply.

As I observed in the case of The State v Micky John Lausi (27/03/01) N2073 and cited in The State v Jimmy Solomon (6/7/01) N2100:

"It is erroneous to treat the suspension of sentence for imprisonment as merely an exercise in leniency. Because such order is made in the community interest and is generally designed to prevent re-offending which a prison sentence, standing alone, seldom does. A person so released as an obvious incentive not to re-offend. Therefore, there should be no misconceptions as to what will occur if he does. From time to time, persons charged with more serious offences may be dealt with in this manner by reason of good character, the court’s view that there will be no re-offending, that treatment is required outside prison and, at times, by reason of the fact that the court believes that a particular offender will be positively damaged by immediate incarceration."
 
With respect therefore, a non-custodial sentence does not grant the offender immediate liberty. He is simply allowed to serve his penalty out of the prison system for reasons such as those noted in the above passage. Hence, the need to impose a head sentence and conditions for a suspended sentence that will make that clear to an offender.

Kandakasi J also referred to the leading case of Doreen Liprin v The State ((2001) SC673, Supreme Court, Amet CJ, Kapi DCJ, Los J). 

I have had regard to those precedents. But I have also had regard to the fact that this is a different crime to misappropriation. It is not exactly a non- violent crime. Tobby Alekun invaded the space of the woman who was carrying the bag. He immediately and most assuredly made that person feel absolutely terrible. It is a terrible thing for anybody to have something that belongs to them – or, perhaps worse, something they are carrying that belongs to somebody else – stolen from them. It is a gross invasion of their space and their privacy and their peace of mind. So there is an element of violence here. 

I have considered the probation report and I have had regard to Mr Siminji’s valid submission that a person who pleads guilty and cooperates needs to be given some consideration. So I will suspend 18 months of that two year term, subject to compliance with certain conditions. 

Step 3 – what conditions should be imposed?

The conditions are as follows: 

1	Immediately after the handing down of this decision or as soon as practicable the offender shall meet with the Wewak-based Community Corrections Officer to negotiate a detailed plan of action for the service of his probation. 

2	The Community Corrections Officer shall within one month after today file that detailed plan of action with the Clerk of the Court in Wewak.

3	The Clerk shall then forward copies of that plan to me as the presiding Judge and to the lawyers involved.

4	As part of that report or detailed plan of action the Community Corrections Officer shall in consultation with the prisoner work out a way that he can pay back the money that he stole as soon as possible within the two year term of the sentence. 

5	The National Court shall consider the detailed plan and notify whether it is acceptable. This will be done within 14 days after receiving it. If it is not acceptable then the prison sentence that has been suspended will crystallise.

6	There shall be a probation report submitted by the Community Corrections Officer to the National Court every three months after today.

7	If the report is at any time unsatisfactory, the prison sentence will crystallise.

8	The offender shall not leave Papua New Guinea without the leave of the National Court. 

SENTENCE

For the reasons stated above Tobby Alekun is convicted of the crime of stealing.

The punishment is: 

1	two years imprisonment, cumulative on the term of imprisonment that he is currently serving after being convicted of a similar offence by the District Court at Maprik, less any period in custody that relates directly to his being dealt with for the occurrence that resulted in him being convicted and sentenced in the present proceedings; and 

2	18 months of that term shall be suspended subject to eight conditions, as prescribed above.
___________________________________________________________
Lawyers for the State			: 	Public Prosecutor
Lawyers for the accused		: 	Public Solicitor