N2554

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 722 (A) of 2003

THE STATE

-V-

BRENDAN OLL and
NATHAN SAISAI

VANIMO:	KANDAKASI, J.
2004 : 12th, 19th and 25th March

DECISION ON SENTENCE

CRIMINAL LAW & PRACTICE – Sentencing – Break, enter and stealing – Sentencing guidelines – Need to consider sentences imposed in previous cases – Need for sentences in subsequent cases to be within the range of sentences being imposed unless circumstances justifying a departure exist – Prevalence of offence or its opposite relevant factor – Criminal Code ss 398 (a)(i) and 19.

CRIMINAL LAW - Sentence – Break, enter and stealing from a mission warehouse – K5,860.00 estimated value of items stolen all recovered – First time offender – Guilty plea and cooperation with authorities – Victim agreeable to non-custodial sentence with conditions - Prevalence of offence and past sentences considered - Past sentences not deterring would be offenders – Two years wholly suspended sentence on terms imposed – Criminal Code ss.398(a)(i) and 19.

Cases cited:
The State v. Aiton Ipai (Unreported judgment delivered on 26/09/97) N1629.
The State v. Rocky Masa Kuno (Unreported judgment delivered on 4/07/98) N673(S).
The State v. Michael Kamban Mani (Unreported judgment delivered on 21/05/02) N2246.
Acting Public Prosecutor -v- Clement Makei and Tom Kasen SC205.
Public Prosecutor v. Don Hale (1998) SC564.
The State v. Robert Kawin (Unreported judgment delivered on 24/12/01) N2167.
The State v. Abel Airi (Unreported judgment on 20/11/00) N2007.

Counsel:
F. K. Popeu for the State
D. Kari for the Accused

25th March, 2004

KANDAKASI, J: 	You both pleaded guilty to one charge of break, enter and stealing a number of a properties, including a chainsaw and various other items having a total estimated value of K5,860.00 from the Catholic Missions’ Bishops hill warehouse at Aitape, Sandaun Province on 7th January 2003. The charge against you was presented under section 398 (a)(i) of the Criminal Code. 

Upon reading the evidence against you, including your respective records of interview, I informed you in Court that the evidence supported your guilty plea. I therefore accepted your guilty plea and convicted you on the charge presented against you. I then heard from both yourself and your lawyer on sentence. I also heard from the State on that issue as well and I reserved a decision on sentence pending receipt of a pre-sentencing report. I requested such a report in view of your argument for a suspended sentence. The probation service furnished a pre-sentence report and it is now before the Court.

The Facts

The facts as they appear from the material in the deposition and as put to you during your arraignment are these. Around midnight of the 7th of January 2003, at Aitape, you went to the Catholic Bishops hill and broke into the Mission’s warehouse by cutting the lock to the warehouse door with a bolt cutter. You then gained entry and stole from there a number of valuable items. That included a chainsaw, a wheelbarrow, 3 cartoons of 3" nails a battery for a wokabaut sawmill and other items. The total value of the items you stole was about K5, 860. You had the items stolen distributed amongst yourselves and others on the same day.

Police received information about the incident and carried out their normal duties. The police eventually identified you as the offenders. Therefore, they arrested you on the same day of the offence and fully recovered with your assistance all the properties you stole. You freely admitted to committing the offence, a position you have continued to take before this Court.

Submissions and Considerations

When the Court asked you to address it on your sentences, both of you said, you would leave that to your lawyer. Your lawyer then made submissions on your behalf essentially pointing out your respective personal and family backgrounds and that both of you are about 20 years old. He urged the Court to note that, both of you co-operated well with police and that you have pleaded guilty to the charges. He also urged the Court to note the recovery of all of the items you stole. In the circumstances, he asked the Court to impose a non-custodial sentence with probation orders. As noted in view of that submission, I called for a pre-sentence report from the probation services. 

The Court now has the pre-sentencing report from the probation services. The Court expresses its appreciation for the efforts put toward it by the probation service here in Vanimo and Aitape.

The pre-sentence report has inputs from your immediate community including the victim of your offence. They support the call for a non-custodial sentence but on terms to help you to pay for your crime and to reform and become law loving and abiding citizens. They have indicated their preparedness to help you meet any probation orders this Court might make.

The State is supportive of your submission. Hence, there is no argument that you be given a non-custodial sentence but on terms.

The Offence

Section 398 of the Criminal Code provides for the offence of break, enter and stealing from a warehouse. This provision also provides for the penalty. This offence carries a maximum penalty of 14 years.

Both Counsels did not provide the Court with any case authority on point. My limited research has failed to produce a case of break, enter and stealing from a warehouse. However, I do note that there are some cases on break, enter and stealing from other buildings or structures.

One such case is the judgment in The State v. Aiton Ipai (Unreported judgment delivered on 26/09/97) N1629. There, Lenalia A.J.,(as he then was) imposed a part suspended sentence of 2 years on a guilty plea. The prisoner was a first time young offender with most of the items stolen valuing over K14, 000.00 recovered. He cooperated with the authorities like police. Further, the Court noted that the offender admitted to two further and pending charges committed in the one transaction.

Subsequently, Woods J imposed a custodial sentence of 3 years against the prisoner in The State v. Rocky Masa Kuno (Unreported judgment delivered on 14/07/98) N673(S). In that case, the prisoner also pleaded guilty to a charge of break, enter and stealing from a dwelling house at night. There, the prisoner acted with others and was armed.

As I noted in The State v. Michael Kamban Mani (Unreported judgment delivered on 21/05/02) N2246, none of these cases provide any assistance in terms of providing a guideline for sentencing in these types of cases. In the circumstances, I consider it necessary to suggest some guidelines for future purposes for break enter and stealing cases. I then said:

A closure examination of the above two cases make a number of points clear from which a guideline might be extracted. 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 the offenders mitigation and sentences lower than the prescribed maximum may be imposed. Thirdly, the break, enter and stealing of a dwelling house armed with weapons and in the company of others attract sentences higher that those imposed for the commission of the offence involving structures such as a office. 

To these, a number of factors must be added. I consider these factors important in order to properly discharge the duty placed in a sentencing judge to impose a sentence that best meets the interest of the society to punish offenders and rid the society of such offenders if possible and the interest of an offender to be rehabilitated. First, is the amount or the value of property taken and whether all or any of the property stolen has been recovered. In my view, if the amount of money or value of the property involved is high and has not been recovered, that should attract a sentence higher than the kind of sentence imposed in one where they have been recovered. Secondly, prevalence and effect of the offence against the victim and the community or society as a whole. If the impact of the offence deprives the community of a vital service such as health services, important research work which as the potential of greater benefit to the society, the sentence should be sterner to reflect such impacts on the society. After all, criminal sentencing is a duty being discharged by the Courts on behalf of the community. Thirdly, prevalence or otherwise of the offence, which could be reflective of the ability of the previous sentence to either deter or not deter other would be offenders. For it would be a disservice to the society if too lenient sentences are imposed and they fail to rid the society of such offenders. At the same time, it would also be a disservice to the society if the sentence imposed does not adequately reflect the gravity of the offence and impacts of the sentence on the offender in terms of his rehabilitation. Finally, the kinds of sentences that are being imposed in similar but less serious offences such as a simple act of stealing should be considered to ensure that sentences in an higher or serious offence is not lower than those imposed for the less serious offences." 

Guided by these principles, I imposed a sentence of 3 years part suspended. That was in a case of break, enter and stealing of a generator from a Health Centre and sold to a third party. However, good police work recovered it. The prisoner pleaded guilty from the time of his apprehension to the point of his arraignment. 

I then suspended part of the sentence based on authorities like Acting Public Prosecutor -v- Clement Makei and Tom Kasen SC205 and Public Prosecutor v. Don Hale (1998) SC564 in accordance with a good pre-sentencing report, which I accepted. That was on strict terms.

Sentence in Your Case

For the purposes of determining an appropriate sentence for you, I note and take into account your respective personal and family backgrounds. I then note in particular that both of you are first time offenders. That means, this is your first offence and that, this is the first time you are before this Court convicted with the offence of break, enter and stealing and any other offence. The pre-sentence report shows that you had a good record and the commission of this offence was out of character.

You have both co-operated with the police and have freely admitted to committing the offence. This has saved the State and the Court substantial trial time and costs.

Further, I note that you have also assisted the police in the recovery of the items you stole from the warehouse after breaking into it. Therefore, you did not benefit from it, although I note this cannot be a reason to excuse you from your criminal liability. 

Furthermore, the victims of your offence agree to a non-custodial sentence but on community service orders, which they are prepared to supervise, given their interest and association with the criminal justice system particularly with young offenders. 

The above are the factors in your mitigation. There are however, some other factors, which are against you. Firstly, I note both of you are adults and were therefore in a position to appreciate the negative impacts of what you were doing. Nevertheless, you acted in the way you did.

Secondly, the estimated value of the property stolen was K5, 860.00, which is above K1, 000.00 for the purposes of section 398 (a)(i) and that you acted in the company of each other. These two factors distinguish your case from that of the The State v. Aiton Ipai (supra). But your case is similar to that case, in that all of the items stolen estimated to have a value of over K14, 000.00, were recovered and the prisoner did not benefit from his offence. Properties housing the items stolen were broken into in both your case and that case, which meant the respective owners had to incur extra, unexpected costs to repair them.

Your case is however distinguishable from that case simply because of the fact that, it was a case of break, enter and stealing from a dwelling house. Dwelling houses are the castle of a man, irrespective of whatever quality, shape or style it is. Perpetrating a crime at or out of such a place is a serious act. If the offence is committed in the night as it was in that case, it is even more serious. This is why commission of offences at such places is considered more serious than one that may be committed elsewhere. The only assistance this case may provide you is the fact that your sentence might have to be lower than the sentence in that case if a consideration of all the other factors I have just outlined above so dictate.

But your case could come closer to that of The State v. Michael Kamban Mani (supra). There, it was a break, enter and stealing from an office that housed the properties stolen. The properties stolen had substantial value and recovered to the owner and victim of the offence. The victim was a public institution. I found that the offence had the potential of affecting health services to the community. 

In your case, you broke into and therefore damaged a church’s warehouse. This is the third or a further factor against you. Churches provide a useful service to society. Therefore, an offence against a church affects such services. Instead of looking after it, you broke into it and stole from it. This kind of offence is on the increase. That leads to the final factor against you, the prevalence of the offence of, break, enter and stealing. 

Our schools, health centres, hospitals, other government, churches and or public buildings, offices and or properties are almost on a daily basis falling victim to break, enter and stealing. In some areas of our country, it is so serious that, vital services such as hospitals and schools are closing down. There is simply a lack of appreciation by a very few inconsiderate elements in the society like you, of the services these institutions provide to a large number of our people There is a total lack of appreciation and respect for these services by people like you. Your kinds of people are showing no concern by your very conducts, which are not only going to offend one victim but an entire community as in your case, the whole of the people in the Aitape area and ultimately the country.

In the The State v. Aiton Ipai (supra) case, the learned trial judge, did not with respect, have regard to the impact of the offence on the victim and the community at large. It also did not have regard to any past sentences in this kind of cases and the effect of such sentences on people like you. The learned trial judge did not have any regard to the competing interests of the community to punish offenders like you and the interest of the offender to receive a fair opportunity to reform. His Honour with respect appears not to have, considered the fact that the crime of, break, enter and stealing was prevalent. It seems His Honour was simply concerned with the interest of the offender more than that of the community or society. This was apart from an acknowledgement that the offence of, break, enter and stealing is a serious offence against society. In my view therefore, with respect, His Honour did not carefully weigh those two equally important and competing interests to do justice in the case. If His Honour considered all of these factors, he would have arrived at a sentence higher than 2 years.

A final factor against you is that, in The State v. Robert Kawin (Unreported judgment delivered on 24/12/01) N2167, I imposed a sentence of 2 years cumulative on two charges of stealing presented under s.372 (1) for just stealing by an act of forgery in breach of a trust placed on him by the victim. The total of the amounts stolen was K50.00 initially and K2, 200.00 later of that only K500.00 was recovered. 

In your case, the total estimated value of the goods stolen was K5, 860.00, and all recovered. This means your sentence may have to be higher than the sentence in that case.

Bearing all of these in mind, I now turn to a determination of a sentence for you. I remind myself at the outset of what I said in The State v. Abel Airi (Unreported judgment delivered on 20/11/00) N2007, and cited in the The State v. Robert Kawin, (supra) that: 

"… [T]he exercising of a sentencing judge or court’s discretion is not a matter of mathematics but rather an application of that discretion judicially having regard to the particular circumstances of the case, noting that a case as to be determine on its own facts. Exercising that discretion may well defer from judge to judge and that they may well be differences in the number of years imposed for similar offences depending on the nature and circumstances in which the offence is committed."

Considering all of the above, including both the factors for and against you and the sentences in the cases cited, I consider a head sentence of 3 years appropriate. This reflects your guilty plea by a reduction of 4 years from the maximum prescribed of 7 years. It also reflects the fact that the offence of, break, enter and stealing is prevalent and in some instances, it is seriously affecting the delivery of vital goods and services like medical services and education and that past sentences appear not to be deterring other would be offenders, which is evidenced by you committing this offence. Further, it takes into account the fact that, break, enter and stealing is a more serious offence than just stealing although the maximum penalty might be similar. This is because the offence of, break, enter and stealing is more violent then an act of mere stealing.

However, in view of the factors in your mitigation, I am prepared to make the sentence, part custodial and part suspended. In deciding to suspend part of the sentence, I remind myself of what I said in The State v. Abel Airi (supra). There, I said and maintain the view that a decision to suspend wholly or a part of a sentence is not an exercise in leniency but a form of punishment aimed at achieving one of the objectives of criminal sentencing, namely to rehabilitate offenders. 

Of the 3 years head sentence, I order the 1 year 2 months you have already spent in custody awaiting your trial to constitute the custodial part of the sentence with the balance of 1 year 10 months suspended on the following terms:

1.	You immediate undertake to be of good behaviour bond and agree to faithfully, comply with the terms that follow straight after this term;

2.	You render free 4 hours daily services between the hours of 8:00am and 4:00pm from Monday to Fridays to the Aitape Catholic Dioceses or any other public institution as that church, my direct in consultation with the Probation Service in the Province.

3.	You do not leave Aitape during the period of the suspended sentence except with the prior leave of the Court;

4.	You be home bound between the hours of 6:30pm and 7:00am every day for the whole of the suspended period;

5.	You be not in the company of any youth for the whole of the suspended sentence; 

6.	You do not consume any alcoholic drink or drug of whatever make including any home brew during the currency of your suspended sentence;

7.	You undergo counselling at Wok Sambai Counselling Services as suggested in the pre-sentencing report;

8.	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 report with such recommendations as he might consider appropriate either for a variation or an implementation of these terms;

9.	The Probation Service shall furnish a quarterly report to this Court with the first due on 25th June 2004; 

10.	If for whatever reason you breach any of these terms, you will serve the balance of the term of the suspended sentence as at the time of the breach;

11.	You will be at liberty to apply for a review and or variation of any of these terms including a lifting of terms and conditions herein stated provided there has been a substantial compliance.
___________________________________________________________________

Lawyer for the State: 			Public Prosecutor
Lawyer for the Accused:		The Public Solicitor