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State v Malaisa [2006] PGNC 150; N3239 (23 October 2006)

N3239

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1384 of 2006

THE STATE

-V-

THOMAS MALAISA

Kerema: Kandakasi, J.
2006: 12th, 19th and 23rd October

DECISION ON SENTENCE

CRIMINAL LAW – SENTENCING – Stealing- Stealing an outboard motor from a residential area at night – Value of Property K2,022 – Property returned to owner – Offence committed in breach of defector trust – Acting in the company of another - Guilty plea by first time offender – Pre-sentence report supportive of community base sentence – Three years fully suspended sentence on conditions imposed - Criminal Code Sections 383A (1)(a) and (b) and 19.

Cases cited:

The State v Romney Naptelai Simonopa (29/04/04) N2551.
The State v. Timothy Tio (21/05/02) N2265.
The State v. Robert Kawin (24/12/01) N2167.
Gimble v. The State[1988–89] PNGLR 271.
The State v. Richard Dusal Bix and Siprian Sipi Karo (06/06/03) N2415.

Counsels:

Mr. D. Mark, for the State.
Mr. P.Kapi, for the Prisoner.

23 October, 2006

1. KANDAKASI J: You pleaded guilty to one charge of stealing contrary to s.372 (1) (5) (b) (i) of the Criminal Code, presented by the State on the 12th of this instant. Since your arrest, you have been on a cash bail of K250. Following your conviction, I allowed your bail to continue because of the overcrowding of the Kerema police cell.

The Facts

2. The facts giving rise to the charge and your guilty plea are these. In the early morning hours between 1:00 and 2:00 am on 23 March 2006, you and your accomplice, Micky Kavana entered Lisia Lobo’s premises. Once in the premises, you entered that person’s rest house and proceeded to remove from its stand a 40 horse power outboard motor engine, then valued at about K2,022. After successfully, removing the outboard motor engine, the two of you took turns in carrying it away to your accomplice’s house. There, the two of you hid it in the ground with intent to stripe its parts off and sell them for money. After good police investigative work however, they came to you and recovered the outboard motor back to the Malalaua Health Centre, the legal owner of the motor with its propeller missing. At the time of committing the offence, you stayed with your parents. Both your mother and Lisia Lobo, from whose premises you stole the outboard motor, work in the same health centre. Your parents’ house was next to that person’s house. So this was a case of stealing from the premises of one’s immediate neighbour and work mate’s place.

Allocutus and Submissions

5. In your address on sentence, you said sorry for committing the offence and regret having committed it. You also pointed out that the stolen property was returned to the owner. You have therefore not gained from your crime. You concluded with a plea for leniency. Your lawyer drew the Court’s attention to the pre-sentence report which provides more information about your personal and family backgrounds. According to that report, you are of Oro and Gulf parentage. Your father is out of active working life after having resigned from the public service but he is more than willing to replace the propeller on the outboard motor that went missing upon its recovery and return. Your mother who works at the Malalaua Health Centre is the only bread winner for the family. You are the eldest in your family of 4 brothers and an adopted sister.

6. You have gone up to grade 9 high school formal education and were not able to complete it due to some discipline problem. You have however, continued further education in terms of certificate courses in Port Moresby which you have completed successfully. Unfortunately, you have not been able to secure any formal employment. Your family does have traditional land on which you could do some gardening to support yourself and your family.

7. Your lawyer then urged the Court to note that you pleaded guilty to the charge, you have no prior conviction, the property you stole has been returned and with the support of the parents and you are willing to replace the missing propeller of the outboard motor. He further urged the Court to note that the pre-sentence report does support a non custodial sentence.

8. Neither your lawyer nor that of the State assisted me with any cases on point. Counsels are obviously not aware or have not been able to be in tune with the judgments of the National Court. I have put out a number of judgments on stealing, some of which I will have regard to when considering guidelines for sentencing trends and tariffs in similar cases to assist with the task of arriving at an appropriate decision on your sentence.

The Offence, Sentencing Trend and Tariffs

9. The State presented the indictment against you under s. 372 (1) (5) (b) (i) of the Criminal Code. That provision reads in relevant parts as follows:

"372. Stealing.

(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.

...

(5) If—

...

(b) the thing is stolen in a dwelling-house, and—

(i) its value exceeds K10.00; or

...

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

10. Subsection (1) makes it clear that a simple act of stealing attracts a penalty of up to 3 years. However, if the offence is committed in the kind of circumstances enumerated in subsection (5), that attracts a penalty beyond the 3 years maximum prescribed under subsection (1) but such a sentence is not to exceed 7 years.

11. In The State v Romney Naptelai Simonopa,[1] I considered in detail the relevant cases, some of which were my own decisions. Of particular application were my judgments in The State v. Timothy Tio[2] and The State v. Robert Kawin.[3]

12. In the latter case, there were 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 2 years, I noted that there were no sentencing guidelines and I tried to formulate one. In so doing, I said in line with the accepted principles of sentencing that, the maximum prescribed sentence should be for the worse case of an offence under consideration. 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."

13. At the same time, I also said 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. Stealing in such a situation should attract a sentence of a few months say about 3 to 4 months. Then in between the worse and the less serious offences would be cases, which are neither serious nor less serious. Such cases 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.

14. Of course, I said a guilty plea by a first time offender, or a young offender could reduce the kind of sentences suggested. That was in keeping with a large number of authorities though in the context of other serious offences like armed robbery, where the often cited case of Gimble v. The State[4] quickly comes to mind.

15. In the Timothy Tio case, I referred to some earlier decisions I did not have the opportunity to refer to and consider at the time of the decision in the Robert Kawin case. I then noted that, those cases did not provide 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 Robert Kawin case, as a useful guide for adoption with necessary modifications for an offence under subsection (10) or for any of the other offences under s. 372 generally.

16. I then said, if we consider what I said in the Robert Kawin case in the light of all the other reported cases of stealing, 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."

17. Applying these principles, in The State v. Richard Dusal Bix and Siprian Sipi Karo,[5] I imposed a sentence of three (3) years against the prisoners. That was in a case of a guilty plea by two first time offenders. They were both drunk at the time and had used a piece of timber to scare off a bar attendant and steal a sum of K2,700.00 of which, K800.00 was recovered. I found the circumstances in which the offence was committed closer to armed robbery. I then decided to suspend the whole of the sentence on the condition of a repayment of the balance of the stolen money K1, 900.00, on the basis of a well-balanced pre-sentence report.

18. In the Romney Naptelai Simonopa case, I imposed a sentence of 3 years. The commission of the offence was in circumstance similar to armed robbery on a street. The amount of money involved was insignificant and there were no injury to the victim or anybody. The offender pleaded guilty to the charge and was a first time young offender. I left room for a suspension of the whole of that sentence on conditions of a detailed and satisfactory pre-sentence report touching on the details of proposed supervision and avoidance of any breach of conditions for any such suspension.

Your Sentence

24. Bearing the above sentencing guidelines, trend and tariffs, I proceed to consider an appropriate sentence for you. In order to do that, I take into account your family and personal backgrounds as noted in the pre-sentence report and as I outlined in the foregoing. I also need to take into account both the factors for and against you. I start with the factors in aggravation. First, in your aggravation, I note that, the value of the property you stole takes your case beyond a simple case of stealing under s. 372 (1). This means your sentence has to be not less than 3 years.

25. Secondly, you stole a property that was used for an essential public service, namely rural heath services in the Malalaua District of this Province. At the same time though, I note that the property was eventually recovered after it had been hidden for sometime and you had proceeded to implement your next desire to sell of the motor, but did not get lucky enough. In the process, you tempered with the motor and lost its propeller. Hence the property was not recovered in its original condition.

26. Thirdly, I note that in order to commit the offence, you illegally entered the premises of Lisia Lobo, who was care taking the outboard motor. Clearly, therefore in the process of committing the offence, you committed another offence of being illegally on premises. This is a clear inference open on the primary facts particularly when there is no evidence of you being permitted to be on the premises by the owner or occupant.

27. Fourthly, you committed the offence during night within a dwelling house premises. Commission of offence at or near houses is considered serious because of the sacredness of a person’s house; however it is built, whether built of permanent material or bush material or both.

28. Further, you committed the offence in possible breach of a de facto trust placed in you as next door neighbours. Usually, neighbours and friends look after each others lives and property. People never ever expect their neighbours would steal from them or commit such other offences. Only people with sick minds or are clearly arrogant and disrespectful could do the kind of things you did. It signals in my view a severe break down on the fabrics and social orders of our society. Not only was Lisia Lobo your neighbour but was your mother’s work mate and you were all being accommodated in the employers’ premises.

29. Finally, I note that you are educated and a mature man. You were therefore in a better position to appreciate and act in accordance with the trust and responsibilities placed on you. Instead, you abused that.

30. Against the above factors in aggravation, I note first in your favour your guilty plea. That saved the State the time and money it could have spent to successfully have you tried and convicted. It also saved the Court the time it could have spent in conducting a trial on the issue of your guilt or innocence. Further, it avoided the need for the relevant witnesses to come to Court and testify against you which would have been an inconvenience forced upon them by your unlawful conduct at the first place.

31. Secondly, I take into account the fact that you have no prior conviction. This means you have not been on the wrong side of the law before. Hence this is your first ever offence. The law does allow for leniency for first time offenders.

32. Thirdly, I note that you returned the property you stole although with its propeller missing. This shows an acceptance of responsibility for committing the offence and taking the necessary steps to correct it. It demonstrates that your expression of remorse is genuine. This does not however totally and fully, exonerate you from your criminal responsibility.

35. Weighing the factors for and against you I note that the factors in aggravation slightly outweigh those in your mitigation. Then having regard to the kind of sentence other offenders have received for this kind of stealing, I consider a head sentence of 3 years is warranted. Of that sentence, I am prepared to suspend the whole of it as I believe that sending you to prison will not better reform you and turn you into a better person. The suspension will only be possible on the following conditions and your acceptance of the same:

(1) Immediately upon the handing down of this decision, you attend on Mr. Joseph Frank, the Volunteer Probation Officer who is with the Catholic Mission here and settle with him a supervised 8 hours per week free community service schedule commencing 6 November, 2006 week to be rendered to the Malalau Health Centre for a period of 16 months and have that schedule delivered to the Court later today or no later than 9:00am tomorrow for the Court’s approval;

(2) Once the Court endorses the work schedule under term (1) above, you commence implementing it by or before the 6 November, 2006.

(3 You immediately enter into a recognizance to keep the peace and be of good behaviour for the whole of the suspended period of 3 years commencing today;

(4) Pay a fine of K250 by converting your cash bail of the same amount into court fine;

(5) You be home bound between the hours of 6:00 pm and 6:00 am each day;

(6) You shall reside only with your parents at Malalaua and shall not leave Malalaua and the Gulf Province without first seeking and obtaining the approval of the Court during currency of your suspended sentence;

(7) Any member of the Police in Malalaua, Kerema or in the country shall be at liberty and report to the Court and enforce any attempted or any actual breach of any of the terms of the suspension of sentence.

(8) You will allow for and permit Mr. Joseph Frank to visit your home at your costs 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 bimonthly report to this Court with the first being due by December 6, 2006.

(9) If for whatever reason you breach any of these terms, you will serve the full suspended sentence of 3 years from the date of the breach; and

(10) You will be at liberty to apply for a review and or variation of any of these terms including a lifting of any of these terms and conditions, provided there has been substantial compliance, which shall include a full compliance of terms 1, 2, 3 and 4 above.

___________________________________________

Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyer for the Prisoner

^[1] (29/04/04) N2551.
^[2] (21/05/02) N2265.
^[3] (24/12/01) N2167.
^[4] [1988–89] PNGLR 271 at p.275.
^[5] (06/06/03) N2415.