N3363

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 318 OF 2008

THE STATE

V

BARNABAS JANGUAN
Prisoner

Wewak: Davani .J
2008: 16, 24 April

CRIMINAL LAW – guilty plea to Breaking and Entering a Dwelling House at Night – theft of military apparel – theft committed on same house, twice – s. 395 (1) (c) (2) of Criminal Code Act

CRIMINAL LAW – Sentence – second offence – 4 years at Wewak Boys Town.

Facts 

The prisoner broke into the home of a soldier and stole military apparel worth K16,022.47. This was the second time that he broke into the same house. Most of the items were recovered. What was still missing, amongst others, were 3 ammunition magazines.

The depositions show also that the prisoner’s father gave little or no attention to his needs.

Held

The prisoner was sentenced to 4 years at the Wewak Boys Town.

Cases cited:

State v Michael Kamben Mani (2002) N2246;
State v Koi Poyep Posanau (2004) N2642.

Counsel:

L. Rangan, for the State
M. Mwawesi and F. Kirriwom, for the Prisoner

SENTENCE

24 April, 2008

1. DAVANI .J:   The Prisoner pleaded guilty to one (1) count of Breaking and Entering a Dwelling House at Night, charge laid pursuant to s.395 (1) (c) (2) of the Criminal Code Act (‘CCA’). This provision reads;

"395.	Housebreaking: Burglary.

(1)	A person who—
…
(c)	breaks and enters the dwelling-house of another and commits a crime in it, is guilty of a crime.
…
(2)	If the offence is committed in the night, the offender is liable, subject to Section 19, to imprisonment for life."

Evidence 

2.     The offence was committed between 1 and 3 am at Moem Barracks, Wewak. The prisoner, a soldier’s son, broke into the house of another soldier, one Lieutenant Richard Poka, and made off with military apparel, including a sword, all to the value of K16,022.47. Through the Defence Force’s investigations, most of the items were recovered. What is still missing are;

•	1 x Motorola Mobile Phone C139;
•	1 x DPCU Trousers;
•	USB Flash Drive 2GB;
•	4x per of Military green socks;
•	Civilian clothes;
•	3x Ammunition magazines

Mitigating and aggravating factors 

3.     On allocatus, the prisoner expressed remorse, apologized to his family, the victim and the court and asked the court for its mercy.

4.     The prisoner’s lawyer asked that the court impose a lesser penalty than what is provided because of the guilty plea, the expressions of remorse and the fact that most of the stolen items were recovered.

5.     Against this must be balanced the aggravating factors being;

i.	This is his second similar offence, committed upon the home of the same person;
ii.	The offence was committed at night;
iii.	The stolen items would not have been recovered had it not been for the good investigative work by Defence Force personnel;
iv.	This offence is very prevalent.

Analysis of evidence and the law

6.     The prisoner saved the court a lot of time by his guilty plea. At the same time, I am also required to take into account and balance these factors against the State’s submissions as well as the country’s call for appropriate punishment for offences of this nature which are very prevalent.

7.     Both counsel did not put before me authorities to assist in the sentencing process, only asking that I exercise my sentencing discretion under s. 19 of the CCA. Defence counsel requested a sentence of 4 years whilst the State asked for a sentence above 4 years. In this case, because the offence was committed at night, the maximum penalty, subject to the court’s sentencing discretion, is life imprisonment.

8.     First, the maximum prescribed penalty should be reserved for the worst type of offence. In this case, most of the stolen military property were recovered. However, what is still missing, amongst others, are 3 rounds of ammunition magazine. This is serious indeed. I can only speculate on the fate of these magazines. I can also assume that these magazines have fallen into the wrong hands and will be used in the commission of offences and other illegal activities. The prisoner’s actions in taking the magazines is very irresponsible and careless. It demonstrates to me a ‘don’t care’ attitude.

9.     Secondly, the military equipment are meant to be used in service of this country. They were stolen, probably for very selfish reasons, either to sell for profit, or to use them for illegal activities.

10.     The courts have expressed opinion about the prevalence of this offence and that higher sentences will act as a deterrent. But as a citizen of this country, I hear of these offences occurring nearly every day. What would it take to deter young men from preying on the lives of other citizens? What would it take to cure society of the evils that have befallen the young people of this country i.e the taking of illicit drugs, stealing and others. Is it a sign of a sick society, that the most important people, our youth are neglected by the social and political system? Against these are the Courts, who must, notwithstanding the inadequacies I have portrayed, exercise and mete justice. From my reading of the court depositions, this young man is another victim of today’s societies' woes. He could not continue high school because his adopted father, a Colonel in the army, refused to pay his school fees. That was when he stole a bicycle. Because of his father’s lack of attention, he broke into Lieutenant Poka’s house. When he was in jail, he asked for his father to visit him, his father refused, saying, ‘let him stay there, he is not my son’. After serving his jail term, he asked for school fee monies, but his father refused to pay. There may be many reasons for this, not shown in the court depositions but it demonstrates to me the need and requirement for parents to give the best of what they have to their children not just materially, but spiritually and physically as well. 

11.    Additionally, the State must start making provisions for the many young people who are incarcerated, provisions in the way of assistance to them to learn a trade and after serving their term, to become useful members of society. There is no point in placing prisoners on probation, when the facilities to assist rehabilitate prisoners are non-existent, or are there but are very run down.

12.    Having made these observations, I accept that this is a very prevalent offence. I have considered other cases where the following sentences were imposed on guilty pleas. These are;

i.	State v Michael Kamben Mani (2002) N2246 per Kandakasi .J

•	Break and Enter into a hospital Ward at night, where a generator was stolen;
•	Guilty plea to a charge under s. 398 (a) (i) of the CCA;
•	Term – On consideration of a probation report, 3 years, 2 years suspended on terms.

ii.	State v Koi Poyep Posanau (2004) N2642 per Manuhu A.J (as he then was)

•	Break and Enter into a dwelling house at night where food, camera and clothing were stolen;
•	Guilty plea to two counts under s. 395 of the CCA;
•	Term – On consideration of a probation report, 4 years for count one and 1 year for count two, sentence to be served concurrently at 2 years and 6 months.

13.    Considering all the above, including the mitigating and aggravating factors, and the fact that the prisoner is 19 years, this court will sentence the prisoner to a term of 4 years at Boys Town in Wewak. It is hoped that he will learn a trade there.

14.    He has been in custody on remand for 3 months and 23 days. He will serve the reduced term of 3 years, 8 months and 7 days.

______________________________

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