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State v Maika [2013] PGNC 302; N5194 (9 April 2013)

N5194

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 115 OF 2012

THE STATE

V

MATHIAS MAIKA

Porgera: Gauli AJ.
2013: April 5, 9.

CRIMINAL LAW – Guilty plea – Sentence – Stealing – Criminal Code Act, s. 372 (1) – Mitigating factors – No prior conviction – Entered early guilty plea –Saves time and cost – Good part of the money recovered – Aggravating factors – Pre planned – In company of others – No remorse shown – No restitution made – Stole from a relative – Sentenced to 20 months – Time in custody deducted – Balance of the sentence suspended on condition – Compensate victim with a live pig valued K1000.00 – Restitute the amount not recovered – Discharged from custody forthwith.

Cases Cited:

The State v. Manga Kinjip [1976] PNGLR 86
Goli Golu v. The State (No.3) [1982] PNGLR 92
Wellington Belawa v. The State [1988-89] PNGLR 496

Counsel

Mr. D. Mark, for the State
Mr. R. Bellie, for the Accused

SENTENCE

9th April, 2013

1. GAULI AJ: The prisoner Mathias Maika is convicted upon his plea of guilty to one count of stealing, charged under section 372 (1) of the Criminal Code Act. The prisoner with others grabbed a bag containing money and other properties from the victim who was walking along the road and he ran away.
   

BRIEF FACTS:

2. On the 30th of September 2011, the prisoner Mathias Maika was at Suyan betel nut market in Porgera. He was told by someone that Rose Awa was carrying a substantial amount of money. Rose Awa was also at the Suyan betel nut market. After her marketing she left at about 1.00pm. As she was walking along the road between Suyan market and the DPI Station at Pogera, the accused Mathias Maika with others followed her. She was alone. The accused grabbed the bag from Rose Awa and he ran away with others. The bag contained K1,700.00 in cash and other properties. The incident occurred between 1.00pm and 2.00pm. The victim's relatives went after the accused and apprehended him and brought him to Porgera Police Station. He was searched at the police station, and K1,200.00 in cash was found in his possession plus a pair of stockman boot and other properties.
   
3. In his plea, the prisoner simply said: "I committed the offence. And I ask the Court for mercy." I considered that he made his plea of guilty in plain and in no mistakable terms. I am satisfied that it is safe to accept his plea of guilty and I entered a verdict of guilty. It is a trite law that Judge should only accept a plea of guilty if it is made in plain, unambiguous and unmistakable terms: see The State v. Maga Kinjip [1976] PNGLR 86.
   

ALLOCUTUS:

4. In his allocutus the prisoner said: "I am one of the good citizens in my community but I was influenced by others at the time and I did what he did. I ask the Court for leniency".
   

ANTECEDENT REPORT:

5. The prisoner has no prior convictions.
   

PERSONAL PARTICULARS:

6. He is single aged 20 years old now. At the time of the offence and his arrest he was 18 years. He comes from Suyan village in Porgera and he belongs to the SDA Church. He is the eldest of the 5 boys in the family. He has no formal education or employment. His parents are still alive.
   

MITIGATING FACTORS:

7. The prisoner entered an early guilty plea that saves Court's time. He is a young first time offender. Nearly all the money he stole was recovered from him on the day of his arrest except the sum of K500.00 yet to be recovered.
   

AGGRAVATING FACTORS:

8. The prisoner was with a group of other young boys when he committed the offence. They seemed to have pre planned the act to steal from the victim. And they took that opportunity when the victim was all alone while walking along the road. The victim is a relative of the prisoner, therefore there was a breach of trust. The offence of stealing simplicity is a prevalent one.
   

SUBMISSIONS:

9. The defence submitted that the accused was arrested on the same day the offence was committed. He has being in custody since then for one (1) year six (6) months and five (5) days. He is a young offender. A sum of K1,200.00 was recovered at the time of his arrest. The maximum penalty for stealing is three (3) years. He asked for a term of custodial sentence between 1 - 2 years and a fine of K500.00 pursuant to section 9 of the Criminal Code Act.
   
10. The Public Prosecutor submitted that the victim is the relative of the prisoner therefore a term of 1 - 2 years imprisonment is appropriate. Stealing from a relative is slightly more serious. Both the prisoner and the victim reside in Porgera and being relatives, a compensation of perhaps one live pig to the value of K1,000.00 should be appropriate to restore peace between them.
    

DECISION OF THE COURT:

11. The prisoner pleaded guilty on the first available opportunity to an offence of stealing, charged under section 372 (1) of the Criminal Code Act. His early guilty plea has saved Court's time and that is a credit to the prisoner.
    
12. The maximum penalty for the offence of stealing simplicity is a term not exceeding three (3) years imprisonment. It is a trite law that maximum prescribed penalty are reserved for worst category of cases under consideration before a court: see Goli Golu v. The State (No.3) [1982] PNGLR 653.
    
13. The sentencing tariffs for stealing are as set out by the Supreme Court in the case of Wellington Belawa v. The State [1988-89] PNGLR 496 and the sentence ranges are, stealing the amount from:
    
    • K1.00 - K1,000.00 : rarely impose jail term.
    • K1,000.00 - K10,000.00 : 2 years imprisonment.
    • K10,000.00 - K40,000.00 : 2 – 3 years imprisonment.
    • K40,000.00 - K150,000.00 : 3 – 5 years imprisonment.
      
14. In cases of stealing from a person on the streets and in considering what would be an appropriate sentence to impose on the prisoner, the Court need to take into account the following factors:
    
    • The amount taken.
    • The degree of participation by the offender.
    • The degree of trust in the offender if any.
    • Prevalence of the offence.
    • Restitution, if any.
    • Early plea of guilty.
    • Remorse.
      
15. The present case falls within the Category 2 of Wellington Belawa (above), that means the prisoner is entitled to a custodial sentence up to two years. I take into account of above factors. The amount stolen was K1,700.00, though it may seem small, to an ordinary village who earns such amount by hard work and sweats, the amount is quite large to a villager. The prisoner actively participated in committing the offence. He had earlier met and discussed with others and he was the person who pulled the bag containing the money from the victim. It was a well calculated move. The prisoner was in the company of others and they followed the victim to an area where she was alone. There is some degree of trust placed on the prisoner as he is a relative of the victim. Stealing from a relative, in my view, is slightly more serious than stealing from someone unrelated or from a stranger.
    
16. The offence of stealing is a prevalent offence in Papua New Guinea. The prisoner has shown no remorse for the wrong he has committed. All these factors weigh against him and placed this case to be in a serious category of stealing simplicity. I would impose an imprisonment term of two (2) years.
    
17. I also take into account of his mitigating factors. The prisoner entered an early guilty plea that no doubt saves time and cost. About 60% of the amount stolen was recovered from the prisoner leaving a balance of just K500.00
    
18. At the time of the offence the prisoner was 18 years old, he would be about 20 years by now. He is a first time young offender and he has a previous good character record until this incident. He could not have committed this offence had others not influenced him. These factors weigh in the prisoner's favour. I reduced the sentence to one (1) year eight (8) months.
    
19. I do take into account that he has being in custody for one (1) year six (6) months and nine (9) days up to the date of his sentence. I deduct his pre trial custody period from his sentence of one year eight months. In the absence of any Means Assessment Report, since the prisoner stole from a relative, I consider that the victim be compensated with a live pig in accordance to Engan custom and he must make restitution of the balance of the money not recovered with a view to maintaining peace amongst the prisoner and the victim and both their relatives.
    

ORDERS:

1. MATHIS MAIKA, you are convicted and sentenced to One (one) year Eight (8) months imprisonment.
   
2. I deduct your pre trial custody period of 1 year 6 months 9 days from your term of sentence.
   
3. The balance of One (1) months Twenty-one (21) days is suspended on CONDITIONS that:
   

(1) You restitute K500.00 to the victim Rose Awa; and

(2) You compensate her with one live pig valued K1,000.00

4. These payments must be made within six (6) months from the date of this Order.

Sentenced as above.

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