N5533

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1181 OF 2013

THE STATE

V

VALENTINE RAINOLD

Misima: Toliken, AJ.
2014: 07th, 13th, 14th March

CRIMINAL LAW – Sentence – Breaking, entering and stealing of a store in company of another – Stole goods to value of K12052 - Plea – Mitigating factors and aggravating factors considered – Youthful first time offender – Youthfulness no longer consideration for leniency - Exceptional circumstances to be shown – What may constitute exceptional circumstances considered – Criminal Code Ch.262, s 398 (a)(i).

CONSTITUTIONAL LAW – Breach of Constitutional right to protection of the law – Breach of right to communicate with family members or lawyer of choice – Breach of right to bail while in detention - Prisoner let out of police cells and assaulted by victim's relatives with tacit approval by police – Prisoner held in Custody without charge for 7 months and 10 days - Constitution, ss. 37 (1), 42 (2)(3)(6). 

CRIMINAL LAW – Sentence – Appropriate sentence – Exceptional circumstances shown – Blatant and flagrant abuse of Constitutional rights – Mitigating factors outweigh aggravating factors – Sentenced to period already spent custody (1 year 5 months 20 days).

Cases Cited

Mandatititip v The State [1978] PNGLR 128 
Goli Golu v The State [1979] PNGLR 653
Bakiri Pena v The State (1980) SC183
Acting Public Prosecutor v Joe Kovea Mailai [1981] PNGLR 258
Avia Aihi v The State (No.3) [1982] PNGLR 92
Saperius Yalibakut v The State (2006) SC 890) 
Hen Kuru v Was kombra (1981) N292 (L)
The State v Michael Kamban Mani (2002) N2246
The State v Brendan Oll and Nathan Saisai (2003) N2554
The State v Wali (2004) N2580
The State v Terence Ago (2004) N2673 
The State v Dominic Kanga (2005) N2953
The State v Iari (2006) N3238
The State v Januguan (2008) N3363. I 

Counsel

R. Christensen and H. Roalakona, for the State
P. Palek, for the accused

JUDGMENT ON SENTENCE

14th March, 2014

1.	TOLIKEN, AJ. Valentine Rainold, on 07th of March 2014, the State indicted you with one count of breaking, entering and stealing, an offence under Section 398 of the Criminal Code Act Chap 262. (the Code) The charge was that:

" ... on the 21st day of September 2012 at BWAGOIA in Papua New Guinea [you] broke and entered the shop of Linda Miller and stole store goods to the value of Twelve Thousand and Fifty Two Kina (K12,052.00) 

2.	The brief facts put to you for the purpose of getting your plea (arraignment) were that in the early morning of the 21st of September 2012, you and another person went to the Miskings Shop, owned by Linda Miller, here at Bwagoia Township and broke open a window at the right side of the shop. You entered the shop and stole store goods to the value of K12052.00. These included:

•	Amplifiers
•	Cans of paint
•	Cassette players
•	Mini woofers
•	Boxes of cigarette and shoes

3.	You carried the goods away to one Charlie Mahuru's house where you kept them. From the stolen goods you took half a 10 kg bag of rice, drinks, noodles and biscuits for yourself.

4.	You pleaded guilty to the charge. I entered a provisional plea of guilty which I confirmed after I had perused the committal court deposition. I then formally convicted you.

5.	Before I administered the allocutus and heard submissions from your lawyer and the State, Mr. Palek asked for the matter to be transferred back to Alotau as he wanted a Pre-Sentence Report (PSR) prepared for you, which, unfortunately could not be done during the circuit as the Probation Officer was not with the court party. However, he did arrive on Misima later and has now prepared a PSR. Yesterday I heard you on allocutus and received submission from the lawyers on sentence.

6.	The issue for me to consider is what would be an appropriate sentence for you. And to arrive at that I have to consider whether the circumstances of your case are such that I should impose the maximum penalty or a lesser term and whether any part of any such sentence should be suspended. 

7.	You are from Gulewa Village here on Misima Island. You were about 25 years old when committed this offence. You are now around 26 years old. You are the second born in a family of three children. Your parents are both still alive. You are currently single but have daughter from a de facto relationship. You were educated up to Grade 8 and are a simple villager, living a subsistence life. You are a member of the Seventh Day Adventist Faith. 

8.	In your address to the Court on sentence you said that when you were arrested you were held in police custody here Bwagoia for 6 months without being charged. While in custody the victims of your crime came and pulled you out of the cells and badly assaulted you resulting in your bleeding heavily from the nose and mouth. A policewoman intervened and stopped the beatings. You were place back in the cells and after 6 months in the cells you were transferred to Alotau Police Station where you held in custody for another 2 weeks before you were finally charged. You were then remanded at Giligili for the past 9 months.

9.	Mr. Palek in your behalf submitted that your involvement in the offence was minimal in that you merely helped the main perpetrator to move the goods and as reward for your efforts you only got half a 10kg bag of rice, some biscuits, meat, drinks and noodles. Counsel said that most of the stolen goods were recovered hence the cost of those that were not returned would be just over K3000 out of the total value of K12000. He conceded though that you are caught by Section 7 of the Code as a principal offender. 

10.	Mr. Palek submitted that your human rights were abused right in front of the police who are entrusted to protecting such rights. He reiterated what you have already told the Court – that you were held in custody for over 6 months without charge. You were apprehended on 27th of September 2012 and only got charged on 07th of May 2013. And while in custody the police took you out of the cells and handed you over to the victims who then beat you up badly. Counsel submitted that your rights under Section 36 (Freedom from inhuman treatment) and Section 37 (Protection of the law) of the Constitution. Your Constitutional rights were breached by the very people who were supposed to protect you.

11.	Mr. Palek cited several mitigating factors in your favour. These are that you pleaded guilty to the charge, are a first time offender, a youthful offender, you co-operated with the police, were unlawfully detained and assaulted by relatives of the victim and have shown remorse. He, however, conceded that the offence of breaking, entering and stealing is a very prevalent offence and this is an aggravating factor against you. 

12.	Counsel cited a couple of matters which he says can assist the court in arriving at an appropriate sentence for you. These are The State v Wali (2004) N2580 and The State v Iari (2006) N3238. I will return to these later. Counsel also submitted that you should be given the benefit of a doubt on mitigating matters raised in the depositions, in your address to the court and in his own submissions on sentence which are not contested by the prosecution. (Saperius Yalibakut v The State (2006) SC 890) 

13.	Mr. Palek also referred to your Pre-Sentence Report (PSR) which is mostly favourable to you though the victim Linda Miller wanted you to be imprisoned for 5 years. I will consider your PSR in a bit more detail a little later. 

14.	 In conclusion Mr. Palek submitted that your mitigating factors far outweigh the aggravating factors so an appropriate sentence should be 2 - 4 years less pre-sentence custody period of 1 year 5 months and 2 weeks. The balance should then be suspended with conditions.

15.	Ms. Roalakona for the State acknowledged that you are a first time offender, you pleaded guilty to the offence, you are youthful, that you were not the one who broke the window but your accomplice, despite being in custody with being charged you co-operated with the police and that some of the stolen were recovered.

16.	She, however, said that there are aggravating factors against you. First, a large amount of goods were stolen valued at K12000. Secondly there was forced entry involved. Thirdly you were in the company of another person and counsel here pointed the court to The State v Terence Ago (2004) N2673 where in sentencing the offender for his part in an armed robbery Kandakasi J. Said:

"It is clear now that acting in the company of another and more seriously a group provides more strength and encouragement. This makes the commission of an offence by a group more serious than a case in which only one person is the offender. As such, those who act in a group deserve a higher penalty."

17.	Counsel also directed me to the statement of the Supreme Court in Bakiri Pena v The State (1980) SC183 in regard to the offence of breaking, entering and stealing, where it said that:

"Breaking and entering offences of all kinds are grave crimes, very 	prevalent, and increasing in incidence. From breaking and entering business premises it is only a small step to breaking and entering private homes. This Court would repeat and confirm the statement of Prentice C.J. and Pritchard J, in Paulus Mandatititip and Anor v. The State [1978] P.N.G.L.R. 1281 that "youth is no longer a satisfactory answer to crime, at least so far as the crime of breaking and entering is concerned"". 

18.	Counsel also cited several cases to assist the Court in determining an appropriate sentence for you. These are The State v Michael Kamban Mani (2002) N2246; Bakiri Pena v The State (supra); The State v Iari (supra) and The State v Januguan (2008) N3363. I will also come back to these cases later.

19.	A PSR was prepared for you and as always our Senior Probation Officer Mr. Billy Joel has prepared an informative report in your behalf after consulting no less than eight people including, your parents, your pastor, your Ward Councillor, OIC of CS and the PSC here at Bwagoia Station and of course the victim Linda Miller and yourself. Whilst the victim expressed her desire to see you goaled for five years the report is nonetheless favourable to you and recommends probation supervision for you with additional conditions over and above the mandatory conditions under the Probation Act 1990, s 17.

20.	The offence of Breaking, Entering and Stealing is provided by Section 398 of the Code as follows:

398.	Breaking into buildings and committing crime.

A person who - 

(a)	breaks and enters—

(i)	a schoolhouse, shop, warehouse, counting-house, office, store, vehicle, garage, hangar, pavilion, factory, workshop, tent, caravan, petrol-station, ship, aircraft, vessel or club; or

(ii)	a building that is adjacent to a dwelling-house and occupied with it, but is not part of it,

and commits a crime in it; or

(b)	...

Penalty: Imprisonment for a term not exceeding 14 years. 

21.	The principles that (1) the maximum penalty is reserved for the worst instances of an offence, (2) that cases are treated on their own peculiar circumstances and (3) that first offenders are seldom visited upon with the maximum or near maxim penalty except in the very worst or most serious of cases are well established. (Goli Golu v The State [1979] PNGLR Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1982] PNGLR 92; Hen Kuru v Was kombra (1981) N292(L). So what has the courts' attitude been in respect of the offence under consideration?

22.	Being a very prevalent offence, the courts have been pretty stern in sentencing offenders for this offence. Youthful offenders can no longer expect special treatment because of their age. In Mandatititip v The State [1978] PNGLR 128 the Supreme Court (Prentice CJ, Pritchard and Wilson JJ.) when upholding the sentences of two young men aged 16 and 22 years of age who had appealed against the severity of their sentences of 19 months and 23 months for breaking, entering and stealing, said that youthful offenders can no longer receive special treatment given the fact that prevalent offences are frequently being committed them. That is not to say, however, that youthfulness is no longer a mitigating factor to be taken into account in sentencing. It still is but youthful offenders have to show exceptional circumstances to be shown leniency. When dispelling the misconception that youthfulness is no longer a mitigating factor the Supreme Court in Acting Public Prosecutor v Joe Kovea Mailai [1981] PNGLR 258 (Andrew, Pratt, Bredmeyer JJ.) explained and held that –

"Youth has always been one of the most effective mitigating factors 	especially in the case of the first offender, and this principle is basic and elementary. But where an offence is more serious and it is prevalent and it is invariably committed by young persons, then they may not receive special treatment unless there are exceptional circumstances which call for leniency. This, in our view, was what was decided by Paulus Mandatititip (supra) (Underlining added)

23.	But what circumstances can be regarded as exceptional? These cases did not say what would constitute exceptional circumstances. Due to limited resources available to me while on circuit I do not know if this court or the Supreme Court has provide any guidelines as to what might be regarded as exceptional in respect of youthful offenders. However, I would like to think that these may include a combination of the following –

•	the offender is a juvenile not too far up from the age of criminal responsibility of 10 years say under 14 years of age and has succumb to peer pressure
•	the offender committed the offence out of necessity such as when out of extreme hunger due to neglect by parents or guardians
•	the offender is a destitute
•	the offender is mentally deficient but not mentally incapacitated or is suffering from serious illness, terminal or otherwise
•	the offender had succumbed to juvenile delinquency due to parental neglect and lack of guidance and direction at a very early age
•	the offender was subjected to torture or inhuman treatment or any other form of extra-judicial punishment immediately after his apprehension by members of the public beyond what is reasonable and lawful to secure his apprehension
•	the offender is subjected to excessive use of force by the police resulting in serious harm to him or whilst in police custody is subjected to torture or inhuman treatment
•	the offender is held in custody without charge for a long period of time

24.	His Honour Kandakasi J., however, provided some general guidelines as to the factors that may be taken into account when sentencing offenders for this offence. In The State v Michael Kamban Mani (2002) N2246 His Honour firstly reiterated the well settled principles that the maximum penalty is reserved for the worse type of offence, that guilty pleas and first time young offenders are good mitigating factors that should allow for sentences below the maximum prescribed penalty whilst breaking, entering and stealing from dwelling houses and being in the company of others must attract higher sentences. To this His Honour added the following – 

•	the amount or the value of property taken and whether all or any of the property stolen has been recovered. If the amount of money or value of the property involved is high and has not been recovered, a higher sentence should be imposed 

•	If the impact of the offence deprives the community of a vital service such as health services, important research work which has the potential of greater benefit to the society, the sentence should be sterner to reflect such impacts on the society. 

•	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

•	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." 

25.	In that case the offender, in the company of another broke into a Health Centre and stole a generator set valued at K2500 belong to the PNG Medical Research Institute. He later sold the generator to K3000. The generator was, however, recovered after good police work. Taking into account, among other considerations, that the theft deprived the community of a vital service, His Honour sentenced the offender to 3 years imprisonment.

26.	In Bakiri Pena v The State (supra) the appellant appealed against the severity of his 14 months sentence for breaking and entering the Highlander Hotel and stealing 45 cartons of beer worth K800.00. The Supreme Court dismissed the appeal.

27.	The State v Wali (supra): The offender, the son of a policeman, broke into the Maprik Police Station and stole two firearms, K300, a coffee scale and a brief case. All properties were recovered. The offender pleaded guilty but his Honour Kandakasi J. felt that "an offence against a police establishment, has to be dealt with severely and sternly to give the police force and the community the protection they need in order for them to provide the community and the country security and law and order." His Honour imposed a sentence of 6 years. 

28.	The State v Januguan (supra): The offender aged 19 broke into a soldier's dwelling house and stole army apparel worth some K16000. Despite being young he was sentenced to 4 years imprisonment.

29.	The State v Dominic Kanga (2005) N2953: The offender was found guilty after trial for breaking and entering the armoury at the Moem Army Barracks during a mutiny and stealing arms and ammunitions which were never recovered. This was a. Kandakasi J. considered this to this to be a worse case and sentenced the offender to the maximum prescribed penalty of 14 years.

30.	The State v Iari (supra): The offender, in the company of two others broke and entered a trade store and stole goods and cash to the value of K3360. They used a knife to gain access into the store. They shared the loot. The offender returned all that he had taken but his accomplices who had escaped from police custody did not. The offender was sentences to 2 years less time spent in pre-trial custody. The balance was suspended on condition. 

31.	 The State v Brendan Oll and Nathan Saisai (2003) N2554: The offenders broke and entered a Catholic Mission warehouse and stole a number of valuable items including a chainsaw, a wheelbarrow, 3 cartoons of 3"nails, a battery for a wokabaut sawmill. The stolen goods were fully recovered by the police with assistance from the offenders. The offenders pleaded guilty to the charge. They were first time offenders. They were sentenced to 3 years imprisonment less time spent in custody awaiting trial. With the assistance of a good PSR the balance of their sentences were suspended with conditions.

32.	As we have seen from the cases surveyed sentences have ranged from 2 years to the maximum prescribed penalty of 14 years.

33.	Now to your case. At this juncture let me say that your case does not fall into the worse category of breaking, entering and stealing. Hence it should not attract the maximum penalty of 14 years. But what should be an appropriate sentence for you?

34.	To help me determine that let me consider the mitigating and aggravating factors in your case. First, the mitigating factors:

•	that you pleaded guilty to the charge
•	you are a first time young offender
•	you co-operated with the police
•	you were assaulted by relatives of the victim with tacit approval by the police
•	you held in custody for a period of some 8 months without charge
•	you did not benefit much from the theft in that you only took for yourself half a 10kg bag of rice, some biscuits, meat, drinks and noodles. 
•	Most of the properties were recovered

35.	Against you, however, are the following aggravating factors:

•	This offence is still very much prevalent and it seems that it is not confined to major towns and cities only.
•	The amount of property stolen was substantial, in excess of K12000.
•	You were in the company of another person and as the Kandakasi J. expressed in The State v Terence Ango (supra) this would have given you that extra strength and encouragement and if I might add more determination to execute your criminal enterprise whatever the consequences might have been.

36.	Now it is clear from the authorities cited above that because of the prevalence of this offence stiff sentences must be imposed even on youthful offenders like you. You will remember that the Supreme Court said that even though youthfulness remains a mitigating factor, young offenders like you can no longer expect to be shown leniency simply because they are young. On contrary you must show exceptional circumstances for the court to be lenient on you. 

37.	Mr. Palek and Ms. Roalakona agree that an appropriate sentence for you should be around 2 years. And that seems to auger well with what seems to be the trend for offences with similar circumstances like yours. The circumstances of your case are similar to those of The State v Iari (supra) who, as we have seen, also broke into a trade store (with others) and stole store goods which, though were valued less than in your case. He got two years. The State v Brendan Oll and Nathan Saisai (supra) also bears some similarity to your case. They got a three years head sentence for offence. So in all fairness you really should be sentenced to a term of imprisonment between 2 – 4 years as suggested by your lawyer.
 
38.	Because of the ever increasing incidence of this offence generally around the country there is no doubt that you ought to be visited with an appropriately stiff sentence to punish you personally and for personal and general deterrence.

39.	Stiff sentences should also serve to protect people like the victim – traders and businessmen – who go out of their way and risk all in order to provide a vital services to rural communities such as those here on Misima. Trade stores and shops are a common target by criminals and people like you do not realize that these are tax payers whose taxes are funding your hospitals, schools, roads and other government service. Without the tax payer people in the rural areas, the great majority of people of who do not pay any direct tax to the National and Provincial governments or their LLGs will be deprived of much needed service. Hence the interest of such people must be protected because they too provide a public service despite the fact that they are profit driven as opposed to public services provided by government agencies or non-profit organizations like Churches and Non-government Organizations (NGOs).

40.	 So apart from the fact that your mitigating factors outweigh the aggravating factors does your case exhibit some exceptional circumstances to warrant an exercise of leniency by the Court?

41.	I have attempted above to enumerate certain circumstances which might constitute exceptional circumstances for young offenders like you in the context of breaking, entering and stealing. At least two of these circumstances are present your case. These are first, you were subjected to extra-judicial punishment by the victim's relatives when they removed you from the police cells – obviously with tacit approval by the police – and belted up. No, this was not a situation where the victim's relatives had caught you and belted you up before they took you to the police station. On the contrary, you were already in lawful custody of the police and as agents of the law and the State they had a Constitutional duty to protect you. They did not and in so doing breached their duty to you (despite being a wrong doer) and breached your right to the full protection of the law as guaranteed to every person living in this country (and especially those charged with criminal offences) by Section 37 (1) of the Constitution. The State has not sought to counter this assertion by you hence I apply to your benefit the principle in Saperus Yalibakut v The State (supra).

42.	Your victim now appeals to this Court – a court of law - for you to be sent to jail for 5 years. It did not dawn on her and her relatives and those policemen who let you out of the cells into their hands that they were breaking the law themselves and that it was not for them to mete out punishment for those apprehended and detained for infractions of the law. They became prosecutors, judge and jury as it were. This was an action that must condemned and should never ever be repeated anywhere in our police cells and lock-ups. To condone this type of behaviour is to encourage vigilante actions which cannot be allowed in a modern democratic State ruled by the rule of law and where persons caught or suspected of committing offences are dealt with by the criminal justice system.

43.	Furthermore there is a tendency nowadays for the police to allow victims of crimes and members of the public to mete of extra-judicial punishment on those caught delicto flagrante hoping perhaps that this type of unlawful action will escape the scrutiny of the courts. This tendency should be discouraged and condemned.

44.	Secondly you were held in custody without charge for a long period of time – 7 months and 10 days in total. Again the State has not denied this. The depositions in fact confirms that you were apprehended and detained on 27th September 2012 and was not formally charged until the 07th May 2013. It would be an understatement to say that this was again a most blatant and flagrant abuse of your right to the protection of the law as guaranteed by the Section 37 (1) of the Constitution and it should go without saying that other Constitutional rights of yours were also breached as result. These are your rights under Section 42 (2) (3) and (6) of the Constitution – your right to communicate with a lawyer of your choice, your right to be brought before a court promptly after your detention and your right to bail. In effect what your unlawful and unconstitutional detention amount to is that you were extra-judicially punished for what until now was a mere allegation. Punishment and retribution for offences against the State is the exclusive domain of the National Judicial System or the courts. 

45.	 If these are not exceptional circumstances calling for my exercise of leniency on you I do not know what can. So while you deserve to be punished for your crime against the State and the victim and ought to be sentenced to a term of not less than 2 years, I am of the firm view that because of the blatant abuse of your Constitutional and human rights you should not be sentenced to a longer term than what you have already served whilst awaiting your trial which is 1 year 5 months and 20 days. 

46.	In the interest of justice I therefore sentence you to the period you have already spent in custody awaiting your trial and/or sentence. You are therefore at liberty to go at large.

Orders accordingly. 
______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner