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State v Kenneth [2016] PGNC 323; N6543 (3 August 2016)

N6543

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR.NO. 257 OF 2015

THE STATE

V

NIGEL KENNETH

Kokopo: Lenalia, J
2016: 19^th, 26^thJuly & 3^rdAugust

CRIMINAL LAW – Stealing – Plea of guilty – Factors for consideration – Sentence – Criminal Code Sections 372(1) & (5) (f) Ch. No.262.

CRIMINAL LAW–Sentencing of co-offenders – As much as possible sentences should be similar to offenders who have been earlier sentenced – There ought not to be any disparity in sentences where circumstances of a crime are similar in nature as to the co-offender earlier sentenced either by Judge A and the other by Judge B or the same Judge.

Cases cited
Brian Kindi Lawi v The State [1987] PNGLR 183
Imiyo Wamela v The State [1982] PNGLR 269
Secretary for Law v Witrasep Binengim [1975] PNGLR 172
The State v Max Bruno (13.4.2016) N6292
The State-v-Peter Tokunai (2015) N???
The State v Napilye Kuri [1994] PNGLR 371
The State-v-Christian Korei (2005) N2946
Wellington Belawa v The State [1988-89] PNGLR.496

Counsel:

Mr. L. Rangan, for the State
Ms. J. M. Ainui, for Accused

3^rd August, 2016

1. LENALIA J: The offender of this case was an accomplice to a stealing case which took place at Drina Logging Camp in West Pomio, E. N. B. Province. The offence was committed between 5^th& 9^th June 2015 during the Queen’s Birthday long weekend holiday period. After arraignment, he pleaded guilty to stealing three of the chain saws

2. This is an offence contrary to s.372 (5) (f) of the Criminal Code, Ch.No.262. The total value of all the chain saws that were stolen together with the two that the accused was indicted for was put at forty nine thousand PNG Kina (K49, 000.00). Section 372(5) (a) – (f)of the Criminal Code states:

(5). If –
(a) the thing is stolen from the other person; or

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

(i) its value exceeds K10.00; or

(ii) the offender at or immediately before or after the time of stealing uses of threatens to use violence to any person in the dwelling house; or

(c) the thing is stolen from a vessel, vehicle or place of deposit used for the convenience or custody of goods in transit from one place to another; or

(d) the thing is stolen from a vessel that is in distress; wrecked or stranded; or

(e) the thing is stolen from a public office in which it is deposited or kept; or

(f) the offender, in order to commit the offence, opens a locked room, box or other receptacle by means of a key or other instrument,

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

(Emphasis added).

Facts in Brief

3. The brief facts of this case are that at Drina Logging Camp, West Pomio, between 5^th and 9^th June 2015, at the Niugini Merchant Ltd Logging Camp premises, several accomplices had gone to the company premises earlier and cut the lock of a 23 footer container with a hack saw where the company chains were kept. The current prisoner came up and joined them.

4. They stole 7 chain saws. The prisoner admitted in the record of interview that he stole three of the chain saws the property of Niugini Merchant Ltd Logging Company at Drina logging camp. All properties stolen were recovered in good condition with no damage.

Addresses on Allocutus

5. The prisoner was asked to tell the Court what penalty should be imposed on him. He said he is sorry for what he did. He said sorry to the company he and his accomplices offended against. He asked the court for mercy.

Counsels’ Address on Sentence

6. Ms. Ainui addressed the court on the mitigations and asked the court to consider the following factors:

➢ The prisoner’s guilty plea,
➢ His previous good character,
➢ He cooperated with the police during investigation,
➢ Expression of remorse, and
➢ The two chain saws were fully recovered with no damage.

7. Counsel asked the court to consider the fact that, the prisoner has nothing to pay either a fine or compensation as he does not have any means either in cash or kind. The court was asked to consider the terms of the pre-sentence and means assessment report and that the court should consider a non-custodial penalty. I was also referred to the case of The State v Max Bruno(13.4.2016) N6292, a case in Palmalmal in April this year where the offender in that case pleaded guilty to a similar offence and this court ordered a fine of K2, 000.00 in default 12 moths IHL and compensation order of K500.00.

8. Mr. Rangan submitted that the offence committed by the accused was and is serious and the person who cut the lock was Max Bruno (above case) was given a non-custodial penalty. Counsel submitted that, if the prisoner has no means of meeting any monetary penalty or orders, he can serve a term of imprisonment.

Pre-Sentence Report

9. The only person contacted for community input was the prisoner’s wife Olivia Kenneth. Olivia expressed how the offender assisted the police to recover the chain saws that were hidden and the property was recovered without damage. The prisoner said, his wife is employed, but she cannot afford to pay anything and if he is ordered to pay a fine, it will take her time to pay up.

10. The means-assessment report shows that the offender does not have any savings either in the bank or any other means.

Application of Law

11. The maximum penalty for the offence of stealing under s.372 (5) (f) of the Criminal Code is 7 years, subject to s.19 of the Code. Since the Supreme Court decision in Wellington Belawa v The State[1988-89] PNGLR 496, sentencing trends on (FC) cases has shown some increase on sentences for stealing and misappropriation cases.

12. The law on stealing and misappropriation or dishonest application of anything says that offences of stealing or misappropriation of anything relates to the particular state of mind of the accused and it is a question of fact which must be decided by the trial judge: Lawi v The State [1987] PNGLR 183. The principles stated in that case were followed in The State v Napilye Kuri [1994] PNGLR 371.

13. To illustrate sentencing trends in FC cases, I refer to one or two cases. In The State-v-Christian Korei (2005) N2946 a case in Manus, Lay, J; (now retired) sentenced the prisoner to a term of 4 years for misappropriation of an amount involving K82, 529.68 with substantial restitution of K65, 000.00. The sentence was fully suspended with orders to restitute within specified time.

14. In The State-v-Peter Tokunai (2015) N??? the offender was found guilty for misappropriating a large sum of money amounting to K1, 500,000.00. He was sentenced to 6 years imprisonment. Relevant considerations on sentence on this type of offences were set out in Wellington Belawa-v-The State(supra) which have been re-stated in many cases include the following considerations:

- the amount of money involved,
- the quality and degree of trust placed on the offender and his or her position
- the period of time it took to commit the offence
- the use to which the money taken was applied for
- the effect on the victim
- the impact of the offence on the public
- the effect on the offender
- the offender’s background history
- whether restitution had been effected, and
- special mitigations.

15. On the instant case, the court considers the fact that, the offender had co-offenders who committed this crime together with him. This court considers the principles in sentencing co-offenders. In absence of any distinguishing factors of aggravations, this Court should award much the same penalty as awarded on earlier case: Secretary for Law v Witrasep Binengim [1975] PNGLR 172, Imiyo Wamela v The State [1982] PNGLR 269.

16. The court considers the contents of the pre-sentence report and means assessment report. I am of the view that, if the court sentences the offender to a term of years because he has no money to pay a fine, there will be great disparity between the current offender and his co-accused Max Bruno.

17. I consider all the seven (7) chain saws were recovered. This may include the three that were taken by the offender. He is ordered to pay a fine of K2, 000.00 in default of payment 12 months imprisonment. The court will not consider any compensation. If he does not pay up the fine, the time spent in custody shall be deducted from the default penalty and he shall serve the balance. If the offender has served more than 12 month which is the default penalty, he can be forthwith discharged and released from custody.

________________________________________________________________

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