N6633
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO. 292 OF 2015

THE STATE

V

ALI YAPU

Kokopo: Lenalia, J
2016: 21st, 27th July & 4th August

CRIMINAL LAW – Particular offences – Stealing – Plea of guilty – Criminal Code 	Section 372 (10). 

CRIMINAL LAW – Offence of stealing – Offender admits he committed the offence – Appropriate case for a custodial penalty – If restitution is 	ordered, the prisoner has no means to effect such payment – Deterrence be considered – Sentence of 2 years appropriate.  

Cases Cited:

Brian Kindi Lawi v The State [1987] PNGLR 183
State-v- Tardrew[1986] PNGLR 91
The State v Benson Likius (2001) N2618
The State-v-Edward Giragu Koima (2010) N4115
The State v Louise Paraka (2004) N2317
The State v Lukeson Olewale (2004) N2758	
The State-v-Tobby Alekun (2010) N2634
Wellington Belawav The State[1988-89] PNGLR 496

Counsels:

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

4th August, 2016

1. 	LENALIA J:  The accused pleaded guilty to one count of stealing contrary s.372 (10) of the Criminal Code. The court entered a provisional guilty plea. The State Prosecutor then tendered the District Court committal file to the court. After reading the facts, the court found that, the guilty plea was consistent with the facts contained in the committal file and the court then confirmed the guilty plea and convicted the prisoner on the charge of stealing simplicita.

2. 	Part VI Subdivision B of the Criminal Code on s.372 dealing with offences of stealing provides that a person who steals anything capable of being stolen is guilty of a crime. Subsection (10) under which the prisoner is charged states that where the stolen property is more than K1, 000.00 and upwards the maximum penalty shall not exceed 7 years. 

Facts in Brief

3. 	Between 1am and 2am on 17th August 2015, two accomplices Watson Ravi and Raphael Sauri went down to Sea-view apartment yard at Takubar beachfront, where they unscrewed the Yamaha 75 Horse power Outboard motor engine and they tried to carry the engine away. 

4. 	Because the machine was too heavy, they could not carry it away. The two suspects made their way up to Channel College (Ulapia) settlement where they woke the prisoner and asked him to come with them to carry the out boat motor away. They carried the stolen item along the beach between Rapopo Sea-view Resort and Sea-view apartments then walked up the bushes to the main road then up to a spot near the Sisters Covent home where they hid the Yamaha 75 Horse power engine.

5. 	Next day investigation was carried out and the police was called and they found the stolen property where it was hidden. 

Addresses on sentence

6. 	The prisoner said sorry for what he did and said his two accomplices came and woke him up and they proceeded to the beach front at Sea-view where they carried the motor boat away. He asked for leniency. 

Defence submission.

7. 	Ms. Ainui addressed the court on the prisoner’s antecedents and asked the court to consider the following factors:

-The prisoner’s guilty plea,
-He is the first time offender,
-There are no prior convictions,
-The court to consider the pre-sentence report and the means-assessment reports.

8. 	Counsel submitted that this would be an appropriate case for imposition of a non-custodial sentence with a possible fine.

Prosecution submission

9.	 Mr. Rangan, counsel for the State replied by saying that, the offence committed was aggravated by the value of the stolen item valuing more than a thousand kina. Counsel submitted that, the offender has a previous conviction by the District Court here in Kokopo where he was sentenced to 7 months and it seems that the prisoner had not learnt any lessons for being incarcerated for the above period. Counsel submitted incarceration of the offender should be considered as appropriate penalty. 

Relevant Principles

10. 	Sentencing approach taken by Judges of this Court for stealing and dishonest offences vary from case to case. Sentencing an offender depends entirely on the merits of each case. In Wellington Belawa -v The State [1988-89] PNGLR 496, the Supreme Court set out 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.

11.	 In the State-v- Tardrew[1986] PNGLR 91 the Supreme Court comprising of Sir Buri Kidu CJ, Bredmeyer& Barnett JJ), set down three broad categories but not exhaustive on suspending a sentence in a misappropriation case. They are where a suspension will promote personal deterrence, reformation or rehabilitation. 

12. 	Secondly, where suspension will promote restitution of stolen money or goods, and thirdly where imprisonment would create excessive degree of suffering where an offender has bad physical or mental health. On the current case, the prisoner is a healthy young man. In that case, the Court said, the appropriate sentence in a case where there was restitution of the whole amount misappropriated of K82, 202.73, was five years. 

13.	 In Brian Kindi Lawi v The State [1987] PNGLR 183; the appellant was a former Member of Parliament who received two cheques in public funds for K6, 000.00 and K10, 000.00 respectively for road and agriculture works and paid the moneys into his private account.  There was no evidence that the moneys were expended on the projects the funds were intended for. He was convicted of two counts of misappropriation and sentenced to 2 IHL and 5 years IHL respectively with an order for the sentence for the second count to be reduced to 3 years if he repaid the sum of K10, 000.00 to the State. 

14. 	In The State-v-Edward Giragu Koima (2010) N4115, the offender was sentenced after being convicted after trial of one count of stealing contrary to s.372(1) and (10) of the Criminal Code. The offence was committed at Karisokra village in the upper Bundi area of Madang Province in 2007. In that case a house occupied by a New Tribes Mission couple, Paul and Susan Boothby, was broken into and ransacked by a group of people, including the offender. The house was dismantled and taken away, along with personal property inside. Cannings, J sentenced the prisoner to 6 years.

15. 	In another case before His Honour that of The State-v-Tobby  Alekun (2010) N2634, it was a guilty plea where the offence was committed in the market at Maprik, East Sepik Province. The prisoner came from behind the woman victim and grabbed her bilum containing an amount of K2, 900.00 and stole it. He was sentenced to 2 years imprisonment.

16.     In The State-v-Lukeson Olewale (2004) N2758, a misappropriation case involving an amount of K40, 000.00 where the offender in that case uttered the cheque after he conspired with others. He pleaded guilty and he was sentenced to a term of 4 years. The sentence was fully suspended.

17. 	The current case is aggravated by the fact that, the offender had a previous conviction. I consider counsels submissions and comments of those contacted on the pre-sentence report. The only person contacted was Mr. Andrew Kuli. He is said to be the former employer. As to how the offender was employed is not clear from the report. On the 75 horse power outboard motor, it was recovered and in good condition.

18. 	There are a number of aggravating factors. First the prisoner was in company of two accomplices. Secondly, the value of the outboard motor engine was high well above K1, 000.00. I consider, imposing a term of imprisonment. The offender is sentence to 1 year8 months imprisonment. The custody period is deducted and he will serve the balance. 
_______________________________________________________________
 Public Prosecutor	: 	Lawyer for the State
Public Solicitor	:	Lawyer for the Accused