N6817

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 536 OF 2017

THE STATE

                                                           V
  
BENJAMIN PINU

Kiunga: Koeget, AJ
2017	:18th & 21st, April.

CRIMINAL LAW- Indictable offence – Break, Enter and Stealing under section 398 of the Criminal Code Act – maximum sentence of imprisonment for a term exceeding 14 years – Court’s discretionary powers under section 19 of the Criminal Code Act.

FACTS:

On Tuesday 11th October 2016, the accused in company of Jack Petrus went to Niugini Pride Supermarket located at Laydown, Tabubil in the Western Province.

It is alleged that the co-accused Jack Petrus carried a pliers and he used it to cut open the wall made of corrugated iron sheets at the bottom of the ware house.  He broke open the corrugated iron sheets that created a space for himself to enter the Supermarket. 

The accused remain outside whilst his co-accused went into the Supermarket.

The co-accused removed from the shelve alcohol namely, a cartoon of blue ice can beer, a cartoon of warrior dark rum, a carton of king cup dark rum and a carton of OP dark rum and took them to where he cut the wall and entered the shop.

The alcohol cartons were broken open and loose bottles were given to the accused outside.  When the alcohol were delivered outside of the shop, the co-accused too went outside.

The accused and Jack Petrus put the alcohol bottles and cans in a Tari bilum and carried them away.  They took alcohol and consumed some and others were given to friends and relatives.  The value of the alcohol stolen is K5,922.30.

On 14th October 2016, police apprehended the accused and Jack Petrus and charged them with the offence of Break, Enter and Stealing.

Cases Cited:
	
State –v- Brendan Olland Nathan Saisai (2004) N2554
State –v- Jonathan Nalo (2009) CR 813
State –v- Kenneth Maies CR 1189 – 1997
State –v- Noutim (2014) N5794
State –v- Sika (2013) N2544

Counsel:

Ms J. Aihi, for the State.
G. Tine, for the Accused.

21st April, 2017

1.	KOEGET AJ, INTRODUCTION: The accused is charged with Break, Enter and Stealing of Niugini Pride Supermarket at Tabubil in the Western Province.  The charge is brought pursuant to section 398 (a)(i) and (b)(i) of the Criminal Code Act chapter 262.

ARRAIGNMENT:

2.	The accused pleaded guilty to the charge so he was convicted accordingly.

ISSUE:

3.	The issue for the court to determine in this case is what is the appropriate sentence to impose upon the accused?

LAW:

4.	The law in relation to break, enter and committing a crime is stated as follows:

“398.  	Breaking into buildings and committing crimes.

A person who –

(a)	breaks and enters –

(i)	A school house, shop, warehouse, counting house, office, store, vessel, garage, hanger, pavilion, factory, workshop, tent, caravan, petrol station, ship, aircraft, vessel or club; is guilty of a crime.

Penalty:	Imprisonment for a term not exceeding 14 years.”

ALLOCATUS:

5.	On allocatus, the accused said:

“I am sorry for what I did.  I say sorry to the State and the police.  I also say sorry to the company.  I ask the Court to be merciful when imposing sentence upon myself.”

PERSONAL PARTICULARS:

6.	The prisoner is 21 years of age and is from Agali village, Lake Kopiago in the Hela Province.

7.	He resides at Sewerage Settlement in Tabubil with his wife and a child.  He has resided in that settlement for 13 years.

8.	He attended Kopiago Primary school and completed Grade 3 in 2003.  He is a subsistence gardener.

AGGRAVATING PARTICULARS:

9.	The Niugini Pride Supermarket made loss of profit due to the theft committed by the prisoner and Jack Petrus.  Such an offence is prevalent in the communities in Papua New Guinea.

MITIGATING PARTICULARS:

10.	The prisoner is a first time youthful offender.  The prisoner and Jack Petrus did not threaten any person during the commission of the offence.  He cooperated well with the police and now admitted committing the offence.  He saved valuable time of the Court.

SENTENCE:

11.	The prisoner and Jack Petrus stole alcohol from Niugin Pride Supermarket valued at K5,922.30 and all the alcohol stolen have not been returned.  The loss of profit suffered by the company is minimal and so does not warrant imposition of severe imprisonment term.

12.	The previous decided cases referred to by both counsel are useful guidelines and so the sentence I impose on the prisoner will be within the range suggested by those case law authorities.

13.	I note the prisoner was not present when the circuit commenced in Kiunga but when he heard that his name was called in court at Kiunga, he travelled by PMV to Kiunga.  Such actions demonstrate that the prisoner knew he had committed a crime and he was prepared to receive whatever punishment the court would impose upon him.  Full credit is accorded for such actions.

14.	In view of the circumstance of this case the appropriate sentence in my view is 3 years in hard labour.

15.	So the prisoner is sentenced to be imprisoned for 3 years in hard labour.  The pre-trial custodial period of 3 months 2 weeks is deducted.  The balance of 2 years, 8 months and 2 weeks is wholly suspended on conditions the prisoner promise to Keep Peace and be of Good Behaviour Bond for 2 years 8 months 2 weeks.

ORDERS:

16.	The Orders of the court are:

(1)	Should the prisoner breach this condition, then he shall be brought back to Court to be dealt with the suspended portion of the sentence.

(2)	The bail of K1, 000.00 is to be refunded to the prisoner.

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