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State v Raphael [2018] PGNC 353; N7457 (26 March 2018)

N7457

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 225 OF 2017

THE STATE

V

PHILEMONA RAPHAEL

Lorengau: Gora, AJ
2018: 14^th, 26^th March

CRIMINAL LAW – Sentence – Charge of stealing bank card and withdrawing money – Section 372 (1) Criminal Code

CRIMINAL LAW – Stealing money electronically a serious crime – Offence prevalent in society – Penalty to reflect seriousness of offence

Cases Cited

GoliGolu v. The State (1979) PNGLR 653;
Hure Hane v. The State (1984) PNGLR 105
Avia Aihi v. The State (No.3) PNGLR 92

Counsel

Francis Popeu, for the State
Tom Kaleh, for the Applicant/Accused

RULING ON SENTENCE

26^th March, 2018

1. GORA AJ: INTRODUCTION: Prisoner Philemona Raphael is 24 years old and comes from mixed parentage of Butsou in Manus Province and Eastern Highlands Province. She is married with one male child who is now 2 years old.
   
2. She was charged with one count of stealing pursuant to Section 372 (1) of the Criminal Code 1974. She pleaded guilty to an indictment which is in the following terms:
   

“PHILEMONA RAPHAEL of BUTSOU, POBUMA – LORANGAU, MANUS PROVINCE stands charged that she between 18^th March 2017 and 21^st of March stole a Bank of South Pacific (BSP) Sumatin Bank Card and withdrew monies in the sum of one thousand kina (K1, 000.00) the property of FAUSTINA LALUH MOREN.”

3. On 14^th March 2018 she was arraigned on the charge to which she pleaded guilty and was convicted on this charge of stealing.
   

ISSUE

4. What is the appropriate sentence to be imposed on the Prisoner?

LAW

5. Criminal Code Section 372 (1) creates the offence of stealing and prescribes the penalty as well and states that: Any person who steals anything capable of being stolen is guilty of a crime: Penalty Subject to this Section, imprisonment for a term not exceeding three years.

6. Term of three years imprisonment is the maximum for this offence of stealing, however that court has discretion to impose a term less than three years.

7. Section 19 of the Criminal Code provides options for court to take into account when considering appropriate sentence.

SUBMISSIONS

8. Counsel for the Prisoner made the following submissions:

1. That although the offence for which the prisoner is convicted carries a maximum penalty if three years, it is now a trite law in our jurisdiction that the maximum penalty is reserved for the worse type of cases (see GoliGolu v. The State (1979) PNGLR 653; Ure Hane v. The State (1984) PNGLR 105 and Avia Aihi v. The State (No.3) (1982) PNGLR 92)
   
2. That each case should be determined by its own peculiar facts and circumstances and therefore given the facts and circumstances of the prisoner’s case, her case does not clearly fall within the worse category of stealing cases which would attract the maximum penalty.
   
3. Court must take into account the mitigating factors
   

9. Counsel for the state made the following submissions:

1. That the court whilst taking into account the mitigating factors, should also to take into account the aggravating factors; firstly that she stole from her family and that appropriate sentence should serve as deterrence.
   
2. Prisoner does not have the means to repay the amount stolen.
   

APPLICATION OF THE LAW

10. In considering an appropriate sentence for the prisoner for the offence of stealing I firstly take into account that crime of stealing in whatever form or manner is common in our communities. Anywhere one goes to a small village or to a big town or city there are stories we hear of cases of stealing. This may be occurring for survival purposes or merely by desire to gain more. But the point is that every Papua New Guinean is a landowner and therefore no one should really be struggling to survive when your own land can provided for you.

11. In this case the prisoner needed money as her mother was in the hospital but she really had no reason to steal from her sister in-law, she could have easily asked her or any other family members to help her if she was desperately in need of some money. So I say to the prisoner that what you did was not a right thing to do especially stealing a bank card and withdrawing cash electronically by use of an ATM. This in my view is a serious crime. In fact you committed a crime against the victim and against the state as well and that is why you were arrested charged and detained. The law is clear in respect of penalty and that is a maximum of 3 years imprisonment for people who steal. So should I sentence you to three years imprisonment?

12. Your lawyer has submitted to this court that it is now a law that the maximum penalty is reserved for the worse type of cases and that the offence which you committed is not the worse category of cases of stealing. I do agree with him but this does not necessarily mean that you should not be imprisoned because the penalty for imprisonment for the offence of stealing under Section 372 is mandatory. The court can only exercise its discretion to either reduce the term of sentence or suspend the term of imprisonment or both.

13. Therefore in deciding on what should be the appropriate sentence for you I have already expressed earlier that the offence of stealing is prevalent in our communities and therefore the level of sentence must reflect that and deter others from committing the same offence. However I take into account certain mitigating factors which weigh in your favour.

1. You have made early admissions in the Record of Interview of committing the offence and on arraignment you pleaded guilty to the charge. This has saved court much time and resources that would have been spent to run a trial.
   
2. You are a first time offender and your first time in court too, meaning you have no previous crime record held against you. This shows to some extent that you are generally a good citizen but for this offence.
   
3. During the commission of the offence there were no threats issued and no injuries sustained by anyone.
   
4. You have co-operated well with Police and Correctional Service personnel through-out your pre-trial custody till today.
   
5. You have shown remorse by saying sorry for what you did.
   
6. You have also spent 10months in pre-trial custody at the CS remand.
   

14. A Pre-Sentence Report prepared on your behalf by the Community Based Corrections Office (CBC) has recommended a non-custodial sentence and to place you on probation to do community service work and counseling.

15. Talking into account all these considerations a maximum sentence of 3 years would not be appropriate under the circumstance nor a custodial sentence. I would instead impose a half of the maximum term. I also cannot make an order for restitution because you are unable to find money as shown in the Pre-Sentence report.

SENTENCE

16. Accordingly, I order that:

1. The Prisoner is sentenced to 18 months imprisonment in light labour less 10 months spent in pre-trail custody awaiting trial, hence to serve balance of 8 months only.
   
2. However the balance of 8 months is wholly suspended and prisoner is placed on Good Behavior Bond with the following conditions;
   
   • (a) That the prisoner shall enter into recognizance without sureties to keep peace and be of good behavior for 8 months.
   • (b) That the prisoner shall not leave Lorengau within the 8 months suspended term without leave of the National Court.
     

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Applicant/Accused