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State v Pilon [2018] PGNC 378; N7460 (27 March 2018)

N7460

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1008 of 2017

THE STATE

V

LEMBEI PILON

Lorengau: Gora, AJ
2018: 15 & 27 March

CRIMINAL LAW – Sentence – Breaking and Entering and Stealing a suitcase with clothes Juvenile offender – Criminal Code Section 395 (1) (c) – Guilty plea.

Cases Cited

Avia Aihi v. The State (No.3) (1982) PNGLR 92
GoliGolu v. The State (1979) PNGLR 653
Hure Hane v. The State (1984) PNGLR 105
State v. Daniel Noutim and Bandik John (2014) PGNC 233

Counsel

F Popeu, for the State
T Kaleh, for the Appicant/Accused

RULING ON SENTENCE

27^th March, 2018

1. GORA AJ: INTRODUCTION: The prisoner LEMBEI PILON pleaded guilty to one count of Breaking and Entering and Stealing under Section 395 (1) (c) of the Criminal Code and was convicted by the court accordingly.

2. The prisoner pleaded guilty to an Indictment which is in the following terms:

LEMBEI PILON of LOMBRUM, LOS NEGROS, MANUS PROVINCE, stands charged that he on the 1^st day of January 2017 at Lombrum, Manus Province in Papua New Guinea broke and entered the dwelling house of THOMAS BARARA and committed the crime of stealing a suitcase with clothes valued at over K1, 700.00.

3. Prisoner is 17 years old and comes from Buyang village in Manus Province. He is a juvenile offender and was under the influence of alcohol at that time of committing the offence.

FACTS

4. In the early hours of the 01^st of January 2017, between 12:30am and 1:30am, the prisoner Lembei Pilon was at Lombrum Naval Base. At that time the prisoner was under the influence of alcohol. He then went to the complainant’s house at Spur Road. He cut open the fly-wire of the window, removed a louver blade and entered the house. He then took out a black suitcase containing clothes and a billum containing Loda Security uniforms. It is estimated that the total value of the clothes is K1, 700.00.

ISSUE

5. What is the appropriate sentence?

LAW

6. Section 395 (1) (c) of the Criminal Code creates the offence and prescribes the penalty as well.

These provisions specifically state that a person, who breaks and enters the dwelling house of another and commits a crime in it, is guilty of a crime. Penalty: Subject to subsection (2) imprisonment for a term not exceeding 14 years.

APPLICATION OF THE LAW

7. Penalty for the offence to which the prisoner had pleaded guilty carries a maximum imprisonment term of 14 years.

8. However it is now a trite law in this jurisdiction that the maximum penalty is reserved only for the worse type of cases. This point is well illustrated in the cases of Goli Golu 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).

9. It is also settled principle of Law that each case is determined by its own peculiar facts and circumstances. In the present case the prisoner was unarmed, no one was threatened or injured and no violence was used in the commission of the alleged offence, though he was under influence of liquor. I do not view this as a worse type of case however that does not mean that the offence is not serious. In fact it is serious because the prisoner broke and entered into a dwelling house of another and stole items valued at K1, 700.00.

10. So in determining what would be the appropriate sentence in the present case both counsels referred the court to the case of State v. Daniel Noutim and Bandik John (2014 PGNC 233. In this case two men pleaded guilty to break, enter and stealing under Section 395 (1) (c) of the Criminal Code. Both prisoners broke into a female teacher’s house by pushing their hands through a hole in the wall and opened the lock of the main door from the inside. They stole personal items namely a Nokia phone, a cap and a sleeping mat. The victim woke up and screamed and called out for help but the offenders ran off with the stolen property.

11. The court after considering all the mitigating and aggravating factors sentenced each prisoner to 3 years imprisonment with NO suspension. His Honour Justice Cannings in sentencing both men stated that this was a serious offence and no strong case was presented for suspension of any part of the sentence.

12. In the present case the facts are almost the same and if there is to be any precedence to follow as guide for purposes of deciding on the appropriate penalty, then I need not look elsewhere other than this case.

13. However I am reminded that each case must be looked at on the merits of its own peculiar facts and circumstances particularly in respect of the mitigating and aggravating factors as well as recommendations, if any for probation.

MITIGATING FACTORS

14. Mitigating factors in favour of the prisoner are:

(a) He made early admissions to the charge during the Record of Interview and later on arraignment he pleaded guilty to the indictment, thus saving court much time and resources which could have been incurred to run a trial.

(b) Prisoner is a first time offender with no prior convictions recorded against him.

(c) He has expressed remorse in court by saying sorry for what he did.

(d) No weapon was used, no one was threatened and no one suffered physical injury at the time of the commission of the offence. The prisoner acted alone and was not in the company of others.

(e) He has cooperated well with the police.

AGGRAVATING FACTORS

15. Aggravating factors against the prisoner are:

(a) He was drunk at the time of the commission of the offence.

(b) He committed the offence at night between 12:30am and 1:30am

(c) Prevalence of the offence: There is prevalence of breaking, entering and stealing offences in the communities here.

(d) Deterrence: Form of punishment must be such that it will serve as deterrence to others.

PRE-SENTENCE REPORT

16. It is noted from the Pre-Sentence Report that the prisoner’s mother and one Steven Posi have both expressed concerns of the prisoner’s behavior. He has no intention of pursuing further education or even doing any vocational training. Steven Posi who appears to be a community leader in the area or block where the prisoner lives pointed out that the prisoner had been involved in minor problems within the block where they stay. The prisoner’s mother is willing to pay compensation for the property stolen and Steven Posi is willing to supervise the prisoner if placed on probation.

17. Victim’s view was also obtained and he does not want any form of compensation but would rather have the prisoner spend time in jail.

18. The PSR also recommends that the prisoner be placed on probation and to do community service work. PSR also states that the prisoner is not a threat to the community.

SUMMARY

19. Prisoner has pleaded guilty to the charge of Breaking and Entering and Stealing under Section 395 (1) (c) of the Criminal Code. Penalty is imprisonment for a term not exceeding 14 years. Case of State v. Noutin (supra) provides some guide on what would be the appropriate penalty. Circumstances of this case are similar to the present case. Court imposed sentence of 3 years without suspension as there was no strong case presented for suspension of any part of the sentence.

20. In the present case the prisoner is juvenile and the Pre-Sentence Report recommends he be placed on probation on the basis that he needs constant supervision, guidance and counseling. It is only the mother who takes care of him and his other siblings but she is at work most of the times and their father who is in the Navy spends most of his time in the navy ship. I also note that the mitigating factors in his favour outweighs the aggravating factors and therefore warrants a penalty which is appropriate to the facts and circumstance peculiar to his case which I have taken into account, hence I order as follows.

ACCORDINGLY I ORDER THAT:

1. The prisoner is sentenced to 3 years imprisonment with hard labour.

2. However the 3 years sentence is wholly suspended and the prisoner is placed on Good Behaviour Bond with the following conditions:

(a) Prisoner shall enter into recognizance with surety of K500.00 to keep the peace and be of good behavior for 3 years.

(b) Prisoner is to make restitution of K1, 700.00 towards one THOMAS BARARA within 3 months from the date of these orders.

(c) Prisoner is placed on probation to undergo counseling and rehabilitation during the term of the suspended sentence and to do 100 hours Community Service Work. All these to be facilitated and supervised by the Community Based Corrections (CBC) office which is to take effect forthwith.

3. If any of the conditions are breached, the prisoner shall be arrested and brought to the National Court in respect of the service of the suspended portion of the sentence.

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