N7743

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 680 OF 2018
CR No. 682 OF 2018
CR No. 683 OF 2018

THE STATE –V-  IPIS KAPOKA
THE STATE –V- KELLY KLEM
THE STATE –V- GILBERT KLEM

Kiunga:  Koeget, J
2018:13th & 15th October

CRIMINAL LAW-   Indictable offence under section 398 (a) (i) of the Criminal Code Act – sentence on guilty plea – sentence pursuant to section 19 of court’s discretionary powers in view of goods returned – mitigating factor - the prisoners did not benefit much from commission of offence.	

Facts

On the early morning of 6th November 2017, between 2 o’clock and 3 o’clock the accuseds in the company of one Nathan Wadai and Nugu Saguba went to J.K.J Trading Limited in Kiunga in the Western Province and broke into the shop.

The accomplice Nathan Wadai armed with a wrecking bar used it to break open the locks on the main entrance to the gate and the two metal doors.  All entered the shop and Gilbert Klem stood as a watch man at the entrance.

The accuseds entered the shop and stole items including cash of K120.00, 2 T-shirts, 3 bags, 1 bicycle, 37 various electronic devices, 9 biscuit packets, 12 tinned fish, mobile flex cards, and 72 packets of cigarette all valued at K7,704.50 the properties of JKJ Trading Limited.

The accuseds fled the scene and went to Sare Kona in Kiunga town and shared the stolen items amongst themselves.  The following morning, an employee trying to open the gate to the entrance of the shop realised that the shop was broken into so he alerted the Manager.

The CCTV installed in the shop had the images of the offenders captured so they were identified, apprehended and charged by the police.

Counsel:

Ms. M. Tamate, for the State
J. Kolowe, for the Accuseds

15th October, 2018

1.	KOEGET J: INTRODUCTION:  The accuseds are charged with Break, Enter and Stealing pursuant to section 398 (a)(i) of the Criminal Code Act.

ARRAIGNMENT

2.	The accuseds pleaded guilty to the charge so they were convicted.  There are admissions in all the records of interview so their pleas were confirmed accordingly.

ALLOCUTUS

3.	All express remorse and stated that what they did was a foolish act that brought shame and embarrassments to them including their respective families.

LAW

4.	The law in relation to break enter and stealing is as follows:

“Section 398.  Breaking into buildings and committing Crime.

A person who – 
(a)	  Breaks and enter –
(i)	a school house, shop, ware-house, counting-house,
office, store, vehicle, garage, hangar, 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.”

Personal Particulars

Ipis Kapoka

5.      He is 19 years of age and was in Grade 10 at Kiunga Secondary High School when the offence was committed.  He is a bachelor and is the last born in the family.

Kelly Klem

6.     He is 21 years of age and resides at Sare Kona in Kiunga.  He is a bachelor and is cared for by the aunt as the mother is deceased and father has since remarried and lives with his second wife.

Gilbert Klem

7.      He is 16 years of age and is a bachelor.  He resides with aunt at Sare Kona since death of his mother.  He is a biological brother of Kelly Klem.

AGGRAVING FACTORS

8.       The offence is prevalent in the country.  The company experienced loss of profit because some of the goods stolen were never recovered.

MITIGATING FACTORS

Ipis Kapoka

9.     He is a youthful first time offender.  He cooperated well with the police and some of the goods stolen were recovered from him by the police.

10.     He admitted commission of the offence to the police during the conduct of record of interview.  

11.     He pleaded guilty to the charge in court so saved time of court.

12.     He did not gain much out of commission of the offence.  He has been in custody for 2 months, 2 weeks before released from custody on cash bail.

Kelly Klem

13.     He is a first time youthful offender.  He cooperated well with the police and admitted commission of the offence to them.

14.     Some of the goods he stole had been recovered by the police so he did not benefit much from commission of the offence.  He pleaded guilty to the charge in court and save valuable time of the court.

15.     He has been in custody for 11 months.

Gilbert Klem

16.     He is a youthful first time offender.  He admitted commission of the offence to the police and in court he pleaded guilty and save valuable time of the court.  Some of the items he stole had been recovered by the police.

17.     He has been in custody for 11 months.

SENTENCES

18.      The offence was committed by the prisoners at night in a shop and no lives were threatened during the commission of the offence.  

19.      The prisoners are all first time, youthful offenders.  All pleaded guilty to charge and saved valuable time of court.  Some of the goods stolen were recovered by police so each of them did not benefit much from commission of the offence.

20.      The prisoner Ipis Kapoka was in custody for 2 months, 2 weeks before released on cash bail of K500.00 whilst Kelly Klem and Gilbert Klem are in custody for 11 months.

21.      In view of the facts and circumstances of the case, in particular that some goods were recovered by the police, a lenient sentence is to be imposed in my view.

22.      In the exercise of the court’s discretionary sentencing powers, the prisoners are sentenced to be imprisoned for 11 months each in hard labour.

23.      The prisoner Ipis Kapoka had been in custody for 2 months and 2 weeks before he was released on cash bail of K500.00.

24.      The period of 2 months, 2 weeks are deducted and the balance of 8 months and 2 weeks are wholly suspended, upon his entering into recognisance and promise to Keep Peace and be on Good Behaviour Bond for 8 months 2 weeks.  

25.      Should the prisoner breach this condition, he shall be brought to court to be dealt with for the suspended part of the sentence.

26.      The cash ball of K500.00 is to be refunded to the prisoner.

27.      The prisoners Kelly Klem and Gilbert Kelm are sentenced to 11 months each in hard labour.  Both have been in custody awaiting disposal of the case so effectively they have served their sentences.  

ORDER

(1)	The prisoners are sentenced to be imprisoned for 11 months each in hard labour.

(2)	In the case of prisoners Kelly Klem and Gilbert Klem, their pre-trial custodial periods are substituted for the sentences imposed.

(3)	These prisoners are discharged from the indictment and custody forthwith.

(4)	In the case of prisoner Ipis Kapoka, the period of 2 months and 2 weeks are deducted and the balance of 8 months and 2 weeks are wholly suspended upon his entering into recognisance and promise to Keep Peace and be of Good Behaviour Bond for 8 months and 2 weeks.

(5)	The cash bail of K500.00 is to be refunded to the prisoner Ipis Kapoka.

Accordingly Ordered.

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