N7744
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 145 OF 2017
CR No. 1468 OF 2017
CR No. 1470 OF 2017

THE STATE v FONIX OMBO
THE STATE v AMITA BOKDAP
THE STATE v RICHARD JOHNNY

Kiunga:  Koeget, J
2018: 14th August, 15th, October

CRIMINAL LAW- Indictable offence – Break, Enter and stealing under section 398(a)(i) of the Criminal Code Act – sentence on guilty plea – Exercise of court’s discretionary powers under section 19 of the Criminal Code Act.

Counsel:

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

14th 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 chapter 262.

FACT

2.	On the night of 24th July 2017 between 10 o’clock and 11 o’clock, the accuseds in company of accomplices Allen Numi, Bani Onku and Manu Haoda went to Lin Brothers Supermarket at Ningerum station.  They went to the main entrance and the accomplice held the chain whilst the others used a bolt cutter to cut the chain.  The six accuseds entered the shop and four of them stood at the entrance and kept a watch whilst two of them went and open the til and took out the cash of K5, 000.00 and eleven mobile phones.

3.	They took the cash and mobile phones and left the shop.  All went to the bank of Alice river and shared the cash and mobile phones.
The following morning, the store Manager discovered the Break and Enter into the shop and a stock-take was conducted.  It was confirmed that a cash of K5,000.00 was stolen and various electrical items also stolen totalling K35,122.40.

4.	The State alleged that the actions of the accuseds contravenes section 398 (a) (1) of the Criminal Code Act.  

ARRAIGNMENT

5.	The three accuseds were arraigned on these set of facts and all pleaded guilty to the charge.  Each of the record of interview between the accusseds and police investigators contained admission so they were convicted accordingly.

ALLOCUTUS

6.	The prisoners were remorseful and regretted what they did was a foolish thing.

LAW

“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

Fonix Bokdap

7.	He is 18 years old and was a student attending Ningerum Primary school.  He is of mix parentage of West New Britain and Western Province.

Amita Bokdap

8.	He is 22 years of age and is married with one child aged 3 years old.

Richard Johnny

9.	He is 18 years old and attended Ningerum Primary school at the time he committed the offence.

AGGRAVING FACTORS

10.	The prisoners acted in concert when the offence was committed.  The offence was committed at night and the company experienced loss of profits.  The offence is prevalent in the country.  

MITIGATING FACTORS

Tonix Omdo

11.	He is a first time youthful offender.  He cooperated well with police and made admissions in the record of interview.  In court, he pleaded guilty to the charge and saved valuable time of the court.  He spent 4 months 1 day in custody before been released on cash bail.

Amita Bokdap

12.	He is a first time offender.  He cooperated well with the police and made admissions in the record of interview. 

13.	In court he pleaded guilty and saved valuable time of the court.  He has been in custody for 4 months 1 day before been released on cash bail of K500.00

Richard Johnny

14.	He is a first time youthful offender.  He cooperated well with the police and in court pleaded guilty to the charge.   He saved valuable time of the court.

SENTENCE

15.	The prisoners did not use weapons at the time the offence was committed at night.  No lives were threatened and in the circumstances of the case an imposition of maximum sentence is inappropriate.

16.	In the exercise of the court’s sentencing discretionary powers, a shorter sentence ought to be imposed on the prisoners.  This is not the worst type of Break, Enter and Stealing case, so the maximum sentence is not imposed.

17.	The prisoners are sentenced to 4 months and 1 day.  Since they were in custody for 4 months and 1 day before being released on cash bail, their pre-trial custodial sentences are substituted for sentences imposed.

ORDERS

(1)	The prisoners pre-trial custodial periods are substituted for the sentences imposed.

(2)	The prisoners bail monies are to be refunded to them.

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

Accordingly Ordered.

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