N7891

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No.  73  OF 2019

THE STATE

V

AUGUSTINE KINBENEM

Kiunga: Koeget, J
2019:  8th, 17th May.
	
CRIMINAL LAW-   Indictable offence – Stealing pursuant to section 372 (1) of the Criminal Code Act – accused sentenced on guilty plea – Mitigating factors out-weigh aggravating facts – exercise of Court’s discretionary powers under section 19 of the Code.

Cases Cited

The State –v- David Mokmok

Counsel:

Mr. D. Mark, for the State
Mr. E. Sasingan, for the Accused

17th May, 2019 

1.     KOEGET J: INTRODUCTION: The accused is charged with Stealing pursuant to section 372 (1) of the Criminal Code Act chapter 262.  

FACT

2.    The accused was employed by Ok Tedi Mining Limited at Mine’s Mill Processing area at Tabubil as Gravity Operator.   On 5th July, 2018 between 10:30 o’clock at night and 11:30 the same night whilst on duty, he removed and packed dried gold concentrate into two sample parcels and took them out of the mine site.

3.     The company security guards were alerted and the accused was stopped at Tabubil town and searched by the company security guards.  The security guards found in his possession two sample parcels containing dried gold concentrate valued at K2,287.27 the properties of Ok Tedi Mine Ltd.

ISSUE

4.     The accused pleaded guilty to the charge and so he was convicted accordingly. The issue for the court to determine is what is the appropriate sentence the court should impose on the prisoner.

LAW

“Section 372 (1) – 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.	

PERSONAL PARTICULARS

5.     The prisoner is married with 3 children.  The children reside with their mother in the village.

6.     He obtained Trade Certificate from a technical college and worked for eight months as Process Plant Operator before the commission of the offence.

AGGRAVATING FACTORS

7.     His conduct breached the trust the employer placed upon him.  Such offence is prevalent in the country these days.

MITIGATING FACTORS

8.     He is a first time offender.  He has lost employment and his final entitlements had been forfeited by the company.  In the circumstances of the case, the prisoner did not benefit from commission of the offence.

9.     He cooperated well with the police when he admitted commission of the offence to them during the investigation of the complaint.

10.     The commission of the offence brought shame and embarrassment to himself and his immediate family members and he lost employment.   He admits what he did was a foolish thing and regrets it.

SENTENCE

11.     The prisoner stole two sample parcels of dried gold valued at K2,287.27 and were repossessed by the company security guards.  The items were returned to the company and so it suffered no loss of profit.  The prisoner admits what he did was a foolish act as he brought shame and embarrassment to himself and family.  He did not benefit from commission of the offence.

12.     He lost employment with the company and his final entitlements were forfeited by the company.  So he left employment of the company with empty hands.  In the given circumstances of this case an imposition of a non custody sentence is warranted.

13.     The mitigating factors outweigh the aggravating factors and in the exercise of the Court’s discretionary powers under section 19 of the Code, the prison is sentenced to the Raising of the Court.

ORDER

(1)	The prisoner’s cash bail of K1,000.00 is to be refunded to him forthwith.  

Accordingly ordered.
______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused