N8046
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 181 and 182 of 2018

THE STATE

V

AGNES JIMU & CHARLES ANDREW EPEI

Waigani: Berrigan J
2019: 6 May, 3 June, 17 September and 10 October

CRIMINAL LAW – Practice and procedure – Sentence – S.372(1)(5)(e)(10) of the Criminal Code – Stealing -  S. 436(a) of the Criminal Code –Arson.

Cases Cited:
Papua New Guinea Cases

Goli Golu v The State [1979] PNGLR 653
Emil Kongian& 8 Others v The State (2007) SC928
Joe Foe Leslie v The State(1998) SC560
Lawrence Simbe v The State [1994] PNGLR 38
Mase v The State [1991] PNGLR 88
Peter Naibiri and Kutoi Soti Apia v. The State (1978) SC137
Public Prosecutor v Kerua[1985] PNGLR 85
Sanawi v The State (2010) SC1076
SCR No 1A of 1981; Re Motor Traffic Act [1982] PNGLR 122 
The State v Tardrew [1986] PNGLR 91 
The State v Frank Kagai[1987] PNGLR 320.
The State v Ipu Samuel Yomb [1992] PNGLR 261
The State v Ian Bob Wali (2004) N2580
The State v Bart Kiohin Mais (2005) N2811 
The State v Ian Sevevepa, CR No. 2007 of 2005, unreported, 10 May 2006
The State v James Wakis (2008) N3426
The State v Roselyn Waiembi (2008)N3708
The State v Towakra (2009) N3845
The State v Priscilla Piru (2010) N4221
The State v Taba (2010) N3939
The State v Mapi Mack (2010) N4100
The State v Samson Leila (2012) N4770
The State v Luap Suimeleng & 2 Ors (No 2) (2015) N6055
The State v Kikimbe (2016) N6180
The State v Vagi (2017) N6994
The State v Yakop Ambasi (2018) N7597
The State v Solomon Junt Warur (2018) N7545 
The State v Charles Andrew Epei (2019) N7845
Ure Hane v. The State [1984] PNGLR 105 
Wellington Belawa v The State [1988-1989] PNGLR 496

Overseas case cited:

Postiglione v. The Queen [1997] 189, CLR 295.
Lowe v. The Queen [1984] HCA 46, (1984)154 CLR at 606

References cited

Sections7(1)(c), 19, 372(1)(5)(e)(10) and 436(a) of the Criminal Code (Ch. 262) (the Criminal Code)

Counsel

Ms. T. Aihi, for the State
Mr. E. Sasingian, for the Offenders

DECISION ON SENTENCE

10th October, 2019

1.	BERRIGAN J: The offenders, Agnes Jimu and Charles Andrew Epei, were jointly charged with one count of stealing K47,700 from the safe in the Office of the Assistant Commissioner of Police, Royal Papua New Guinea Constabulary (RPNGC), at Boroko Police Station, National Capital District, and one count of wilfully and unlawfully setting fire to the building housing the Office, contrary to ss. 372(1)(5)(e)(10) and 436(a) of the Criminal Code, respectively.

2.	Agnes Jimu pleaded guilty to the charges.  Her plea was accepted on a provisional basis subject to reading the depositions, which was deferred pending the trial of her co-accused, for whom she gave evidence.  

3.	Charles Epei was found guilty of aiding Agnes to commit both offences, pursuant to s. 7(1)(c) of the Criminal Code, following the trial.  In particular I found that his presence at the scene of the crimes that evening was deliberate and made in full knowledge of the crimes she intended to commit, and with the intention to encourage her in the commission of the offences by providing moral support and a readiness to assist, which presence did so encourage her: see The State v Charles Andrew Epei (2019) N7845.

4.	Agnes Jimu’s guilty plea was subsequently confirmed upon reading the depositions in her case. 

Facts

5.	The offender, Agnes Jimu, was employed by the RPNGC as the Divisional Administrative Officer attached to Central Command at the Boroko Police Station, reporting to the Divisional Commander for the National Capital District (NCD), Central Province, who at the material time was Assistant Commissioner of Police (ACP), Sylvester Kalaut.  The offender, Charles Epei, her husband, was an IT officer with Pacific Post.  

6.	On Thursday, 5 October 2017, between 6 and 7 pm Agnes Jimu in the company of Charles Epei went to the Boroko Police Station.  Once there, Agnes Jimu went to the Divisional Commander’s Office where K184,000 seized as an exhibit in a separate matter under investigation was stored in the safe.   She opened the safe and stole K47,700 from within. At the time she was the only person with the key to the safe.  Agnes then set fire to the safe and its contents, which were burnt.  She also set fire to other parts of the building. 

7.	Both offenders were found at the scene that night.  Agnes was suffering burns from the fire and went with Charles to the hospital.  Both were apprehended later the same evening.  At the time Charles was in possession of K1200 stolen cash. A further K46,500 stolen from the safe was recovered from the offenders’ home later that night.  

8.	It now remains to sentence each of them.

Submissions 

9.	In submission defence counsel acknowledged the serious nature of both offences, and that they involved a pre-meditated and malicious scheme, against the RPNGC, which resulted in substantial damage.  In the case of Agnes, he also acknowledged that the offences involved a breach of trust.  He noted that whilst very serious, the benefits were short lived given the apprehension of both offenders the same evening, and the recovery of the monies taken from the safe.

10.	Counsel conceded that a custodial term was warranted in each case and submitted that a sentence in the range of five (5) to seven (7) years’ would be appropriate with respect to each of the stealing and arson charges. 

11.	The State submitted that having regard to the serious nature of the offences a sentence in the range of three (3) to six (6) years of imprisonment would be appropriate for the stealing charge, whilst an appropriate starting point for the arson offence would be 10 years of imprisonment, which the Court may wish to impose concurrently with that for stealing. 

Considerations and Comparative Cases – Stealing 
12.	In Wellington Belawa v The State [1988-1989] PNGLR 496 the Supreme Court identified a number of factors that should be taken into account on sentence for an offence involving dishonesty, including: 

(a)	the amount taken; 
(b)	the quality and degree of trust reposed in the offender; 
(c)	the period over which the offence was perpetrated; 
(d)	the impact of the offence on the public and public confidence; 
(e)	the use to which the money was put;   
(f)	the effect upon the victim; 
(g)	whether any restitution has been made; 
(h)	remorse; 
(i)	the nature of the plea; 
(j)	any prior record; 
(k)	the effect on the offender; and 
(l)	any matters of mitigation special to the accused such as ill health, young or old age, being placed under great strain, or perhaps a long delay in being brought to trial.

13.	In addition, the Supreme Court suggested that the following scale of sentences may provide a useful base, to be adjusted upwards or downwards according to the factors identified above, such that where the amount involved is between:

(a)	K1 and K1000, a gaol term should rarely be imposed;
(b)	K1000 and K10,000 a gaol term of up to two years is appropriate;
(c)	K10,000 and K40,000, two to three years’ imprisonment is appropriate; and
(d)	K40,000 and K150,000, three to five years’ imprisonment is appropriate.

14.	The State referred to The State v Ian Bob Wali (2004) N2580, Kandakasi J (as he then was), in which the offender pleaded guilty to break, enter and stealing two firearms and cash in the sum of K305, the property of the State from the Maprik Police Station, contrary to s. 398(a)(i) of the Criminal Code for which the maximum was 14 years’ imprisonment.  Between 11 pm and 12 am the offender broke through the wall of the station, and then proceeded to break into the CID office, where he made a mess of the office, opening all the files, which included court and other papers and threw them all over the place.  This he did in search of valuables and firearms.  He opened a safe and stole K305, and opened and stole two firearms from the exhibits room. He was caught in the act and all items stolen were recovered.  He was sentenced to 6 years of imprisonment, subject to consideration of suspension pending the completion of a pre-sentence report.

15.	I have also had regard to the following cases in which sentences were imposed for stealing: 

(a)	The State v Ian Sevevepa, CR No.2007 of 2005, unreported, 10 May 2006, Lenalia J, in which the offender pleaded guilty to stealing the sum of K17,000.00 belonging to a service station proprietor. The money which was contained in a bag was placed on a table in the office by a female employee. While the female employee was sweeping the office, the prisoner walked into the office, pushed the female employee away, took the bag of money and ran away with it. Taking into account the prisoner's guilty plea, that he was a first time offender, the crime occurred in broad daylight; and part of the amount stolen was given to another person, the Court imposed a sentence of 3 years to be served in hard labour. The time spent in custody awaiting trial was deducted and the balance was ordered to be served out in custody; 

(b)	The State v Roselyn Waiembi(2008)N3708, David J, in which the offender was employed as a clerk and pleaded guilty to stealing K15,000. She was sentenced to 3 years IHL less time spent in custody and the remainder of the sentence was suspended on condition of restitution;

(c)	The State v Taba(2010) N3939, Cannings J, in which the prisoner was convicted of stealing 1000 cartons of tinned fish valued at K58,399 from his employer, RD Tuna Canner Ltd.  He had joined other employees to steal the tinned fish and sell to a third party. The prisoner was sentenced to 2  years 6 months’ less the 1 year 5 months spent in custody, leaving the balance of 1 year 1 months’ to be spent in hard labour; and

(d)	The State v Vagi(2017) N6994, Salika DCJ (as he then was) in which the prisoner, a manageress of a petrol station stole K119,187.58 cash from a petrol station.  She was sentenced to 5 years of imprisonment, wholly suspended on condition of restitution.

Considerations and Comparative Cases – Arson

16.	In support of its submissions the State referred to Emil Kongian & 8 Others v The State (2007) SC928 in which the appellants were found guilty following trial of four counts of arson and one count of unlawful deprivation of liberty.  The appellants acted as part of a group to burn down garden or transit houses made of bush material.  They were sentenced to varying total terms of imprisonment between 12 and 16 years each. They appealed their sentences, which were upheld on a number of grounds, and the sentences were reduced to between 3 and 5 years’ in each case.  In doing so, the Supreme Court stated that the proper starting point when sentencing an offender for arson is 10 years for a dwelling house or a public institution and five years for a hauswin or a garden house.

17.	The State also referred to The State v Ipu Samuel Yomb[1992] PNGLR 261, Doherty J, in which the offender pleaded guilty to arson in setting fire to the house occupied by his sister-in-law and her family. This act was in reprisal for the ill treatment of his sister by her husband, who was the brother of the victim of the arson. In sentencing the offender to five (5) years’ imprisonment (less time spent in custody), the sentencing judge had regard to the following factors: the deliberate or very reckless putting of lives at risk; the deliberate pouring of kerosene and setting fire to the roof, knowing that people were inside; the deliberate locking of the door, so preventing escape by the occupants; the deliberate cold-blooded planning of the offence; the value of the house and its contents to the occupants; and the complete lack of provocation offered to the defendant by the occupants and their children, who were inside at the time.

18.	A number of authorities have since had regard to the considerations outlined in Yomb (supra).  As observed by David J in The State v Mapi Mack (2010) N4100:

“After carefully considering the guidelines suggested in Ipu Samuel Yomb and Andrew Yeskulu and the application of the guidelines under Andrew Yeskulu in The State v Robin Warren (No 2) (2003) N2418, The State v Henny Wamahau Ilomo (2003) N2420, The State v Enni Matthew (No 2) (2003) N2563, and The State v Prodie Akoi (2004) N2584, Justice Cannings in Bart Kiohin Mais proceeded to formulate a list comprising sixteen considerations which he took into account when deciding an appropriate sentence in that case. These are:-

(a)	Did the offender cause damage of a relatively low value?
(b)	Was there no person or class of persons directly affected by the damage or destruction of the property?
(c)	Did the offender not put lives at risk?
(d)	Was there only one offender?
(e)	Did the offender not plan the offence in a deliberate and calculated manner?
(f)	Did the owner of the property or any other person provoke the offender in 'the non-legal sense'?
(g)	Was it an isolated incident?
(h)	Did the offender give himself up after the incident?
(i)	Did the offender cooperate with the police in their investigations?
(j)	Has the offender done anything tangible towards repairing his wrong, eg offering compensation, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what he did?
(k)	Has the offender not caused further trouble since the incident?
(l)	Has the offender pleaded guilty?
(m)	Has the offender genuinely expressed remorse?
(n)	Is this his first offence?
(o)	Can the offender be regarded as a youthful offender?
(p)	Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?”

19.	To these David J, added the consideration of whether there was any deliberate pouring of a highly flammable substance such as kerosene, petrol, or diesel, in line with the second consideration in Yomb. 

20.	In addition to these considerations, I have also had regard to the following cases in which sentences were imposed for arson: 

(a)	The State v James Wakis (2008) N3426. In that case there was a long standing dispute between two brothers over an oil palm block. The offender with two others entered the house and assaulted the occupants before setting fire to the dwelling house and an adjacent houseboy. A sentence of 6 years was imposed, suspended on conditions including compensation; 

(b)	The State v Towakra (2009) N3845, Cannings J, in which three offenders were found guilty following trial of two counts of arson.  Under the first count, they were convicted of burning down a permanent dwelling house and properties (worth K67,667.90) and a bush material kitchen house (worth K8,000.00) belonging to their relative, Joshua Apkosa.  Under the other count, they were convicted of burning down the permanent dwelling house-canteen (worth K11,371.60) of LepmanApkosa, the first victim’s brother. The event followed the death of Anton and John Towakra’s brother, Simon Towakra, from injuries inflicted by Joshua Apkosa. Simon was being buried the morning of the charges. Anton went to demand compensation.  One of the offenders’ cousins was slashed by a bushknife and sustained serious injuries.  In response a number of houses and other structures were burnt down by the offenders.  Each offender was sentenced to 9 and 7 years’ imprisonment, respectively on each count, to be served cumulatively having regard to the different victims. The sentence of 16 years’ was reduced to 10 years’ having regard to the principles of totality, of which 7 years was suspended on conditions including compensation of K16,000 and K4000 (on behalf of all offenders) to each of the victims;

(c)	The State v Mapi Mack (supra), in which the prisoner set fire to two company trucks over a land dispute with the company. The trucks were worth K2,496,000.00. The offender was sentenced to 8 years’ imprisonment.  Time spent in custody was deducted.  Three of the five years and 353 days remaining was suspended on conditions including community service;

(d)	State v Priscilla Piru (2010) N4221, Gavara-Nanu J, in which the offender pleaded guilty to setting fire to the house of the victim with whom the offender and her family were living, following an argument.  The house and all its contents were destroyed.  The total value of the personal belongings lost in the fire was estimated at K4,462.00.  The offender was sentenced to 10 years of imprisonment.  Time spent in custody was deducted.  Of the balance, 1 year, 5 months, 1 week was suspended on conditions including a good behaviour bond of 2 years, leaving 8 years to serve;

(e)	The State v Samson Leila (2012) N4770, David J, in which the offender pleaded guilty to two counts of arson.  He set fire to and burnt down two dwelling houses belonging to his in-law, one a permanent house valued at K120,000.00 and the other a bush material house valued at K5,000.00.  The offence was unprovoked and there was no genuine remorse.  No lives were put at risk.  Sentences of 7 and 4 years of imprisonment were imposed, to be served concurrently.  Time spent in custody was deducted, leaving a term of 5 years, 7 months and 3 weeks, of which 2 years was suspended on conditions;

(f)	The State v Luap Suimeleng & 2 Ors(No 2) (2015) N6055, Lenalia J, in which the offenders were found guilty of setting fire to a dwelling house and a kitchen in the village.  The owner was not present at the time.  The buildings were burnt to the ground and all possessions lost.  The value of the properties burnt was unavailable.  None of the offenders were formally educated.  They were sentenced to 6 and 2 years, on each count, respectively, to be served concurrently, less time already spent in custody;

(g)	The State v Kikimbe (2016) N6180, Cannings J, in which the offender was a member of a group of traditional owners of land since occupied by a mining company. The group was angry with the company and its local management over the alleged failure of the company to provide jobs for local people. The group converged on the mine site, broke through the gate, and damaged and destroyed property. In the course of the rampage, the offender and four other persons wilfully and unlawfully set fire to a refuelling truck worth K179,800.00. The offender was charged with and pleaded guilty to one count of arson.A sentence of eight years was imposed. The pre-sentence period in custody was deducted and the balance of the sentence was suspended on condition, amongst others, that restitution takes place within six months;
(h)	The State v Yakop Ambasi (2018) N7597, Miviri AJ (as he then was) in which the prisoner pleaded guilty to burning down the dwelling house of his blood brother over a dispute over earnings from their block of land.  The offender went to the house of the complainant with palm fruit which he placed on the veranda and set alight. The fire grew and burnt down the semi-permanent house of the complainant including his properties inside. Nobody was in the house at the time.  The offender was sentenced to 5 years’ in hard labour.

21.	The sentence in this case will be determined having regard to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.

Considerations in this Case 

22.	I have taken the following matters into account when determining sentence.

23.	The offences involved in this case were both extremely serious offences against a State institution.  

24.	Applying the principles outlined in Wellington Belawa to the offence of stealing, it concerned a substantial amount of money in the sum of K47,700 from the safe in the Divisional Commander’s Office, located in the Boroko Police Station. Whilst a single incident, the offence clearly involved planning and was conducted for financial gain by each of the offenders.  I accept defence counsel’s submission that the benefit derived from the offence was short-lived with the stolen monies recovered later that evening.

25.	In the case of Agnes Jimu, there are number of particularly aggravating features of the offending.  Whilst she was not a senior, nor even a sworn, police officer, she abused a significant position of trust as a long serving administrative employee of the RPNGC, the Divisional Commander’s Assistant, and the only person entrusted with the key to the Divisional Commander’s safe.

26.	I accept the comments of ACP Kalaut that the RPNGC’s reputation has been tarnished by the conduct of some of its personnel in recent years.  It goes without saying that the people of Papua New Guinea are entitled to have confidence in the country’s principal law enforcement agency. I have no doubt that the fact that the offence was committed by one of its employees, albeit not a serving police officer, must have had an impact on public confidence in the Constabulary.  

27.	Stealing offences are prevalent and this case calls for both general and specific deterrence.

28.	It appears that the nature of the arson in this case is quite different from cases which have come before the Court before.  Nevertheless, in general terms the factors outlined by Cannings J in The State v Bart Kiohin Mais (2005) N2811 and David J in Mack (supra), remain highly relevant and I have considered them as follows. 

29.	The financial cost of the damage caused by the fire was not established on the sentence proceedings, nevertheless, it was clearly substantial.  At least some of the K184,000 remaining in the safe was burnt, and damage was caused to other parts of the building which was set fire to.   

30.	It was not suggested by the offenders that the offence was born out of some “de facto provocation”. This has been taken into account in other cases as a mitigating factor.  But they have been very different cases, often set in the village context, over land, or amongst family members.  In my view a retaliatory attack against the police might well be regarded as an aggravating factor rather than a mitigating one.  Nevertheless, for the present case, I accept that whilst the building was purposely set fire to, it was not for the purpose of destroying the police station, or the building in which the Divisional Commander’s Office was housed, as such, but to conceal the stealing.   

31.	In this regard, the offence was committed after hours and clearly planned in a calculated and deliberate manner.  The offenders acted together, out of greed and their own self-interest.  

32.	I accept that there was no-one in the office at the time.  But any fire poses an inherent danger to those who might be in the vicinity, not to mention those who are required to attend to it.  Moreover, this was early in the evening at one of the city’s main police stations.  It is clear to me that both offenders acted without regard to the risks involved to others, nor to the financial cost that might be involved in repairing the damage, nor to the impact of the offence on the Divisional Commander of NCD, or his office and its work, or the consequences for those persons affected as a result, or indeed the public generally.  In short they had no regard for the State institution they were offending against.

33.	In The State v Ian BobWali (supra) Kandakasi J (as he then was) made the following comments (emphasis added):

“Firstly, … this was a direct offence against a law enforcement agency namely a police station. The offence was committed against a rural police establishment. It is a well known fact that, police are poorly equipped, given the country’s financial problems. Any attack on them not only slows them down but also, affects the entire community or even the country on a wider scale. Therefore, it is now settled law that, an offence against a law enforcement agency is a serious offence.

In Peter Naibiri and Kutoi Soti Apia v. The State (Unreported judgment delivered on 25/10/78) SC137, the Supreme Court said in the context of an attack on a policeman:

‘Outbreaks of violence.......appear to be on the increase....... The Courts must therefore do their duty to try to assist the preservation of orderly life and to convince police that they will be assisted and protected in carrying out their duties by the sanction that will be involved against anyone who attacks them.’

Subsequently, the Supreme Court judgment in Ure Hane v. The State [1984] PNGLR 105 continued to emphasis this point in the context of classifying the types of wilful murder cases. There at p. 107 Bredmeyer J. listed wilful murder of a policeman in the execution of his duty as one of the worst types of wilful murder cases.

In 1998, the Supreme Court emphasized this yet again in Joe Foe Leslie v. The State (Unreported judgment delivered on 07/08/98) SC560. It did so, by affirming the judgment of the National Court, per Sevua J., who said:
"I want to reiterate my own belief that, where a policeman is attacked in the course of his lawful duty, the attacker must be severely punished. It is my view that an attack on a law enforcement agency, be it a police officer, Judge, Magistrate or CIS officer, is a very serious matter. I consider that an attack on any of the law enforcement agency is tantamount to an attack on the fundamental democratic institutions we have under our Constitution. The attack on the police officer in the present case, in my view, is tantamount to attack on the function of the Police Force under s 197 of the Constitution. Neither the Courts nor the community at large should condone or tolerate violence against police officers who are going about their lawful and constitutional duties."…

In your case, it is not a case of an attack on a policeman or a police officer. Instead, it was an attack on the entire police establishment in the Maprik District of this Province. I have already expressed the view, as for example in The State v. Michael Kamban Mani (supra), that where an offence affects the provision of a service to the community, it calls for a sterner punishment in these terms:

"If the impact of the offence deprives the community of a vital service such as health services, important research work which as the potential of greater benefit to the society, the sentence should be sterner to reflect such impacts on the society. After all, criminal sentencing is a duty being discharged by the Courts on behalf of the community."

In my view, attacking a police station or its establishment is a more serious offence. It is already worse enough to attack a single policeman. It is far worse to attack a whole establishment. The country’s security depends on them. It is organized from the headquarters down to the little establishments. It is not just any other establishment. A police station is the one place, or that which assures the community that, their security is taken care of by the presence of a policeman or of a police station amongst them. 

  The mere presence of a police station brings with it law and order and respect for authority and the lives and properties of others. Hence, an offence against a police establishment, has to be dealt with severely and sternly to give the police force and the community the protection they need in order for them to provide the community and the country security and law and order.”

34.	Similarly, the sentence for arson in this case must provide condign punishment and a strong message of deterrence.

35.	According to their pre-sentence reports, Ms Jimu is from Kambagora Village, in East Sepik Province.  Mr Epei is from Kumiane, Ialibu – Pangia District, Southern Highlands Province.  

36.	They are husband and wife.  Both have lived in Port Moresby for at least 20 years at Agnes Jimu’s parents’ house in the National Capital District.  Together they have three children, a son and two daughters, aged 16, 11 and 4 years of age, all of whom are in school. The family lives with Agnes’ brother and his wife and 7 children, Agnes’ younger sister and her three children and other relatives, including Agnes’ father. 

37.	In mitigation these are the offender’s first offences in each case and the offending is out of character.

38.	Ms Jimu is 38 years old.  She completed her secondary education in 2001 and graduated with a Diploma in Information Technology from Don Bosco Technological Institute in 2003.  She held a part time administrative position at Caritas Technical Secondary School before commencing work with the RPNGC in 2005, with which she was employed for almost 12 years prior to the offence. She is currently unemployed.

39.	Agnes Jimu’s former supervisor and the complainant in this matter, ACP Sylvester Kalaut, expressed shock at the offending.  He had formerly regarded her as hardworking and highly committed to her job.  She was the daughter of a former police officer, attended church and was entrusted to hold the key to the safe for court exhibits.  There is some reference to a charge of a disciplinary or administrative nature against Agnes in the pre-sentence report.  It was a matter that was taken into account on Charles Epei’s trial.  It was not admitted by Agnes on her plea, however, and in the circumstances, I will consider that at the time of the offence Agnes was of good standing.

40.	In addition, Agnes cooperated with police at a very early stage following her detention that evening, and admitted responsibility for the offence.  It is the case that she was found at the scene and suffering injuries from the fire.  In the circumstances her eventual apprehension was highly likely. Nevertheless, I think it is only fair to take her cooperation into account in her favour together with the fact that she volunteered to police the location of the stolen monies so that they could recover them.  She also pleaded guilty before this Court at the earliest opportunity and saved the State the cost and inconvenience of a trial.  She has offered to make restitution.

41.	I also take her early and ongoing cooperation into account as indicative of her remorse, which she expressed on allocutus, and which I accept as genuine.  Agnes apologised to the State, the RPNGC, her family, especially her children whose education and future she has put at risk.  She apologised to her husband, Charles, for putting him in the position he now finds himself.  She asked the Court for leniency so that she could look after her three children, especially her second child, who has a disability and is dependent on her. I have noted the concerns expressed by both Agnes’ father and the two children regarding their welfare. 

42.	Charles Epei is 39 years old and also of prior good standing.   He has been employed for more than 10 years with Star Publishing Company trading as The National newspaper and is currently their Senior Information Technology Support Officer.   Probation Services was unable to speak to his immediate supervisor.  According to his priest, Father Marsianus, of the St Peter Chanel Parish in Erima, the offender is a very good practising Catholic and active in church activities in the parish.  He has known the offender since 2010 and regards him as a hardworking, honest, responsible and trustworthy person.  He shows great respect for his elders and the leaders in his community, in which he has good standing.

43.	Charles exercised his right to have the offences proven at trial.  This is not a factor in aggravation.  Whilst a plea of guilty may be taken into account in mitigation, a sentence must never be made more severe because a person has insisted on his right to have the charge proven according to law: see The State v Solomon Junt Warur (2018) N7545 at [34], and SCR No 1A of 1981; Re Motor Traffic Act [1982] PNGLR 122 at 127 per Kidu CJ regarding the rights guaranteed under ss. 37(4) and 37(5) of the Constitution, in particular 37(4)(a).  Thus, his sentence cannot be increased because he did not plead guilty, he simply does not get the benefit he might otherwise have got if he had pleaded guilty.

44.	On allocutus Charles expressed remorse, which I accept as genuine.  He apologised to the State, the police, the Court and his family, and acknowledged that he acted out of greed and selfishness.  He has offered to make restitution.

45.	I accept that the offences have had and will continue to have a grave impact on both offenders.  I have no doubt that the offence will bring shame to both of them and their families.  

46.	Agnes is currently unemployed.  Charles is currently employed but, I anticipate that given the serious nature of the offences, both will struggle to find employment in the future.

47.	Any term of imprisonment will have a very significant effect on each of the offenders individually and on their three children.  The impact of this will be compounded by the fact that they are married and the children will lose both of their parents at the same time, on whom they are financially and emotionally dependent. This will be particularly difficult for their 11 year old daughter and 4 year old son, both of whom will be without their parents during formative stages of their development.  The pre-sentence report confirms that Ms Jimu is also the primary carer for their second born daughter who has a disability which affects the mobility of the right side of her body, and relies on Agnes for support and assistance.  Agnes is also responsible for caring for and supporting her father.  

48.	Neither offender can be described as youthful, or unsophisticated.  There are no special mitigating factors or extenuating circumstances in either case.  

Sentence 

49.	The offenders have each been convicted of one count of stealing monies in the value of K47,700, from a public office in which they were kept, contrary to s. 372(1)(5)(e)(10) of the Criminal Code, for which the maximum penalty is imprisonment for a term not exceeding seven (7) years. They have also each been convicted of arson, such that they wilfully and unlawfully set fire to a building, contrary to s. 436(a), for which the maximum penalty is imprisonment for life.

50.	Section 19 of the Criminal Code provides the Court with broad discretion on sentence and it is well established that the maximum penalty is normally reserved for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 653. Whilst neither of the offences in this case fall within that category, each of the offences remain very serious ones.  

51.	The offenders have both been convicted pursuant to s. 7 of the Criminal Code.  Agnes Jimu as the person who actually did the acts that constituted each of the offences and Charles Epei as the person who aided Agnes in committing each of the offences, pursuant to ss. 7(1)(a) and (c) respectively.  Thus, both are to be sentenced as principal offenders.  

52.	In doing so, I have considered the issue of parity having regard to the principles set out in Sanawi v The State (2010) SC1076 applying Mario Postiglione v The Queen (1997) 189 CLR 295 (emphasis mine): 

"Equal justice requires that like should be alike but that, if there are relevant differences, due allowances must be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance'. ..
Discrepancy or disparity is not simply a question of imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their degrees of criminality..."

53.	It is clear that Agnes’s culpability is greater than that of Charles with respect to each of the offences.  It was Agnes who abused her employment and position of trust to access and then take the monies from the Divisional Commander’s Office and safe.  It was Agnes who physically set fire to the safe, its contents and other parts of the building in which it was housed, and did so to conceal the stealing and her role in it.  Whilst Charles wilfully encouraged Agnes in the commission of the offences, at no time did Charles enter the building.  There is nothing to suggest that Agnes was in any way coerced into the offending by Charles.  On her own admission, the offences were her idea. I am satisfied she was the master mind and the lead actor.

54.	It is also relevant to consider that the personal and financial circumstances of the offenders are of course, very closely shared, given their relationship, as are a number of matters in mitigation. 

55.	They are both first offenders, are of prior good standing and have expressed genuine remorse. The offence will have a significant impact on both of them.  It is significantly in Agnes’ favour, however, that she cooperated with police and pleaded guilty at the earliest opportunity. 

56.	In the circumstances I am of the view that when their respective matters of mitigation are taken into account, together with their respective levels of culpability, there should be no disparity between their sentences.  

57.	Having regard to all of the above, on the count of stealing, I sentence Agnes Jimu and Charles Andrew Epei each to 4 years of imprisonment in hard labour.  

58.	As above, the starting point in the case of arson of a public institution is 10 years: Emil Kongian (supra).  Having regard to all of the matters discussed above, on the charge of arson, I sentence Agnes Jimu and Charles Andrew Epei each to 12 years of imprisonment in hard labour.  

59.	I have considered whether the sentences should be made concurrent or cumulative, and the principles of totality: Mase v The State [1991] PNGLR 88 at 92 and Public Prosecutor v Kerua[1985] PNGLR 85.  In this case the offences of stealing and arson were very different in character. They were, however, committed in the course of a single transaction, and against the same victim, the RPNGC.  Despite their different character, I have decided that the sentences should be served concurrently having regard to the principles of totality. 

60.	Both offenders have pleaded for their sentences to be suspended.  This call is supported by the offender’s family.  Probation Services consider Agnes Epei to be a “potential candidate” for suspension.  It regards Charles Epei as an “ideal candidate”.   ACP Kalaut also supports suspension after a custodial period of two years.  Their views are relevant but in no way binding.

61.	In The State v Tardrew[1986] PNGLR 91 the Supreme Court set out three broad, but not exhaustive, categories in which it may be appropriate to suspend a sentence, namely: where it will promote the general deterrence or rehabilitation of the offender; where it will promote the repayment or restitution of stolen money or goods; or where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health. 

62.	According to the means assessment reports it appears that the offenders are offering to restitute the balance of the monies burnt in the safe, namely K138,400. 

63.	The information provided in the means assessment report does not persuade me that the offenders have the means to restitute.  

64.	Agnes is currently unemployed but is willing to provide her superannuation savings of K42,118.94. Charles has offered his savings of K26,715.61.  He is working, although salary details were unavailable. He further indicated that he will obtain a loan and that his sister who is an accountant with BSP has offered to assist them, although no details were provided.  Nor were either offender able to provide a proposed schedule of restitution.  In the circumstances I am not persuaded that they have the means to make restitution.  It would not be appropriate for me to order restitution despite the recommendation of Probation Services and I decline to do so.  

65.	Nor am I satisfied that imprisonment will cause an excessive degree of suffering for either of the offenders.  Whilst I have great sympathy for the offenders’ children, the impact of their parents’ incarceration on them is a regrettable but inevitable consequence of the offenders’ conduct. 

66.	Moreover, as I said earlier this is an offence that can only be appropriately punished with a custodial term.  I am, however, satisfied that partial suspension of the sentence would promote their rehabilitation by enabling them to return to work and resume supporting themselves and their children earlier than otherwise would be the case.  This is not an exercise in leniency but an order made in the community interest: The State v Frank Kagai [1987] PNGLR 320.

67.	Having regard to the above, I make the following orders.  

68.	The offender Agnes Jimu is sentenced to twelve (12) years’ imprisonment in hard labour. I will deduct the time spent in custody awaiting disposition, which is three (3) months.  I will suspend four (4) years, nine (9) months on the following conditions:

(a)	upon release, the offender shall perform appropriately designed community work under the supervision of the Probation Service;

(b)	the work and supervision regime is to be undertaken for the balance of her sentence on weekends;

(c)	the offender shall enter into her own recognisance to keep the peace and be of good behaviour for the balance of her sentence.

69.	This leaves a balance of 7 years of imprisonment to be served by Agnes Jimu in hard labour.

70.	The offender Charles Epei is sentenced to twelve (12) years’ imprisonment in hard labour. I will deduct the time spent in custody, which is three (3) months.  I will suspend four (4) years, nine (9) months on the following conditions:

(a)	upon release, the offender shall perform appropriately designed community work under the supervision of the Probation Service;

(b)	the work and supervision regime is to be undertaken for the balance of his sentence on weekends;

(c)	the offender shall enter into her own recognisance to keep the peace and be of good behaviour for the balance of his sentence.

71.	This leaves a balance of 7 years of imprisonment to be served by Charles Andrew Epei in hard labour.

72.	Any and all bail monies are to be immediately refunded. 

_______________________________________________________________
Public Prosecutor:   	Lawyer for the State		
Public Solicitor: 	Lawyer for the Offenders