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State v Boas [2021] PGNC 102; N8843 (14 May 2021)

N8843

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 918-919 OF 2017

THE STATE

V

KAMUS BOAS

Kimbe: Numapo J
2021: 13^th April & 14^th May

CRIMINAL LAW – Particular Offence – Wilful Damage s 444 (1) – Stealing s372 (1) Criminal Code - Plea of Guilty – Sentencing trend on unlawful damages & Stealing – Suspended sentence to promote restitution – Sentence suspended with conditions.

Held:

(i) Prisoner committed the offences along with his other accomplices who have not been arrested and charged and therefore, cannot be solely responsible for what had happened. The rule on the degree of culpability applies.

(ii) The prisoner and the complainant have agreed to reconcile and make peace through restitution and compensation.

(iii) All things considered, incarceration will not serve any useful purpose.

(iv) Suspended sentence is most appropriate as it gives the prisoner the opportunity to pay compensation and make restitution for the properties damaged and stolen.

(v) Term of imprisonment wholly suspended with conditions.

Cases Cited:

Avia Aihi v The State (No 3) [1982] PNGLR 92.
Goli Golu v The State [1979] PNGLR 653
Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91

State v Maso [2018] PGNC 379; N7461

State v Cajetan [2016] N6383
State v Samban (2007) N4998

Counsel:

M. Tamate /A Bray, for the State
D. Kari, for the Defence

DECISION ON SENTENCE

14^th May, 2021

1. NUMAPO J: This is a decision on sentence. The prisoner KAMUS BOAS of Igabidis village, Maprik, East Sepik Province pleaded guilty to one count of Wilful Damage contrary to s 444(1) and one count of Stealing under s 372 (1) of the Criminal Code and was convicted on both counts accordingly.
   
   1. BRIEF FACTS
      
2. The facts to which the prisoner pleaded guilty were that; on the 01^st March 2017 at Lovuth Estate, Kimbe, West New Britain Province the prisoner in company of other persons namely; Francis Aliwan Sani, Marcus Sani, Aisan Sani, Jerome Mauligen and others started chopping down coconut trees, oil palm trees and other fruit trees as well as damaging a tool shed belonging to the victim, Joseph Kavon Warku. The damages caused was valued at K835.00.
   
3. In relation to count 2, the facts were that, in the course of damaging the victim’s properties, the prisoner and his accomplices also stole two oil drums and gardening tools comprising of 2 x wheelbarrows, 2 x hook knives, 2 x chisels, 14 x 20L spraying containers and 18 x nets all being the property of the victim. The estimated value of the items stolen is estimated to be K1, 160.00.
   
   2. OFFENCE OF UNLAWFUL AND WILFUL DAMAGE & STEALING
      
4. Section 444 (1) states that:

‘A person who wilfully and unlawfully destroys or damages any property is guilty of an offence that, unless otherwise stated, is a misdemeanour.’

Penalty: If no punishment is provided by this section, imprisonment for a term not exceeding two years.

5. Section 372 (1) states:

‘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.

6. However, it is trite law that maximum penalty is reserved for worst type offence (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No 3) [1982] PNGLR 92).
   
   3. AGGRAVATING & MITIGATING FACTORS
      
   • (i) Aggravating factors
     
7. The aggravating factors were as follows:
   • (a) Offence were committed in company of others
   • (b) Use of offensive weapons
   • (c) Loss of properties & business
   • (d) Prevalence of the offences
     
   • (ii) Mitigating factors
     
   • (a) Offender pleaded guilty early
   • (b) First time offender
   • (c) Co-operated well with the police since the time he was arrested and charged.
   • (d) Prisoner was involved with a group of men and committed the offence together.
   • (e) Prisoner is willing to pay compensation to the victim including paying restitution to the damages caused to the complainant’s properties.
     
   4. ALLOCUTUS
      
8. In his Allocutus the prisoner said:
   

“I want say thank you. I apologize for what I have done. There were a number of us involved and not only me. I ask the Court to give me good behaviour bond. That is all.”

5. PRE-SENTENCE REPORT (PSR)
   
6. Prisoner works in an oil palm block and earns between K200-K300 per fortnight depending on the sale price of the palm kennel. The owner of the block (whom he works for) Moses Wapini earns between K1000 – K2000 per month
   
7. The prisoner indicated that he is able to pay compensation for the damages caused with the assistance from his friend Moses Wapini including his family members and other relatives. He wants to be given time to pay compensation.
   
8. The complainant prefers that the prisoner pays him compensation to replace the properties damaged.
   
   6. COMPARABLE CASE LAWS
9. In their respective submissions on sentence, Counsels cited some comparable case laws which I find very helpful indeed.
   
   • (i) State v Maso [2018] PGNC 379; N7461
     
10. The offenders were drunk and came to the roadside market belonging to the victims and threatened them with weapons, discharged a firearm and destroyed the market stalls and stole some cash. They each pleaded guilty to one count of unlawful and wilful damage to properties under s 444 and stealing under s 372 (1) of the Criminal Code. A concurrent sentence of 3 years was imposed on both counts which was partially suspended including order for restitution and reconciliation.
    
    • (ii) State v Cajetan [2016] N6383
11. Offender pleaded guilty to 4 counts of wilful damage and stealing under ss.444 and 372 of the Criminal Code respectively. Offender was sentenced to 1 year and 3 years respectively to be served concurrently applying the totality principle.
    
    • (iii) State v Samban (2007) N4998
      
12. Offender pleaded guilty to one count of unlawful and wilful damage for destroying household properties and one count of arson for burning down two semi-permanent houses. He was sentenced to a total of 6 years to be served concurrently.
    
    7. SENTENCING TREND
       
13. In the case laws cited so far, it appears that concurrent sentence with orders for restitution and compensation appears to be the sentencing trend.
    
14. Ms. Tamate for the State submitted that given the prevalence of the offence the Court should impose a sentence that has a punitive effect to serve as a deterrent. Counsel further submitted that restitution should also be ordered for the properties that were destroyed. State submitted for an imprisonment term of between 12 to 18 months for Wilful Damage and 3 – 5 years for Stealing, and in applying the totality principle, the sentence to be concurrent.
    
15. Mr. Kari for the Defence submitted for 3 years imprisonment for the offence of stealing and 2 years for unlawful and wilful damage. However, applying the one transaction rule, the sentences be made concurrent. Counsel further submitted that order for restitution be also made and the sentences to be wholly suspended upon payment of restitution and the prisoner to be placed on probation.
    
    8. FACTORS FOR CONSIDERATION BEFORE SENTENCING
       
16. I take into account the fact that the prisoner is a first-time offender. Prisoner committed the offences along with other people who have not been arrested and charged and therefore, cannot solely be responsible for what has happened. Hence, the rule on the degree of culpability applies.
    
17. I also note from the court records that he has been consistently and faithfully attending his court case since he got out on bail and I give him credit for that. His desire to compensate the victim is genuine.
    

Section 19 (6) of the Criminal Code provides for suspended sentence that can be given at the discretion of the court. The grounds under which suspended sentence is given is discussed in the Supreme Court case of Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91. In that case the Supreme Court sets out three (3) broad categories on suspended sentence. The categories are not exhaustive and are as follows:

(i) Where suspension will promote personal deterrence, reformation or rehabilitation of the offender.

(ii) Where suspension will promote repayment or restitution of stolen money or goods; and

(iii) Where imprisonment would cause an excessive degree of suffering to

a particular offender, for example because of his bad physical or mental condition.

18. I consider category (i) and (ii) of Tardrew (supra) applicable to the present case. And I say this for the following reasons:
    
    • (i) It appears to me (based on the PSR) that the prisoner and the complainant have agreed to reconcile and make peace through restitution and compensation.
      
    • (ii) I observed the prisoner’s demeanour in court and his positive attitude towards the offence and consider him to be a person with some potential to reform himself and become a good law-abiding citizen and I want to give him that opportunity.
      
    • (iii) Prisoner is not a danger to the community nor is he a threat to anyone including the complainant according to the PSR.
      
    • (iv) All things considered, incarceration will not serve any useful purpose.
      
    • (v) Suspended sentence is most appropriate as it gives the prisoner the opportunity to pay restitution for the damaged caused to the complainant’s properties.
      
    1. SENTENCE
       
19. I make the following Orders:
    
    • (i) Count 1- I sentenced the prisoner to two (2) years imprisonment for Unlawful and Wilful Damage to properties pursuant to s 444 (1) of the Criminal Code.
      
    • (ii) Count 2 – I sentenced the prisoner to two (2) years for Stealing pursuant to s372 (1) of the Criminal Code.
      
    • (iii) I further order that the terms of imprisonment to be served concurrently under the totality principle, which is a total of two (2) years.
      
    • (iv) I further order that the prisoner pay compensation and make restitution to the complainant in the sum of K3000 and is given two (2) months to pay the compensation in full from the date of this Order.
      
    • (v) I further order that the two (2) years term of imprisonment to be wholly suspended upon the payment of full compensation and the prisoner is to be placed on probation with conditions for a period of 12 months to be supervised by the Probation Office.
      
    • (vi) Payment of compensation to be witnessed by the Probation Officer.
      
    • (vii) Failure to comply with the above Orders given will result in the prisoner being taken into custody to serve his full term of imprisonment.
      
    • (viii) Prisoner’s bail to be refunded forthwith.
      

Orders Accordingly
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defence