N9079

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 610 OF 2020

THE STATE

V

KIELE PIMA

Maprik: Rei, AJ
2021 :19th March

PRACTICE AND PROCEDURE – Criminal Law – Stealing – What is the appropriate sentence – S,372 of the Criminal Code – Prisoner stealing cash from a house – sentenced to 3 and half years – suspended upon full restitution within a year – Plea

Case Cited

The State -v- Yani Paul & Linsey Icy N8026
Wellington Belewa -v- The State [1988-89] PNGLR 635
The State -v- Kelvin Kalamak N6739
The State -v- Richard Sam N5766
The State -v- Roslyn Paul N6132
The State -v- Kelly Kanjip N5590
Wellington Bekwava -v- The State [1988-89] PNGLR 496
The State -v- Robert Kawin [2001] N2167 
The State -v- Timothy Sis [2002] N2265
Gimble v The State [1988–89] PNGLR 271
The State -v- Tardrew [1986] PNGLR 91 
The State -v- Lukeson Olewale [2004] N2758 
The State -v- Louise Paraka [2002] N2317
The State -v- Benson Likius [2001] N2518 
The State -v- Christian Korei [2005] N2946 
The State -v- Frank Amban [2005] N296 
The State -v- Bill Baru [1997] N1546
The State -v- Jack Oseketal Metz [2005] N2824
The State -v- Ansong ISing [2005] N2994 
The State -v- Joseph Pokali [30.11.04] CR.NO.71 of 2004
State 
Counsel	

Ms. T. Aihi, for the State
Mr. S. Parihau, for the Defendant

DECISION

19th March, 2021

1.	REI AJ: INTRODUCTION: The accused in this case was charged with one count of stealing simpliciter to Section 372(1) & (10) of the (“Criminal Code”).  After relaying the charge and putting the brief facts to the accused, the court asked (the accused) if the charge is true or not true.  In his response, the accused said: “the charge is true”.  The court then entered a provisional guilty plea.  The State Prosecutor was than requested to deal through the committal court file and the District Court of Maprik to the National Court of Justice Maprik (“the Court”).  After a careful perusal of the facts which included the record of interview conducted on the 18th of October 2019 the court concluded that the guilty plea of the accused was consistent with the facts contained in the committal court file and the record of interview.  The court confirmed the guilty plea.

BRIEF FACTS

2.	The prisoner comes from Jambitanget Village, North Wosera, East Sepik Province. On the 12th of September the prisoner entered the house of the complainant Yuanis Kulavi who is from the same village and stole from a suitcase the sum of K5000.00 all in K50.00 denominations.  When the matter was reported to the Police, a mediation was conducted between the prisoner and Yuanis Kulavi in which the prisoner promised to repay the sum of K5,000.00.  However, since the 18th of October, 2018 the date of mediation, no serious steps were taken by the prisoner to repay the money except the undated payment of K500.00.  The sum of K4,500.00 remains unpaid to date.

ADDRESS ON SENTENCE

Allocatus

3.	In allocutus, the prisoner said that he was sorry for what he did to Yuanis Kulavi.  He also said sorry to his own family members for causing shame to them resulting from his criminal conduct.

4.	After administering the allocutus, Mr. Parihau applied for a pre-sentence report and a means assessment report to be compiled by the Probation Service here in Maprik to assist the court in determining an appropriate sentence for the prisoner.  This request was granted where upon the reports were filed on the 8th of March 2021.

5.	I have had the opportunity of closely perusing the pre-sentence report and the means assessment report.

6.	These reports summarily say that the prisoner is a good family man.  He stole the money for reasons that he wanted to cater for his family.   The reports do not, however, paint a good picture for him in terms of his ability to repay the money stolen. Indeed, the means assessment report states that he is a subsistence farmer and has very little mean(s) of income except selling his garden produce in the market to at least make ends meet on a daily basis.

SUBMISSION BY DEFENCE

7.	Mr. S. Parihau addressed the court on the antecedent report of the prisoner.  He asked the court to be lenient and in doing so, to consider the following factors in mitigation:

•	The guilty plea of the prisoner;
•	He is a first-time offender;
•	He has no prior conviction;
•	He acted alone;
•	Expressed remorse both to the complainant and his own family already made some payments
•	Whilst in custody, his house was burnt down and other properties damaged.
•	The prisoner pleaded guilty which saved time and money for the State.

8.	Counsel for the State submitted the aggravated factor is stealing of K5,000.00.

9.	In his address on the type and length of sentence, Mr. Parihau referred to the decision of Berrigan J. in The State -v- Yani Paul & Linsey Icy N8026 & Wellington Belewa -v- The State [1088-89] PNGLR 635 and submitted that a custodial stance of two (2) years be imposed.  He also submitted in the exercise of its discretion the court considers returning a non-custodial sentence and to place the prisoner on probation with conditions to apply.

10.	Ms. T. Aihi submitted that the maximum penalty should be reserved for the worst case scenario and each case is to be determined on its own merit and special circumstances. That sentencing is a discretionary matter as is provided for under Section 19 of the Criminal Code Act.  She further submitted that the aggravating factor and money was stolen from a dwelling home when nobody was present.

11.	She then submitted that following on from the recent decisions of the National Court of Justice in State -v- Kelvin Kalamak N6739, State -v- Richard Sam N5766, State -v- Roslyn Paul N6132 & State -v- Kelly Kanjip N5590, a sentence of three (3) years is appropriate.  She also submitted that under Section 3(2) of the Criminal Justice (Sentence) Act any pre-trial custodial period be deducted from the head sentence and no part of the head sentence is to be suspended.  But if a non-custodial sentence is to be imposed, an order for restitution be used together with stringent relevant prohibitive order(s).

12.	It is noted from the pre-sentence report the prisoner is married with five (5) children of prime age.  Two (2) of his children left school because there was no money to pay for school fees.  He is 50 years of age and comes from and permanently resides at his Jambitanget Village, Wosera-Gawi District, East Sepik Province.

13.	I note from the submissions of Mr. Parihau that the prisoner admitted criminal responsibility and entered and pleaded guilty to the charge as laid.  He has no prior record of conviction, therefore he is a first offender, expressed genuine remorse.  This was a single one-off incident and no prior planning to commit the crime is evident.

14.	Although the pre-sentence report and means assessment report depict a gloomy scenario of the ability of the prisoner to repay the balance of K4,500.00, the prisoner did give an undertaking that he will do his best to repay that amount within the space of nine (9) to eighteen (18) months.

15.	Mr. Parihau strongly submitted to court to apply the sentencing guidelines suggested by the Supreme Court in Wellington Bekwava The State [1988-89] PNGLR 496 in determining appropriate sentence for the prisoner as this case falls within the ambit of second category where the tariff recommended is a goal term of up to (2) years.  He therefore urged the court to impose a penalty of 2 to 3 years which should be suspended, if the Court desires.

16.	I find that the prisoner has expressed genuine remorse and regrets his involvement in committing the crime.  He has shown genuine attempts to repaying the balance of K4,500.00.  Although he did not have the means, as shown in the means assessment report, to repay, he did take serious steps to at least make part payment of K500.00.

17.	He said he would do his best to repay the balance within 9 to 18 months should he be granted a non-custodial sentence.

18.	Many cases have been previously decided on this point.  I, consider the most relevant authority is that of the State -v- Robert Kawi [2001] N2167 where His Honor Kandakasi J, as he then was, with reference to the case of The State -v- Timothy Sis [2002] N2265 and those recommended by the Supreme Court in Wellington Belawa (supra),I say this because that case is probably the only decided case in this jurisdiction that deals with Section 372(1) and (10) of Criminal Code Act.  The following are the remarks of Kandakasi J (as he then was):

	“In line with the accepted principle that, the maximum prescribe sentence in any offence should be reserved for the worse category of the offence under consideration, I am of the view that the maximum of 3 years should be reserved for the worse category of stealing under s. 372(1).  A worse case of stealing would be one that might have factors like, the total value or the actual amount of moneys stolen falls just short of K1,000.00, thereby escaping an application of the provisions of subsection 10.  It would also be a worse case if say an element of a breach of trust whether legal or a defector kind of trust not caught by any of the other subsections in s.372 exists and the offence is committed in furtherance of an illegal activity or another offence.

	“At the end of the scale would be simple cases of stealing, such as, pocket pickings, or someone leaving some valuable items mistakenly at a place and another person steals it with full knowledge of its owner.  Stealing in such a situation should attract a sentence of a few months say about 3 to 4 months.  Then there would be cases in between.  These might be cases in which say the amount of money or the value of item stolen is small but the offence is committed in pursuance of an illegal activity or another offence.  In this category might be cases where the amount or value of item stolen is substantial but not necessarily up to K1,000.00.  In such cases the sentence could range from more than 4 months and closer to the maximum prescribed sentence of 3 years”.

	“Of course a guilty plea by a first time offender, or a young offender could reduce the kind of sentence suggested.  The need to do that has been made clear in a large number of cases though in the context of other offences as in the case Gimble v The State [1988 – 89] PNGLR 271, by the Supreme Court at page 275.  The above suggestion is only put forward as a guide in the absence of any other guideline to the contrary.  A judge may impose a sentence outside what is suggested, provided there is a good reason to depart from the suggested guideline”.

19.	In considering the range of sentence to be imposed, I also had the opportunity of perusing the decision of his Honor Lenalia in the case of The State -v- Richard Sam N5766 and followed his style of assessment.  In that case he reproduced the range of sentences involving similar offences.  He said in that case following the broad categories set at in the Supreme Court Case of State -v- Tardrew [1986] PNGLR 91 that, and I quote:	
	
“In the State -v- Tardrew [1986] PNGLR 91 the Supreme Court comprising of Sir Buri Kidu CJ, Bredmeyer & Barnett J), set down three broad categories but not exhaustive on suspending a sentence in a misappropriation case.  They are where a suspension will promote personal deterrence, reformationor rehabilitation.Secondly where suspension will promote restitution of stolen money or goods, and thirdly where imprisonment would create excessive degree of suffering where an offender has bad physical or mental health.  On the current case, the prisoner is a healthy young man.  In that case, the Court said, the appropriate sentence in a case where there was restitution of the whole amount misappropriated of K82,20273, was five years”.

“The Court in that case set down three broad categories but not exhaustive on suspending a sentence in a misappropriation case.  They are where a suspension will promote personal deterrence, reformation or rehabilitation.  Secondly where suspension will promote restitution of stolen money or goods, and thirdly where imprisonment would create excessive degree of suffering where an offender has bad physical or mental health.  On the current case, the prisoner is a healthy young man”.

20.	His Honor Lenalia, J then proceeded to set out cases in which sentences were then imposed.  I summarize some of these cases in the following paragraphs.

21.	In The State -v- Lukeson Olewale [2004] N2758 a misappropriation case involving an amount of K40,000.00 where the offender in that case uttered the cheque after he conspired with others.  He pleaded guilty and he was sentenced to a term of 4 years.  The sentence was fully suspended.

22.	In The State -v- Louise Paraka [2002] N2317, the prisoner in that case was charged with two counts of forgery and two for uttering cheques worth K6,000.00 contrary to Section 462 (1) and 463 (2) of the Criminal Code.  The accused in that case pleaded guilty and was sentenced to 3 years imprisonment but the sentence was suspended.

23.	In The State -v- Benson Likius [2001] N2518 this court sentenced the offender to a 5 years imprisonment term in hard labour for misappropriating K68,674.06, the property of Lihir Management Company.  Three years of that sentence was suspended with certain conditions.  He only served 2 years with orders to restitute.

24.	In The State -v- Christian Korei [2005] N2946 a case in Manus, Lay, J; sentenced the prisoner to a term of 4 years for misappropriation of an amount involving K82,529.68 with substantial restitution of K65,000.00.  The sentence was fully suspended with orders to restitute within specified time.

25.	In The State -v- Frank Amban [2005] N296 a case in Lae before Kirriwom, J; the prisoner pleaded guilty to stealing a sum of K27,512.10 from May Bank.  He was sentenced to 18 months which sentence was fully suspended with orders to restitute.

26.	In The State -v- Bill Baru [1997] N1546 a stealing case before His Honour Batari A.J. (as he then was) he was charged with three counts involving K9,790.00.  He was sentenced to twelve months each on counts 1 and 2 and Count 3 for 18 months ordered to be served concurrently with the sentence for counts 1 and 2.  The sentence was fully suspended with orders to restitute.

27.	In The State -v- Jack Oseketal Metz [2005] N2824, the prisoner incurred a bill of K70,445.36 by falsely pretending that he was expecting millions of kina from sales of treasury bills.  The accused in that case pretended to the complainants that the payments would be made through the Papua New Guinea Banking Corporation.  Amounts incurred were for accommodation, meals and drinks, cigarettes and provisions for extra guests at the DALCREST Guest House in Madang.  He was sentenced to three and half years imprisonment.

28.	In The State -v- Ansong Ising [2005] N2994 a case involving a sum of K4,275.00, the accused was sentenced to 3 years imprisonment with a community work order and further orders for restitution. In The State -v- Joseph Pokali [30.11.04] CR.NO.71 of 2004, a case in Waigani, the accused pleaded not guilty to one count of false pretence but entered a guilty plea to misappropriation of an amount involving a sum of K4,400.00.  He was sentenced to a term of 3 years.  The whole sentence was suspended with various probation orders and an order for restitution.

29.	I have also had the opportunity of reading the decision of His Honour David, J in the matter of The State -v- Kelly Kanjip from which I received valuable assistance.

30.	With respect to the principles of sentence stated in Wellington Belawa (supra) His Honour David, J said in case of State -v- Kelly Kanjip (supra).

“It is generally accepted now that while the factors set out in Wellington Belawa are still relevant, the tariff recommended is regarded as outdated due to the prevalence of the offence.

It must be remembered that the maximum penalty for the offence of misappropriation simpliciter is imprisonment up to 5 years.  The maximum penalty for the offence of misappropriation committed under circumstances of aggravation is imprisonment for 10 years”.
		
31.	Similarly David, J referred to precedent cases when imposing appropriate sentence.

32.	In the present case, having considered all the factors attributable to imposing a custodial sentence and the circumstances surrounding the commission of the offence, and consider the prisoner should be incarcerated for a period of 3 years 6 months.

33.	But given the facts that he entered a plea of guilty and showed genuine remorse for what he did and the fact that he is willing to repay the balance of K4,500.00 within the space of nine (9) to eighteen (18) months, I have been urged by Mr. Parihau to suspend that sentence of imprisonment for 18 months.

34.	Ms. T. Aihi concedes this but says that an order for restitution be imposed and other relevant orders which are to be strictly complied with by the prisoner whilst under suspended sentence.

35.	Should the prisoner fail to comply with any of those conditions, he should be arrested and imprisoned to serve out the balance of the suspended sentence.

36.	In the case of Public Prosecutor -v- Dan Hale [1988] SC564, the Supreme Court said that there can be no suspension of sentence where no pre-sentence report has been made in a matter.  The Court should not; as is suggested in that case, consider the question of suspended sentence without a pre-sentence report being presented.

37.	The pre-sentence report and the means assessment report have been presented.  They do not speak well for the prisoner.  But does this mean that I should not exercise my discretion to put him on a suspended gaol term?

38.	I have heard the prisoner express remorse in Court.  Two of his children are unable to continue their primary education because their mother cannot support them fully.  Furthermore, I note his home and other properties were destroyed by the complainant whilst he was in custody for about 1 year 6 months awaiting his trial.It was reported in the pre-sentence report.  The estimated value of his loss resulting from this may well equal or excel the amount stolen.  But at least there is evidence of him experiencing losses as a result of the retributive actions of the complainant.

39.	I consider that; if, victims affected by the criminal act of someone, take the law into their own hands and want only to destroy the properties of the person who perpetrated the crime against them without any respect for the law, they should also be made to bear the consequences of their own resultant criminal conduct.

40.	The complainant here had the prisoner arrested, charged and remanded in custody so that the prisoner makes good what he stole.  While waiting for the court to hear the matter in order to give a reward to both of them, he goes ahead and intentionally breaches the law by destroying the house and other personal properties of the prisoner while the prisoner is remanded in custody.While he sought justice for the prisoner and himself, he brought injustice.  The long arm of the law should not condone this sort of action and wink at its perpetrators.  I do not think this is fair and just in a modern Melanesian Society of Papua New Guinea as it fails to uphold and foster the rule of law.

41.	I am however mindful of the remarks of David, J made in the case of the State -v- Kelly Kanjip that “a prisoner must bear the burden of restoring what he or she has stolen and if he or she is not prepared to do so, a non-custodial sentence is not available to him”.

42.	But in this case, the prisoner has stated that, if given a period of 9 to 18 months he will do his best to repay the balance of K4,500.00.  He also stated in his pretrial review statement that the complainant took advantage of his remand and avenged by destroying his house and other personal properties:  a state of an eye for an eye and a tooth for a tooth.  By the time the prisoner is released, he will not have a house to move into.  His young children are not going to school because of what happened and will remain out of school because of this predicament.  He has subsistence crops of coconut and vanilla to harvest and sell at the markets to support an order for restitution.

43.	In the circumstances and also in view of the statement of Kandakasi J in State -v- Robert Kawin (supra) that “a Judge may impose a sentence outside of what is suggested, provided there is good reason to depart from the suggested guidelines”, I find that the mitigating factors outweigh the aggravating factors in this matter for the purposes of sentencing.

44.	In all the circumstances, I consider that the prisoner should be imprisoned for a term of 3 years, 6 months taking into consideration the prevalence of the offence.  The time spent in remand of 1 year, 6 months shall be deducted from the head sentence and the prisoner shall serve the remaining balance of 2 years in prison.

45.	The prisoner shall therefore serve a total of 2 years in hard labour which sentence is wholly suspended on the following terms:

i.	The prisoner shall take all steps necessary to repay the balance of K4,500.00.
ii.	Payments shall be made to the Probationer Parole, Marika within the period of 2 years
iii.	The prisoner shall report to the Office of Probational Parole at Maprik on the 1st day of every month commencing from the date of release from Boram CIS to make part payments.
iv.	The prisoner shall keep at a distance from the complainant and his relatives.
v.	The prisoner shall keep the peace and be of good behaviour.
vi.	The Pastor of the local SDA Church of which the prisoner is a member shall ensure that the prisoner actively participates in all church activities as required by him.

46.	Should the prisoner breach any of the above conditions, he shall be arrested and imprisoned to serve the balance of the term.
____________________________________________________________
Public Prosecutor: Lawyer for The State	
Public Solicitor: Lawyer for the Defendant