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State v Fasi [2021] PGNC 468; N9324 (14 July 2021)

N9324

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 230 & 1130 OF 2020

THE STATE

V

JOHN FASI
Goroka: Gora J
2021: 04^th June & 14^th July

CRIMINAL LAW- Sentence – Charges of Stealing & Escaping from lawful custody – same set of facts – Plea of guilty on both charges.

CRIMINAL LAW- Stolen property returned in good condition – Prisoner has benefit of reduced sentence.

CRIMINAL LAW- Sentence – Escaping from police custody – no force or violence used – Prisoner left unattended outside police station – Police negligence – Prisoner should not be compared or treated same as convicted escapees from prison when sentencing.

Cases Cited:
Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
State v Timothy Sio [2002] PGNC 67: N2268
State v Thomas Malaisa [2006] PGNC 150: N3239
State v Eki [2005] PGNC 185; N3387
State v Hezaka [2015] PGNC 140: N6032
State v Irox Winston [2003] N2347
State v Linus Rebo Takoa [2008]

Counsel:
Mr. J Noma, for the State
Mr. G Apa, for the Defendant

DECISION ON SENTENCE

14^th July, 2021

1. GORA J: INTRODUCTION: Prisoner JOHN TASI was indicted with one count of Stealing pursuant to Section 372 (1) & (5)(a) of the Criminal Code. He was further indicted with one count of Escaping from Lawful Custody pursuant to Section 139 (2) of the Criminal Code. I will deal with both charges together as they arise from the set of facts.
   
2. The indictment on the charge of stealing is in the following terms:
   

“JOHN TASI of KOMIUFA VILLAGE, GOROKA, EASTERN HIGHLANDS PROVINCE stands charged that on the 19^th day of September 2019 at Kakaruk market, Goroka in Papua New Guinea, stole one (1) Samsung Galaxy J6 mobile phone, valued at Nine Hundred and Forty-Nine Kina (K949.00), the property of one (1) Agisaro Herman.”

The charge is made pursuant to Section 372 (1) & (5)(a) of the Criminal Code.

3. Indictment on the charge of Escaping from Lawful Custody is in the following terms:
   

“JOHN TASI of KOMIUFA VILLAGE, GOROKA, EASTERN HIGHLANDS PROVINCE stands charged that on the 25^th day of September 2019 at Goroka Police Station, Goroka in Papua New Guinea, being a prisoner in lawful custody escaped from such custody.”

The charge is made pursuant to Section 139 (2) of the Criminal Code.

4. Prisoner pleaded guilty to both charges, hence decision on sentence.
   

BRIEF FACTS

5. Brief facts in respect of both charges are that on the 19^th of September 2019 the prisoner John Tasi, was at Kakaruk market in Goroka. The victim/complainant, Agasiro Herman was also at the same place at the material time.
   
6. The accused approached the victim and proceeded to hug him whilst asking him to buy him a cigarette.
   
7. The victim not knowing the accused, declined and walked away towards the bus stop. It was there the victim was approached by another person, one Atepu Kesive, who informed him that the prisoner had picked his pocket and stole his phone at the time when he hugged him. The phone was a Samsung Galaxy J6 mobile phone valued at K940.00.
   
8. Both went looking for the prisoner, but he had already left then. The next day he was spotted by the victim and he alerted the police. The prisoner was apprehended and taken to the police station. Prisoner admitted to stealing the phone and it was returned to the victim.
   
9. On the 25^th September 2019, when the prisoner was taken to the CID Fraud Office for formal interview and arrest, he wanted to see his wife and child before the interview proceeded. So, he was left alone with his wife and child and it was at that time he escaped from lawful custody.
   

ISSUE

10. What would be the appropriate sentence to impose on the Prisoner on both charges?
    

THE LAW

11. The law on the offence of Stealing for which the prisoner has been charged is provided under Section 372 (1) & (5)(a). The provisions read:
    

“(1) Any person who steal anything capable of being stolen is guilty of crime. Penalty; subject to this section, imprisonment for a term not exceeding three (3) years. (5)(a) If the thing is stolen from the person of another person; the offender is liable to imprisonment for a term not exceeding seven (7) years.”

12. The law on the offence of Escaping from Lawful Custody for which the prisoner has also been charged is provided under section 139 of the Criminal Code. The provisions read:
    

“(1) A person who, being a prisoner in lawful custody, escapes from that custody is guilty of a crime. Penalty; A term of imprisonment of not less than five (5) years.”

13. Maximum term of imprisonment for the offence of Stealing is seven (7) years. For the offence of Escaping from lawful custody, imprisonment for a term not less than five (5) years.
    
14. It is settled principle of law in this jurisdiction that the maximum sentence is reserved only for the worst type of cases, as observed in the case of Goli Golu v The State [1979] PNGLR 653
    
15. It is also a settled principle of law that each case must be determined in accordance with its own peculiar facts and circumstances, as observed in the case of Lawrence Simbe v The State [1994] PNGLR 38
    
16. Section 19 of the Criminal Code also gives court unfettered discretion to explore alternative forms of sentence other than what is prescribed by law.
    

Application of the law

17. In considering the issue on what is the appropriate sentence to impose, counsels have submitted certain case authorities to assist the court as guide for sentencing purposes.
    
18. Comparable cases for the offence of stealing:
    
    • (a) State v Timothy Sio [2002] PGNC 67: N2268 – In that case a security guard stole a brand – new chainsaw valued at about K8, 000.00 from a hardware store he was guarding at that time. He then sold the chainsaw to a third party for K3, 000.00. The third party paid only K1, 000.00 and the balance of K2, 000.00 was to be paid later. Before the third party could pay off the balance, the offender was arrested and charged for stealing under Section 372 (1) & (10) of the Criminal Code. The chainsaw was recovered from the third party. Upon guilty plea, the offender was sentenced to five (5) years imprisonment IHL.
      
    • (b) State v Thomas Malaisa [2006] PGNC 150: N3239 - In that case, the offender entered a residential premises at night and stole an outboard motor. The value of the outboard motor was K2, 022.00. The property was returned to the owner. Upon guilty plea, the court imposed a sentence of three (3) years and was fully suspended with conditions.
      
    • (c) State v Eki [2005] PGNC 185; N3387 – In that case three (3) offenders pleaded guilty to charge of stealing. Aisi Eki was charged for stealing a video deck player worth K450.00. Fabian Longa was charged with stealing a hi-fi stereo (radio) system valued at K4, 180.00 and Darius Moihe was charged with receiving stolen property, a hi-fi radio system stolen by Fabian Longa. Aisi Eki was sentence to three (3) years and six (6) months, Fabian Longa was sentenced to five (5) years and Darius Moihe was sentenced to three (3) years.
      
19. Comparable cases for the offence of Escaping form Lawful Custody:
    • (a) State v Hezaka [2015] PGNC 140: N6032 – In that case a prisoner escaped from CIS custody whilst being treated at the hospital. The prisoner was serving his term for Attempted Armed Robbery when he escaped. The prisoner did not use threats or injured neither the hospital staff or CIS officers. The escape was a simple one. Upon pleading guilty to the charge, he was sentenced to five (5) years imprisonment which he was to serve cumulatively with the pending sentence.
      
    • (b) State v Irox Winston [2003] N2347 – In that case the prisoner pleaded guilty to one (1) count of escaping from lawful custody at Bihute CIS in Goroka. He was sentenced to five (5) years without any deduction.
      
    • (c) State v Linus Rebo Takoa [2008] N3427 – in that case the prisoner was a remandee at Lakiemata CIS prison on two charges of Wilful Murder. He escaped whilst they were being escorted to church and CS officers were not paying attention. He was sentenced to five (5) years imprisonment and four (4) years and six (6) months were suspended leaving a balance of six (6) months following an early guilty plea.
      
20. It can be noted from these case authorities that sentencing range for charge of stealing is between three to five (3-5) years whilst sentencing for the charge of Escaping from lawful custody is five (5) years. However sentencing range depend on the circumstances of each case.
    

CIRCUMSTANCES OF THE CASE

21. In the present case the prisoner stole the victim’s phone valued at K940.00 but was returned back to him the next day all in good condition. The victim has indicated he does not want any compensation but the law to deal with the prisoner. Although the offence is a serious one, I do not think this is a worst type of stealing case. Prisoner did not benefit from his actions. Where a property is stolen from another person and recovered or returned to the owner immediately thereafter in the same condition as it was prior to being stolen, the prisoner ought to be given the benefit of a reduced sentence.
    
22. On the charge of escaping from lawful custody, the prisoner was in police custody on the charge of stealing a phone. He was awaiting police interview and formal arrest when his family visited him at the police station. He was permitted to see his family but was left unattended by police for most of the day which prompted him to walk out of the police station with his family. I think the policeman who had custody over the prisoner at that time was negligent for living him unattended for a long time. This in my view is not a serious case of escaping from lawful custody. He did not escape by use of force or violence, he just simply walked out of the police station with his wife and child.
    
23. For sentencing purpose, a prisoner who escape from custody whilst awaiting formal interview and arrest should not be compared or treated the same as a convicted prisoner who escapes from a confined jail or prison. Such prisoner should be given the benefit of a reduced sentence.
    
24. Given the circumstances, and, in comparison with case authorities alluded to above, I am of the view that the prisoner be given discounts on sentence for both charges.
    
25. Added to his benefit are other mitigating features which weigh in favor of the prisoner. He made early admissions to the police and pleaded guilty to both charges, thus saving court time from conducting a trail had he pleaded not guilty to the charges.
    
26. Prisoner is a first-time offender with no prior convictions recorded against him, meaning that he has generally been a good citizen but for these offences.
    
27. He has expressed remorse in court by saying sorry for his action and his willingness to pay compensation to the victim. In fact, at the time of returning the phone to the victim he said sorry to him and gave him K100.00 cash money which in my view was a genuine thing to do.
    
28. The aggravating factor however, is the prevalence of petty crimes committed in the streets and public places such as stealing by way of pocket picking. Such circumstances call for tougher penalties or higher sentences for that matter, as means of deterrence. In this case the property stolen was returned to the owner with payment of K100.00 cash. He did not benefit at all from his actions.
    
29. I have perused the Pre-Sentence Report compiled by Probation Services and note that the prisoner is not a danger or threat to the community. He is recommended to be a suitable candidate for probationary supervision.
    
30. Therefore, on the basis of all the above considerations, I make the following sentencing orders:
    
    • (i) On the charge of Stealing the prisoner is sentenced to two (2) years imprisonment less time spent in pre-sentence custody. The balance is suspended with condition that he keeps peace and be of good behaviour for a period of twelve (12) months effective from the date of this order.
      
    • (ii) On the charge of escaping from lawful custody the prisoner is sentenced to five (5) years imprisonment IHL less one (1) year, nine (9) months and fourteen (14) days served in pre-sentence custody. Balance of three (3) years two (2) months and thirteen (13) days is suspended with conditions that:
      
      • (a) Prisoner is to do three (3) hours of community work every Monday and Friday for a period of six (6) months starting in the month of August 2021.
        
      • (b) Prisoner is to undergo 20 hours of general counselling sessions with the Eastern Highland Family Voice.
        
      • (c) Prisoner’s community work sentence and general counselling is to be supervised by the Community Based Corrections Office in Goroka with reports to be submitted monthly to the National Court registry.
        
      • (d) Prisoner is not to consume any form of alcohol or drug during the term of his suspended sentences.
        
    • (iii) Suspended sentences to be served cumulatively.
      

Ordered accordingly
________________________________________________________________Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant