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State v Malaku [2021] PGNC 608; N9547 (21 October 2021)

N9547

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1317 OF 2018

BETWEEN:
THE STATE

AND:
JUBAL MALAKU

Angoram: Rei, AJ
2021: 6^th, 11^th, 13^th, 20^th & 21^st October

CRIMINAL LAW – Stealing S.327(1) & 10 – CCA – Plea – First time offender – sentence – 5 years – wholly suspended – Good behaviour bond – offered compensation of K5,000.

Cases Cited:

Wellington Belawa -v- The State [1988-89] PNGLR 496

Legislation:

Section 327(1) & (10) of the Criminal Code Act
Section 19 of the Criminal Code Act

Counsel

Mr. Solomon Kuku, for the State
Mr. Stanley Parihau, for the Defendant

DECISION ON SENTENCE

21^st October, 2021

1. REI, AJ: The State presented an indictment on 12^th October 2021 charging that:
   

“Jubal Malaku of Kinakaten Village, Yuat LLG, Angoram,

East Sepik Province (is) charged that he, on the 24^th day of December 2019 at Bombo water front, Angoram, East Sepik Province in Papua New Guinea stole from one Raphael Sewa, a 40 hp Yamaha outboard motor engine valued at K15,000.”

2. The charge was laid under Section 327(1) & (10) of the Criminal Code Act which provides that:
   

“(1) A person who steals anything capable of is guilty of a crime.”

3. Section 327(1) and (10) provides that:
   

“If the thing stolen is of the value of K1,000.00 or upwards, the offender is liable to imprisonment for a term not exceeding 7 years.”

4. The facts of the matter were read to the prisoner together with the indictment which facts are that the accused went into Bombo Waterfront when the complainant was mounting his 40hp outboard motor onto a canoe to test its engine. The complainant fled when he noticed the prisoner approach him in another outboard motor and took cover at nearby house. The accused arrived and removed his outboard motor and escaped with it.
   

ARRAIGNMENT

5. When asked whether he understood the charge and facts as read, he said he did.
   
6. He was asked to plead to the charge.
   
7. The accused pleaded guilty to the charge to which his lawyer submitted the plea was consistent with his instructions.
   
8. A perusal of the committal form confirmed that the plea of guilty was proper.
   
9. The accused was found guilty as charged.
   

ANTECEDENT

10. No prior conviction against the prisoner.
    

ALLOCUTUS

11. In his allocutus, the prisoner said he was sorry for what he did but he was forced to do it as the complainant owner of the outboard motor owed him some money which he previously borrowed but failed to repay upon persistent demands of the prisoner.
    

MITIGATING FACTORS

12. The mitigating factors are:
    

* Pleaded guilty

* First time offender

* No prior conviction

* No strong intention to steal

* No pre-planning

AGGRAVATING FACTORS

13. The aggravating factors are:
    

* Victim was unaware

* Victim was traumatized

* A 40hp outboard motor was stolen and never recovered

* More than one person was involved

PRE-SENTENCE REPORT

14. A pre-sentence report was compiled by the local Probation officer filed and on 18^th October 2021.
    
15. The PSR says that the complainant was not present in Court and did not give a statement to the Probation officer.
    
16. The PSR says further the prisoner committed the crime because the complainant borrowed K2,300.00 from him sometimes back.
    
17. The prisoner demanded payment of the debt but the complainant did not respond favourably resulting in him taking hold of the 40hp outboard motor and holding it so that once the debt is repaid, he would return it.
    
18. The complainant however reported the matter to the Police Station who went and picked up the 40hp outboard motor from the prisoner and took it to the Police Station.
    
19. The complainant later went and picked up the 40hp outboard motor from the Police Station and took it to his village. While he was mounting it on his canoe, the prisoner went and took it away from him the second time and used it for his own purpose until it later emerged that it had been lost at sea never to be recovered by the complainant again.
    
20. The debt of K2,300.00 owed by the complainant to the prisoner had never been repaid to date and the complainant had not been given possession of his 40hp outboard motor until it got lost at open sea.
    

40HP OUTBOARD MOTOR

21. The PSR states that the 40hp outboard motor is an old model outboard motor whose value on the current market would be K14,500.00.
    
22. This 40hp outboard motor was bought and used for about 14-15 years by the complainant and the Probation officer has formed the view that its price at the time it got lost at sea would be around K5,000.00.
    

SENTENCE

23. Section 327(1) and (10) of the Criminal Code Act provides that if the value of the thing stolen is more than K1,000.00, a sentence not exceeding 7 years is appropriate.
    
24. The circumstances under which this offence was committed are such that the prisoner did not steal because he wanted to permanently deprive the owner of the 40hp outboard motor and until the complainant repays the debt of K2,300.00 then he returns it.
    
25. But while awaiting repayment, the prisoner used the 40hp outboard motor for his own purposes thereby gaining an income from the sale of betelnut in the process of which the 40hp outboard was lost at open sea and the complainant being permanently deprived of its ownership and use.
    
26. In imposing a sentence, I note the prisoner has expressed genuine remorse and gave an undertaking to pay back to the complainant the loss of the 40hp outboard motor in the sum of K5,000.00.
    
27. He also entered a plea of guilty saving time and costs for the Court.
    
28. He is prepared, as is stated in the PSR, to pay the sum of K5,000.00 to the complainant should he be placed on probation.
    
29. In the case of Wellington Belawa -v- The State [1988-89] PNGLR 496, the Supreme Court identified certain factors that should be considered in similar cases which include:
    
    • (a) the amount of money 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) the remorse;
    • (i) the nature of the plea;
    • (j) any prior record
    • (k) the effect on the offender;
    • (l) any matters of mitigation special to the accused.
      
30. The Supreme Court then proposed the scale of sentences as follows:
    
    • (a) K1 and K1000, a goal term should rarely be imposed;
    • (b) K1000 and K10,000 a sentence of up to two years is appropriate;
    • (c) K10,000 and K40,000, two to three years imprisonment is appropriate.
      
31. This case involves the stealing of 40hp outboard motor whose value has been estimated at K5,000.00.
    
32. The prisoner stated in his allocutus that he was forced to do what he did because the complainant failed to repay the sum of K2,300.00 in debt.
    
33. But it is improper for the prisoner to have taken possession of the 40hp outboard motor to have the debt repayed because no order.
    
34. The prisoner is sentenced to 3 years imprisonment out of which 8 months 7 days are deducted for the time spent in remand.
    
35. Given that the prisoner has no previous criminal record and that he is willing to pay compensation of K5,000.00, in the exercise of my discretion under Section 19 of the Criminal Code Act, a balance sentence of 2 years 3 months and 23 days imprisonment is wholly suspended upon the following terms:
    
    • (i) On probation for 2 years
    • (ii) Keep the peace and good behaviour
    • (iii) Not to commit any offence whilst on probation during time of probation
    • (iv) Not to change residence
    • (v) Allow the Probation officer to enter his home at reasonable hours during time of probation
    • (vi) Restrain from consuming alcohol or any intoxicating substance
    • (vii) Restrain from having physical contact with the complainant
    • (viii) Bail money of K1,000.00 be refunded to the prisoner and paid to the complainant as part payment of the sum of K5,000.00
    • (ix) The balance of K4,000.00 be paid within 10 months from today, which means by August 2022, prisoner should complete the payment of K5,000.00 by then.
    • (x) Breach any of these conditions, he will be arrested and will serve the balance of his sentence in prison.
      

____________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant