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State v Midal [2021] PGNC 673; N9951 (24 May 2021)

N9951

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 439 OF 2019

THE STATE

V

LEONARD MIDAL

Kerevat/Kokopo: Suelip AJ
2021: 19^th April & 24^th May

CRIMINAL LAW – sentence – plea – break, enter and stealing s.398(a)(i) Criminal Code – played role of watchman – received K1000 as his share of the loot – half of share returned to police – mitigating and aggravating factors balance out – genuine remorse – pre-sentence term deducted – balance wholly suspended with no conditions.

Cases Cited

Goli Golu v. State [1979] PNGLR 653
State v. Fonix Ombo & 2 ors [2018] N7744
State v. Keron John Alelok & anor (2018) N7748
State v. Dade Ula (2018) N7758

Counsel

G Tugah, for the State
S Pitep, for the Prisoner

SENTENCE

24^th May, 2021

1. SUELIP AJ: On 17 April 2021, the prisoner pleaded guilty to the charge of break, enter and stealing, thereby contravening section 398(a)(i) of the Criminal Code.

2. This is my decision on sentence.

3. The facts are these. On 23 November 2018 at around 2am to 3am, the prisoner was with five others at Kerevat town, Gazelle District, East New Britain Province. He was involved in a planned break, enter and stealing that morning. He acted as a watch man for his friends. He stood guard outside the premises of Tropical Supermarket (PNG Pride Ltd) whilst his friends climbed over the back fence of the supermarket, broke a wall of the supermarket and gained entry into the kitchen area.

4. His friends proceeded to a room where they broke open the door and stole K50,000 cash, a pistol grip shotgun valued at K19,000 and box of 12 gauge rounds valued at K1,000. They then left through the back gate after cutting the lock and along with the prisoner left the scene. He was given K1000 as his share of the loot. The State invoked section 7 of the Criminal Code in that he aided and abetted others in the commission of the crime. The actions of the prisoner contravened section 398(a)(i) of the Criminal Code.

5. This section provides:

Section 398. Breaking into buildings and committing crime.

A person who –

(a) breaks and enter –

(i) a schoolhouse, shop, warehouse, counting-house, office, store, vehicle, garage, hanger, pavilion, factory, workshop, tent, carvan, petrol station, ship, aircraft, vessel or club; or

(ii) ...

and commits a crime in it; or

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 14 years.

6. The penalty for the crime the prisoner committed is imprisonment for a term not exceeding 14 years.

7. In Goli Golu v. State [1979] PNGLR 653, it is trite law that the maximum penalty is reserved only for the worse type offence. This is not a worse type case and so the maximum penalty will not apply here.

8. The pre-sentence report (“report”) shows the prisoner is now 20 years old but he was 17 years at the time of the crime. It says that he comes from Palnakaur Ward, in the Kokopo-Vunamami LLG, East New Britain Province. It also says that he comes from family of 5 siblings, 2 males and 2 females, and one of his sisters has passed on. The report further says the prisoner is the youngest in the family and his father is employed as a security guard whilst his mother is a subsistence farmer.

9. The report only engaged the views of his family, his ward member and shop owner. Whilst his family say he is a good person, his father says the robbery was a result of peer pressure and he is willing to return the stolen money and also pay a fine of K1000. His mother shares the same sentiments with his father about the prisoner. She is also willing to pay K1000 as repayment of the money given to him. His sister agrees with his parents and asks for mercy on him.

10. The ward member also agrees that the prisoner is a good person and involves himself in youth and church programs. He said it is likely that the prisoner’s involvement with his friends has caused him to be part of the offence. He wants the prisoner to be placed on probation and he is willing to supervise him in community work should he return to the village.

11. The owner of the shop, one Mark Huang says he does not want repayment of the money or items stolen but he wants the prisoner to be sent to jail to learn a lesson. He feared for his life at the time he was woken up by the prisoner’s friends and forced to lie down with his hands tied to the back.

12. In the Means Assessment Report, his family showed their support towards him and made assurances that they can pay a fine of about K2,000.

13. The Antecedent report shows the prisoner does not have any prior convictions.

14. During allocutus, the prisoner said he is sorry for what he did. He asked to be put on probation and he can come present himself and sign in whenever the Court orders him to. He also wants to return to school. He said he was doing grade 9 when he was arrested. He said the food in prison is not good and he felt sick when eating prison food.

15. The following are the mitigating factors:

(i) he pleaded guilty
(ii) he is a first-time offender
(iii) his role in the robbery was minimal
(iv) he only spent K500 out of the K1000 share given to him
(v) he is a youthful offender

16. Against the prisoner, are the following aggravating factors:

(i) the offence was pre-planned
(ii) he was in the company of others
(iii) offence was committed in the night
(iv) substantial amount of money was stolen with some valuable items
(v) most cash were not recovered

17. Counsel for the prisoner referred to some case authorities, but each one differs from this one in respect of the amount of money stolen and role each offender played in the commission of the offence. Nevertheless, the sentence ranged from one year to 2 years, minus the custody time with the balance wholly suspended with conditions.

18. The State, on the other hand, referred to 4 case authorities. The closest in similarity is that of State v. Fonix Ombo & 2 ors [2018] N7744 where the accused and others broke into a store around 10-11pm and stole K5,000 cash and 11 mobile phones. They pleaded guilty and the Court considered their ages between 18 and 22, with no weapons used, the Court substituted their pre-sentence terms for their sentence.

19. I have also found the case of State v. Keron John Alelok & anor (2018) N7748 relevant where the prisoners were sentenced to be imprisoned for 3 years each in hard labour for break, enter and stealing. Their pre-trial custodial periods of 2 months and 2 weeks each were deducted, and the balance of 2 years, 9 months and 2 weeks were wholly suspended on conditions that both enter into recognisance and promise to keep peace and be on good behaviour bond.

20. Also, in the case of State v. Dade Ula (2018) N7758, the accused was charged for the offence of break, enter and stealing of 15 mobile phones, 2 bottles of alcohol and cash of K12,800. He pleaded guilty to the charge and was sentenced to 13 months imprisonment in hard labor. The 13 months pre-trial custodial period was substituted for the sentence imposed.

21. He has shown genuine remorse and he returned half of his share of the stolen money to the police. Further, his family is also willing to pay up to K2,000 as a fine for the offence he committed. The owner of the supermarket is not from the locality. Hence, there is no utility in paying any compensation to him. His ward member wants him to be placed on probation and he is also willing to supervise his community work.

22. I note he was arrested on 17 December 2018 and so he has spent 2 years and 5 months in prison.

23. In weighing the mitigating factors against the aggravating factors, they balance out. Apart from the shop owner who does not want any repayment of the monies stolen but would rather the prisoner go to prison to learn a lesson, all others who are mostly his family members want him to be placed on probation and to pay a fine up to K2,000. The proposed fine of K2,000 is twice the amount of his share of K1000. This aspect stands out above others and is favourable to to the prisoner.

24. Hence, I am satisfied that a sentence of 3 years less the time he spent in custody is warranted in the circumstances. The prisoner has spent two years and five months in custody before he pleaded guilty to the charge. Hence, that leaves only 7 months to serve.

25. Further, because he performed a minor role of a watchman during the robbery coupled with the return of half of his share of the loot, I am willing to suspend the balance of his sentence with no conditions except that he enters into his own recognizance and promise to keep peace and be on good behaviour bond. This is also because his pre-sentence custody period is long enough to have taught him a lesson not to repeat his actions. I encourage him to immediately return to school and not repeat or engage in a crime similar to or bigger than this.

26. Therefore, the Orders of this Court are:

(i) He is sentenced to 3 years imprisonment.

(ii) His pre-custody term of 2 years and 5 months is deducted.

(iii) The balance of his sentence of 7 months is wholly suspended with no conditions except that he enters into his own recognizance and promise to keep peace and be on good behaviour bond.
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Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner