N11220
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO. 195 OF 2024

BETWEEN:
THE STATE

AND
ALINGHAM MUSALU
of Sakawanga Village, Menyamya, Morobe Province
Prisoner

BULOLO/LAE: POLUME-KIELE J
30 SEPTEMBER, 10, 19 OCTOBER 2024; 10 JANUARY 2025

CRIMINAL LAW – Guilty Plea –Criminal Code Act - s 372 (1) (10), Stealing- Penalty of which is imprisonment for a term not exceeding 7 years.

CRIMINAL LAW- Sentence – Early guilty plea – No prior convictions – Criminal Code, s 19 - Suspension of sentence considered.

CRIMINAL LAW – Sentenced to 4 years imprisonment- less period of 3 months 3 days held in custody- s 3(2) Criminal Justice (Sentences) Act –2 years of which is suspended - the balance of the sentence term of 1years 8 months 27 days to serve be served in custody at CIS, Buimo.

Cases cited
GoIi Golu v The State [1979] PNGLR 653
Ure Hane v The State [1984] PNGLR 105
Lawrence Simbe v The State [1994] PNGLR 38
Wellington Belawa v The State [1988-89] PNGLR 496 
The State v Neville Maria (2013) N5102
State v Paul [2019] N8026
The State v Maurani (2008) N3560
The State v Taba (2010) N3939
The State v Sobo (2011) N4416
The State v Waiembi (2008) N3708
The State v Niso (No 2) (2005) N2930
The State v Tiensten (2014) N5563
Public Prosecutor v Don Hale (1998) SC564 
The State v Tardrew [1986] PNGLR 91 
The State v Paka [2016] N6914

Counsel
Mr. J. John for the State
Mr. S. Wussik (Jr) for the prisoner

SENTENCE

1.	POLUME-KIELE J: On the 14th of October 2024, the prisoner pleaded guilty to the charge of Stealing pursuant to 372(1)(10) of the Criminal Code Act.

2.	The offence of Stealing under section 372(1) (10) under the Criminal Code Act carries a term of imprisonment not exceeding 7 years.

THE LAW

3.	The offence of Stealing is provided for under Section 372(1)(10) of the Criminal Code Act. It states: 

	“372. Stealing-

(1)	Any person who steals anything capable of being stolen is guilty of a crime.
(2)	…
(3)	…
(4)	…
(5)	…
(6)	…
(7)	…
(8)	…
(9)	…
(10)	 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 seven years.

4.	Further, stealing is defined under Section 365 of the Criminal Code. It states:

“385. 
(1)	…

(2)	a person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person anything capable of being stolen, is said to steal that thing.

(3)	The act of stealing is not complete until the person taking or converting the thing actually moves it or otherwise deals with it by some physical act”.

The Issues for determination 

5.	There are two issues before this court. Firstly, what is an appropriate sentence or penalty that should be imposed on the prisoner? If a sentence is imposed, whether a suspension of sentence is suitable in this case? 

Sentencing principles

6.	It is trite law that the maximum penalty is reserved for the worst type of offence: GoIi Golu v The State [1979] PNGLR 653 and Ure Hane v The State [1984] PNGLR 105

7.	It is also settled law in our jurisdiction that each case must be decided on its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.

Mitigating Factors

8.	The factors that favours the prisoner are that:

(i)	He has no prior convictions
(ii)	He entered an early guilty plea that saves time and costs to everyone. 
(iii)	He showed remorse for the wrong he has done.
(iv)	He cooperated with police and made early admissions.

Aggravating Factors·

9.	The factors against the prisoner are that:

(i)	the prisoner stole from his employer.
(ii)	The prisoner was in a position of trust, and he abused that trust
(iii)	 Prevalence of the offence

Sentencing considerations and comparative cases

10.	In Wellington Belawa v The State [1988-1989] PNGLR 496 the Supreme Court identified a number of factors that should be taken into account on sentence for an offence involving dishonesty, including:

(i)	the amount taken
(ii)	the quality and degree of trust reposed in the offender.
(iii)	the period over which the offence was perpetrated.
(iv)	the impact of the offence on the public and public confidence.
(v)	the use to which the money was put.
(vi)	the effect upon the victim.
(vii)	whether any restitution has been made.
(viii)	remorse.
(ix)	the nature of the plea.
(x)	any prior record.
(xi)	the effect on the offender; and
(xii)	any matters of mitigation special to the accused such as ill health, young or old age, being placed under great strain, or perhaps a long delay in being brought to trial.

11.	In addition, the Supreme Court suggested that the following scale of sentences may provide a useful base, to be adjusted upwards or downwards according to the factors identified above, such that where the amount involved is between:

(1)	K1 and K1000, a gaol term should rarely be imposed.
(2)	K1000 and K10,000 a gaol term of up to two years is appropriate
(3)	K10,000 and K40,000, two to three years' imprisonment is appropriate. 
(4)	K40,000 and K150,000, three to five years' imprisonment is appropriate.

12.	This case falls within the fourth category of the guidelines in the Balewa's case where an amount of K69, 199.00 worth of gold was stolen.

13.	To determine sentence, counsel referred the Court to several case authorities which he considered relevant for the Court’s deliberations. 

14.	These cases are set out in the judgment below:
 
No	Case Citation	Facts (details)	Sentence	
1.	The State v.Neville Maria
(2013) N5102	Prisoner pleaded guilty to stealing K100, 000. From his employer (SSP) K28, 183.05 was used by the prisoner - SSP made a total 1I0ss of K28, 183.05.	4 years was imposed. 2 years was suspended leaving the balance of 2 years.	
2	State v Paul [2019] PGNC
270; N8026, Waigani:
Berrigan J	Both offenders pleaded guilty to one count of stealing, that they between 6 April 2018 and 27 April 2018 at Glory Garden Estate in the National Capital District, stole four hundred and thirty-four metres of electrical cable valued at K37, 633.18, the property of Glory Holdings Limited, contrary to section 372(1 )(10) of the Criminal Code. The cables was not recovered.	Both offenders were given a suspended sentence.	
3	The State v Maurani (2008) N3560, Davani J	Where the prisoner pleaded guilty to one count of stealing a chainsaw that was the property of a company, together with his co accused.	Both were sentenced to 3 years, 6 months' imprisonment;	
4	The State v Taba (2010) N3939, Cannings,J	The prisoner was convicted of stealing 1000 cartons of tinned fish valued at K58,399 from his employer, RD Tuna Canner Ltd. He had joined other employees to steal the tinned fish and sell to a third party.	The prisoner was sentenced to 2 years 6 months'	
5	The State v Sobo (2011)
N4416, Maliku AJ	The offender pleaded guilty to stealing his brother-in-Iaw's ANZ bank card whereupon he went into town and purchased goods from various shops spending K1840.40.	The prisoner was sentenced to 2 years', wholly suspended on the conditions that the prisoner repay the money spent within 6 months from the date of his sentence.	
6	The State v Roselyn
Waiembi (2008) N 3708,
David J	The prisoner in this matter was employed as a clerk and pleaded guilty to stealing K15,000. over a period of three years from his employer the Kunai & Company Lawyer.	3 years IHL sentence .
Sentence was suspended on condition of restitution.	

15.	Further, the range suggested in those cases are now outdated because of the frequency and prevalence of misappropriation and related offences: see The State v Niso (No 2) (2005) N2930; and The State v Tiensten (2014) N5563.

Should all or part of the head sentence be suspended

16.	Another consideration to take into account is the principle established in the case of Public Prosecutor v- Don Hale (1998) SC564 is that suspension of a sentence is at the discretion of the court, to be exercised on proper principles and if it is recommended by a Pre-Sentence Report. 

17.	In The State v Tardrew [1986J PNGLR 91 the Supreme Court set out three broad, but not exhaustive categories where it would be appropriate to suspend a sentence, namely:

(i)	where it will promote the general deterrence or rehabilitation of the offender.
(ii)	where it will promote the repayment or restitution of stolen money or goods.
(iii)	or where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health.

18.	For your case, you have asked the court for a probationary term of sentence or suspension of sentence during your allocutus. In this present case, your counsel has submitted that restitution is not relevant as the gold was recovered in full. It was found in your locker. I also note from the pre-sentence report that you have a family of 10 who all depend on you for their sustenance. Both your spouses (wives) have passed on and thus imprisonment would cause an excessive degree of suffering and thus the recommendation from the Probation Services that you are a suitable candidate for supervisory probationary orders despite the views of the company in terms of imposing a deterrent sentence. 

Pre-Sentence Report

19.	The PSR recommended that you are a suitable candidate for probationary supervision. You enter into your own recognizance and be of good behaviour bond for a period of 2 years.

20.	As to the recovery of the gold which you stole from your employer, Harmony Gold Company, it is noted that in your allocutus, you explained that even though you have been working with the company for more than a decade, your efforts were not recognized either through promotion or through increments. Given this lack of recognition, you were motivated to move the gold into his locker only to get the attention of the top tiers in the company. 

21.	Whilst it is accepted that you felt aggrieved by being overlooked in your employment, I find that there are certain matters which are lacking in your statement. Firstly, there is no evidence adduced during your testimony to confirm the number of times that you have aired your aggrieves with your employer, the responses which had been received by you in answer to your aggrieves and what other steps have been proposed by the company (if any) to address your aggrieves or concerns. 

22.	I also note that you have also expressed remorse to the Court, the company and your family. You said sorry for your actions for breaking Gods Laws and the Laws of this land. You also seek the court for leniency and a probationary supervisory orders.

23.	Given this scenario, I am now left with the issue of who to believe. Do I believe the version of the facts adduced by you during your testimony or the version of facts as presented in the pre-sentence report.

Credibility of witness

24.	To determine which version of the stories is credible depends on a number of factors and I refer to an earlier judgment of mine in the case of The State v Paka [2016] N6914 in that case, it was stated that:

“Firstly, the degree of logic and common sense usually plays a big part in this process including the demeanour and performance of the witnesses in the witness box and consistencies in their evidence as established in Garitau Bonu and Rosa Bonu v The State (1997) SC 528; Peter Wararu Waranaka v Gabriel Dusava (2009) SC 980... Furthermore, having stated the above, it is equally important to note that a lying witness can also be forceful and convincing in their evidence and yet be lying; whilst on the other hand, a truthful witness can be so unconvincing in their story and appearance and yet be telling the truth (see Andrew Palili v The State (2006) SC848. Similarly, there is also no rule of law which states that the more witnesses called by a party and the more consistent or identical stories given by that party must be correct version of what occurred and should be believed than the opposing party who called only one witness” (see The State v Jacob Dugura Roy (2007) N3137).

25.	Overall, what I have noted in the PSR, more so, the feedback from the company is that you have been given preference as a Local person from the mine area and therefore given an opportunity to work with the mine. The company has expended some costs of training you to a level of competence (Line of Performance (LOP) and was on the last phase of the training which was recognised and hence you were selected to undergo a final examination, but you declined to sit for the examination. In this present matter, I understand that although you were not qualified, however, the company saw potential in you and had trusted that you would perform your task diligently and honestly. You were on a base salary of K39,967.00 annually plus other perks and privileges such as company bonus, wok bung awareness allowances, insurance of 15% and schools of K3,900.00 paid annually. 

26.	Consequently, I am not convinced that your statement is credible. This is a case where you have according to your evidence adduced during trial, taken six clear plastic parcels of gold bearing materials from the zinc area of the Gold Refinery Room. Your actions were deliberate and your reasons for such actions unsatisfactory. 

27.	Thus, in applying the principle set down in the case of Wellington Balewa (supra) this present case falls within category 4 of the Balewa principle. This is because the value of the thing stolen is in the sum of K69, 199.00. Here the penalty suggested for a category 4 amount is 3 to 5 years imprisonment to be imposed.

28.	In your case, your counsel has suggested that a starting point of 3 years imprisonment be given wholly suspended on terms subject to s 19 of the Criminal Code at the rising of the Court.

29.	Meanwhile, counsel for the State, Mr. Wussik submitted that there is a need for a deterrent sentence, especially for like-minded offenders and due to the prevalence of the offence here in Lae and the country as a whole, thus a deterrent sentence is appropriate in the circumstances. 

30.	Regarding sentence, counsel suggested that a starting point of 4 years imprisonment is appropriate noting that the Court has wide discretionary powers and more so in terms of suspension where appropriate.

31.	In conclusion, having convicted you, Alingham Musalu of one count  of stealing contrary to s 372(1) (10) of the Criminal Code, I sentence you as follows:

(i)	Length of sentence imposed: 			4 years. 	
(ii)	Pre-sentence period deducted:			3 months 3 days.	
(iii)	Balance of term of sentence to be served:	3 years 8 months 27days.
(iv)	Amount of term of sentence suspended:		2 years
(v)	Time to be served in custody:			1 years 8 months 27 days. 

Sentenced accordingly.
________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the prisoner: Public Solicitor