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State v Tio [2002] PGNC 67; N2265 (21 May 2002)

N2265

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1087 of 2000

THE STATE

-V-

TIMOTHY TIO

WEWAK: KANDAKASI, J.
2002: 14th and 21st May

CRIMINAL LAW - Sentence – Stealing by security guard - Item stolen a portable chain saw valued at K8,000 recovered from third party – Third party paid accused K1, 000.00 which was used up by accused - First time offender – Guilty plea and co-operation with authorities from the beginning - Prevalence of offence considered – Sentencing tariffs suggested by counsel not supported by any authority rejected – Past sentences suggesting tariff considered - Past sentences not deterring would be offenders – Sentence of 5 years imposed to reflect need to deter as an important consideration in criminal law sentencing – Criminal Code ss.398(a)(i) and 19

Cases cited:
The State v. Sabrina Yakal [1988-89] PNGLR 129.
The State v. James Gurave Guba (19/12/00) N2020.
The State v. Jack Oroko Tepol (08/10/99) N194.
The State v. Sam Nimino [1977] PNGLR 226.
The State v. Robert Kawin (24/12/01) N2167.
Seo Ross v. The State (30/04/99) SC605.

Ala Peter Utieng v. The State (unreported and unnumbered judgement of the Supreme Court delivered in Wewak on the 23rd of November 2000) SCRA 15 of 2000

Counsel

Mr. M. Ruarri for the State
Mr. D. Kari for the Accused

DECISION ON SENTENCE

21st May, 2002

KANDAKASI J: You pleaded guilty to one charge of stealing a chain saw from Steamships Hardware here in Wewak on 24th April 2000, which conduct is prohibited by section 372 (1) and (10) of the Criminal Code. The evidence against you in the depositions supported your guilty plea. I therefore accepted your guilty plead and convicted you of that offence.

In your allocutus, you said sorry for committing the offence and said you made it easy for the Courts and the police by freely admitting to the commission of the offence. You also said this is the first offence you have committed. In the circumstances, you asked for a good behaviour bond or probation. I then heard submissions from your lawyer and that of the State and reserved a decision to a date before the end of this circuit. Subsequently, it was brought to my attention that you are serving a District Court sentence for break, enter and stealing. That sentence will be up by 18th July 2002.

The Facts

Based on authorities like that of, The State v. Sabrina Yakal [1988-89] PNGLR 129, which I followed in The State v. James Gurave Guba (19/12/00) N2020, and others as well as the judgement of my brother Justice Kirriwom in The State v. Jack Oroko Tepol (08/10/99) N1941 and the decision of the Supreme Court in The State v. Sam Nimino [1977] PNGLR 226, I note there is no dispute in this case in relation to the practice of using the depositions to extract the relevant facts for the purposes of sentencing.

The facts as they appear from the material in the depositions and the facts put to you during your arraignment are these. On the 24th of April 2000, you were placed on duty between the hours of 10:00 a.m. and 4:00 p.m. at the Steamships Hardware in here in Wewak. You were at that time, in the employ of MSS Security Services, which appear to have been contracted by Steamships Hardware to provided security services. Whilst on duty around 10:45 a.m. you found yourself being the only one around so you decided to steal a brand new chain saw. That chain saw was recently brought into the hardware on the order of a customer.

You stole the chain saw by taking it out of the hardware into a PMV bus and you instructed the bus driver to take it to your house at Yawasoro here in Wewak as well. Later on the 1st of May 2000 you sold the chain saw to a Benedict for K3, 000.00. Of that K1, 000.00 was paid up front and the balance was to be paid later. In the meantime, Steamships found out that the chain saw was missing so, it carried out its own investigations and found out that you had stolen it and sold it to Benedict. The chain saw was eventually recovered from Benedict. You were later arrested and charged for the offence. Following your arrest you admitted to stealing the chain saw a position you have maintain all the way you to this Court.

Submissions and Considerations

In your address before sentence, you said sorry for having committed the offence. You also said you made it easy for everybody by admitting to committing the offence. You therefore asked for a good behaviour bond or probation.

Your lawyer asked this Court to note your expression of remorse and your guilty plea and the effect of your guilty plea. As you say, your guilty plea made it easy for everybody. It has saved substantial costs and time it would have taken the State to mount a trial against you. It has also meant that your employer and the victim of your offence and the other witnesses did not have to waist their time and money in coming to give evidence against you.

Your lawyer also submitted that you are 24 years old and have no prior conviction, before the commission of this offence. But after the commission of this offence you have been convicted by the Wewak District Court for break, enter and stealing and you are currently serving your sentence for that. That sentence will end on the 18th of July 2002. He also asked me to note that the chain saw you stole was recovered. Taking these factors into account, your lawyer asked this Court to give you a sentence between 12 and 18 months.

The State on the other hand submitted that you committed the offence in breach of the trust and duty placed on you as a security guard to protect the victim’s property. The value of the item you stole was K8, 000.00. After having stolen the chain saw, you sold it to a Benedict and received K1, 000.00 in part payment, which you used up. Benedict, the third party as therefore, lost his K1, 000.00 but you gained by that amount. He submitted also that the offence of stealing by people like you is prevalent and as such I should give you a sentence between 2 years and 5 years imprisonment.

I take into account all of the submissions by your lawyer and what you said in your own address to the Court in you favour. At the same time, I am required to take into account the State’s submissions as well has the community or country’s call for appropriate punishments to be given to people like you who break the law and commit offences. This proceeds on the basis that, although an offence may be against a particular person, it is collectively against the society because the society does not allow this kind of behaviour. Accordingly, I take into account also the submissions of the State.

The Law

Section 372 (1) and (10) of the Criminal Code create the offence and its penalty. The maximum penalty under these provisions is 7 years subject to s.19 of the Code.

Both counsels were not able to assist me with any case on point, except for my own judgement in The State v. Robert Kawin (24/12/01) N2167. That was a case of stealing brought under subsection 1 instead of subsection 10 of s. 372 for two counts of stealing by forgery in a breach of a trust situation. In sentencing the prisoner on a plea of guilty to a cumulative sentence of 24 months or 2 years, I noted that there were no sentencing guidelines and I tried to formulate one in these terms at pp. 5- 6:

"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 the 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 amounts of money 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 item 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 of money 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 reduced the kind of sentence suggested. The need to do that as been made clear in a large number of cases though in the context of other offences as in the case Gimle 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."

After my judgement in the above matter I found a number of other cases, I was not able to find before or at the time of my judgement in the above case, by reason of me being on circuit. The first is a Supreme Court Judgement that might be on point. That is the case of Seo Ross v. The State (30/04/99) SC605. In that case Seo Ross pleaded guilty to two counts of stealing under s.372 (5) of the Code. The National Court imposed a sentence of two years for each count and ordered them to be served cumulatively. It did so after noting that the prisoner was a first time offender and that the properties he had stolen were recovered. On appeal against that sentence the Supreme Court held that the National Court did not err in its judgement. Instead it agreed with the trial judge that it was a serious offence because it involved a breach of trust by a security officer. In so doing the Supreme Court said:

"Business houses must be able to trust security firms that provide escort services to them at considerable expense. This is not done free. It is not correct for the appellant to victimise the employer’s client when his grievance was with his employer. The trial Judge noted the prevalence of this kind of offence. This is not a simple stealing offence or one-off incident. It was becoming to be a scheme until discovered."

The second is a judgement of my brother justice Sawong in The State v. Michael Kamipe (11/9/96) N1471, where the prisoner was given 4 years to be serve concurrently with a sentence of 6 years for hijacking an airplane, involving large sums of money.

But these cases do not clearly provide us with any guideline for sentencing for any or all of the offences under s.372 of the Code. In the circumstances, I consider what I said in the Robert Kawin (supra) case as a useful guide, which should be adopted with necessary modifications for an offence under subsection 10. When what I said in that case is considered in the light of the above cases a number of principles emerge.

First, the maximum prescribed penalty should not be readily imposed. Instead it should be reserved for the worse type of the offence under consideration. Secondly, guilty pleas, and the offender being a first time young offender and the existence of such good factors operate in favour of sentences lower than the prescribed maximum. Thirdly, if the properties stolen are recovered it may operate as a factor in mitigation of an offender whilst on the other hand if the properties stole is substantial and or has not been recovered a higher sentence may be imposed. Fourthly, prevalence and effect of the offence against the victim and the community or society as a whole is an important factor for consideration.

I note in your favour that, you have pleaded guilty to the charge. That saved the State costs and time it could have expended to secure your conviction. I also noted that you were a first time offender when you committed this offence. I do not attach any weight to your subsequent conviction for break, enter and stealing by the District Court, for which you are serving time.

However you have some factors operating against you. First although you say sorry for what you have done. There is no evidence of you having said sorry to the victims of you offence, namely Steamships Hardware and Benedict, to whom you sold the stolen chain and received K1, 000.00. As the Supreme Court said in Ala Peter Utieng v. The State (unreported and unnumbered judgement of the Supreme Court delivered in delivered in Wewak on the 23rd of November 2000) SCRA 15 of 2000) you expression of sorrow is meaningless unless it is accompanied by some tangible expression of that in terms of saying sorry to the victims of your offence and making right with them. Accordingly, your saying sorry is of no value to you or to any body. I therefore reject that.

Secondly, you were employed specifically to look after Steamship Hardware and its property at a cost to the business. Instead of faithfully and honestly discharging that duty, you broke it by stealing from the very people who you were employed and or engaged to look after. You therefore destroyed the trust and confidence placed in you. Had they known that you would steal, you could not have been employed at the first place.

Thirdly, the value of the property you stole was 7 times more than the amount stated as the starting point in s.372 (10). The item you stole was a big thing and it seems to me that you appeared not to have had any fear that you could be found stealing such a big thing. Instead, you appeared to have proceeded to deal with it as if it was your property.

Fourthly, you substantially benefited from your criminal conduct. You sold the chain saw and got K1, 000.00 from a Benedict. If that person was an innocent third party, you in effect also stole from him by receiving and using up the K1, 000.00 from that person. You therefore offended more then one person and committed two wrongs in the process.

Fifthly, the offence of stealing by security officers as was noted in the Supreme judgement in the Seo Ross (supra) case is prevalent. There is already a bad state of affairs with there being so much armed hold ups and robberies at houses, stores, officers and almost everywhere. That is why security guards like you are employed to look after and protect people’s properties and lives. When people like you commit offences in the way you did, it is much more serious in my view. It therefore calls for an immediate and higher personal and general deterrent sentence in a bid to stop stealing by people who are employed to look after other people’s properties and lives.

Finally, following on from the last mentioned factor, the more security personals steal from persons they are employed to protect, there is a grave danger that businesses might close down and the rest of the peaceful law abiding persons who I note are in the majority will unnecessarily suffer. People will in the case of a hardware store like Steamships Hardware closing down, will not have any easy access to hardware goods. They might be forced to incur a fortunate to go and buy elsewhere or even have no where else to go.

Taking all of these factors into account, I consider a sentence of 5 years in hard labour appropriate. Of that, of course, the time you already spent in custody awaiting your trial for this matter shall be deducted. The deduction does not include the time you spent both in custody awaiting trial and sentence for the offence of break, enter and stealing. I order that you serve your sentence in hard labour to commence straight after the end of the sentence in relation to break, enter and stealing which takes place on the 18th of July 2002.
________________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the Accused: The Public Solicitor