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Perea v State [2009] PGNC 5; N3575 (6 January 2009)

N3575

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CRA NO 32 OF 2008

BETWEEN:

ANDREW PEREA
Appellant

AND:

THE STATE
Respondent

Minj & Mount Hagen: Makail, AJ
2008: 14 November
2009: 6 January

CRIMINAL APPEALS - District Court appeal - Appeal against sentence - Simple stealing - Guilty plea - Severity of sentence - Sentence of 18 months in imprisonment in hard labour imposed - Sentencing is an exercise of discretion - Failure by magistrate to take into account all relevant mitigating factors - Sentence considered excessive or severe in the circumstances - Substitution of 6 months imprisonment - Suspension inappropriate - Appeal upheld in part - Criminal Code - Sections 19, 372(1), 420 & schedule 2 - District Courts Act - Section 230(1)(c).

Cases Cited:

Gimble -v- The State [1988-89] PNGLR 271
The State -v- Robert Kawin (2001) N2167
The State -v- Timothy Tio (2002) N2265
James Warep -v- The State: CRA No 29 of 2008 (Unnumbered & Unreported Judgment of 06th January 2009)

Counsel:

Appellant in person
Mr J. Waine, for Respondent

6 January, 2009

JUDGMENT

1. MAKAIL AJ: This is one of the appeals I heard at Minj National Court against the sentence imposed by the Mt Hagen District Court on 10 October 2008 after it convicted the Appellant on his guilty plea on one count of stealing property of another person contrary to section 372(1) of the Criminal Code and sentenced him to 18 months imprisonment in hard labour. I reserved my decision until 28 November 2008 but have been unable to reach a decision until today due to other pressing matters.

BRIEF FACTS

2. The facts giving rise to this appeal and which the Appellant pleaded guilty to before the District Court are as follows; at about midnight on Saturday 20 September 2008, the Appellant was at Waghi Porr village in the Western Highlands Province. At the relevant time, he and an accomplice stole a rear windscreen of a 15 seater bus belonging to a John Kaipninti after returning from a movie show by removing it from the bus. The Applicant was caught on Monday 22nd September 2008 at Mt Hagen town bus stop attempting to sell it to any potential buyer and taken to Mt Hagen Police Station where he was arrested and charged with stealing a property of another person.

GROUNDS OF APPEAL

3. In the Notice of Appeal filed on 17 October 2008, the Appellant relies on the following grounds of appeal:

"1. The Learned Magistrate erred in Law by not taking into consideration that the appellant was not given time to give his evidence and call for witness but come (sic) to fast conclusion by convicting the appellant and sentence to 18 months IHL.

2. The Learned Magistrate failed by not allowing the Defendant to pay a fine when requested or impose a suspended sentence with restitution conditions when knowing that he was a first time offender.

3. And there was miscarriage of justice.

4. And further other grounds that may become available during the course of Trial".

5. Seek N/C orders to impose monetary fine due to above".

THE LAW

4. The offence of simple stealing is found in section 372(1) of the Criminal Code. It is one of those offences where it can be tried as an indictable offence before this Court or summarily before the District Court by virtue of section 420 and schedule 2 of the Criminal Code at the election of the Public Prosecutor. In this case, the Appellant having being charged by the police for this offence was tried before the District Court after the Public Prosecutor chose that he be tried there, whereupon he pleaded guilty and was sentenced to 18 months imprisonment in hard labour.

Section 372(1) states:

"372. Stealing.

(1) Any person who steals anything capable of being stolen is guilty of a crime.

Penalty: Subject to this section, imprisonment for a term not exceeding three years".

5. I note the maximum penalty for an offence of simple stealing is 3 years imprisonment. Since the Appellant was tried summarily, the question is, can the Learned Magistrate in the District Court impose a lesser sentence than 3 years on the Appellant? In James Warep -v- The State: CRA No 29 of 2008 (Unnumbered & Unreported Judgment of 6 January 2009), the Appellant appealed a sentence of the District Court on a charge of dangerous driving causing grievous bodily harm which carried a maximum penalty of 5 years imprisonment under section 328(5) of the Criminal Code. I had to decide inter alia whether to accept the Appellant’s request for a wholly suspended sentence of 12 months imprisonment as well as the State’s concession for a suspended sentence with a cancellation of the Appellant’s drivers licence during the period of suspension.

6. I rejected the State’s concession for a suspended sentence with a cancellation of the Appellant’s drivers license because first, cancellation of a license was not one of the prescribed penalties under section 328(5) of the Criminal Code and secondly, it was a separate penalty under section 330 of the Criminal Code which the Learned Magistrate did not have power to impose on a summary conviction. But I held that the Learned Magistrate was entitled to consider a lesser sentence by utilizing section 19 of the Criminal Code and this is what I said at pp 9&10 of the judgment:

"Proceeding on this premise, I have perused carefully the reasons given by the District Court for sentencing the Appellant to 12 months imprisonment less 2 months, leaving 10 months to serve and I can find no error in that decision. I find that the sentence is fair and reasonable given the mitigating factors operating in favour of the Appellant. As I said, the maximum penalty for this offence is 5 years imprisonment but here, the District Court imposed only 12 months imprisonment with 2 months deducted, leaving 10 months for the Appellant to serve. I infer that the District Court may have exercised its sentencing discretion conferred by section 19(1) (a) of the Criminal Code to arrive at that decision. In my view, there is nothing stopping the District Court from utilizing section 19(1) (a) of the Criminal Code in a case where the offence is tried summarily because that has been done in past cases".

GROUND 1 OF NOTICE OF APPEAL

7. Turning to the grounds of appeal, ground 1 of the Notice of Appeal can be disposed off quickly because it raises the issue of whether or not the District Court should have allowed the Appellant to give evidence and also call witnesses to give evidence before it convicted and sentenced him.

8. For this ground of appeal, the Appellant submits that he should have been allowed to give evidence as well as calling his witnesses to give evidence before the Learned Magistrate proceeded to convict and sentence him. Since he was not given the opportunity, the decision on sentence is wrong.

9. I think this ground of appeal is misconceived. I can see that the Appellant as a layman has misunderstood the difference between a trial and a plea hearing. It is not disputed that the hearing before the Learned Magistrate in the District Court was a plea hearing. But the Appellant assumed that he was entitled to call further evidence in his defence. And I cannot work out the purpose for him to call further evidence from witnesses. Was it to support his plea for leniency or for a Pre Sentence Report and also a Means Assessment Report by a Probation Officer? Or was it to support a defence he was raising? This is unclear from the court deposition before me.

As we know, in a plea hearing, the primary matter of importance and relevance to the Court and of course for parties to direct their minds to is the question of penalty. And so, I think, when the Appellant was invited to speak on his allocutus, he misunderstood it as giving evidence in his defence to the charge.

10. And briefly, the procedures in a plea hearing before the District Court which would no doubt be similar to this Court are; after arraignment of the accused, following the presentation of an information and reading out of the brief facts by the prosecutor, the accused is asked to make a plea and if he pleads guilty, a guilty plea is recorded and the Magistrate peruses the court deposition to satisfy himself or herself if the charge against the accused is made out. If so, the Magistrate confirms the guilty plea and invites the accused to speak. This is where the Court administers the allocutus to the accused followed by submissions on sentence by counsel for the accused (if there is one) and then the submissions on sentence by the prosecutor. The last stage of this process is the decision on sentence by the Magistrate which may be given there and then or at a later date.

11. As I said, I think the Appellant as a layman misunderstood this process with that of a trial and this would be true as he was unrepresented before the District Court and even before this Court. Thus, in the absence of any clear evidence to the contrary, I must conclude that the Appellant misunderstood the two processes when he appeared before the Learned Magistrate in the District Court.

12. So, can it be said the Appellant’s misunderstanding of the two processes led him to wrongly plead guilty to the charge, hence wrongly convicted and sentenced by the District Court? I do not think that the Appellant’s misunderstanding of the two processes before the District Court is fatal to the decision on sentence because what is clear from the Court deposition and which is also not disputed is that the matter proceeded as a plea hearing before the District Court. That is why I am able to confidently say from reading the brief reasons of the Learned Magistrate in the District Court and also the Brief Statement of Facts presented by the prosecutor that it was a plea hearing.

13. The Appellant openly and freely pleaded guilty after he was arraigned by the Learned Magistrate. His guilty plea can be deduced from the brief reasons for decision of the Learned Magistrate as follows:

"Def appears after charge and from bail.

Def says it is true.

Plea: Guilty

Decision: Guilty".

14. For these reasons, I find no error in the decision of the District Court to convict the Appellant on his admission of the offence and sentenced him to 18 months imprisonment in hard labour. I dismiss this ground of appeal.

GROUNDS 2 & 5 OF NOTICE OF APPEAL

15. The Appellant says that he pleaded guilty to the charge before the District Court and is a first offender. He has no prior conviction and the property has been recovered. Further, he says that his relatives in particular his elder brothers paid some undisclosed compensation to the victim. Finally, he says that he is sorry for what he did and of course says that the value of the stolen property is not much.

16. In the circumstances, he says that for the District Court to impose the sentence of 18 months imprisonment in hard labour is too severe or excessive. He submits that the District Court should have imposed a fine and also suspended the entire sentence of 18 months in light of the mitigating factors operating in his favour. As the District Court did not, it fell into error.

17. Counsel for the State did not seriously oppose the submissions of the Appellant for the sentence to be suspended and substituted for a fine. In fact, counsel submits that, this is a trivial offence. And as the Appellant pleaded guilty to the offence, is a first offender with no prior convictions, the property was recovered and compensation was paid to the victim, an appropriate sentence would have been a suspension of the entire sentence of 18 months imprisonment term and payment of a fine.

18. I repeat what I said in James Warep’s case (supra) which I handed down before this decision that it must be remembered that the sentencing power of the Court of an offender is an exercise of discretion by the Court by virtue of the Court’s powers conferred by the Criminal Code and other statues. In this case, the District Court was asked to decide a sentence by exercising its powers under sections 372(1) and 19 of the Criminal Code. The maximum penalty for this offence is 3 years imprisonment but the District Court imposed 18 months imprisonment term.

19. I have perused carefully the reasons given by the District Court for sentencing the Appellant to 18 months imprisonment in hard labour and I am of the opinion that the Learned Magistrate in the District Court did fall into error in his decision when he imposed that sentence. First, turning to the brief written decision of the Learned Magistrate in the District Court, I have had very little luck trying to work out the reasons for the decision because the hand writing of the Learned Magistrate is very difficult to read. Nonetheless, doing the best as I can, I reproduce parts of the decision which I am able to work out below for the benefit of the parties in order to appreciate how the District Court reached its decision:

"Sentence"

He is charged with stealing the property, penalty is 3 years.

The def is that has no prior conviction. He admitted. The Court place him on GBB or fine.

The stealing is a prevalent offence.............

ORDER: Def is convicted and sentenced to eighteen (18) months IHL".

20. From the brief reasons, I can say that the District Court imposed the sentence of 18 months imprisonment because of the prevalence of the offence. This is an important aggravating factor in terms of sentencing and I have no doubt in my mind that this was the sole determining factor that influenced the mind of the Learned Magistrate in the District Court to impose the sentence he did.

21. But did he take into account the mitigating factors in favour of the Appellant such as the Appellant’s early guilty plea, no prior conviction record, first offender, recovery of the stolen property, payment of compensation to the victim and of course the value of the stolen property?

22. I can say that he did take into account the Appellant’s early guilty plea, no prior conviction record and first offender plea, but I cannot say if he did take into account the other three mitigating factors as there is no record of them in the decision. To my mind, these other three factors, being the recovery of the property, payment of compensation to the victim and the small value of the stolen property are not only relevant but also significant mitigating factors which operate favourably for the Appellant in terms of "watering down" the seriousness of the offence. And I think the Learned Magistrate in the District Court should have directed his mind to them too. Because if he did, they would have significantly influenced him to consider a lesser sentence than the one he imposed.

23. I consider that recovery of the stolen property is a compelling mitigating factor, so as the small value of the property stolen. In this case, the rear windscreen was returned to the owner and it is said that its value is K1, 876.16. This is not a substantial amount. In my view, these two factors together with the payment of compensation to the owner should have persuaded the Learned Magistrate to impose a sentence between 4 months and 12 months. This is where I find the Learned Magistrate in the District Court fell into error.

24. Secondly, it is trite principle of law on sentence that the maximum penalty is reserved for the most serious or worst case. In Gimble -v- The State [1988-89] PNGLR 271 and The State -v- Robert Kawin (2001) N2167, they set out the sentencing tariffs for the various categories of robbery and stealing cases respectively. Looking at the whole circumstances of the case before the District Court, it is my view that this is not a serious or worst case of stealing, hence the maximum penalty of 3 years imprisonment would not have been only an inappropriate sentence but also excessive one if imposed. As the District Court did not impose a sentence of 3 years imprisonment, it was correct in that respect. But I am of the view that, even the sentence of 18 months is not only inappropriate but also excessive given that this is not a serious or worst case of stealing.

25. In Robert Kawin’s case (supra), it was a case of stealing brought under subsection 1 instead of subsection 10 of section 372 of the Criminal Code for two counts of stealing by forgery in a breach of trust situation. The prisoner was sentenced to a cumulative total of 2 years in jail on his guilty plea to both counts. In another case of stealing in The State -v- Timothy Tio (2002) N2265, the prisoner, a security guard pleaded guilty to stealing a portable chain saw valued at K8,000.00 from Steamships Hardware in Wewak where he was providing security and sold it to a third party for K1,000.00 contrary to section 372(1)&(10) of the Criminal Code.

26. His Honour Kandakasi J sentenced the prisoner to 5 years imprisonment because it was almost a worst case when taking into account that there was a breach of trust, prevalence of the offence, substantial value of the property (K8, 000.00) which was subsequently sold to a third party for just K1, 000.00. And so, bearing in mind these two cases but also noting that they are not simple stealing cases, they suggest sentences of 2 years and above. But in my view, it is fair to say that in this case, a sentence between 6 months and 1 year imprisonment term would be appropriate.

27. For these reasons, I find that the Learned Magistrate in the District Court did fall into error when he failed to take into account the other mitigating factors in his assessment of an appropriate sentence for the Appellant and as a result of his failure to take into those mitigating factors, it resulted in a much higher sentence being imposed against the Appellant.

28. In my view, an appropriate sentence after taking into account all the mitigating factors including the fact that it is not a very serious case or worst case of stealing is an imprisonment sentence of 6 months. Accordingly, in the exercise of this Court’s power under section 230(1) (c) of the District Court Act, I quash the sentence of 18 months and substitute it with 6 months imprisonment.

29. Should I suspend the sentence of 6 months imprisonment as requested by the Appellant? I do not think so. I consider that the Appellant must serve some time in prison so that it will teach him a lesson. It will remind him that what he did was wrong and also remind him not to repeat it in future. It would also serve as a notice to any would be offenders not to commit this offence. For far too long, people especially young male adults or young boys like the Appellant get away with committing this offence. They remove parts of motor vehicles, like window glasses, side door mirrors, lights, wheels, radios, CD players, etc.... to make quick money by subsequently selling them. It is common knowledge that this is happening everyday at public places in our cities and towns. Thus, offenders like the Appellant must be punished in the strongest term as possible so that they will not repeat them in future. These reasons have persuaded me not to suspend the sentence of 6 months imprisonment. The Appellant must serve out the term in full to appreciate the concerns I am raising here.

30. Secondly, the Appellant was caught red handed so to speak when he was attempting to sell the rear windscreen two days later at Mt Hagen town bus stop after being spotted by a third party. This only aggravates the situation, thus I reject his request for a suspended sentence. He must serve the sentence out in prison.

31. Thirdly and in addition to the two above reasons, as to his further request for a imposition of a fine in lieu of an imprisonment term, I consider that it is inappropriate to do so and also to allow the Appellant to walk free so to speak by suspending the sentence would not only be doing a de service to the society but, also a sign of leniency by the Courts.

32. For all these reasons, I uphold this ground of appeal in part in so far as the 18 months imprisonment term is concern and quash it. In its place, I impose a sentence of 6 months imprisonment term.

GROUNDS 3 & 4 OF NOTICE OF APPEAL

33. I dismiss grounds 3 and 4 as they are mere statements. They do not tell us how the Learned Magistrate in the District Court fell into error to enable me to make an informed decision.

CONCLUSION

34. In conclusion, I find that the Appellant has made out his appeal in part in so far as the decision of the District Court to impose a lengthy sentence of 18 months is concerned. I agree that it should have imposed a short and sharp sentence but I do not agree that it should be wholly suspended and the Appellant should also be ordered to pay a fine. Thus, I dismiss that part of the appeal.

ORDERS

35. Accordingly, I uphold the appeal in part and quash the decision of the District Court of 10 October 2008, wherein it imposed a sentence of 18 months imprisonment in hard labour against the Appellant and in its place sentence the Appellant to 6 months imprisonment in hard labour forthwith. That means that the Appellant shall serve out the new sentence until 10th April 2009. Thereafter, he shall be released.

Orders accordingly.

_________________________________

The Appellant in Person
Acting Public Prosecutor: Lawyers for the Respondent