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State v Koima [2010] PGNC 129; N4115 (24 August 2010)

N4115

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 732 OF 2008

THE STATE

V

EDWARD GIRAGU KOIMA

Madang: Cannings J
2010: 20 May, 20, 24 August

CRIMINAL LAW – sentence – stealing – Criminal Code, Sections 372(1) & 10 – property valued at K130,992.00 stolen – offender and others dismantled and ransacked a house, stealing house and contents.

A 52-year-old man was convicted after a trial of one count of stealing a house and its contents valued at K130,992.00. The incident took place in a village when the owners of the house were absent. This is the judgment on sentence.

Held:

(1) The maximum penalty is seven years imprisonment.

(2) A useful starting point is the middle of the available range: three and a half years imprisonment.

(3) A co-offender was dealt with previously, and after pleading guilty was sentenced to five years imprisonment.

(4) Applying the principle of parity in sentencing, this offender deserved a heavier sentence than the co-offender who pleaded guilty. The appropriate sentence was six years imprisonment, and none of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Alice Kware & Addie Uvi CA 34-35/2006, 23.03.07
The State v A Juvenile, "KK", CR 188/2009, 04.03.10
The State v Asi Taba, CR No 1443 of 2009, 22.07.10
The State v Danis Langu Jack, CR 183/2009, 21.12.09
The State v Douglas Boku CR 844/2009, 18.08.09
The State v Edward Giragu Koima (2010) N4037
The State v George Pelly, CR 672/2003, 04.03.10
The State v Martin Kairing Awi, CR 352/2008
The State v Philip Bira (2009) N3633
The State v Philip Bola Malagau & Michael Bio Tavulo, CR 678/1998, 17.02.09
The State v Tobby Alekun (2004) N2636

SENTENCE

This was a judgment on sentence for stealing.

Counsel

N Goodenough, for the State
D Joseph, for the offender

24 August, 2010

1. CANNINGS J: The offender, Edward Giragu Koima, is before the court to be sentenced after being convicted after trial of one count of stealing contrary to Sections 372(1) and (10) of the Criminal Code. The offence was committed on Friday 30 March 2007 at Karisokra village in the upper Bundi area of Madang Province. A house occupied by a New Tribes Mission couple, Paul and Susan Boothby, was broken into and ransacked by a group of people, including the offender. The house was dismantled and taken away, along with personal property inside it. The Boothby family was overseas at the time. Further details of the circumstances in which the offence was committed are in the judgment on verdict (The State v Edward Giragu Koima (2010) N4037).

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said (both in oral and written statements):

I respect the court's decision to find me guilty of stealing but the court must understand that it was not my motive to steal. I denied the charge because I did not get the value of any of the victims' property. There was a reason for the incident happening the way that it did. The dispute over the land had been going on for 12 years. It was like a balloon ready to explode at any time and it exploded. My son and I are being penalised for committing a crime but it was never our intention to commit a crime. We were forced to show our frustration and anger for the New Tribes Mission not vacating our land. I was not the instigator or the leader.

I too have suffered as a result of this incident. The police raided the village and burned down seven houses including mine and I have been left with nothing. Three of my children have had to leave school. My food gardens have been destroyed and we have had to leave the village. I am concerned about the welfare of my family. The court should also consider that some of the property was returned to the victims. I apologise for the damage that has been caused to my family's and the village's name. I was a land mediator and peace officer for many years before this incident. I have a very good community record. I ask for the mercy of the court, for a non-custodial sentence, a good behaviour bond or a court fine.

PRE-SENTENCE REPORT

4. The Madang branch of the Community Based Corrections & Rehabilitation Service prepared a report. The offender is 52 years old. He is married with seven children and has a stable marriage. He has lived all his life at Karisokra. He has a grade 6 education. He is a subsistence farmer and was a land mediator for 21 years. His health is sound. He is a community leader and was Vice-President of his Local-Level Government from 2002 to 2007. The report concludes that he is suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

5. Mr Joseph urged the court to take into account that the offender is a first-time offender who has expressed remorse, that no one was injured during the commission of the offence, that much of the stolen property was recovered, and that the offender surrendered to the police. He submitted that a four-year sentence, with a partial suspension would be appropriate.

SUBMISSIONS BY THE STATE

6. Mr Goodenough submitted that a four-year sentence would not be sufficient as the offender's son, Ludwick Gene, was given a sentence of five years for the same offence after pleading guilty before Batari J in late 2009. The present case is more serious, Mr Goodenough submitted, as Edward has expressed little or no remorse.

DECISION MAKING PROCESS

7. As a co-offender has already been sentenced by another Judge, I will need to apply the principle of parity in sentencing, by adopting the following decision making process:

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the notional head sentence?
• step 5: what is the result of applying the parity principle?
• step 6: should the pre-sentence period in custody be deducted?
• step 7: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

8. The offence of stealing is created by Section 372(1) and the maximum penalty, if there are no circumstances of aggravation, is three years imprisonment. In this case the value of the thing stolen exceeded K1,000.00, which is a circumstance of aggravation under Section 372(10). This circumstance of aggravation has been charged in the indictment and the effect of this is that the maximum penalty is seven years imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

9. I will use the middle of the available range: three and a half years imprisonment.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

10. Stealing is an offence that covers a wide array of situations and it is difficult to compare sentences but those that I have dealt with are shown in the following table.

SENTENCES FOR STEALING, SEC 372, CANNINGS J

STEP 4: WHAT IS THE NOTIONAL HEAD SENTENCE?

11. I will now determine a notional sentence, putting aside for a moment the previous sentence of five years imposed on Ludwick Gene. The only significant mitigating factor is that Edward is a first-time offender. I reject Mr Joseph's submission that he expressed remorse. He did not. It seems that the person he feels most sorry for is himself. In his attempt to explain why the incident happened he has admitted to taking the law into his own hands. It is only part true that no one was physically injured. The victims were away overseas at the time but it is clear from the victim impact statements that they have suffered immensely, both emotionally and physically as the stress caused over a period of three years has had an adverse effect on their health. The suggestion that much of the stolen property was recovered is unproven, as is the offender's claim that he and others were the victims of a police raid. These sorts of things can be taken into account at face value and the offender given the benefit of the doubt if he has pleaded guilty. But when an offender has been convicted after a trial, they must be proven if they are to carry any weight as mitigating factors.

12. Aggravating factors are:

• the offender acted with others;
• he destroyed a family's home in the course of committing the crime;
• the property stolen was of a substantial value;
• it was a crime of violence, which had an enormous impact on people who had been invited into the offender's village and done good for the benefit of the village people over a long period.
  

13. This is a very serious case of stealing. The sentence needs to be above the starting point. It is a more serious case than any of the precedent cases set out above. It deserves a sentence near the maximum. The notional sentence is six years imprisonment.

STEP 5: WHAT IS THE RESULT OF APPLYING THE PARITY PRINCIPLE?

14. The principle of parity in sentencing means that offenders who commit the same crime should receive the same sentence. It is not, however, a hard-and-fast rule. It accommodates the fact that when a judge imposes a sentence many factors peculiar to the individual offender being sentenced will be taken into account, eg the degree of involvement in the crime, whether he or she has prior convictions and their age and state of health. I recently set out how this principle operates in The State v Philip Bira (2009) N3633. Its practical effect is that if a co-offender has been sentenced by another Judge, it will be useful for the sentencing Judge to first indicate a notional sentence without having regard to the earlier sentence. That is why in this case I have first arrived at a notional sentence of six years imprisonment. I now compare that sentence with the sentence of five years imposed on the offender's son, Ludwick. As there is a difference of one year, I am obliged to consider whether the difference can be explained by different sentencing considerations peculiar to the offender being sentenced. I consider that the big difference is that Ludwick pleaded guilty – which by itself can be regarded as an expression of remorse – while Edward pleaded not guilty and has expressed little or no remorse. This disparity in sentencing should not give rise to any justifiable sense of injustice on the part of either Ludwick or Edward. Therefore I will confirm the sentence as six years imprisonment.

STEP 6: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

15. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment, the whole of the pre-sentence period which is 11 months and 4 days.

STEP 7: SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?

16. There is a recommendation for probation in the pre-sentence report, but I am not bound to adopt it and I have decided not to. Edward has expressed little or no remorse. No significant progress has been made towards reconciliation between the offender and the victims. The offence was committed more than three years ago so Edward has had ample time to make peace with the victims but has squandered the opportunity. Most of the positive things that are said about him in the pre-sentence report are uncorroborated. I see no justification for any suspension of the sentence.

SENTENCE

17. Edward Giragu Koima, having been convicted of one count of stealing under Section 372(1) of the Criminal Code, in circumstances of aggravation under Section 372(10) of the Criminal Code, namely that the value of the thing stolen exceeded K1,000.00, is sentenced as follows:

Sentenced accordingly.

_________________________

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the offender