N9036
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 646 OF 2013

THE STATE

V

HARRY PARASCOS

Alotau:  Toliken, AJ
2013:   13th, 23rd August

CRIMINAL LAW – Sentence – Stealing – Guilty plea – Prisoner steals from estranged wife’s account – Aggravating and mitigating factors considered – Object of sentence – Restitution – Appropriate sentence – 3 years less time in custody – Resultant sentence wholly suspended with conditions including full restitution plus 20% of amount stolen as compensation – Criminal Code Ch. 262, s 371(1)(10).

Cases Cited

Avia Aihi v The State (No.3) [1982] PNGLR 92
Goli Golu v The State [1979] PNGLR 653
The State v Richard Gusal Bix & Anor (2003) N2415

Counsel

L. Kuvi, for the State
M. Arua, for the Prisoner

SENTENCE

23rd August, 2013

1.	TOLIKEN, AJ:	    On the 13th of August 2013, Harry Parascos, you pleaded guilty for one count of stealing contrary to Section 372(1)(10) of the Criminal Code Act.

2.	Section 372 (1)(10) provides:

“372.  Stealing

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

(10)	If the things stolen are of the value of K 1,000.00 or upwards, the offender is liable to imprisonment for a term not exceeding 7 years.”

3.	The indictment against you charged that:

“...between the 25th day of October 2012 and 31st of December 2012 at Alotau, Milne Bay Province in Papua New Guinea, [you] stole Three Thousand Nine Hundred and Eighty-Five Kina and fifteen Toea (K3,985.15) cash monies, the property of Lynette Carson”.

4.	 The brief facts of the case are that on the 12th of October 2012, you had returned to your estranged de facto partner Lynette Carson, after being separated for some time. The next day when Lynette Carson was away at work, you got a key from your son and opened Lynette’s bag and took out her bank card.  You knew the PIN because you had previously used the card when you were with Lynette before you left her.

6.	For some time, Lynette had been saving up to build a house for herself and her children, so she had K4,000.15 in her account.  You took the card and withdrew almost all the money in the account.  You left behind K15.00 only to hold the account.  You used up a total of K3,985.15.

7.	The complainant, Lynette Carson did not at any time give you consent to withdraw any monies from her savings.  Furthermore, when you took the monies, you did not intend to repay them.

8.	I confirmed your guilty plea and convicted you after I was satisfied that the committal depositions supported your plea and of course the charge.

9.	You are now 29 years old and come from Fife Bay, Suau, Milne Bay Province. You are married with 2 children.  You completed Grade 10 at Kila Kila High School in the National Capital District.  You are a member of the United Church.  At the time of your arrest, you were supporting your two sisters as an Informal Sector Peddler of small goods and from remittances from your elder sister in Australia.  You had no prior convictions.

10.	In your address to the Court before sentence, you apologised for your offence.  You said this is the first time for you to come to Court.  You asked for time to repay your ex-partner’s and childrens’ monies and that you be given good behaviour bond.

11.	Your lawyer, Mr. Arua cited several cases to the Court to assist it in arriving at an appropriate sentence for you.  These cases involved amounts of K15,000.00 and a chainsaw.  Sentences ranged from 3 years and to 3 years and 6 months.  Sentences were fully suspended on the two matters involving amount of K15,000.00 with orders for restitution. 

12.	He submitted, therefore, that taken together with factors that mitigated your offence, a head sentence should be in the range of 2 – 3 years less time spent in custody i.e., 4 months. He also submitted that sentence should then be suspended wholly under Section 19 of the Code with strict condition for full restitution.  

13.	Mrs. Kuvi for the State submitted that this case involved a large amount of money that was used for no worthwhile purpose at all.  It was intended to build a house for the complainant and her children. The theft caused hardship on the complainant and her children when you used every penny of her savings which she took a long time to save up only for you to use it up in a month.

14.	Counsel cited one matter (The State v Richard Gusal Bix & Anor (2003) N2415, where on a plea of guilty on a charge of stealing K2,700.00 from a barman where some violence was used, the prisoners were sentenced to 3 years, fully suspended with condition for full restitution and probation. She asked for 3 years and if any restitution is to be made, it should be made within 6 months.

15.	As we have seen at the outset, the maximum penalty for cases like yours i.e. stealing of property, the value of which exceeds K1,000.00 is 7 years.  This is contrasted with simple stealing which carries a penalty of 3 years only.

16.	It is, however, well accepted that the maximum penalty is reserved for the worst of cases.  It is also well accepted that whatever the sentence will be, depends very much on the circumstances of each case. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1982] PNGLR 92)
 
17.	My task, therefore, is to ascertain what will be an appropriate sentence in the circumstances of your case. To do that, I must decide whether your case falls within the worst instance of this type of case i.e., stealing to deserve the maximum penalty. If it is not, then, I must decide what is appropriate. 

18.	To assist me in doing that, I must look at comparative sentences imposed by this court in similar cases.  This will help me to arrive at starting point.  That when objectively considered will fall within a certain range that is in parity with cases with similar facts.

19.	I will then have to look at the subjective circumstances and factors of your case to assist me in considering what your actual sentence will be.  This will include looking at those factors that can mitigate your offence and those that will aggravate it, and where appropriate what circumstances there are which may extenuate your behaviour. So, is this a worst instance of stealing that must attract the maximum penalty of 7 years.   

20.	I do not think that it is, however, there are certain factors in this case that will aggravate your offence as we will see presently.  Objectively, this case falls around the mid-range.

21.	 Both Counsel have cited some cases to me which have been decided by this Court i.e., the National Court and I am grateful for that.

22.	The sentences in those cases, citation and details of which will be glanced from this judgment, ranged from 3 years to 3 years and 6 months.  These cases involved properties and cash ranging up to the tune of K15,000.00.

23.	Now, let me turn to your subjective considerations and circumstances.  First, your mitigating factors.  You pleaded guilty to the charge, and this is your first offence.  You expressed remorse and offered to make full restitution.

24.	However, you stole a substantial amount by PNG standards from your de facto partner whom I believe is the mother of your two children.  She had been saving the money over some time to build a house for herself and the children.  You used the money in a span of one month.  You did not spend it on any worthwhile cause, and you also betrayed Lynette Carson’s trust in you.  In fact, it seems that you stole from her the minute you walked back into her life. Clearly then, the aggravating factors of your offence outweigh your mitigating factors. So, what would be an appropriate sentence for you? 

25.	 As I said the circumstances put your case around the mid – range in terms of seriousness or culpable or moral blameworthiness. I, therefore, fix a starting point at 4 years.  Given your mitigating factors, I fix a head sentence of 3 years.  You have spent 4 months in custody while in the Committal Court, hence, this will be deducted from the head sentence.  Your resultant sentence should, therefore, be 2 years and 8 months. Should any of your sentence be suspended?

26.	  Sentences in criminal justice often serve four general purposes – punishment or retribution, deterrence, reform or rehabilitation and restitution or compensation. What the dominant objective of the sentence will depend on the offence itself, the circumstances under which the offence was committed and the circumstances of the offender and the victim.

27.	In your case, I think that three things should be achieved by this sentence.  Firstly, it will seek to punish you as the law’s denunciation of your conduct.  Secondly, to be of a personal as well as a general deterrence, and thirdly, the sentence must exact restitution from you.  And the circumstances of your case, while the first two objectives are relevant.  The over-riding objective here is restitution.  You must fully repay the money that you stole from your estranged partner.

28.	This was money that she obviously worked hard to save over some time to build her family home.  I have no doubt at all that you did not contribute a penny at all.  However, you completely depleted the account within a month leaving only K15.00 to hold the account.

29.	The only way you can fully repay the amount you stole is for you to remain outside.  And that means that your sentence must either be wholly or partially suspended. Lynette Carson has already suffered long enough so a partial suspension will only add to her suffering.

30.	Hence, I will fully suspend your sentence on condition that you will make, not only full restitution to the amount of K3,985.15 you stole, but you must also pay an additional sum by way of a penalty if you like.  This is akin to what the Law of Moses required a thief to pay if he stole from his neighbour.  He was required not only to repay the amount he stole but also, by way of penalty, but also pay 20% of the amount or value of the property stolen in addition as compensation. (Exodus 22:1-12) Offenders are often described by their lawyers as committed followers of this or that denomination. Hence it does not hurt if this divine principle can be applied to situations like this for there-in lies true or absolute justice.

31.	Besides, in your case, what did you contribute towards the construction of your children’s house?  Probably nothing as I already said.  So, a 20% penalty for K3,985.15 which works out to be K797.00 is your contribution to the roof over your family’s heads.  Never mind the K3,985.15 that you must repay – that is Lynette Carson’s hard earn money. Therefore, you will pay a total of K4,782.15 which you must pay within 6 months from today.

32.	The sentence of the Court, therefore, is as follows:

1.	You are sentenced to 3 years in hard labour.
2.	 Four (4) months shall be deducted for pre-committal custody.
3.	The resultant sentence shall be 2 years and 8 months.
4.	The resultant sentence shall be wholly suspended on you entering into your own recognizance to be of good behaviour with the following conditions -

(i)	You shall pay to Lynette Carson the sum of K4,782.15
 within 6 months from today.

(ii)	If you do not pay the said amount, you will be arrested
and brought before the National Court to explain why
you should not be imprisoned for the balance of your suspended sentence.

5.	Your bail of K500.00 is converted as part payment of your order for restitutions.
___________________________________________________________________
Public Prosecutor:	Lawyers for the State
Paraka Lawyers:	Lawyers for the Prisoner