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State v Anis [2019] PGNC 158; N7879 (22 May 2019)

N7879

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 930 & 931 of 2018

THE STATE

V

OSCAR ANIS

&

JOE CASPAR ANIS
Kokopo: Susame, AJ.
2019: 17, 21, 22 May

CRIMINAL LAW – Sentence On Plea- Offence –Stealing S372 (1) Criminal Code – Theft Of Vehicle Parts Estimated Value Of K1000- Fined K1000.00 Each – K3000.00 Compensation Order.

Cited Cases:

Wellington Belawa v The State [1988-89] PNGLR 496

Counsel:
Mr. G. Tugah, for the State
Mr. A. Tunuma, for the Prisoners

DECISION ON SENTENCE

22^nd May, 2019

1. SUSAME, AJ: You both appear in court today to receive your sentence. Both of you pleaded guilty to the stealing charge and were convicted on 17 May 2019.

Facts

2. Facts upon which you both were convicted are these. You Oscar Anis had a Toyota Prado similar to that of the complainant Levi ToViliran which had some mechanical issues. Oscar had problems with his vehicle and wanted a pair of calipers. So on 19 April 2016 between 10.00am and 3.00pm both of you together with your helpers went to the complainant’s residence at section 68 lot 12 Brenan Street, Rabaul and made enquiries with the complainant’s son to get the parts. Complainant was away in Goroka. The son rang him and told him about your interest in the parts which the father agreed to sell for K200.00 each. Oscar paid K400.00 to the son and the 2 calipers were removed from the complainant’s vehicle. In the course of removing the calipers 4 tyres, 4 rims, 2 front wheel hubs, 4 door covers and 4 rubber seals were also removed without the complainant’s approval. Complainant later discovered the other parts had been removed from his vehicle. He asked for the return of the parts but they were never returned. He took the matter to the Village Court where you both admitted removing the parts. In the Village Court agreement was reached for you both to pay for the parts but never did. Complainant then had you both arrested and criminally charged.

Issue

3. The issue is of course for me to decide your penalty that is fitting to the offence you both have committed.
   

Offence

4. The offence of stealing is provided in s 372 of the Criminal Code. The provision prescribes various situations and different penalties for those situations. Both of you were convicted for situation covered in sub section 1 which carries an imprisonment term of not exceeding 3 years. That is subject to s 19 by which I have discretion to impose an alternative punishment other than the maximum.

Allocutus

5. Oscar Anis said this at the allocutus. It was your first time to appear in court. You said you were sorry for what you did. You apologized to the court and the complainant. You said you were prepared to pay for the parts stolen. You asked the court to be merciful and place you on good behaviour bond.
   
6. Joe Caspar Anis said this. This was your first time in court. You were sorry for what you did. You apologized to the court and the complainant for what you did was not right. You said you will pay for the parts and asked the court to place you on good behaviour bond.
   

Submissions

7. Submissions have been heard. I have considered the submissions. In his submission Mr. Tunuma brought the court’s attention to Wellington Belawa v The State [1988-89] PNGLR 496 which prescribed sentencing considerations in misappropriation cases. Mr., Tunuma submitted complainant was never disadvantage as a result of the removal of the parts. Both of you never benefited as parts were abandoned at Joe Caspar Anis residence and never used. He submitted this is not the worst type of stealing case to warrant the maximum. Mr. Tunuma submitted for a penalty under s 19(1)(d)(i)(ii) for payment of K500.00 fine. In addition to K800.00, compensation to be paid to be apportioned evenly and both prisoners to be placed on good behaviour bond.
   
8. Mr. Tugah did not make any reference to any case law. He submitted stealing is serious and prevalent in society. Complainant and his family had suffered greatly. Court to order compensation. He submitted for a head sentence of 2 years with order for restitution or payment of compensation.
   

Court’s View

9. First I set out the mitigating and aggravating factors as I perceive.

Mitigating Factors

• You both pleaded guilty to the charge saving the cost of running a trial.
• You both are first offenders with no record of prior convictions
• It was a one off incident
• Value of parts stolen is not of substantial value

Aggravating Factors.

• Prisoners went in a group
• Offence is prevalent.
• Complainant has not been compensated or restituted the parts stolen.
  

10. In my assessment there is no significant difference between the factors that would mitigate your sentence than those are against you. They are about the same.
    

Comparable Judgments

11. In view of the facts and your characteristics the case before me does not call for the maximum penalty of 3 years. In reaching a sentence I will be guided by considerations set by the Supreme Court in Wellington Belawa v The State (supra), authority quite often used in sentencing offenders in misappropriation and stealing cases. The court prescribed 4 categories and these are:
    1. Stolen thing of value between K1.00 – K1000.00: a goal term should rarely be imposed.

2. Stolen thing of value between K 1000.00 – K10 000.00: a goal term of 2 years.

3. 3. Stolen thing of value between K 10 000.00 – K40, 000.00: a goal term of up to 2 to 3 years.
   4. Stolen thing of value between K40 000.00 – K150 000.00: a goal term up to 3 to 5 years.
12. The imprisonment terms prescribed depend largely on the sum of money or properties stolen. Mr. Tunuma submitted K800 was the estimated value of the parts stolen. Counsel relied on what the complainant had told Joe Caspar Anis (question 40 & answer in the record of interview). Mr. Tugah submitted from the quotations in the court file value of parts stolen exceed K1000.00.
    
13. The explanation by Joe Caspar Anis of representation purportedly made by the complainant to him by phone is hearsay. Court will not place any weight on that representation.
    
14. Quote from Ela Motors for the purchase of new parts is calculated at K29 197.55 including 10 % GST. But through plea bargain value of part stolen were dropped to a much lesser amount not exceeding K1000.00. You both were convicted for situation covered in s 372 (1). I consider the value of parts stolen did not exceed K1000.00. Therefore, your case should fall under category 1 following Wellington Belawa.
    
15. Views have been expressed tariffs in Wellington Belawa was pronounced 30 years ago and inappropriate due to escalating occurrences of stealing of large sums of money in recent time. Until the Supreme Court reviews the tariffs guidelines in Wellington Belawa continue to serve as a guide.
    
16. Complainant had provided an impact statement expressing his views how the removal of parts from his vehicle has had a negative impact upon him and his family. According to him his vehicle was reparable. The removal of the additional parts from his vehicle without his authority had substantially disadvantaged him, his family and business. The vehicle will require major repairs to get it running again.
    
17. And I accept that. You both never cooperated and were reluctant to return the parts when he asked for their return. Even when you were ordered to in the Village Court proceedings. To this day the parts have not been returned.
    
18. Oscar Anis you are 40 years of age. You are married and has 3 children. You are a Shipping Manager with East New Britain Ports Services. That is a senior Managerial position. Joe Caspar Anis is 39 years of age. You are also married and have 3 children. You are a teacher and run a private IT School known as Sunrise FODE Centre in Rabaul ENBP.

You both were apologetic to the court and the complainant for your unlawful act. I consider that your apology is not complete without some tangible act done to repair the wrong you committed. You both had every opportunity to do that without having to wait this far.

Sentence

19. Accordingly, both of you are ordered to pay a fine of K1000.00 each within 24 hours.
    
20. On your failure to pay the fines each of you are to be imprisoned for a period of 1 year to be served with hard labour at Kerevat Jail.
    
21. In addition to the above I order for both of you to pay compensation of K3000.00 for the complainant’s loss within 2 months in default of which complainant is at liberty to enforce by writ of execution against your properties or assets or attachment of debts.
    
22. Prisoners shall have their cash bail refunded.

__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner