Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Paul [2019] PGNC 270; N8026 (20 September 2019)

N8026

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 124 & 125 of 2019

THE STATE

V

YANI PAUL and LINSEY ICY

Waigani: Berrigan J
2019: 22 August, 6 and 20 September

CRIMINAL LAW – Practice and procedure – Sentence –S. 372(1)(10) of the Criminal Code – Stealing.

Cases Cited:

Goli Golu v The State [1975] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
The State v Timothy Tio (2002) N2265
The State v Niso (No 2)(2005) N2930
The State v Ian Sevevepa, CR No.2007 of 2005, unreported, 10 May 2006
The State v Roselyn Waiembi(2008) N3708
The State v Maurani (2008) N3560
The State v Taba (2010) N3939
The State v Bobo (2011) N4416
The State v Tiensten (2014) N5563
The State v Tardrew [1986] PNGLR 91
Wellington Belawa v The State [1988-1989] PNGLR 496

References cited

Sections 7, 372(1)(10),of the Criminal Code (Ch. 262) (the Criminal Code)

Counsel

Ms. G. Gunson, for the State
Mr. I. Pailaea, for Yani Paul and Linsey Icy

DECISION ON SENTENCE

20^th September, 2019

1. BERRIGAN J: Both offenders pleaded guilty to one count of stealing, that they between 6 April 2018 and 27 April 2018 at Glory Garden Estate in the National Capital District, stole four hundred and thirty-four metres of electrical cable valued at K37, 633.18, the property of Glory Holdings Limited, contrary to section 372(1)(10) of the Criminal Code (Ch. 262) (the Criminal Code).
   

Facts

2. On several occasions during the relevant period the offenders, in the company of other persons entered the premises of Glory Garden Estate and gained access to a warehouse where electrical cables were stored. They used a bolt cutter to cut lengths of cable measuring a total of 434 metres. It was intended that the copper wire inside the cable would be sold for cash on the black market.
   
3. On 27 April 2018 the two offenders were seen carrying the cable out of the warehouse by an employee of Glory Garden Estate. He alerted security guards and other employees who gave chase to the offenders and their accomplices. The offenders were apprehended while their accomplices managed to escape.
   
4. To date the cables have not been recovered.
   
5. The offenders acted with common purpose, pursuant to s. 7 of the Criminal Code.
   
6. The issue for determination today is an appropriate sentence in each case.
   

Sentencing Considerations and Comparative Cases

7. In Wellington Belawa v The State [1988-1989] PNGLR 496 the Supreme Court identified a number of factors that should be taken into account on sentence for an offence involving dishonesty, including:
   
   • (a) the amount taken;
   • (b) the quality and degree of trust reposed in the offender;
   • (c) the period over which the offence was perpetrated;
   • (d) the impact of the offence on the public and public confidence;
   • (e) the use to which the money was put;
   • (f) the effect upon the victim;
   • (g) whether any restitution has been made;
   • (h) remorse;
   • (i) the nature of the plea;
   • (j) any prior record;
   • (k) the effect on the offender; and
   • (l) any matters of mitigation special to the accused such as ill health, young or old age, being placed under great strain, or perhaps a long delay in being brought to trial.
     
8. In addition, the Supreme Court suggested that the following scale of sentences may provide a useful base, to be adjusted upwards or downwards according to the factors identified above, such that where the amount involved is between:
   
   • (a) K1 and K1000, a gaol term should rarely be imposed;
   • (b) K1000 and K10,000 a gaol term of up to two years is appropriate;
   • (c) K10,000 and K40,000, two to three years’ imprisonment is appropriate; and
   • (d) K40,000 and K150,000, three to five years’ imprisonment is appropriate.
     
9. In general terms, this case falls within the third category of Wellington Belawa. Whilst the principles to be applied when determining sentence remain relevant and applicable, it is generally accepted that the ranges suggested in that case are now outdated because of the frequency and prevalence of misappropriation and related offences: see The State v Niso (No 2) (2005) N2930; and The State v Tiensten(2014) N5563.
   
10. The State submits that a sentence in the range of three to five years of imprisonment is appropriate. In support of its submissions it referred to the following cases:
    
    • (a) The State v Maurani (2008) N3560, Davani J, where the prisoner pleaded guilty to one count of stealing a chainsaw that was the property of a company, together with his co-accused. Both were sentenced to 3 years, 6 months’ imprisonment;
      
    • (b) The State v Taba (2010) N3939, Cannings J, in which the prisoner was convicted of stealing 1000 cartons of tinned fish valued at K58,399 from his employer, RD Tuna Canner Ltd. He had joined other employees to steal the tinned fish and sell to a third party. The prisoner was sentenced to 2 years 6 months’ less the 1 year 5 months spent in custody, leaving the balance of 1 year 1 months’ to be spent in hard labour; and
      
    • (c) The State v Bobo (2011) N4416, Maliku AJ, in which the offender pleaded guilty to stealing his brother-in-law’s ANZ bank card whereupon he went into town and purchased goods from various shops spending K1840.40. The prisoner was sentenced to 2 years’, wholly suspended on the conditions that the prisoner repay the money spent within 6 months from the date of his sentence.
      
11. Defence counsel too submits that a sentence range of three to five years of imprisonment would be appropriate. In support of his submission he referred to the following cases:
    
    • (a) The State v Timothy Tio(2002)N2265, Kandakasi J (as he then was) in which a security guard pleaded guilty to stealing a chainsaw, valued at K8000.00 from his employer and sold it to a third party for K3000.00. The chainsaw was later recovered. The offender was sentenced to 5 years’ IHL less time spent in custody; and
      
    • (b) The State v Roselyn Waiembi(2008)N3708, David J, in which the offender was employed as a clerk and pleaded guilty to stealing K15,000.She was sentenced to 3 years IHL less time spent in custody and the remainder of the sentence was suspended on condition of restitution.
      
12. I have also had regard to the following case which may provide guidance in determining sentence:
    
    • (a) The State v Ian Sevevepa, CR No.2007 of 2005, unreported, 10 May 2006, Lenalia J, in which the offender pleaded guilty to stealing the sum of K17,000.00 belonging to a service station proprietor. The money which was contained in a bag was placed on a table in the office by a female employee. While the female employee was sweeping the office, the prisoner walked into the office, pushed the female employee away, took the bag of money and ran away with it. Taking into account the prisoner's guilty plea, that he was a first time offender, the crime occurred in broad daylight; and part of the amount stolen was given to another person, the Court imposed a sentence of 3 years to be served in hard labour. The time spent in custody awaiting trial was deducted and the balance was ordered to be served out in custody.
      
13. The sentence in this matter will be determined having regard to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.
    

Nature and Circumstances of the Offence, including Matters of Aggravation

14. Applying the considerations set out in Wellington Belawa, the following matters of aggravation have been established.
    
15. It is well settled with respect to offences concerning dishonesty that, in general terms, the greater the amount of money involved the more serious the offence. The value of the goods stolen in this case, K37,633.18, was substantial. The offence was committed over a period of three weeks, on a number of occasions, at night and in the company of others. It clearly involved planning and ongoing dishonesty during the period.
    
16. It is not in dispute that the offence was committed for financial gain. It is unclear to what extent, if any, the offenders personally benefited from the earlier sale of the stolen cable. The impact on the victim has been significant in terms of financial loss.
    

Personal Circumstances and Matters in Mitigation

17. Yani Paul is 19 years old, single and from Dobu Village on Ferguson Island in Milne Bay Province. He was 18 at the time of the offence. His father is unemployed and his mother works as a maid. He comes from a family of 6 children. His elder brother is a security guard while his sisters are married. The offender was unable to complete his formal education due to the family’s financial circumstances and left school at Grade 5 in 2014. He is a member of the Revival Centre Church. The offender was not living with his parents at the time of the offending. It appears that the relationship is strained as a result of his unemployment. Probation Services was unable to contact the prisoner’s immediate family on the information provided. The offender was unable to identify any community or church leaders for Probation Services to consult.
    
18. Lincey Icy is also 19 years old and was 18 at the time of the offence. He is single, from Lese Ilava Village in the Malalaua District of Gulf Province.He is the last born in a family of five. The offender did not complete his formal education, leaving school at Elementary 2 when his parents separated in 2007. He was abandoned by his parents and taken in by his grandparents at the age of 7 years, together with his older siblings after both parents remarried. He is currently unemployed. He is a member of the United Church. Probation Services was unable to contact the prisoner’s immediate family on the information provided. The offender was unable to identify any community or church leaders for Probation Services to consult.
    
19. In mitigation, this is the offender’s first offence in each case. Both are very young adult offenders, being only 18 at the time of the offence.
    
20. Both cooperated with police upon their arrest. Both pleaded guilty at the earliest opportunity before the National Court and saved the State the cost and inconvenience of a trial.
    
21. I also take this into account as indicative of their remorse, which they expressed on allocutus, and which I accept as genuine in each case. Both apologised to the Court, and to the owners of the company for the crime committed. Both stated that the time in detention has caused them to seriously consider their future and they asked the Court to have mercy on them given their youth.
    
22. Whilst not an excuse, I also take into account that both offenders come from broken homes and difficult backgrounds. Both appear to have lacked parental guidance, discipline and support from an early age. Both have been denied the opportunity of completing their formal education. Both are unemployed and clearly face financial difficulty on a daily basis.
    
23. I also have no doubt that the offence will have a grave effect on both offenders, particularly given their young age. Imprisonment will be difficult. The conviction and any sentence will seriously impede their prospects of completing their education or obtaining employment in the future.
    

Sentence

24. The offenders have been convicted of one count of stealing, contrary to s. 372 (1)(10) of the Criminal Code, the maximum penalty for which is a term not exceeding 7 years of imprisonment. Section 19 of the Criminal Code provides the Court with broad discretion on sentence and it is well established that the maximum penalty is normally reserved for the most serious instances of the offence: Goli Golu v The State [1975] PNGLR 653. Although this case does not fall within that category, it remains a serious offence.
    
25. The aggravating factors in this case clearly outweigh those in mitigation. The value of the property stolen, which has not been recovered, was significant. The offence was committed in company, on a number of occasions, over a period of three weeks, and involved planning. In mitigation the offenders are first time offenders, cooperated from an early stage with police, pleaded guilty and have expressed remorse. Both are very young adult offenders. Nevertheless, the offence is prevalent and calls for both general and specific deterrence.
    
26. In terms of parity, both offenders played similar roles, in gaining access to the warehouse, and stealing the electrical cable. Both also share very similar personal circumstances.
    
27. Having regard to all of the above matters, I sentence each of the offenders to 3 years’ in hard labour. Time spent in pre-trial detention since 27 April 2018(1 year, 4 months, 24 days) will be taken into account. The offenders will serve the balance of 1 year, 7 months, 6 days in custody.
    
28. In The State v Tardrew [1986] PNGLR 91 the Supreme Court set out three broad, but not exhaustive categories where it would be appropriate to suspend a sentence, namely: where it will promote the general deterrence or rehabilitation of the offender; where it will promote the repayment or restitution of stolen money or goods; or where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health.
    
29. Defence counsel concedes that there is little to support the offenders’ pleas for suspension. There is no prospect of restitution in either case. Nor is it suggested that imprisonment would cause an excessive degree of suffering in either case. Probation Services was not able to contact either the families, or the communities of the offenders on the information provided and there is insufficient information on which it can recommend the offenders as being suitable for probation.
    
30. In the circumstances I am not satisfied that the sentence should be suspended in either case.
    
31. Any bail monies should be refunded.
    

Orders accordingly.

--------_______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoners