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State v Harry [2020] PGNC 225; N8442 (5 August 2020)

N8442

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 61 & 62 OF 2020

THE STATE

v

EDDIE HARRY &BAGAS KAWE
Prisoners

Madang: Geita J
2020: 13^th, 17^th, 20^th, 22^nd July; 5^th August

CRIMINAL LAW – Guilty plea – Stealing – Both men deprived the Ramu Mormon Church by stealing their vehicle whilst under the influence of alcohol with intention to sell-off - First-time offenders – Call for pre-sentencing report–Ability to pay fine and or compensation -Section 319 Criminal Code.

CRIMINAL LAW — Sentencing — Early guilty plea — no prior convictions – stolen vehicle returned to owners in good condition — Sentence of 3 years with partial suspended sentence on Probation with conditions – On probation for 2 years – 200 hours of community work.

Case Cited

Goli Golu v The State [1979] PNGLR 653

Counsel

Ms Deborah Ambuk, for the State
Mr John Zauya, for the Prisoners

JUDGMENT ON SENTENCE

5^th August, 2020

1. GEITA J: You both pleaded guilty to one count of stealing contrary to section 372 (1) (10) of the Criminal Code Act. The offence of stealing things valued at K1000 or upwards carries a term of imprisonment not exceeding seven years.

Your Pleas

2. I accepted your guilty plea but entered a provisional plea of guilty and then proceeded to read the depositions handed up in support of the charge against you. In your record of interview with the police you admitted the charge in parts. Having read your committal depositions I was satisfied that the evidence does support your plea of guilty each and severally. I than proceeded to convict you on the charge. A guilty plea was then formally entered on your behalf. Your Lawyer confirmed instructions on your guilty plea.

Brief Facts

3. The brief facts are these: On Thursday 10 October 2019 you had some beer at Ramu Sugar Township and began looking for more beer in the evening. Between 7.00 pm and 2.00am you stole a white Toyota Land Cruiser Registration No. LBV 876 as it was parked in front of the beer shop at Bumbu Bridge market area. At the time the vehicle was unattended. You both got into the vehicle and drove it all the way to Madang and attempted to hide the vehicle at Bagas Kawe’s friends place at Maiwara settlement. By 3.00 am in the morning the vehicle was moved to North Coast Road and left at Joanna’s house. Anton and Richard Munvi have accompanied the both of you to take the vehicle and hide it at their sister’s place. You both were picked up by Police from Talidig Police Station upon receiving information from Gusap/Ramu Sugar Police. The stolen vehicle keys were found in the possession of Eddy Harry. You both were charged for stealing and now before the court.

Criminal History

4. No prior convictions have been recorded against your names and I accept that position as presented to me by the Public Prosecutor.

Allocutus

5. Eddie Harry - In your allocutus or when you were asked if you had anything to say about the punishment that should be considered you said this was your first time to appear before a National Court and you asked for leniency. You apologised to the court and God for breaking the country’s law. You said you are willing to repay the community by doing community service. You are worried that you have lost your part time job.

Bagas Kawe - In your allocutus or when you were asked if you had anything to say about the punishment that should be considered you said this was your first time in court. You also apologised to the court and to the Mormon Church. You said you have a young child and asked to be placed on probation and to be of good behaviour. You admitted that alcohol was the cause of you committing this crime.

Mitigation circumstances
6. The following factors are noted in your favour:

1. No prior convictions, first time offenders
2. Early guilty plea, expressed remorse
3. Vehicle was recovered in good condition

Aggravating circumstances

7. The following factors operate against you:
   

1. Prevalence of the offence

2. Alcohol was involved

3. Offence occurred in the night

Pre- Sentence Report– Eddie Harry

8. A pre-sentence report was prepared and submitted to court on your behalf by Probation Officer Alice Biko on 17 July 2020. It gives details of your family background, education, health and whether you have the ability to pay some form of compensation and or court fine. You are single, never married and entirely dependent on your father and family. Your family members are not too happy with what you have done but stand ready to assist you with some money to pay court fine or compensation. Your pre-sentence report states that you received some injuries to your leg and head when you attempted to escape for Beon gaol. Furthermore, you were drunk at the time of committing this crime. Your father’s good name in your community has been tarnished as a result of the wrong that you have committed. As to your suitability for probation, the Probation Officer has left it to the Court to decide whether you should be allowed on probation. You have expressed remorse to the victim for what you did to them. In your supplementary pre-sentence report the Mormon Church in Ramu has since forgiven you and decided against any compensation, save for you to do some community work.

Pre- Sentence Report – Bagas Kawe

9. A pre-sentence report was prepared and submitted to court on your behalf by Probation Officer Alice Biko on 17 July 2020. It gives details of your family background, education, health and whether you have the ability to pay some form of compensation and or court fine. You are aged 25 years and live with your partner with an infant child. You were self-employed. Furthermore, you were drunk at the time of committing this crime. Your family members stand ready to help you with a court fine or pay some compensation, if ordered by court. As to your suitability for probation, the Probation Officer has left it to the Court to decide whether you should be allowed on probation. You have expressed remorse to the victim for what you did to them. The view of the Church was not obtained due to time limitations. Some form of reconciliation attempted with forgiveness however, since the matter has come to court, the victims have decided to leave it to the court. You have indicated your willingness to commit yourself to a reconciliation ceremony to make good the wrong committed against the church. In your supplementary pre-sentence report the Mormon Church in Ramu has since forgiven you and decided against any compensation, save for you to do some community work.

Submissions on sentence - Defence

10. In his oral submissions Counsel John Zauya submitted that a head sentence of 3 years be imposed in light of favourable mitigating circumstances to be wholly suspended. He urged court to take into account alternative sentencing options available to court under Section 19 Criminal Code. He said the circumstances of the case do not warrant the imposition of the maximum 7 years jail sentence. Furthermore, the prisoners early guilty plea, no prior conviction, are factors favourable to his client. He submitted that court should consider a starting point of 3 – 5 years. Counsel however shifted the blameworthiness of the prisoner’s actions to the consumption of alcohol and submitted that these were young people making the wrong decisions.

Submissions on sentence – State

11. Ms Ambuk conceded that the maximum sentence is usually reserved for the worst instances of an offence. In this case an early guilty plea was entered and the stolen vehicle returned to its owners in good condition. She rightly submitted that the benefit of doubt ought to be accorded to the accused as a result of their pleas. Counsel submitted that an imprisonment term of 3 years as a starting point is to be considered. As to the suspension of their sentence, she submitted that some compensation and open reconciliation be considered as part of sentence.

Issue

12. In deciding the appropriateness of sentence to be imposed to the factual situation before me, I have had the benefit of submissions from both lawyers on all relevant issues. I also have had the benefit of a pre-sentence report presented to me. I am of the view that the degree of seriousness in this case is very minimal. It follows that this case should attract a lesser sentence. (Goli Golu v The State [1979] PNGLR 653).

13. I have said on many occasions in my earlier judgments that accused persons who admit to the crimes that they have committed deserve to be given some leniency, depending on the seriousness of the particular crime(s). First up and foremost in my view is that they have surrendered their rights and submitted to the judicial process. Huge monetary and time saved for Courts, Police, witnesses etc. To this end I will accord both men some leniency in sentencing.

14. I agree with both Counsel submission that this was not the worst type of case. Furthermore, the prisoners are entitled to the benefit of doubt by way of their early pleas. With respect I do not subscribe to counsel Zauya’s submission that these two prisoners should be excused for their part in this crime because they were intoxicated. I say here alcohol was and is not the problem. The problem lies fairly and squarely with the prisoners. They consumed the alcohol and not the other way around. They were inconsiderate and foolish. Had the stolen vehicle not being recovered in good condition and returned to its owners, their ultimate sentence would be higher.

Sentence

15. Due to the foregoing reasons, in particular the mitigating factors and your favourable pre-sentence report in favour of the prisoners, I consider that the appropriate sentence in respect of the crime to be 3 years. You both have been in custody for more than 7 months. Considering the factual circumstances of this crime I am of the view that that is sufficient punishment. I order that you both will be placed on Probation for 2 years with conditions.

1. Eddie Harry. You are sentenced to 3 years less 7 months for your pretrial custody period. The remainder of your sentence will be wholly suspended and you placed on Probation for 2 years with the following conditions:

1. You must make a public apology to members of Ramu Mormon Church during one of their church meetings;
2. You must not consume alcohol during the probationary period;
3. You must perform 200 hours of community work to be supervised by a person nominated by the Probation Officer Alice Biko.

2. Bagas Kawe. You are sentenced to 3 years less 7 months for your pre-trial custody period. The remainder of your sentence will be wholly suspended and you placed on Probation for 2 years with the following conditions:

1. You must make a public apology to members of Ramu Mormon Church during one of their church meetings;
2. You must not consume alcohol during the probationary period;
3. You must perform 200 hours of community work to be supervised by a person nominated by the Probation Officer Alice Biko.

Ordered accordingly.

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyers for the Prisoners