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State v Akop [2024] PGNC 229; N10891 (22 May 2024)

N10891

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 408 OF 2024

THE STATE

V

RICKSON AKOP

Walume: Batari J
2024: 20^th, 22^nd May

CRIMINAL LAW– Sentence – break enter & stealing (BE&S) – offender broke into and entered dwelling house and committed the crime of stealing in the night contravening s. 395 (1) (c) & (2) Criminal Code – stole K7,000.00 cash & personal effects, some sold at K450.00 – circumstance of aggravation in element of ‘night’ – early plea – mitigating factors – first-time youthful offender – xx months imprisonment appropriate.

Cases Cited
The State v Barnabas Janguan (2008) N3363
The State v Gabriel Kamlak & 2 Ors (2017) N6963
The State v Koi Poyep Posanau (2004) N2642
The State v Paul Kalu (2011) N5270

Counsel
Mr Kathua Umpake, for the State
David Pepson, for the Accused

SENTENCE

22^nd May 2024

1. BATARI J: The offender, Rickson Akop has been charged upon indictment that he broke and entered a dwelling house in the night and stole from therein, K7,000.00 in cash and personal effects, thereby contravening s. 395(1) (c) & (2) of the Criminal Code.
   

Background

2. On 25 January 2023 Rickson Akop accompanied his brother Bon Akop from Mt Hagen to Ialibu. The brothers got off the PMV bus at Kirane Village and proceeded to the home of the victim, James Maiyasi at Pogoma Village. The offender’s brother Bon had previously built James, a semi-permanent building. James was away in the National Capital with his wife so, the brothers asked the victim’s young daughters if they could overnight in their home. The girls directed them to their kitchen house and left to overnight with their neighbors. During the night, Rickson broke into the nearby semi-permanent home by removing the window wire mesh and a louvre blade. He then stole K7,000.00 in cash, gas burner and gas bottle, a pair of stockman boots, boom box, string bags and some clothes. He sold the property items back in Mt Hagen for K450.00.
   

The Offence & Sentencing Guide

3. Section 395 (1)(c) & (2) of the Code reads:
   

“(1) A person who–

(a) breaks and enters the dwelling-house of another with intent to commit a crime in it; or
(b) having–

(i) entered the dwelling-house of another with intent to commit a crime in it; or
(ii) committed a crime in the dwelling-house of another,

breaks out of the dwelling-house; or
(c) breaks and enters the dwelling-house of another and commits a crime in it,

is guilty of a crime.

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding 14 years.

(2) If the offence is committed in the night, the offender is liable, subject to Section 19, to imprisonment for life.”

4. The offence of break, enter and committing a crime in a dwelling-house is commonly regarded as burglary. Subsection (2) makes it an aggravated burglary where the housebreaking is committed in the night. It carries the penal servitude of life imprisonment, reflecting the clear intention of Parliament, that those who steal from a dwelling house in the night must be visited with severe punishment.
   
5. The rationale is simple. A dwelling-house or a home is the place where an individual is expected to be most safe and free from any form and shape of external threat, violence, and intrusion at any time of the day. A home is a sanctuary of freedom and comfort. It makes no difference whether the home is occupied or not. The risks are the same. The offence of burglary is completed when such a crime as stealing is committed.
   
6. The maximum penalty of life imprisonment is not mandatory. Section 19 of the Criminal Code gives the Court the discretion to impose a term of years. It also gives the options for alternatives to imprisonment. Two compelling considerations the Court must judicially balance is the seriousness of the offence and the public interest that those who break the law must meet with severe punishment to payback the society their wrongs, on one hand, and on the other, the personal interests and circumstances of the offender.
   
7. In this exercise, the sentencing authority is also assisted by the sentencing trends from decided cases and good sense to maintain a consistent sentencing pattern for a particular offence. In that regard, my brief research suggests, the simple offence of burglary under s. 395 (1)(c) & (2) is rarely prosecuted.
   
8. In a case with a similar setting to this case, the Court imposed three years and suspended the whole term. That case, The State v Gabriel Kamlak & 2 Ors (2017) N6963 involved primary school youths who broke and entered the home of a missionary couple at Gasmata in 2016 at night. They stole or destroyed household goods and personal items worth around US$20,000.00. That was a more serious case of burglary, and the value of goods were substantial.
   
9. In The State v Barnabas Janguan (2008) N3363 the prisoner broke into the home of a soldier at night and stole military apparel worth K16,022.47. This was the second time he committed the offence against the same victim. Most of the items were recovered except three ammunition magazines amongst other items. The court imposed a sentence of four years imprisonment.
   
10. With respect, I think the case of The State v Koi Poyep Posanau (2004) N2642 made a lot of sense in using precedent cases as a guide. That case looked at some pre-2004 cases and concluded, that sentences imposed by the National Court have been from non-custodial to custodial sentences of three years. In the passage of time that has since lapsed, the sentencing range appears to be constant at 12 months to six years. See, The State v Gabriel Kamlak & 2 Ors (2017) N6963.
    
11. In The State v Lembei Pilon (2018) N7460, the offender broke into a home in the night and stole a suitcase of clothes and a bilum containing Loda Security uniforms. The clothes were valued at K1, 700.00. He was sentenced to three years under s 395 (1) of the Code. Similarly in a burglary case charged under s 395 (1) in The State v Lare John (2022) N1007 the offender broke into a home at night whilst the owners were away. He stole household goods valued at Kl,535.30. He was sentenced to 12 months.
    
12. The case of The State v Jordon Sua (No 2) (2022) N9785 represents the most serious aggravated form of break, enter and stealing. The offender and his brother went looking for smoke in the night and when the victim refused them service, they assaulted the victim and burnt his house. He was convicted of BE & S under s 395 (1) of the Code and sentenced to 12 years to be served concurrently with 14 years imposed on the arson conviction.
    

Sentence

13. In this case, lawyer representing the offender from the Office of the Public Solicitor Mr David Pepson has made useful submissions on factors I should consider in sentencing his client. Counsel relied on the case of The State v Gabriel Kamlak & 2 Ors and submitted that a term of two or three years is warranted on the facts. Mr Kathua Umpake, understandably, did not press for any stiffer penalty. I have considered the matters for sentence under these sub-headings.
    
    1. Arrest, cooperation, and Custody
       
14. The offender was arrested shortly after the incident. His pre-trial custody period is 13 months. He has no doubt, learned some valuable lessons from his incarceration, that breaking the law does not pay. I also accepted, that upon arrest, he cooperated with the police and readily admitted his involvement.
    

b) Plea

15. It is settled, the fact of a guilty plea ought to result in some discount in practical terms. The outcome in the sentence ought to reflect the merit of pleading guilty. That effect can itself, be an incentive to plead guilty. Too, what is apparent in the sentence result should dispel doubts, that ‘the taking into account, the guilty plea’ is mere verbiage.
    
16. In, The State v Win Picinon Thomas (un-numbered NC Judgment) CR No. 837 of 1994, Los J considered that:

"... an honest plea of guilty must be taken into account in an apparent fashion so that the prisoner must know that his guilty plea has been well appreciated and taken into account by the Courts. This would also encourage other people who genuinely want to plead guilty must do so knowing that it will help them in their punishment."

17. This is a commendable approach. In, The State v Bluey Hanua (1997) N1625 I suggested that with the increasing length, complexity, and costly criminal trials at public expenses, it is important, guilty persons be encouraged to enter honest pleas of guilty at the earliest opportune time. The incentive must of course come from what is apparent on the final sentence of the Court. (See also, The State v Paul Kalu (2011) N5270).
    
18. In, The State v Chan Alois and Augustine Tutut (2008) N3668 his Honour Justice Lay suggested, the value of a plea of guilty should be clearly articulated by a sentencing policy so that the accused knows with certainty, the advantage of pleading guilty early. His Honour stated:
    

“I therefore consider that it is important, to encourage early pleas of guilty in appropriate cases, that is in cases where the accused is guilty, for the court to have a clearly enunciated policy so that the accused person can know with some certainty what the advantage is of an early plea. Except in cases of horrific personal violence, I propose to adopt the English practice of making a reduction of 25% to 33% from the appropriate head sentence where there is an early admission to police and a subsequent plea of guilty, without any intention of creating a binding strict mathematical formula.”

19. This is not to say a belated plea has no or little worth. For such varying reasons and circumstances as, infrequent sittings of the National Court, lack of opportunity for legal advice and counsel, change of representation or plea bargaining, a plea may be belatedly taken.
    
20. In this case, the guilty plea was taken early. It is supported by other factors. A generous discount for the plea is deserving in the final sentencing result.
    
    2. Remorse
       
21. When asked if he has anything to say on punishment, the offender, for each subject of apology, ended with a tirade of hollow repetitive, “I am sorry, I am sorry, I am sorry”. I think he was genuinely sorry but may have been misled. One offender initiated that trend yesterday with assertions of “I am sorry” 33 times! His expression of remorse is supported by cooperation and early admissions to the police and his subsequent plea of guilty in Court.
    
    100. Personal Circumstances
         
22. Details of personal background are set out in the Police Antecedent Report. These will be read into the records. In brief, the offender is aged 24 years, fits the bill of youthful first-time offender and still single. He was originally from Nipa. Details are not clear on his schooling. He possibly left school early after his surviving parent died, and relocated to live with relatives in Mt Hagen. He does not seem to have a good, steady upbringing and background. There is little to say on his background.
    
    4. Motive
       
23. There is some indication that Rickson did not act alone. His brother who escaped from custody and is currently at large, seem to be behind the burglary. The brother had constructed the semi-permanent home for the victim and the victim had not renumerated him. The victim was away when they turned up at the village to follow up on his claim.
    
24. This explains the conduct of the accused and his brother to some extent. It does however excuse the offence. They disregarded the lawful way to settle their grievance and resorted to breaking the law. It is only proper then that the community will punish the offender for his folly. You will pay for your trouble with your personal liberty.
    
    5. Aggravating Factors
       
25. In addition to the statutory aggravating factor in the offence being committed in the night, the property stolen was K7,450.00 in cash and kind. Entry into the house was through the window with not claim of significant damage. This burglary falls into the category of a simple case of housebreaking and stealing.
    
26. The dwelling-house was unoccupied. So, the victim’s life was not in any way placed in imminent danger of harm or jeopardy.
    

f) What is the appropriate term to impose

27. I think this is a classic case for considered empathy and support for a low sentence. Both lawyers also spoke in support of leniency, falling short of making submissions on alternatives to imprisonment in terms of suspended sentences.
    
28. Weighing up the factors for and against the accused, I consider that a term of imprisonment between 12 months and 5 years would meet the justice of the case. I propose to suspend part of the sentence and place the offender a good behavior bond.
    
29. You are sentenced to 4 years imprisonment IHL. Time in custody, which is 13 months, is deducted and the balance of 2 years and 11 months is suspended to be served on a Good Behavior Bond, that YOU SHALL:
    
    1. INSTEAD OF the punishment to which you were liable, enter into your own Recognizance in the sum of K1,000.00, in default twelve months imprisonment
       
    2. AND by this Recognizance you acknowledged: -
       

AND PROMISED:

The sentence of balance of the sentence of 2 years and 11 months is suspended, and you be released forthwith and be placed on the bond to KEEP THE PEACE AND be of GOOD BEHAVIOR at all times for two years with surety in the sum of K1000.00, in default, twelve months imprisonment.

3. AND IN DEFAULT, if any of the conditions are breached and you are caught, the four years maximum imprisonment will be reinstated.
   

Sentenced Accordingly.
______________________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused