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State v Anjo [2024] PGNC 253; N10914 (18 July 2024)

N10914

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR NO. 919 OF 2024


THE STATE


V


SOLOMON ANJO


Minj: Miviri J
2024 : 10th & 18th July


CRIMINAL LAW – PRACTICE AND PROCEDURE – BES s 398 (a) (i) CCA – Plea – Land Moneys Owing – Demand for Non Payment – Breaking Entering Office of School – Properties of School Stolen – Recovered – First Offender – Serious Offence – Law Into Own Hands – deterrent & punitive sentence.


Facts
The prisoner broke into the school administration building stole a photocopy machine, a Yamaha generator a gas stove burner. He was not satisfied with the school management over his claim for moneys for the subject land on which the school is built.


Held
Plea
First time offender
Took Law into own hands
Property of School
Children innocent denied
Rule of law
Punitive deterrent sentence


Cases Cited:
Golu v The State [1979] PNGLR 653
Tardrew, Public Prosecutor v [1986] PNGLR 91
State v Levipaja [1997] PGNC 94; N1601 (6 August 1997)
State v Kanga [2005] PGNC 169; N2953 (26 September 2005)
Kale v The State [1983] PGSC 3; SC250 (8 June 1983)
Simbe v The State [1994] PNGLR 38
Mandatititip v The State [1978] PNGLR 128
State v Midal [2021] PGNC 673; N9951 (24 May 2021)
State v Oroa [2022] PGNC 572; N10069 (18 November 2022)
State v Hagei [2005] PGNC 60; N2913 (21 September 2005)


Counsel:
F. Popeu, for the State
D. Pepson, for the Defendant


SENTENCE

18th July 2024


  1. MIVIRI J: This is the sentence of Solomon Anjo of Wanimas, Wapenamanda, Enga Province who pleaded guilty that he broke and entered the Madan Primary School office building and therein stole items.
  2. On the 04th September 2023 between 12 midnight and 1.00am Solomon Anjo a resident at the blocks near the Madan Primary School entered the School premises and broke the lock to the main school administration building entered it and stole a photocopier machine valued at K 8, 000.00, a Yamaha Generator valued at K3000.00 and a gas stove burner valued at K300.00 all the properties of the Madan Primary School. He took the properties to his house and buried them at the back of the house and after three (3) days or so, the public and students acting on information went and dug up these properties and returned them to the school. And the accused was forced to surrender to the Police, and he did. He was arrested and charged with the offence.
  3. Section 398 prescribes the offence in this way giving the penalty in this way: -

“A person who–
(a) breaks and enters–

(i) a schoolhouse, shop, warehouse, counting-house, office, store, vehicle, garage, hangar, pavilion, factory, workshop, tent, caravan, petrol-station, ship, aircraft, vessel or club; or

(ii) a building that is adjacent to a dwelling-house and occupied with it, but is not part of it,
and commits a crime in it; or
(b) having committed a crime in–

(i) a schoolhouse, shop, warehouse, counting-house, office, store, vehicle, garage, hangar, pavilion, factory, workshop, tent, caravan, petrol-station, ship, aircraft, vessel or club; or

(ii) a building that is adjacent to a dwelling-house and occupied with it, but is not part of it,
breaks out of it,
is guilty of a crime.


Penalty: 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.


  1. It is a very serious offence depicted out by the will of the legislature set out above. Prisoner could be sentenced to 14 years or life imprisonment if the offence is committed in the night. Here there is evidence that the offence was committed in the night. It means that the maximum penalty for the offence in his case would be a maximum of life imprisonment if the offence is the worst case of its kind: Golu v The State [1979] PNGLR 653. I do not determine it to be the worst case of breaking entering and stealing at night because all properties have been recovered. But it has cost learning to the school. And it is not an excuse even though a guilty plea has been entered to steal in the manner that the prisoner has committed the offence. It is a very serious offence because the offence was committed at nighttime undeterred and well planned because the properties were dug and hidden in a hole in the ground where they were recovered. Altogether they are valued at K 11, 300.00 belong to Madan Primary School.
  2. That is a school that serves that community and for an individual as the prisoner to do what he did is very selfish conduct; no man should behave in the manner as did the prisoner. That school has expended money to bring in those properties to serve the people of that community through the school in its children who attend that school. An individual as did the prisoner who puts his life over and above all others must bear serious consequences that the law has prescribed, here by section 398 of the code which is the maximum of life imprisonment. People, citizens who are prepared to take the law into their own hands to solve problems that are in their own hands do not deserve leniency. Because in my view this is a very prevalent conduct in the life today. His assertion in allocutus that the offence was committed as a lever to force the authorities to pay his moneys due for the occupation of the school on it. There are processes in court that will entail what is due to him. Committing a criminal offence to get the school to pay what he is due does not work to secure a lenient sentence. By itself it is a very serious aggravating feature of the case. There is many that resort to this behaviour right across the country that must be addressed.
  3. A suspended sentence will not address that fact that institutions that develop the country such as schools, roads, bridges, and public infrastructures must be protected by the law. Which is materially the language of that section 398. There is no factor outweighing to impose a non-custodial sentence including suspension of sentence in the light of Tardrew, Public Prosecutor v [1986] PNGLR 91. The Court has a duty to impose sentences that will protect public properties institutions. Where repeater stations powered by Solar panels had the panels stolen so that communication was affected. This court considered custodial terms appropriate, State v Levipaja [1997] PGNC 94; N1601 (6 August 1997). Assertions of the prisoner in the allocutus on the basis of the land do not have independent verification. The rule of law must be respected and heeded. No man is above the law. Orderly society demands bold and downright observances of the law. This conduct of getting public property on ransom must stop. The Bougainville crisis started because of demand over land use and rights. This is not a light and simple break enter and stealing. The consequences of this offence are far outreaching and is prevalent in society now. Developments instituted by government is prevented by like behaviour.
  4. One way to stop such behaviour is to impose strong deterrent and punitive sentences against those who see fit to offend as here. I am therefore not inclined to discount the conduct that the prisoner displayed here. There is a process in law to see out such, which is in court not in the hands of an individual as is the case here. Presentence report was ordered after he had pleaded guilty. That report confirms the return of the stolen properties to the school. But it is a very serious offence because not only did he steal but he attempted to conceal the properties in a hole that he had dug near his house to hide the properties. There is intent to deprive the school of the use of those properties.
  5. Schools are public and State Properties that are built to serve the State and its people. Here the People and the Community of Madan. It is clear that the people there got frustrated and did what they did to the prisoner. He invited that conduct upon what he instituted and cannot blame anyone for the way they behaved towards him. It will be visited those who see fit to do what he did. The law is meant to be observed and used in any case where there are grievances. The actions of the people have seen the recovery of the properties for the school. For him he will follow the process of the law to understand what the law says about his conduct. It means that he must go to jail. It is a message to him and any others with similar inclinations to abide or will face similar.
  6. The guilty plea will be considered to mitigate his cause. And it is credit to him that he is a first offender. But that is a bad name to him and his family as it will live with him that he was convicted. He demonstrates by his admission his responsibility to accept what he has done in law. It is a turning point in his favour. He is a married man with three children who will suffer because he was employed as a driller with Oil Search which draw the substance sustaining his life with his family. He has brought that into ruin by his criminal conduct. He may have given his land to run the school but there are ways that must be followed to bring grievances to the law. There is no short cut or taking it upon oneself in this way. It is wrong because a wrong does not make right another wrong.
  7. This Court in State v Kanga [2005] PGNC 169; N2953 (26 September 2005) imposed 14 years imprisonment for breaking into an armoury and stealing arms and ammunition which were not recovered. It was a trial. In Kale v The State [1983] PGSC 3; SC250 (8 June 1983) appeal against the sentence originally imposed was upheld and 20 months was imposed. That was an offence involving the house of a doctor at Wabag where his medical equipment was stolen and recovered damaged. The appellant was a watchman. The supreme court cautioned that sentences should be not in leaps and bounds. I am not dealing with a watchman but the prisoner who committed the removal of the property into a hole at the back of his house. He is the lead in the offence and that must be reflected in the sentence due him. In a way sentences must be drawn out by the facts circumstances of the offence and not tied to tariff or range: Simbe v The State [1994] PNGLR 38. The Supreme Court has viewed the offence seriously and confirmed the sentence imposed at first hand, Mandatititip v The State [1978] PNGLR 128.
  8. I echo the views of the Supreme Court that, “Breaking and entering offences, when committed in Papua New Guinea at this time, may be said to be of such seriousness and they may be said to stir up such community indignation and resentment that, when they are duly proved, they generally call for the imposition of prison sentences. To an extent heavy penalties have been proscribed for such offences because of a concern and desire on the part of the legislature to prevent (or at least discourage) the citizens of this country, many of whom are quite unsophisticated from adopting traditional methods of retribution, such as payback. The courts will be failing in their duty if they ignore such historical facts or fail to be sensitive to responsible public opinion. If courts, in dealing with certain crimes such as breaking and entering of the type considered in this appeal, permit deterrence to play an insufficient part in formulating proper penalties, there would be a real and grave danger that the victims of such crimes or those fearful of such crimes being committed on their properties would take the law into their own hands if the opportunity to do so presented itself or if the necessity for doing so arose. Mandatititip (supra)That is evident here and therefore it is not a light matter that the properties have since returned and therefore life must carry on as if nothing happened.
  9. He is a mature person aged 29 years old originally from Wanimas village, Tsak valley of Wapenamanda in Enga Province. He is a married man with three children aged 5 years, 3 years and a 1-year-old baby. Of SDA Christian faith he is educated to grade 10 at Pausa Lutheran Secondary School. He worked with a drilling company as a crane operator in 2015 to 2016 with Oil Search at Wapu Mine, Kerema Gulf Province. He also cares for his aging father as his other siblings are no longer with the old man. A first offender he pleads for a non-custodial term in view of the fact that properties stolen have all being returned to the school. He has been beaten up with injuries including a broken tooth and cut of his fingers. No medical reports have been tendered into Court. But that is the attitude that this Court must guard against in its sentence to be passed.
  10. Reliance has been placed in his case on State v Midal [2021] PGNC 673; N9951 (24 May 2021) and State v Oroa [2022] PGNC 572; N10069 (18 November 2022). I consider both cases can be distinguished from the facts to the present and would not follow similar for the reasons I set out above. I am not obliged to follow other national Court Judgements. I will follow the Supreme Court cases that have addressed of relevance I have set out above. There is nothing extenuating disclosed by the presentence report that will entail a suspended term State v Hagei [2005] PGNC 60; N2913 (21 September 2005).
  11. I consider the conduct of the prisoner serious because he is acted out of personal goodness rather than of all in that community. In the way he is experienced in life and educated it was open given to see out the process of the law. The conduct of using a criminal offence as a lever to gain benefits is rampant here in the highlands Provinces and elsewhere in the Country. I would be failing in my duty and falling into error in law if these facts are not given what is called for custodial term. That is why the maximum penalty due the prisoner is life imprisonment. He will be accorded the benefit that he is a first offender who has pleaded guilty. I do not consider the return of the properties by his own voluntary behaviour. The community took it upon itself to retrieve the properties. He did not volunteer even before the community took to him. The leniency due is in the term to be imposed which would have been higher to 10 years. Schools are for public use for all there. One mans gain must not be sacrificed for the majority of Madan and its Primary School.
  12. He is therefore sentenced given to 5 years imprisonment in hard Labour. I deduct the time in custody. He will spend the balance in jail forthwith.

Ordered Accordingly.


Public Prosecutor: Lawyer for the State
Public Solicitor : Lawyer for the Defendant


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