N11542

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR 1429 OF 2024

THE STATE

V

MAL KAVA

WAIGANI: MIVIRI J
08, 17 OCTOBER 2025

CRIMINAL LAW – Practice and Procedure – S372 (1) Stealing CCA –Plea – In Store Took Properties walked out of Store – Immediately Pursued Apprehended – First-time Offender – Colorado Boots K79.90 & Bag – Prevalent Offence –deterrent sentence.

Facts
The accused went into the shop to buy a bag, and an armed robbery took place. He took advantage of it took a pair of boots and a bag and walked out. He was immediately pursued and caught.

Held
Plea
Serious Offence
First offender
No PSR filed
1 year 6 months 23 days IHL served on remand.
Discharged forthwith.

Cases cited
The State v Norris [1979] PNGLR 605
The State v Belawa [1988-89] PNGLR 49
Tardrew, Public Prosecutor [1986] PNGLR 91
The State v Vagi [2014] PGNC 254; N5697 
The State v Eliakim [2007] PGNC 76; N3190 
The State v Johnson Bale [2004] PGNC 161; N2626 
 The State v Kintau [2014] PGNC 55; N5761 
State v Paul [2015] PGNC 251; N6132 
State v Turubat [2016] PGNC 402; N6724 

Counsel
T. Kokents, for the State
F. Bomal, for the defence
		
SENTENCE

1.	MIVIRI J: 		This is the sentence of Mal Kava who was in a shop intent on buying a bag when an armed robbery took place. He took the opportunity and stole a Colorado pair of boots and a bag. He was apprehended immediately outside when he was pursued, and police there took him into custody.

2.	He was at Shong Trading, Boroko National Capital District that day 17th March 2024 in the morning at 7.00am. Four armed men entered and held up one Ben Lin and his employees. They demanded him to open the second gate and give them money. They demanded and assaulted him further. He sustained a deep cut to the head. They got mobile phones, flex cards, and other shop items on the shelves with cash money and got out into a waiting vehicle and escaped.

3.	Accused took advantage committing the crime as set out above. He pleaded guilty to Section 372 (1) of the code which read:
“(1) Any person who steals anything capable of being stolen is guilty of a crime.
Penalty: Subject to this section, imprisonment for a term not exceeding three years.
(2)………
(3)..........
(4)..........
(5)............
(6)..........
(7) If the offender is a clerk or servant, and the thing stolen–
(a) is the property of his employer; or
(b) came into the possession of the offender on account of his employer,
he is liable to imprisonment for a term not exceeding seven years.”

4.	A maximum of seven years imprisonment could be imposed for the offence. The facts do not depict a worst-case scenario, so a determinate term is in view considering. His punishment must fit his facts and circumstances in other words the sentence must be proportionate to the gravity of the offence: Norris v The State [1979] PNGLR 605. His sentence will be drawn from his facts and circumstances, not more or less. He is a first-time offender who has spent one (1) year six (6) months twenty-three (23) days on remand. Aged 29 years old he is originally from Kami village in Okapa District of Eastern Highlands Province. He has primary education level but no evidence of any formal employment. He has expressed genuine remorse for the offence committed. The value of the properties stolen at the highest is K79.90 for the pair of boots. The value of the bag is unknown. There is no real planning he took advantage of that situation prompted by the robbers to commit the offence.

5.	Like Section 383A the offence of stealing involves firstly, dishonesty and secondly, application of the use of property either to one’s own use or another. It is relevant to be guided by the principles laid out in Wellington Balewa v The State [1988-89] PNGLR 496, applicable here given the facts and circumstances including both the mitigating and aggravating factors here in the following order:

(i)	Amount that was taken;
(ii)	Degree of trust held by the prisoner;
(iii)	Period over which the offence is committed;
(iv)	Use of what the property was put to;
(v)	Effects on the victims;
(vi)	Effects on the offender herself;
(vii)	Effect on the public confidence.
(viii)	Restitution.

6.	Applying Wellington Balewa (supra) given that the amount K10, 000.00 to K40, 000.00 is 3 to 4 years imprisonment. Here it is K 79.90 at the highest which is under K10, 000 a sentence of 2 years would be in order considering. Given the facts and circumstances set out above imprisonment straight out would not be proportionate. But the facts warrant the application of section 19 (6) of the code where three broad categories could be summarized upon which suspension can be considered in sentence,  (1) where suspension will promote personal deterrence or reformation or rehabilitation of the offender; (2) where suspension will promote the repayment or restitution of the stolen money; (3) where imprisonment will cause excessive degree of suffering to the particular offender; for example because of his bad health: Tardrew, Public Prosecutor [1986] PNGLR 91. Here restitution has been made out in full personal deterrence and reformation would be more in order given. Because of the facts and circumstances here.

7.	This would be more so viewed for example in State v Vagi [2014] PGNC 254; N5697 3 years imprisonment in jail was imposed there were no prospects or evidence she could repay back the K65, 924.90. Where the amount stolen is small the sentence has corresponded where the amount is large the sentence has likewise followed suit: The State v Eliakim [2007] PGNC 76; N3190; The State v Johnson Bale [2004] PGNC 161; N2626; and State v Kintau [2014] PGNC 55; N5761 the amount involved was K87,500.00 both prisoners had paid off the money as at the date of sentence. 4 years IHL was imposed upon but fully suspended. In the State v Paul [2015] PGNC 251; N6132, sentence was suspended arising out of the prisoner stealing from his employer. I do not have that but simple stealing from a shop. In some respects similar as in State v Turubat [2016] PGNC 402; N6724.

8.	Prisoner here has fully paid because the items stolen have been since retrieved to the owner. I determine that a sentence of 2 years imprisonment in hard labour would be proportionate and which the prisoner has effectively served on remand of (1) year six (6) months twenty-three (23) days. That is his sentence effectively. He will be sentenced to the rising of the Court. He will be discharged accordingly from custody.

Orders accordingly. 

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