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State v Posanau [2004] PGNC 133; N2642 (31 August 2004)

N2642

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. 1072 of 2003

THE STATE

-v-

KOI POYEP POSANAU

Lae: Manuhu, AJ

2004: August 11, 27 & 31

JUDGMENT ON SENTENCE

Criminal law – Particular offences – Break, enter and stealing – Burglary – Sentences – Relevant considerations.

Practice and procedure – Discovery of technical flaw pending decision on sentence – Considered as mitigating factor.

Cases cited:
Kuli Willie v The State [1987] PNGLR 298.
The State v Aiton Ipai (1997) N1629.
The State v Peter Rasta Karl (2000) N1978.
The State v Ted Dong & Ors (2000) N1990.
The State v Michael Kamban Mani (2002) N2246.
The State v Buka Irai (2003) N2448.

Counsel:

Ms T. Ganai, for the State.
Mrs A. Raymond, for the Prisoner.

31st August 2004.

MANUHU, AJ: The Prisoner, Poyep Posanau, faces two related charges on the same indictment. The first charge is that on 3rd January 2003 at Lae he broke into and entered the dwelling house of Peter Hall and committed the crime of stealing in the night. The second charge is that on 3rd January 2003 at Lae the Prisoner committed the crime of stealing in the dwelling house of the said Peter Hall and broke out of it in the night. The charges are laid pursuant to s. 395 of the Criminal Code.

The brief facts are that on 3rd January 2003, the Prisoner was in company of others between the hours of 3.00 am and 4.00 am. They were armed with a homemade shotgun, a knife, and a hydraulic jack. Armed with these, they broke into the house of Peter Hall whilst he was asleep upstairs. His house was situated at Aircorps Road in Lae. They removed the corrugated sheet fence and entered the premises. They broke the fly wire of the living room downstairs. They then used a hydraulic jack to move apart the iron bars of the windows. They then removed several louver blades and proceeded into the house. Whilst inside, they went into the kitchen where they stole food items, clothing and a camera. After stealing they went out in the manner they came in. All these times, the victim was still asleep upstairs in his room.

After stealing these items the Prisoner and others escaped to DCA compound nearby and ate and drank the items they had stolen. The Prisoner then returned to the same house and entered in the same manner. He proceeded to the living room where he took a TV set. He used the keys to open the main door and came out. When he was outside with the TV set, the neighbours were already watching. This caused the Prisoner to drop the TV set and escape.

In the course of my consideration of sentence, it came into my attention that the second charge may be flawed. The actual wording of the charge is that the ‘Prisoner committed the crime of stealing in the dwelling house of the said Peter Hall and broke out of it’. The wording fits well with s. 395 but the State’s case is that the Prisoner broke out by using the key to open the house door. If the Prisoner did not break in or break out, he could not have committed the crime of break, enter and stealing. Using the right key to open a door is not breaking for the purpose of the charge of break, enter and stealing.

Unfortunately, I had already convicted the Prisoner for break, enter and stealing. In the circumstances, I considered the options of declaring a mistrial; vacating the plea of guilty and disqualifying myself from further hearing of the matter; and, vacating the plea of guilty and finding the Prisoner guilty instead of the alternative charge of stealing. Perhaps fortunately, however, these technical issues were not progressed any further. After due consultation with counsel on both sides, the Prisoner’s conviction remains but the anomaly will be treated as a factor of mitigation for him in relation to the second charge.

The Prisoner apologized in allocatus for his crime. He has pleaded guilty and cooperated with police, and has saved the Court a lot of time. He said he got involved through the influence of others. The Prisoner has a prior conviction in 2002 for assault. He is 19 years old. He is single. He belongs to the SDA faith. He completed Grade 10 in 2000 and had a casual employment with Angau Memorial Hospital.

The offence of break, enter and stealing is a prevalent offence. It is the type of crime that in nature falls between armed robbery and stealing. The offence entails the element of disrespect for others and their ownership of property. When the offence is committed in a house at night, which is when the owner of property is expected to be at home, given the reasonable opportunity for confrontation, the offender’s criminal intent and culpability is nearly equivalent to that in a case of an armed robbery of a house at night.

The circumstance of this offence is therefore serious. All of us are entitled to the comforts of our homes at night. We do not deserve to be subjected to fears of someone breaking into our houses at nights when we want to sleep in peace. If you feel you deserve the protection and comforts of your home, why should you treat others differently by breaking into their houses?

I take into account also that, under Schedule 2 of the Criminal Code, the offence is also punishable summarily. Consequently, while the offence carries a maximum imprisonment for life if committed at night, the sentences have generally been quiet low. In Kuli Willie v The State[1], a suspended sentence with probation was imposed following an appeal. But that is 18 years ago. In The State v Aiton Ipai[2], 2 years sentence was imposed. In The State v Peter Rasta Karl[3], 18 months sentence was imposed following a plea of guilty. In The State v Ted Dong & Ors[4], the highest sentence imposed was 3 years following a guilty plea. In The State v Michael Kamban Mani[5], 3 years was imposed following a guilty plea. In The State v Buka Irai[6], 2 years was imposed after a plea of guilty. In summary, sentences imposed by the National Court have been between a non-custodial sentence and a custodial sentence of 3 years.

The Prisoner’s suitability for probation has been assessed by Mrs. W. Nablu, the Senior Community Correction & Rehabilitation Officer. The Prisoner is a suitable candidate to be placed on Probation Supervision but he has a pending case which may complicate Probation conditions.

In all the circumstances, I am of the view that a custodial sentence is appropriate to punish the offender and to demonstrate the community’s strong disapproval of the offences he has committed. In relation to Count 1, I impose a sentence of 4 years in hard labour. In relation to Count 2, I impose a sentence of one year in hard labour. Given the closeness of the facts, I further order that the sentences be served concurrently. The custody period of one year and six months is deducted from the sentence. The Prisoner has two years and six months to serve in hard labour.

Sentenced accordingly.
_______________________________________________________________
Lawyer for the State : Public Prosecutor
Public for the Prisoner : Public Solicitor

^[1] [1987] PNGLR 298.
^[2] (1997) N1629.
^[3] (2000) N1978.
^[4] (2000) N1990.
^[5] (2002) N2246.
^[6] (2003) N2448.