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State v Taba [2010] PGNC 178; N3939 (12 August 2010)

N3939

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 1443 OF 2009

THE STATE

V

ASI TABA

Madang: Cannings J
2010: 27 May, 3, 12 August

SENTENCE

CRIMINAL LAW – sentence – stealing – Criminal Code, Sections 372(1) & 10 – property of a value of K58,399.00 stolen – offender a company employee who joined with other employees in making and implementing a plan to steal company property.

A 34-year-old man was convicted of one count of stealing a container load of tinned fish from his employer, valued at K58,399.00. He joined with other employees in making and implementing the plan to steal the tinned fish and sell it to a third party. This is the judgment on sentence.

Held:

(1) The maximum penalty is seven years imprisonment.

(2) A useful starting point is the middle of the available range: three and a half years imprisonment.

(3) Mitigating factors are: no violence involved; the offender was not the mastermind of the plan and had a relatively small role to play in it; he obtained a relatively small amount of the proceeds of the crime; others involved have not been prosecuted; first-time offender; an element of remorse has been expressed.

(4) The aggravating factors are: he acted with others in an organised crime; the stolen property was of a substantial value.

(5) The appropriate sentence is two and a half years imprisonment. The pre-sentence period in custody was deducted and none of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Alice Kware & Addie Uvi CA 34-35/2006, 23.03.07
Daniel Ronald Walus v The State (2007) SC882
Edmund Gima and Siune Arnold v The State (2003) SC730
Public Prosecutor v Don Hale (1998)
The State v A Juvenile, "KK", CR 188/2009, 04.03.10
The State v Asi Taba (2010) N4083
The State v Danis Langu Jack, CR 183/2009, 21.12.09
The State v Douglas Boku CR 844/2009, 18.08.09
The State v George Pelly, CR 672/2003, 04.03.10
The State v Martin Kairing Awi, CR 352/2008
The State v Philip Bola Malagau & Michael Bio Tavulo, CR 678/1998, 17.02.09
The State v Tobby Alekun (2004) N2636

SENTENCE

This was a judgment on sentence for stealing.

Counsel

A Kupmain, for the State
D Joseph, for the offender

12 August, 2010

1. CANNINGS J: The offender, Asi Taba, is before the court to be sentenced after being convicted of one count of stealing contrary to Sections 372(1) and (10) of the Criminal Code. The offence was committed in November 2007. He stole 1,000 cartons of tinned fish valued at K58,399.00 from his employer, RD Tuna Canners Ltd of Madang. He and a number of other employees made a plan to steal the fish from the company and share the proceeds. Documents were falsified and this enabled the fish to be packed into a container, which the offender loaded onto a truck and transported to Lae, where the fish was sold to a third party. The offender had knowledge of the plan and took part in its implementation by loading the fish onto the truck, accompanying the fish to Lae and unloading the fish. He received K2,000.00 cash from the proceeds of the sale.

Further details of the circumstances in which the offences were committed are in the judgment on verdict (The State v Asi Taba (2010) N4083).

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:

I apologise for what I did. I was a casual employee at RD Tuna for eight years and had a good record with the company until this thing happened. My bosses gave me instructions to load the cargo and I just followed their instructions. It was my bosses who diverted the cargo to the unlawful purpose of stealing. What has been done has been done and I am sorry about what happened. I will never do such a thing again. I ask the court to consider that although there were a number of people involved I am the only one in custody. My bosses are not in custody. I have learned what is right and what is wrong. I ask for the court's mercy. Please do not give me a long sentence. I want to go back to the village, where I am well regarded and I do not get into any trouble. My father is deceased but my mother is alive and I need to look after her.

PERSONAL PARTICULARS

4. Asi Taba is 34 years old. He is married with four children and comes from Bauhbo village in the Transgogol area of Madang Province. He is a member of the Seventh-Day Adventist Church and has a grade 6 education.

SUBMISSIONS BY DEFENCE COUNSEL

5. Mr Joseph urged the court to take into account that the offender played only a small role in the criminal scheme that resulted in the company's property being stolen and that he is the only member of the group of people involved to be prosecuted. He only received a small amount of money from the proceeds of the theft and has already paid a heavy price for what he did. There was an element of de facto provocation in that the offender had been employed as a casual labourer for eight years and there was evidence at the trial that he was on low wages, which gave rise to a cause for a grievance against the company. A sentence of three years should be imposed and, after deducting the period already spent in custody (one year, five months), as he is a first-time offender, the balance should be suspended and the offender released immediately, he submitted.

SUBMISSIONS BY THE STATE

6. Mr Kupmain agreed that a sentence of three years would be appropriate but disagreed with the proposal to suspend the sentence. It is a crime of dishonesty and the offender's statements in allocutus show that he is still not prepared to acknowledge his guilt.

DECISION MAKING PROCESS

7. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

8. The offence of stealing is created by Section 372(1) and the maximum penalty, if there are no circumstances of aggravation, is three years imprisonment. In this case the value of the thing stolen exceeded K1,000.00, which is a circumstance of aggravation under Section 372(10). This circumstance of aggravation has been charged in the indictment and the effect of this is that the maximum penalty is seven years imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

9. I will use the middle of the available range: three and a half years imprisonment.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

10. Stealing is an offence that covers a wide array of situations and it is difficult to compare sentences but those that I have dealt with are shown in the following table.

SENTENCES FOR STEALING, SEC 372, CANNINGS J

STEP 4: WHAT IS THE HEAD SENTENCE?

11. Mitigating factors are:

• no violence involved;
• the offender was not the mastermind of the plan and had a relatively small role to play in the plan;
• he obtained a relatively small amount of the proceeds of the crime;
• others involved have not been prosecuted;
• first-time offender;
• an element of remorse has been expressed.
  

12. I reject the defence counsel's submissions that de facto provocation should be regarded as a mitigating factor. The low wages the offender received perhaps provide an explanation for what he did but there is no evidence that the wages were unlawfully low.

13. Aggravating factors are:

• he acted with others in an organised crime;
• the property stolen was of a substantial value.
  

14. There are more mitigating factors than aggravating factors so the sentence should be below the starting point of three and half years. As to how far below, I am not bound by the defence counsel's submission for a three-year sentence (even though it was agreed to by the prosecutor). The strength of the mitigating factors brings the sentence down to two and a half years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

15. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment, the whole of the pre-sentence period which is 1 year, 5 months.

STEP 6: SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?

16. No pre-sentence report was made available to the court in this case. In the absence of such a report it is difficult to find any justification for suspending any part of the sentence (Public Prosecutor v Don Hale (1998) SC564; Edmund Gima and Siune Arnold v The State (2003) SC730; Daniel Ronald Walus v The State (2007) SC882). I reject the defence counsel's submission on this point. No part of the sentence will be suspended.

SENTENCE

17. Asi Taba, having been convicted of one count of stealing under Section 372(1) of the Criminal Code, in circumstances of aggravation under Section 372(10) of the Criminal Code, namely that the value of the thing stolen exceeded K1,000.00, is sentenced as follows:

Sentenced accordingly.
_________________________

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the offender