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State v Gumnawabu [2015] PGNC 305; N6841 (16 October 2015)

N6841

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 259 OF 2015

THE STATE v YARUBEI GUMNAWABU

&

CR (FC) 262 of 2015

THE STATE v TODAPU NAGLUA

Losuia: Injia CJ
2015: October 12 - 16

CRIMINAL LAW- Sentence - Stealing - Outboard Motor Engine - Offence rare in Island Community- Appropriate sentence- Punitive and deterrent Sentence - 5 years imprisonment with part suspended on conditions- Criminal Code. s 272 (10)

Counsel:

T Hai with H Roalakama, for the State
A Raymond with C Kambua, for both accused

15^th October, 2015

1. INJIA CJ: The two accused were jointly charged with one count of aggravated stealing brought under s 372 (1) and (10) of the Criminal Code. Each pleaded guilty to the charge. After the conclusion of arguments of counsel on sentence, they appear before me this afternoon for sentence.

2. The brief facts for purpose of sentence are these. On the night of 22 February 2014 at Kavataria village, the two accused went to the place where one Inuwai Norman had parked his banana boat with its outboard motor engine, a 30 horsepower engine, wrapped with a canvas and placed on the boat. The engine was valued at K9,000. The two accused took the engine and gave it to one Robin Inuwai to keep it for them. Robin saw the name of "Inuwai Norman" written one the engine and suspected it to have been stolen from him and reported the matter to Inuwai Norman. The matter was reported to police who arrested and charged the two accused with stealing. During separate interviews conducted by the police with each accused, they admitted stealing the engine.

3. The maximum sentence for stealing with circumstances of aggravation that is prescribed by s 372 (10) of the Criminal Code, is imprisonment for a term not exceeding 7 years. The Court of course has a discretion to impose a lower term of imprisonment than the maximum. The Court has additional discretionary powers given by s 19 of the Criminal Code, that includes a fine instead of imprisonment or suspended custodial sentence on conditions. The maximum penalty is always reserved for the worst case of stealing.

4. I have considered the submissions made by counsel for the accused and the State and considered the material placed before me including the pre-sentence report and victim impact statement from the owner of the stolen property.

5. I am satisfied that the circumstances of the stealing in this case are such that it does not fall into the worst type of stealing such that it is not appropriate to impose the maximum penalty.

6. I am also satisfied that the appropriate sentence to be imposed in the circumstances of the case before me is one of imprisonment. The issues before me are with regard to what is the term of imprisonment and whether the whole or a part of that custodial sentence is to be suspended.

7. It is submitted on behalf of the two accused that an appropriate sentence would be one of 3-5 years imprisonment that is wholly or in part suspended on conditions. Counsel for the State agrees that an appropriate sentence is in the range of 3-5 years and leaves it to the Court's discretion to suspend the whole or a part of the sentence.

8. In determining the appropriate punishment, I must take into account all those factors which mitigate the punishment and those that aggravate the punishment and balance them and in the process arrive at punishment that reflects the aggregate balance of those factors and circumstances. In the end, the punishment must fit the crime whilst at the same time recognizing and giving effect to the offenders' personal antecedents and the expressed wishes of the offender and the material that is contained in the pre-sentence report that are favourable to the offenders.

9. In favour of the two offenders, I take into account the following mitigating factors:

• Both offenders are men of prior good character, come from a stable village and family background, educated at Primary School level and Christians.
  
• Both offenders have no prior conviction for any offence.
  
• Both offenders willingly co-operated with the police and admitted the offence to the police. In respect of Toidapu Naglua, he also admitted the offence to the District Court during the committal hearing. Yarubei Gumnawabu did not admit the offence to the District Court.
  
• In respect of Yarubei Gumnawabu, he paid compensation to the owner of the engine in cash (K77) and in kind of an undisclosed value in PNG Kina terms. In his Victim Impact Statement, the owner of the engine confirms receiving compensation from Yarubei Gumnawabu. Toidapu Naglua did not pay any compensation·
  
• Both offenders pleaded guilty before this Court and saved the Court's time and expense.
  
• Both expressed genuine remorse for their wrongdoing to the Court, the victim and the Kirriwina community.
  
• The offenders did not benefit from the proceeds of the crime. The engine was recovered without any damage.
  
• The pre-sentence report contains material that says a lot of positive things about the two offenders and make recommendations in favour of the offenders for a wholly suspended sentence with conditions.
  

10. The circumstances of aggravation are the following:

• The offenders are not young offenders. Offenders 18 years old or below are normally considered to be young offenders requiring special consideration as young offenders. The offenders in this case are aged 20 - 22 years of age and mature enough to know what they were doing and why they wanted to steal the engine. The engine was stolen from where the boat containing the engine was parked on the shores just outside the owner's house and was stolen in the night under the cover of darkness at about 3 am in the morning when everyone was fast asleep. It was then taken to another person and left with him. These actions of the offenders show that the crime was pre-planned and carried out with determination .
  
• The value of the engine is at K9,000.00 is no doubt a substantial value.
  

11. The balancing of these factors that mitigate and aggravate the penalty does not involve the application of some set formula that produces a precise result. It will suffice when the Court takes a global view of these matters and forms an opinion as to where the balance of scale lies in terms of whether the mitigating and aggravating factors even out or one set of factors outweigh the other.

12. With regard to the case at hand, a serious crime has been committed that attracts a penalty of imprisonment up to 7 years. In the circumstances of this case, a starting point, as submitted by both counsel, is a custodial sentence as opposed to any other form of non-custodial sentence such as a fine instead of imprisonment provided in s 19(1)(b) of the Criminal Code. Whether the whole or a portion of the sentence should be suspended is now the issue before me.

13. It is accepted that the Kirriwina community comprises of peace-loving people who enjoy freedom. This is a peaceful place where people go about their daily lives with very little or no hindrance. Travelling by boat is one of the main form of transport in these islands and people keep their boats and engines beside their houses or out in the open in public places without reason to suspect they will be stolen. As mentioned by counsel, theft of boats and engines is very rare in the Kirriwina community and once it occurs, a punitive and deterrent punishment is appropriate.

14. It is true that a crime against the Kirriwina community was committed and the community expects the offenders to be punished and punished appropriately. But the Kirriwina community also know that the actions of these men have brought them and their families shame and humiliation when they have been caught and processed by the police and now dealt with by the Courts. They have already spent some time in pre-trial custody. These are different forms of punishment they have experienced. Also Yarube has paid some compensation. All these forms of suffering, hardship, shame and punishment that these offenders have gone through before trial may not be enough of a punishment and may offer little or no real deterrence in the community. Whatever the punishment, the Kirriwina community will want to see some real punishment imposed that will teach these offenders a lesson and punish them and at the same time offer some real deterrence for other like-minded persons from committing the same crime or any other serious crime for that matter. In that way the Kirriwina community will be protected against such like minded persons and the peaceful life in these Island communities is preserved.

15. I acknowledge and give due effect to all the mitigating factors that are personal to the accused, however their weight is reduced significantly by reason of the fact that the crime was pre-planned and carried out with determination with every effort to conceal the crime when it was committed and conceal the disposition of the engine through another person.

16. In the aggregate totality of these circumstances, I am satisfied that the aggravating factors outweigh the mitigating factors.

15. Suspension of the whole or a part of the sentence is appropriate where the offender is of a young age, 18 years old or under, and that suspension will offer the offenders a chance to reform their criminal mentality. However I consider their present age the offenders between 20 - 22 years to be of a relatively young age group and that they are also single or unmarried. I accept submissions of their counsel that suspension of a whole or part of the sentence is appropriate. I do, however, accept that suspension of the whole of the sentence is not appropriate for the reasons I have given.

16. In all the circumstances, I consider that an appropriate sentence is one of 5 years imprisonment. I will suspend a portion of that sentence on conditions in respect of each offender. The pre-trial custody period in respect of each offender will be taken into account in the computation of the sentence.

17. In respect of Yarube Gumnawabu, he is sentenced to 5 years imprisonment in hard labour. Two and half years of that sentence is suspended on the condition that he enters into their own recognizance without surety to keep the peace and be of good behaviour for 2 years after they are released from prison. Of the remaining two and half years, the pre-trial custody period of 1 year and 7 days is deducted. He will serve 1 year 5 months and 23 days before he is released from prison.

18. With regard to Toidapu Naglua, he is also sentenced to 5 years imprisonment in hard labour. I suspend two years of that sentence on the condition that he enters into their own recognizance without surety to keep the peace and be of good behaviour for 2 years after he is released from prison. Of the remaining 3 years, the pre-trial custody period of 1 year 2 months and 14 days is deducted. He will serve 1 year 9 months and 16 days before he is released from prison. His bail money of K2OO shall be refunded to him.

19. The main reason for the disparity in the suspended portion of the sentences imposed on each offender is because Yarube Gumnawabu paid compensation to the owner whereas Toidapu Naglua did not pay any compensation.
______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused