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State v Matison [2015] PGNC 307; N6843 (16 October 2015)

N6843

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 260 of 2015

THE STATE

V

William MATISON

&

CR (FC) 261 of 2015

THE STATE

V

EMOSI TOMEOSI

Losuia: Injia CJ
2015: 12^th – 16^th October

CRIMINAL LAW- Sentence - Break, Enter & Stealing - Trade Store - one of few businesses on remote Island Community - Offence rare in Island Community- Appropriate sentence- Punitive and deterrent Sentence - 6 years imprisonment with part suspended on conditions- Criminal Code. s 398(a)(i)

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 each pleaded guilty to one count of break, enter and stealing (BES) pursuant to s 398 (a) (i) of the Criminal Code. The maximum penalty for this offence is 14 years imprisonment.

2. The maximum penalty is always reserved for the worst case of BES. Although the maximum sentence for BES is 14 years imprisonment, the Court is given a discretion by law to impose a shorter term of imprisonment and suspend the whole or a portion of the sentence on conditions in appropriate cases.

3. At around midnight of 7 February 2014, the two accused went to Taweni Trade Store which is situated at Tukuakwa village. Whilst William stood on guard outside, Emosi gained access to the trade store building by breaking the hinges and removing the lock of the door. He took K38.00 in cash money from the store and came outside and then re-entered the store and took out another K3,300.00 in cash. The total monies taken was K3,338.00. They used a portion of the money. The sum of K1, 450 was recovered and returned to the owner of the trade store. Both accused told this Court that they did not plan to commit the crime. The thought of committing the crime just occurred to them as they were walking along. They thought they were doing a small thing.

4. After hearing and considering the submissions of counsel for the accused and the State, and after considering all the material placed before me including the pre-sentence report prepared by the CBC Officer based at Losuia, I am satisfied that the circumstances of stealing in this case does not fall into the worst category of BES cases.

5. I also repeat what I said a little while ago in sentencing two other offenders with regard to the choices to be made on punishment also applies here. There is choice to be made by this Court between a purely custodial sentence and a custodial sentence that is wholly or in part suspended with conditions suggested in the pre-sentence report and by the two accused and their counsel. It is submitted on their behalf that an appropriate sentence would be one of 2- 5 years imprisonment that is wholly or partly suspended on conditions. It appears from the thrust of submissions of counsel for the prisoners that a wholly suspended sentence is sought. Counsel for the State agrees that an appropriate sentence is in the range of 2-5 years and leaves it to the Court's discretion to suspend the whole or a part of the sentence.

6. 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 a punishment that fits the crime whilst at the same time recognizing and giving effect to the personal antecedents of the offender and their expressed wishes that may be supported by the pre- sentence report.

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

• Both offenders are mature men. William is the older of the two and married. He is aged 31 years and Enosi is aged 22 years. Both men are of prior good character. They come from a stable village and family backgrounds, they are educated at High School level and are 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. Both admitted the offence to the District Court and expressed remorse in the committal hearing.
  
• Both offenders paid compensation to the owner of the trade store in cash (K500) and 3 big clay pots valued at K50.00 each. The owner of the trade store is related to the offenders as an uncle. This suggests the broken relationship between the two families caused by the crime have been restored upon payment of compensation.
  
• Both offenders pleaded guilty before this Court and saved the Court's expense and time.
  
• Both offenders expressed genuine remorse for their wrongdoing, to the court, to the victim and the Kirriwina community.
  
• A good portion of the proceeds of the crime have been recovered.
  
• The pre-sentence report contains material that says a lot of favourable things about the two offenders and make recommendations in favour of the offenders for a wholly suspended sentence with conditions.
  
• The crime was not planned for some considerable time. It was a crime of opportunity.
  

8. The aggravating factors are the following:

• The offenders are mature men who knew what they were doing even though they did not plan it for a long time. There was some planning though at the place of the crime whereby they devised a scheme for one of them to wait outside on guard while the other was carrying out the break-in and stealing money from the store. I do not accept their assertion that they thought they were doing a small thing. They are matured enough to know what they were doing was serious. Anyone who breaks into a trade store and steals property under the cover of darkness knows he is doing a serious thing and that serious consequences will flow from those actions if they are caught. The fact that they stole from their own uncle in this way, instead of asking him for money, is clearly indicative of their strong criminal intent.
  
• There is no suggestion that the crime was committed out of necessity.
  
• Apart from the damage done to the door of the trade store building, the amount of money stolen is substantial.
  

9. As I said earlier in the sentencing of two other offenders, the balancing of these factors that mitigate and aggravate the penalty, does not involve the application of some set formula that produces a result of some mathematical or scientific precision. It suffices that 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.

10. With regard to the case at hand, a serious crime has been committed that attracts a penalty of imprisonment up to 14 years. In the circumstances of this case, a starting point, it has been submitted by both counsel, is a custodial sentence in the range of 2 - 5 years. However, I consider the crime of BES to be more serious than stealing simpliciter or aggravated stealing, in that the stealing is accompanied by an act of invasion and violence towards personal property. A sentencing range in the vicinity of 4 - 7 years imprisonment would have to be a starting point for BES into a trade store in these times when economic activity is picking up in villages and rural communities and business activities like trade stores are increasingly becoming the target of criminals. Whether the whole or a portion of the sentence should be suspended is now the issue before me.

11. I repeat my observations with regard to the peaceful community of the Kirriwina and all the other islands in the Trobrians. Crimes of violence and stealing appears to be rare in this community, and when it does occur, it must be punished appropriately so that the punishment fits the offence and serves as a deterrent to others. It is true 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. They have paid compensation to the owner of the trade store. These are also forms of punishments that have visited them as a result of their wrongdoing. I am certain that they have had their own punishing effect on these offenders and taught them good lessons. But 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. There is a need to impose a punishment that reflects the need to punish the offenders for their strong criminal intent or mentality, and offer real deterrence for like-minded persons.

12. In the aggregate totality of these circumstances, I am satisfied that the aggravating factors outweigh the mitigating factors. The need to impose a deterrent and punitive sentence is overriding. I intend to impose a custodial sentence to reflect these considerations.

13. Suspension of the whole or a part of the sentence is appropriate where the offender is usually of a young age, 18 years old, or under and that suspension will offer the offenders a chance to reform their criminal mentality. The offenders in this case are not young offenders. However given their good personal antecedents, I intend to incorporate suspension as part of their sentence with the purpose of encouraging their personal rehabilitation.

14. In all the circumstances, I consider that an appropriate sentence is one of six years imprisonment.

15. With regard to William Matison, he is sentenced to 6 years imprisonment in hard labour; 4 years of which is suspended on the condition that he enter into his own recognizance without surety to keep the peace and be of good behaviour for 3 years after he is released from prison. Of the remaining years, the pre-trial custody period of 2 weeks is deducted. He will serve 1 year 11 months and 2 weeks. The State shall refund his bail money of K500.00.

16. With regard to Enosi Tomeosi, he is also sentenced to 6 years imprisonment in hard labour; 4 years of which are suspended on the condition that he enter 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 2 years, the pre-trial custody period of 2 weeks is deducted. He will serve the balance of 1 year 11 months and 2 weeks. The State shall refund his bail money of K500.00..

_______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused