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State v Bruno [2016] PGNC 79; N6292 (13 April 2016)

N6292

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.258 OF 2015

THE STATE

V

MAX BRUNO

Palmalmal: Lenalia, J

2016:6^th, 8^th & 13^th April

CRIMINAL LAW – Stealing – Plea of guilty – Factors for consideration – Sentence – Criminal Code Sections 372(1) & (5)(f) Ch. No.262.

Cases cited

Lawi v The State [1987] PNGLR 183
The State v Napilye Kuri [1994] PNGLR 371
The State-v-Louise Paraka(2002) N2317
The State-v-Lukeson Olewale(2004) N2758
The State-v-Christian Korei(2005) N2946
The State-v-Frank Amban(2005) N2961
Wellington Belawa v The State [1988-89] PNGLR.496

Counsel:

Mr. L. Rangan, for the State
Ms. J. M. Ainui, for Accused

13^th April, 2016

1. LENALIA, J. The prisoner is charged with one count of stealing. This is an offence contrary to s.372 (1) (5) (f) of the Criminal Code, Ch.No.262. On arraignment, he entered a guilty plea. The brief facts of this case are that at Drina Logging Camp, at West Pomio, between 5^th and 9^th June 2015, the prisoner and his accomplices were at the Niugini Merchant Ltd Logging Camp premises. They took with then an hack saw and proceeded to a company 23 footer (feet) container then they unlocked the container and cut open the lock to the chain securing the door way to the container and they stole seven (7) chain saws the property of Niugini Merchant Ltd. They carried the chain saws to nearby bushes and hid them away.

2. The offence took place during the Queen’s Birth Day weekend. When the workers returned on Monday, they found out about the theft. The matter was reported to the Policemen on the camp site. Soon after the theft was reported, two of the chain saws were recovered just on nearby bushes near the camp. An operation was mounted following which the remaining stolen properties were fully recovered. The facts show the prisoner surrendered himself to the police at Palmalmal Rural Police Station.

3. The total value of all the chain saws was put at forty nine thousand PNG Kina (K49, 000.00).

4. Section 372(1) and (5) (f)of the Criminal Code states:

“(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.

(5). If –
(a) the thing is stolen from the other person; or

(b) the thing is stolen in a dwelling house, and –

(i) its value exceeds K10.00; or

(ii) the offender at or immediately before or after the time of stealing uses or threatens to use violence to any person in the dwelling house; or

(c) the thing is stolen from a vessel, vehicle or place of deposit used for the convenience or custody of goods in transit from one place to another; or

(d) the thing is stolen from a vessel that is in distress; wrecked or stranded; or

(e) the thing is stolen from a public office in which it is deposited or kept; or

(f) the offender, in order to commit the offence, opens a locked room, box or other receptacle by means of a key or other instrument, the offender is liable to imprisonment for a term not exceeding seven years.”
(Emphasis added).

Addresses on allocutus

5. The prisoner was asked to tell the Court what penalty should be imposed on him. He said he is sorry for what he did, but because he was not properly remunerated by the company because, he was paid a salary below the Government minimum wage rate payable to workers in any company and even in the public sector. Due to that, he did what he did. He said sorry to the Court and asked for leniency.

Defence Address on Sentence

6. Ms. Ainui addressed the court on the mitigations and asked the court to consider the following factors:

• The prisoner’s guilty plea,
• His previous good character,
• He cooperated with the police during investigation,
• Expression of remorse, and
• The value of the chain saws.
  

7. Counsel asked the court to consider some compensation for what damage he caused to the locks of the container.

Prosecution Address on Sentence

8. Mr. Rangan submitted that the offence committed by the accused was and is serious because it involved cutting up the lock of the container and then the locks which secured the chain saws in the container. Counsel submitted that the property stolen involved a substantial sum of money and compensation should be ordered.

Pre-Sentence Report

9. I have read the pre-sentence report. The mother of the prisoner Mrs. Bertha Patepunrea expressed concern that her 8 children had been brought up in strict discipline but she was shocked when she found out that her son committed the crime. The Community leader, the Ward Member for Baira Ward Mr. Jack Samoa expressed similar concern about what the prisoner did.

10. Another Ward Member for Katon Ward Mr. Joe Ensini commented that the offender has always been a good law abiding citizen. He gave his concern over what the accused did and said, the prisoner involves himself in community work and contributes to all youth activities and other community work programs. This leader asked that if community work is ordered he is willing to supervise the offender.

Law

11. Under s.372 (1) & (5) (f) of the Criminal Code the prisoner can be sentenced to the maximum penalty of 7 years. Under s.19 of the Code, the court has discretion to impose a term lower than the maximum. The sentencing trends on (FC) cases show some increase on sentences for stealing, misappropriation and like offences since the case of Wellington Belawa v The State[1988-89] PNGLR.496. The principles developed from that case and many other cases after it is that each case depends on its own facts and circumstances. In practice, we find these principles stated or expressed in various ways and differing sentences imposed in misappropriation and stealing or like offences.

12. The accused is charged for stealing pursuant to s.372 (1) and (5) (f) of the Criminal Code. The law on stealing and misappropriation or dishonest application of anything says that offences of stealing or misappropriation of anything relates to the particular state of mind of the accused and it is a question of fact which must be decided by the trial judge: Lawi v The State [1987] PNGLR 183. The principles stated in that case were followed in The State v Napilye Kuri [1994] PNGLR 371.

13. To illustrate sentencing trends in FC cases, I refer to one or two cases. In The State-v-Christian Korei (2005) N2946 a case in Manus, Lay, J; (now retired) sentenced the prisoner to a term of 4 years for misappropriation of an amount involving K82, 529.68 with substantial restitution of K65, 000.00. The sentence was fully suspended with orders to restitute within specified time.

14. In The State-v-Frank Amban(2005) N2961, a case in Lae before Kirriwom, J; the prisoner pleaded guilty to stealing a sum of K27, 512.10 from May Bank. He was sentenced to 18 months which sentence was fully suspended with orders to restitute.

15. In The State-v-Lukeson Olewale(2004) N2758, a misappropriation case involving an amount of K40, 000.00 where the accused in that case uttered the cheque after he conspired with others. He pleaded guilty and he was sentenced to a term of 4 years. The sentence was fully suspended.

16. Relevant considerations on sentence of this type of offence were set out in Wellington Belawa-v-The State (supra) which have been re-stated in many cases include the following factors:

- the amount of money involved,
- the quality and degree of trust placed on the offender and his or her position
- the period of time it took to commit the offence
- the use to which the money taken was applied for
- the effect on the victim
- the impact of the offence on the public
- the effect on the offender
- the offender’s background history
- whether restitution had been effected, and
- special mitigations.

17. On this case you were employed by the company Niugini Lumber Merchant Ltd. Applying the above considerations to the present case, it involved a large sum of money and falls on the last category where the Court said if the amount of money misappropriated involves a large sum, the penalty should large. The amount involved in the instant case was K49, 000.00. The principle is, the larger the amount is, the penalty should be or should also be high.

18. I take into account the impact of the offence it has caused to the public and particularly, those employed by the company. I also consider the fact that all the seven (7) chain saws were recovered. I consider a non-custodial penalty be imposed. He is ordered to pay a fine of K2, 000.00 in default of payment 12 months imprisonment. He is also ordered to pay compensation of K500.00 to the company. These payments shall be paid within three (3) days from today.

________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused