State v Sere [1997] PGDC 12; DC21 (7 October 1997)

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CRIMINAL LAW - Sentencing - Breaking, Entering Stealing - No Priors -Shown remorse.

ABISAI SPM:� Prisoners did each and severally� pleaded guilty that on the 21st day of February 1997 at Gaire Village Kwikila District Central Province did break and enter a trade store Kema Kema there in store properties valued at K500.00 belonging to Kema Kema and his sons.

The State laid on information charging the prisoners for breaking entering a trade store and there in stole properties belonging to another person under section 398 (a)(i) of CCA Chapter 262.

(i)�� a school house, shop, warehouse, counting house, office, store vehicle, garage, hangar, pavilion, factory, workshop, tent, caravan petrol station, ship aircraft, vessel or club.�

The offence itself is a serious offence because it carries a penalty of not less than 5 years and not exceeding 14 years.

That on Friday the 21st day of February 1997 at about 3.45 am and .00 am the three defendants now before the court namely Gwaibo Sepe, Steven Naime and Wlu Rei were seen at Kema Kema Trade Store at Gaire village, Kwikila, Central Province.

During the early house the three defendants went over to Kema Kema trade store went inside, broke the window and using an iron rod broke down the front door of the trade store and went inside. While inside the owner of the trade store heard noises and opened the back door. When he went inside he saw all the defendants inside the store.

Upon seeing the owner, the defendants all escaped through the front door. Seeing their escape one of the defendant�s took a stereo CD player with them. The Stereo CD player costs around K500.00.

When spoken to by Police, they admitted breaking into the trade store and stealing the Stereo CD player. They stated that they only wanted to listen to the music.

They were then arrested, cautioned charged told of their rights and placed under Police Custody.

The Defence Council Miss J. Waiwai submitted that the prisoners are all from Gaire village.

The Defendants were charged for break, enter and stealing pursuant to Section 398(a) (I) of the Criminal Code Act. Chapter 262.

A plea of guilty was entered on 17th July 1997 and on the 22nd July 1997 it was agreed by both the prosecutor and defence to file written submissions. We proceed as follows:

Ginaibo Sere is 19 years old, single and comes from Gaire Village, Rigo in the Central Province. He has two brothers and two sisters, he being the first. Both his parents are alive and live in the village. Ginaibo is educated up to Grade Five as he had to leave school due to non-payment of fees. He has had nil employment but does subsistence farming where the surplus is sold to make ends meet. As he has to try and support a brother attending Laloki High School and two sisters who are in Grade 1 and 6 respectively.

Steven Naime is 18 years old, single and come from Gaire. Both his parents are alive.� He has four brothers and three sister, he being the second. He is only educated up to Grade Six and has had nil employment but does subsistence farming.

Walu Rei is 20 years old, single and also comes from Gaire.� Both his parents are alive. He has two brothers and two sisters of which he is the first. He began his education at Gaire Community and completed his High School from Laloki. He has had nil employment but does subsistence gardening as a means of earning a living.

On the day of the alleged offence (21st of February 1997) Ginaibo, Steven and Walu, broke and gained entry into KemaKema Trade Store at Gaire Village during the early hours of morning.

While there were inside, the store owner was awakened by their noise. He guietly got up and opened his store to find the three accused standing there.

Upon seeing him, they fled a taking a CD Stereo player. The three defendants were arrested and charged for break, enter and stealing pursuant to Section 398 (a)(I) OF THE Criminal Code Act. The offence carries a penalty of imprisonment for a term not less than five years and not exceeding fourteen years.

Ginaibo, Steven and Walu spent six weeks in custody before they were released on O/R bail.

N2>(b)�� During the conduct of the record of interview they co-operated with the Police and admitted the offence.

N2>(c)�� They express remorse and are sorry for what they have done. They have also try to rebuild the relationship they have with their grandfather. That is, whom they stole from.

N2>(d)�� They are all first offenders and have no prior convictions against their names.

N2>(f)�� The stereo CD player was returned to their grandfather a couple of days later.

N2>(g)�� Since their release on O/R bail they have been punctual on all the dates their matters were set before the Courts.

Although the Criminal Code calls for a long custodial sentence, I submit at non-custodial sentence taking into account the mitigation factors.

I understand the seriousness of the charge but raise the provision provided in Section 605 of the Criminal Code Act Chapter 262, and I quote �When a person has been summarily convicted of an indictable offence, the conviction shall be deemed to be a conviction of a simple offence only and not of an indictable offence.�

As such I submit that this Court impose a non-custodial sentence of probation or good behaviour bond. And I further cite the following cases to be taken into account when considering sentence:

N2>(a)�� Kuri Willie v The State [1987[ PNGLR 298, Where Hinchliffe J held that:

�where youthful first offenders are to be sentenced the Court should treat imprisonment as a last resort and should investigate alternatives to imprisonment before sentencing.�

�(i)�� suspension of a sentence of imprisonment is not an exercise in leniency but an order made in the community interest and designed to prevent re-offending which a prison sentence standing alone seldom does...� A person so released has an obvious incentive not to re-offend and should have no misconceptions as to what will occur if he does.

(ii)�� persons charged with serious offences may be dealt with by way of suspended sentence by reason of good character and where the Court is of the view that there will be no re-offending and or that the particular individual will be positively damaged by incarceration.�

We understand that the seriousness of the offence and it is submitted that by citing these two cases authorities we are not trying to hide the defendants behind the clock of youthfulness. However, it is a fact that no-one in this country can suggest that our prisons do anything to rehabilitate prisoners or even generally prepare them to enter back into the community as law abiding people.

As such it is our further submission that this Honourable Court impose a non-custodial sentence taking into account:

Otherwise your Worship has a discretion to impose whatever sentence it deems appropriate and we ask for the mercy of this Court.

The defendants were charged that on Friday the 28th day of February, 1997, at GAIRE Village, Kwikila, Central Province, between the hours of 3.45am and 4.00am did break and enter a trade store namely, KEMA KEMA and sons trade store and committed a crime therein namely, stealing.

Thereby contravening Section 398 (a) (1) of Criminal Code Act, (Chapter No 262), he tried summarily pursuant to Section 420 of the Criminal Code, (Chapter No 262).

That on Friday the 28th day of February 1997, at about 3.45 am and 4.00am, the defendants who are now before this court were at Kema Kema Trade Store, Gaire village, Kwikila Central Province. They entered the store by breaking through the window and broke down the front door by an iron rod.

While they were inside the store, the owner of the store heard the noise and open the back door, when he went inside he saw the 3 defendants were all inside the store.

When seeing the owner, the defendants escape through the front door which was forced open by an iron rod earlier on. One of the defendants took the stereo/CD Player with them. The stereo valued at about K500.00.

When interviewed by the Police, they admitted braking into the trade store and stealing the stereo.

N2>(a)�� It is true to say that the plea of guilty and as such didn�t waste the courts, police and the defence time.

N2>(b)�� They all co-operated well with the investigation officer during the interviewed.

N2>(c)�� They all express their remorse and are sorry for what they have done. They have also try to rebuild their relationship they have with their grandfather, whom they stole from.

It is submitted that, such sorry and that of remorse towards their grandfather� is not to be seen as an offence committed against the old man or the other persons of another. The offence itself is committed against the laws and the state of this country, Papua New Guinea. Therefore, they should be punished for what they had done.

Many of the young people, like the once before this court came before the courts and were not heavily punished of their wrong doings and they kept on coming with the same or alike offences.

It is submitted that, the state is now calling for a custodial sentence or any other punishment that this court think just.

The two (2) case authorities submitted by the defense are mainly asking this court for it�s considerations when dealing with the first time offenders are to be sentenced and that the court should not treat the imprisonment as a last resort. There are other ways that the court should investigate an alternatives to imprisonment before sentencing.

In considering what is appropriate punishment to be imposed on the prisoners. I have taken into consideration, the seriousness of the offense prevalence of the offense and determine what the prisoners said in their allocutus, what lawyer and the prosecutor told the court plus other relevant factors.

This particular case, the prisoners pleaded guilty, have no prior convictions recorded against them (each and severally) their Council has informed this Court that the properties been recovered and returned� to the owner (it happened to be their grandfather) prisoners each and severally also apologized to this Court for what they have done and also were very co-operative with the Police during their investigations, this demonstrates how remorseful they are. The prisoners are therefore entitle to a reduction on any sentence that the Court impose upon them.

In John Aubuku -v- The State [1987] PNGLR. 267 at page 269 the Supreme Court said that� a plea of guilty perhaps more or so then in other cases, would normally result in some reduction from what would otherwise be the appropriate sentence.

Papua New Guinea is now going through difficult times in Criminal Activities especially crimes such as breaking entering armed Robberies etc. We have seen and experience such activities committed by our so called youths or youngsters of today.

Since our nation is still developing we will be experiencing more of its kind, but I do not think that such activities be promoted to continue spreading from town cities to our peaceful village life.

Although the offenders all come from the village, yet have sometimes experience town life, because of the road net work, the prisoners each and severally have excess traveling to Port Moresby city, by doing so have learnt how to commit such crimes. Even though the prisoners are first offenders yet the crime which they have committed is of serious nature.

I therefore tend to agree with the prosecution calling for custodial sentence, because of the seriousness of the offence and also the prevalent of the offence which the prisoners have committed, the crime of breaking and entering is spreading through out the nation like bush fire and is devouring our society into different regime; crime of such nature should be prevented from spreading and the only way to combat such crimes is to impose custodial sentence to deter others from committing such offences or crimes in future.

However Court also has taken into consideration the effect of custodial sentence, if the especially the first offenders given custodial sentence, will they benefit or in other words rehabilitate themselves? PNG prison Camps don�t have sufficient facilities and manpower to help prisoners in rehabilitation purposes, who will be the beneficiary if the prisoners especially first offenders to be imprisoned.

Most of our prison camps are insufficiently and inadequately equipped to cater for rehabilitation purposes, all have experienced in the past that when prisoners are released they go back to their old way committing crimes even though the government have provided other solutions such as probation services yet it does not serve its purposes, because of lack of funding. Therefore the court has to look for other alternatives to impose upon the prisoners. Furthermore the value of the properties is below limitation guidelines set by Wellington Between -v- The State [1988] PNGLR 496 applied a guideline.

Court also took into consideration of section 605 of Criminal Code Act where it states:

�When a person has been summarily convicted of an indictable offence the conviction shall be deemed to be a conviction of a sample offence only and not of an indictable offence.�

Because of the first offenders the Court has seriously considered their Welfare, as Youths they should be treated separately from the hardened criminals, as I have already stated. rehabilitation is the paramount importance of the future of the prisoners. In the case of Kuri Willie - The State [1987] PNGLR 298 where his Honour Hinchliffe J held that:

�where youthful first offenders are to be sentenced the Court should treat imprisonment as a last resort and should investigate alternatives to imprisonment before sentencing.�

In this particular case the prisoners are first offenders and I believe to rehabilitate them the Court has to look for an alternative solution beside imprisonment is not an exercise in leniency but an order made in the community interest and designed to prevent re-offending which a prison sentence standing alone seldom does a person so released has an obvious incentive not to re-offend �and should have misconceptions as to what will occur if he does.

Persons charged with serious offences may be dealt with by way of suspended sentence by reason of good character and where the Court is of the view that there will be no re-offending and or that the particular individual will be positively damaged by incarnation.

I believe the most and foremost duty of this Court is to assist the offenders to try and rehabilitate themselves, as the first offenders, it is very risky and dangerous to mix them with so called hardened criminals, they should be given fair punishment to prove themselves to the eyes of the community not to commit such an offence again.

In my view the appropriate sentence should be suspended sentence with conditions.

I therefore sentence the prisoners each and severally to 18 months in hard labour at CIS Boman I order that two months be deducted for pleading guilty, 1 month 2 weeks be deducted for being in custody and the balance of 14 months 2 weeks be wholly suspended on prisoners entering into their own recognizance on the following conditions:

N2>(1)�� The prisoners each and severally enter into their own recognizance with K100.00 cash surety each to pay forthwith.

N2>(2)�� Each and severally promise to keep the peace and good behaviour for period of 12 months commencing today.

N2>(3)�� To attend United Church services at Gaire village on every Sunday morning and help out with Church activities as from 8 am to 5 pm.

N2>(4)�� To participate with youth fellowship, and report to pastor on every Sunday morning and records must be kept, by the pastor, and if call upon he has to show it to Court.

N2>(7)�� To report to Waigani Grade 5 Court Clerks on every Friday on ending of the month between the hours of 8 am to 2 pm.

N2>(8)�� If any of the above recognizance are not complied with the prisoners each and severally to be brought back to this Court to be dealt with accordingly.

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Papua New Guinea District Court

State v Sere [1997] PGDC 12; DC21 (7 October 1997)

Unreported District Court Decisions